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July 22, 2004

The Michigan Supreme Court speaks!!

We now have what I believe is the first state Supreme Court decision to expressly consider Blakely. Today in Michigan v. Claypool, the Michigan Supreme Court articulated the view (in footnote 14) that Michigan's guideline scheme operates in a manner that avoids Blakely problems:

Michigan ... has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.

In a separate opinion concurring in part and dissenting in part, Chief Judge Corrigan suggests that Blakely matters in Michigan may not be so simple:
I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, does not invalidate Michigan’s indeterminate sentencing scheme as a whole. Nonetheless, the majority’s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan’s scheme; it appears to conflict with principles set out in Blakely.

Here's the full opinion for your reading pleasure:
Download michigan_claypool_decision.pdf

There are additional opinions and issues of note in Claypool, which looks like a very interesting state guideline case wholly apart from its encounters with Blakely. Because I am not well versed on Michigan state law —indeed, there may be a clause in my Ohio State contract which legally forbids me from thinking too much about anything Michigan — perhaps readers more familiar with Michigan's sentencing scheme can provide some immediate commentary on this decision.

UPDATE: In this article discussing the Claypool decision, Jim Neuward, director of the State Appellate Defender Office, says "It's nowhere near as simple as the court thinks." said

July 22, 2004 at 01:00 PM | Permalink


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I am the Chief of Appeals for the Wayne County Prosecutor's Office, and know Jim Neuhard well. Our offices are often friendly antagonists in the Michigan Supreme Court and Court of Appeals, and I must say that, as to Blakely and the Michigan guidelines scheme, I think it actually is pretty much as simple as the court thinks it is in Claypool. I won't quote the language here, but Justice Scalia's response to Justice O'Connor makes it pretty clear to me that the setting of the minimum in an indeterminate sentence scheme where the maximum is set by law is untouched by Blakely, including departures from a guidelines range (for the minimum) for substantial and compelling reasons, based on judicial factfinding, because the maximum remains unchanged. And it is quite possible--and occurs with fair frequency--that a defendant serves past the minimum set by the judge via the guidelines (or even a departure from the guidelines) due to misconduct in prison, leading to a denial of a parole. A simple example. If the offense carries 10 years as a maximum, and the guidelines range works out to 2-4 years for the minimum, and the judge departs for substantial and compelling reasons, based on judicial factfinding, and gives 6 years as the minimum, the sentence in Michigan is 6-10, and the defendant may do the whole 10 if not paroled. So 10 is the maximum exposure in Michigan based solely on the conviction on the elements, which can be exacerbated only on habitual offenders, and these are excluded from Blakely. This is very different from the State of Washington.

Tim Baughman

Posted by: Tim Baughman, Prosecuting Attorney | Jul 22, 2004 7:00:25 PM

From what I understand, Congress and the US Sentencing Commission are mulling the idea of changing the guidelines such that the upper bound of each range is set at the absolute statutory maximum. Thereby, judicial factfinding will only tinker with the minimum, steering clear of Apprendi/Blakely objections. This seems to be similar to the Michigan regime, which was defended against a Blakely objection in footnote 14 of Claypool.

Posted by: Jon | Jul 23, 2004 11:29:16 AM

My initial reading of Blakely is that it will be difficult to apply to indetermite state sentencing schemes, (such as the one here in Maine), although there may be application around ancillary issues. Similarly I am attempting to apply the case in probation and bail violations, but so far have not had much luck. Ted Fletcher, defense attorney in Maine

Posted by: Theodore Fletcher | Jul 23, 2004 12:16:12 PM

what about the unforgotten prisoners that was sentence under the old propsoal like in 1982 when their was goodtime for prisoners.maliencient warren at the thumb regional in lapeer will not grant the one,s that is avialible for it. because of personal reason. check out inmate 125932 of m.d.o.c. so the tax payers has to continue to pay for those that should be released.

Posted by: deacon mcdaniel | Aug 25, 2004 11:02:28 AM

what about the unforgotten prisoners that was sentence under the old propsoal like in 1982 when their was goodtime for prisoners.maliencient warren at the thumb regional in lapeer will not grant the one,s that is avialible for it. because of personal reason. check out inmate 125932 of m.d.o.c. so the tax payers has to continue to pay for those that should be released.

