Several weeks ago, the Criminal Law Section of the State Bar hosted a panel discussion on sentencing with three judges: Hon. James Jamo of Ingham County, Hon. Shannon Schlegel of Clinton/Gratiot Counties, and Hon. Sara Spencer-Noggle of Isabella County. The judges hear cases in the middle of the state and all three appeared to agree on all or nearly all points made by their colleagues during the panel discussion. Their views, summarized below, likely reflect the sentiments of many judges in Michigan. 

On the subject of sentencing preparation

• Have a plan for the sentence – or at least an outline - before appearing before the judge for allocution. Don’t wing it and do more than rattle off a few factors for the judge to consider.

• Get relevant case law to the judge early – especially unpublished decisions. Forwarding information even one day before sentencing is better than the day of sentencing (this is also true for letters of support).

More specific advice

• If arguing against prison, have a planned alternative sentence in mind. The best scenario is to have gotten an assessment before with a plan based on it. Mental health assessments can be very helpful because the judge is not an expert in this field.

• Make sure the defendant understands the plan, for example, what HYTA entails. The defendant needs to be on board with the plan and needs to be an active participant. Judges can tell when the attorney has had a thoughtful conversation with the defendant. On the other hand, judges are not impressed when the defendant cannot explain or does not understand the proposed plan.

• Don’t recommend probation when it has not worked in the past, unless the attorney can explain what is different now.

• Although taking advantage of available rehabilitative services before sentencing is not required, it can be helpful at times such as having completed a safe driving course for an individual convicted of fleeing and eluding. Or re-engaging with mental health services after having fallen off with treatment before the crime. But efforts to engage must be genuine and not simply a last-minute request that looks or feels inauthentic.

• A failure to engage in rehabilitative services prior to sentencing might not be a negative, as judges understand there may be barriers to engaging in treatment.

Sentencing memoranda: To file or not?

• Sentencing memos can be helpful for a challenged guidelines scoring (one not able to be resolved by the parties and/or involving legal analysis). But talk to opposing counsel before sentencing to see if the challenge can be resolved.

• A sentencing memo may be welcomed by the judge in a difficult case or to discuss mitigating circumstances (especially those that are better mentioned off the record such as prior sexual abuse, trauma history, mental illness).

• If there is a separate mitigation memo prepared by a social worker, attorneys usually focus on legal arguments in their memo.

• But a sentencing memo is not needed in every case.

Areas to address in counsel’s allocution

• Focus on the Snow¹ factors (rehabilitation, discipline, protection of society, and deterrence). Be as specific as possible. What tips the scales in favor of rehabilitation versus discipline in a given case?

• With regard to mitigating circumstances (whether raised in a sentence memo or in court), what makes this defendant unique and why did the crime occur?

Areas to avoid in counsel’s allocution

• Sentencing is not the time to argue the defendant is not guilty or guilty of a lesser offense. Attempts to minimize the crime are not helpful. Judges understand that there are disputed facts and the parties have competing views.

• Don’t spend time discussing things the judge cannot change (e.g., defendant has other open cases and the transportation needs of the MDOC) or are not relevant to the Snow factors.

• It’s not helpful to argue the impact of incarceration on a spouse, children, or the defendant’s family because defendant should have considered this before committing the crime. [But note that caregiving for an impaired family member has been recognized as a significant sentencing factor in People v Babcock.²]

Presence of children at sentencing

• The judges mentioned not liking kids in the courtroom because it can feel manipulative.

Defendant’s allocution

• If a defendant is uncomfortable with public speaking, it’s okay to read a prepared statement.

• Judges understand sentencing is not the best day for the defendant and will not hold it against them unless there is threatening, harassing, intimidating or assaultive behavior in the courtroom, including arguing with the victim or causing a scene.

Consecutive sentencing

• Discretionary consecutive sentencing is rarely imposed, or at least not commonly imposed, if not requested. It is often reserved for situations that go “above and beyond” the ordinary situation.

Sentencing guidelines

• The guidelines may be advisory, but they were created by the legislature and are there for a reason.

• The guidelines capture information that needs to be captured.

Adjournment request

• Consider requesting a short adjournment if the presentence report is a surprise or the case is complex. Significant challenges requiring legal analysis may also benefit from a short adjournment.

• A defendant’s complete lack of criminal history is relevant, but the same may be said of minimal criminal history, family support, and employment history.

• If a defendant suffers from mental illness, talk about how that relates to the crime.

• Judges know much less about the case than the prosecutor and defense attorney, meaning they often welcome additional information.