Arbitrary and capricious sentencing occurs when a judge imposes a punishment that is random, unjustified, or based on improper reasons — when the sentence defies fairness or the governing legal framework rather than reflecting the facts, the guidelines, and the law. Michigan judges have discretion, but they are bound by the Michigan Sentencing Guidelines and by the requirement, established in People v. Milbourn (1990) and People v. Smith (2008), to state substantial and compelling reasons on the record for any departure. Judges cannot punish defendants more harshly for exercising their right to trial, cannot impose sentences wildly disproportionate to the offense without articulated justification, and cannot allow personal bias or emotion to dictate punishment. When those constraints are violated, the sentence is subject to appellate review and potential resentencing.
What Arbitrary and Capricious Sentencing Means in Practice
Sentencing is not supposed to be a roll of the dice. It is supposed to reflect the specific facts of a specific case — the nature of the offense, the defendant’s prior record, the impact on victims, and the mitigating or aggravating factors that distinguish one case from another. The Michigan Sentencing Guidelines exist precisely to create a framework within which that individualized assessment happens consistently, rather than varying arbitrarily from judge to judge or case to case.
Arbitrary and capricious sentencing happens when that framework is disregarded — when the sentence reflects something other than the legally relevant factors: personal distaste for the defendant, alignment with the prosecution’s preferences, a desire to send a message that has nothing to do with the specific case, or simply inconsistency that cannot be explained by any difference in the relevant facts. It is especially visible — and especially problematic — when a comparison of cases before the same judge and the same prosecuting office reveals outcomes so different from one another that no legally sufficient explanation is apparent from the record.
Michigan Case Law: The Legal Framework
The Barry County Documented Record
Clutch Justice has covered the sentencing departure pattern in Barry County’s 5th Circuit Court in prior investigative reporting, drawing from publicly available case records and the Michigan Supreme Court remand in Docket No. 167549. That remand — in which the Michigan Supreme Court found that the sentencing warranted further review — is part of the documented record on which Clutch Justice’s coverage is based, along with the Judicial Tenure Commission’s confirmed misconduct finding from 2014.
Prior Clutch Justice reporting has documented sentencing outcomes in Barry County cases that raise questions about consistency under the guidelines framework. One case resulted in a 10-15 year sentence; a subsequent case before the same judge and prosecuting office, involving comparable elements, resulted in a substantially shorter sentence with no documented explanation on the record for the departure in either direction from what the guidelines would indicate. A third documented case shows a 10-20 year sentence for a male defendant on a charge where, under the same judge and prosecutor, an elderly female defendant received a 12-month jail sentence and served approximately nine months. These comparisons are drawn from case records and prior Clutch reporting. The documented record is available in the Barry County tag archive and the Judge Michael Schipper tag archive.
What Judges Can and Cannot Do
Michigan judges are permitted to consider factors that are unique to each case: the defendant’s prior criminal history, demonstrated remorse, victim impact, and the specific circumstances surrounding the offense. They may depart from the sentencing guidelines when those individual factors warrant it. The permission to depart is not the problem. The mechanism through which departures are supposed to be constrained — the requirement to state substantial and compelling reasons on the record — is the accountability tool that makes the discretion lawful.
What judges cannot do is equally defined. A judge cannot impose a harsher sentence because a defendant exercised the constitutional right to trial rather than accepting a plea — this is trial penalty sentencing, and it is constitutionally prohibited. A judge cannot hand down a wildly disproportionate sentence without stating specific, strong, legally adequate reasons on the record that an appellate court can evaluate. A judge cannot allow personal bias, emotional response to the defendant or offense, or alignment with the prosecution’s preferences to substitute for the application of legal standards. And a judge cannot depart from the guidelines based on reasons that, when examined on appeal, turn out not to be substantial and compelling — because that examination is available, and that examination has resulted in resentencing in documented Michigan cases.
What You Can Do
The sentencing transcript is the primary document for evaluating whether a sentence is arbitrary. It contains the judge’s stated reasons for the sentence — or documents the absence of adequate reasons. Comparing the sentence imposed to the guidelines range and to the reasons given for any departure is only possible with the transcript in hand. Request it as soon as possible after sentencing; transcripts take time to prepare and there are appeal deadlines that cannot be missed while waiting for documents.
Michigan Sentencing Guidelines worksheets are part of the public record of a case. The scored guidelines range documents what the guidelines indicated. The sentence documents what was imposed. The gap between them, if any, documents the departure. Researching comparable cases — same offense type, similar prior record, same judge — to identify whether similarly situated defendants received similar sentences provides the comparative data that makes an arbitrary sentencing argument concrete rather than abstract.
Challenging a sentence requires navigating specific procedural requirements — filing deadlines, the standard of review on appeal, the distinction between preserved and unpreserved issues, and the difference between what can be raised on direct appeal versus in a motion for relief from judgment. An appellate defense attorney with Michigan sentencing experience can evaluate whether the sentence is legally challengeable and which procedural vehicle — motion for resentencing, direct appeal, or post-conviction motion — is most appropriate given the specific facts of the case.
A motion for resentencing asks the sentencing court to correct the sentence. A direct appeal challenges the sentence at the Court of Appeals level. Both are available mechanisms for challenging an arbitrary sentence, and both involve the review standards established in Milbourn and Smith. Arbitrary sentencing is not only unjust — it is unconstitutional, does not deter crime more effectively than proportionate sentencing, and is subject to legal correction through available appellate mechanisms.
Sources and Case Law
Rita Williams, Arbitrary and Capricious Sentencing in Michigan: What It Is, What Judges Can’t Do, and What You Can Do About It, Clutch Justice (June 2, 2025), https://clutchjustice.com/2025/06/02/arbitrary-capricious-sentencing-michigan/.
Williams, R. (2025, June 2). Arbitrary and capricious sentencing in Michigan: What it is, what judges can’t do, and what you can do about it. Clutch Justice. https://clutchjustice.com/2025/06/02/arbitrary-capricious-sentencing-michigan/
Williams, Rita. “Arbitrary and Capricious Sentencing in Michigan: What It Is, What Judges Can’t Do, and What You Can Do About It.” Clutch Justice, 2 June 2025, clutchjustice.com/2025/06/02/arbitrary-capricious-sentencing-michigan/.
Williams, Rita. “Arbitrary and Capricious Sentencing in Michigan: What It Is, What Judges Can’t Do, and What You Can Do About It.” Clutch Justice, June 2, 2025. https://clutchjustice.com/2025/06/02/arbitrary-capricious-sentencing-michigan/.