Posted by: deacon mcdaniel | Aug 25, 2004 11:03:17 AM

our goverment should have those with indeterminate sentence in the state of michigan investigated at the thumb regional facility because they are bieng unfairly treated for holding the one,s should be released.our administrater for michigan should review mallicient warren and think about the tax payers who elected gov/granholms. and be more considerate to the family,s of their love one,s.

Posted by: deacon mcdaniel | Aug 30, 2004 6:13:20 AM

What is the statis of the truth of sentencing. Will it still be in place if Michigan receives the dealth penalty? Are the prisoners going to have a chance of early release because of good behavior? How will they handle the over crowded prisons?

Posted by: Anita Price | Jan 19, 2005 5:44:05 PM

I am just an average citizen with a female friend who has been in prison in Michigan for well over 10 years on some sort of indeterminate sentence. Can you possibly direct me to a website where a layperson can read up on the Blakely decision to see if there is any possibility of it having any bearing on her case? Thank you.

Posted by: Tommy Kelly | Mar 24, 2005 7:00:56 AM

A prisoner in Michigan killed a friend of mine in 1981 in Oakland County, MI. This piece of human scum has now become "eligible" for early release as of July 23, 2005. His max out date is in 2027. His "original" max out date was suppose to be in 2131. Who authorized the substancial lowering of his sentence is what I'd like to know? No one will provide me with a response to this simple request though. On my site see under Links, near the top it'll say: Nancy Harris' Killer...

Posted by: BuzzC | Aug 16, 2005 12:37:42 AM

Is there a new law that is supposed to be passed soon to get rid of truth in Sentencing?

Posted by: Rita | Oct 26, 2005 7:12:23 PM

Looking for more current info to Michigan truth in sentencing Thank You and may God bless

Posted by: Mr. Steven G Sisco | Nov 4, 2005 6:59:11 PM

I am also looking for more information on Michigan's truth in sentencing. I heard they are getting rid of it. Is this true? I have a friend who is in prison right now for child support and I want to know if he can get an early release

Posted by: Renee Morehouse | Nov 11, 2005 3:00:41 PM

Can anyone tell me were I am find information on the Truth in Sentencing Law. Has it passed in Michigan? Is it close? Any help would be greatly appreciated.

Posted by: Sherry | Nov 21, 2005 12:48:39 PM


Posted by: LISA MCBRIDE | Nov 27, 2005 5:22:03 PM

I would Like to know if you are sentence to 10 years in prison are you going to do the full 10 years. Also is it true that you will only do half the time and do they take off 3 months for ever year in Michigan.Also if you have done prison time in the pass for some think of a differnt charge do this apply to you too.Or first timer only.

Posted by: Katherine | Jan 26, 2006 9:24:12 AM

to whom this my cocern i will be adressing the courts on 3-15 06 .reason a very sick snake and
pervert got my 13 year old daughter pregnat. his age 21.i need some imput aswhat to say when i
adress the judge. leagal talk. he pleaded to second degree sexual conduct plead agreed from 3rd his first charge. ialso get a chance to have imput talking to the dept of correction before sentencing and writing a letter to adressthe court prior to this pervet sentencing.pleas send a respond asap please iwant child molester of the street and in prison the mos t iherd he cn get is 32 months can you believe thathopw about our daughter her life is ruined true we have a very beautful grand baby but my dauther and her mom has to all pitchnin and help raise her .her mon has sole custody but iamm very involed in both of my daughter and grand baby life please send comment mr b p.

Posted by: brandel price | Feb 7, 2006 7:20:00 PM

I am a student that is interested in learning more about a petition that is supposed to be for early release of inmates with good behavior. I have two brothers that are away and they both have written to me asking me to get more information about this petition. thank you

Posted by: R. Fields | Feb 23, 2006 4:39:15 PM

Im also interestd in all the information I can get on TIS. I have been from web site to web site trying to get infomation. I wander why its been so hard to get information on this subject. I want to no how it applys to drug charges. Is there a new law that is supposed to be passed soon to get rid of truth in Sentencing?I am a student please help Thanks.

