In a recent post (and over many others), I’ve documented Judge Michael Schipper’s not-so-secret distain for the Michigan legislature and the law.
As someone who previously wrote government policy for a living, I thought it might be worth examining the Michigan Sentencing Guidelines and point out some significant anomalies.
Who Writes Michigan’s Sentencing Guidelines?
As previously discussed, the US Constitution requires separation of powers to ensure that no one branch or person has all of the power.
The sentencing laws are created by the legislative branch:
The sentencing guide itself is based on what’s set by the legislature, and administratively maintained and published in a way that judges, prosecutors, and attorneys can review, understand, and put to work.
The publishing and upkeep is accomplished by the Michigan Judicial Institute (MJI).
What is the Michigan Judicial Institute (MJI)?
MJI was created by the Michigan Supreme Court in 1977 to provide judges and court personnel with an opportunity to develop and enhance their professional skills. MJI is the training division of the State Court Administrative Office.
MJI does not have a published organizational chart, but the bench books do contain a listing of who works for MJI.
The director is John R. Nizol, a former court administrator with a wealth of experience as a legal researcher and instructor.
Essentially, MJI is tasked by the Michigan Supreme Court to ensure judges develop their skills and practice in a uniform manner.
Of course this is just one piece in understanding the puzzle. There are multiple stakeholders involved.
Examining the Editors of The Sentencing Guidebook
The sentencing guidebook also lists its editorial team; a multidisciplinary group of lawyers, judges, corrections professionals, attorneys for the State Appellate Defender Office (SADO) and employees of the Attorney General’s office.
Presumably, they make up another part of the “people in Lansing” that Judge Schipper complains about.
What’s the Point of Guidelines?
The guidelines are intended to make sure sentencing is uniform across Michigan.
They were enacted by the legislature in the 1990’s to reduce the differences in sentencing that varied greatly by which County the Court was located.
For example, the intent is to prevent Judge Schipper’s well-documented excessive sentencing in small counties like Barry County.
It’s also intended to make sure similarly situated defendants receive similar sentences.
The problem, is the sentencing guidelines create disparity.
Safe and Just Michigan offers a report here, finding that excessive, long sentences do not make people safer, are incredibly expensive, and that the sentencing guidelines are broken…just not in the way Schipper thinks they are).
How Does it Work?
There are scoring formulas for each type of offense and grids to help people make better sentencing decisions. The guide explains the intricacies and the steps of formulating a sentence.
While People v. Lockridge renders sentencing guidelines advisory, a Judge is STILL REQUIRED TO TAKE THEM INTO ACCOUNT and properly score them; something Judge Schipper does not do.
Over multiple cases he double scores to get the excessive outcomes he and the prosecutors are seeking.
He also has a go-to excuse: “the guidelines don’t account for this.”
However, across multiple Court of Appeals decisions and remands, the guidelines DO account for the various factors; Schipper just doesn’t like the law.
IF he wants to shape the law, he should run for the legislature, not legislate from the bench.
Are Prosecutors Violating the Sentencing Guidelines?
Which leads me to another curious thing happening in Barry County; the prosecutors are also required to read and adhere to the Sentening Guidelines.
But there are prosecutors routinely asking for sentences outside of the guidelines (see this post; nearly all of them have the same prosecutor) and most definitely outside of plea bargains.
Apparently they’re not great at following the law either and also lack respect for legislature and the sentencing guidelines.
But await a minute…Isn’t the Michigan Attorney General’s Office involved in developing the Sentencing Guidebooks?
Why yes, yes they are.
The Michigan Attorney General’s Involvement and Confusing Behavior
Consider this: if the Michigan Attorney General’s office has a direct hand in developing the Sentencing Guidelines manual, clearly they understand there’s a need for uniformity.
Yet Attorney General Dana Nessel seems perfectly ok with prosecuting attorneys under her supervision, across dozens of cases, requesting excessive sentences outside of the guidelines she’s sending her staff to develop instruction for.
It doesn’t make any sense; it actually seems counter-productive. But with a staff of over 500 people, it’s no doubt difficult for anyone to keep track of, resulting in transparency issues for voters.
The Long and Short of It
The legislative guidelines, according to the data, are flawed and already way too excessive.
Judges like Michael Schipper don’t want to follow it even though they’re supposed to faithfully uphold it. He thinks sentencing isn’t harsh enough; clearly he doesn’t understand data and science.
Meanwhile, the Attorney General is supposed to uphold the law and isn’t interested in following it, either.
It begs the question: is anyone doing their jobs here?
My Take
The fundamental problem is that crime has been politicized by opportunists. If anything, crime is a measure of how sick politicians and leaders have allowed communities to become.
The concept of “Crime” is a political and moral cop-out; its community leaders passing their failings onto the community members they failed by not providing jobs, access to mental health, and educational opportunities.
Crime is a measure of sickness; how politicians have allowed their communities to fall ill.
As a result, the Sentencing Guidelines should be based on data and science.
Rehabilitative efforts based on the same data and science should be embraced and accounted for within the sentencing guidelines.
The Michigan legislature should embrace evidence-based decision making if they truly care about making communities healthy and safe.
Punitive-minded prosecutors and Judges like Michael Schipper have no legitimate reason to sit on their hands and complain. They have the power to embrace rehabilitative programs; they don’t need the legislature’s permission to get to work on that.
All of the branches of government need to work together to fix this rather than shifting blame and mass-incarcerating.
In the end, there is one and only one thing on which Judge Schipper and I can agree: PRISON DOESN’T WORK.