Posted by: Debby P | Mar 6, 2006 10:30:11 AM

Im sorry I forgot to add that I live in michigan so any info about Michigan TIS you can get me would be so helpful Thanks

Posted by: Debby | Mar 6, 2006 10:38:32 AM

My fiancee is in prison right now and heard that there is a bill trying to be passed right now to get rid of truth in sentencing. Can you please help me and let me know everything that you know about this and where I can get more information about it. I am nine months pregnant and due in a week, so as soon as possible would be greatly appreciated. I am a student.

Posted by: Kylie | Nov 14, 2006 8:07:55 PM

Forgot to say that I also am from Michigan and need information concerning Michigan. Thanks again!

Posted by: Kylie | Nov 14, 2006 8:09:36 PM

Hi my name is corinthia bourgeois and my fiance has been incarcerated since november of 2005! He has been given eight years. I was wondering how many years of hard time does he has to do at thumb before he cacn be eligable for parole. He is on level 2 and I believe they will be transferring him to another prison soon. Please respond!

Posted by: corinthia Bourgeois | Feb 17, 2007 2:26:30 AM

I am not attorney but had a dream to be one before makeing simuliar mistakes as other inmates doing time. But it appears to me that the state of Mich. punishiment does not fit the crimes, not to mentioned the miss-carriage of justice and incompentcy of public defenders.I have a nephew 19 yrs.old who moved to Mich. in 2003 from Phx.Az. up to that point he had never been in any trouble with the law enforcement.he doing 6-20 yrs. for few minnor incidents. I need any help for new trial info,or petition for relief from a conviction or sentence by a person in state custody petietion under 28 U.S.C.2254 for a writ of habeas corpus. I also would like any info on inmates that were incouraged by their public defenders to plead guilty when there was no evidence to support such a plea. I also would like to know of any inmates that were incouraged to give up rights to their appeals on grounds that the prosecuter might bring up other charges not yet brought forward. all this info will center around the Grayling Mi. police,prosecuters office, and the public defenders office all help will greatly appreciated. also is there a petion I can sign to help remove the T.I.S.

Posted by: kevin crowell | Apr 13, 2007 2:27:36 AM

As a whole of anything, but happens and it is better
sts cadillac

Posted by: Cadellatorya | May 31, 2007 7:43:41 PM

i was just wondering about truth an sentencing could some one please tell me if it go lifted

Posted by: dolly | Sep 30, 2007 7:31:44 PM

I am trying to understand this Truth in Sentencing. My nephew is currently in jail awaiting sentencing in Michigan on invonluntary manslaughter. His lawyer is telling him that if he gets sentenced to 3-7 yrs he will get out in about a year with "good behavior". Everyone that we have talked to with exception to his lawyer is telling us that he has to do the minumum sentence of 3 yrs before he is eligible to be released. Can you shed some light on this truth in sentencing? Does he have to do the minimum time? I am confused and he is very scared. Thank you!

Posted by: Sarah | Oct 21, 2007 10:12:53 AM

my sister just got sentenced a min. of 51 mo. and a max of 180 mo. in prison for 2 counts of armed robbery. just wondering what the purpose of the min and max is? also how does truth in sentencing affect her? does good behavior help her? thanks.

Posted by: rachel | Dec 10, 2007 8:58:36 PM

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Posted by: laptop battery | Oct 14, 2008 5:21:15 AM

Could you please tell me where this bill is in the Michigan Court System. My daughter is incarcerated and I would like to know more about what this bill really means. Thank you.

Posted by: Linda Sargent | Feb 26, 2009 3:02:34 PM

Hi! My brother was sentenced under TIS in the state of michigan for CSC 2nd 2counts. His minimum is 2.5 and his max s 15y for both. He has never had any tickets, penalties---nothing. He is almost 2yrs past his minimum...why is that? Aren't they going against this whole TIS thing; I mean he has done over 85% of his sentence...he also finished all of his classes and got his GED...what more can he do and are they wrong for holding him still?

Posted by: Teri Webb | May 16, 2009 9:47:55 PM

I am in Law Enforcement and have seen violent offenders who if released early have sworn to go after their victim(s). I would hate to release them any earlier than necessary and have them injury or kill a victim. We have already experienced violent offenders on parole killing innocent people. There has to be some answer other than getting rid of TIS all together.

Posted by: Police Officer | Apr 20, 2010 9:07:42 AM

he pleaded to second degree sexual conduct plead agreed from 3rd his first charge.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:56:55 AM

Ted Fletcher, defense attorney in Maine

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:58:18 AM

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