Defense attorneys sometimes complain that a felony has been classified within the Michigan sentencing guidelines contrary to its statutory maximum penalty. The crime classification makes a significant difference in the recommended ranges that will apply at sentencing. Why do mismatches occur? The short answer is that it is within the legislature’s prerogative to determine what constitutes a crime and the appropriate penalty for that crime. A more nuanced explanation is that the legislature uses crime classification as a subtle way to control the severity of punishment.

To understand crime classification, a comparison should begin with the judicial sentencing guidelines. Those guidelines were created by a Sentencing Guidelines Advisory Committee at the request of the Michigan Supreme Court in 1979.¹ The judicial sentencing guidelines contained eleven crime groups that were based on the nature of the offense: assault, homicide, burglary, criminal sexual conduct, larceny, drug, robbery, fraud, property destruction, weapons possession and negligent homicide. There were no crime classifications, but rather separate grids (i.e., recommended ranges) based on the statutory maximum penalty. In other words, there were separate ranges for assault crimes with a life-maximum penalty, a 10-year maximum, a 5-year maximum, a 4-year maximum and a 2-year maximum. The same was true for other crimes. Keep in mind that the judicial sentencing guidelines applied only to the most common felonies (about 100), leaving a vast majority of crimes without guidelines.²

The legislative sentencing guidelines, in contrast, were designed to apply to over 700 felony offenses in Michigan. At the direction of a Sentencing Guidelines Commission, crimes were sorted into six groups (viz. crimes against person, property, drugs, public trust, public safety and public order), with nine crime classifications that would direct the user to a set of recommended ranges once the crime group was determined and the guidelines were scored.

According to the final report of the Sentencing Guidelines Commission, when selecting the crime classification “the statutory maximum was considered for each offense, [but] it was only one factor considered by the Committee in classifying the offense. The Committee evaluated the seriousness of the offense by considering, among other things, the harm that it caused.”³ It was a difficult task to classify crimes, but “[p]erhaps the most important criteria used to sort the offenses into the appropriate category was the legislative directive (to the Commission) that ‘offenses involving violence against a person shall be considered more severe than other offenses.⁴ Other considerations included the existence, if any, of a mandatory minimum term and the statutory direction to the Commission to consider when a prison sentence versus an intermediate sanction should apply.⁵

The Commission adopted the following levels of offense severity for purposes of crime classification:

• Murder II – Life or any term of years

• Level A Crimes – where a sentence of up to life imprisonment may be appropriate

• Level B Crimes – where a sentence of up to twenty years may be appropriate

• Level C Crimes – where a sentence of up to fifteen years may be appropriate

• Level D Crimes – where a sentence of up to ten years may be appropriate

• Level E Crimes – where a sentence of up to five years may be appropriate

• Level F Crimes – where a sentence of up to four years may be appropriate

• Level G Crimes – where a sentence of up to two years may be appropriate

• Level H crimes – where a sentence of jail or other intermediate sanction may be appropriate⁶

The Commission additionally made policy choices for some crimes, altering the presumptive crime classification – sometimes up and sometimes down - for assaultive and non-assaultive crimes. Some of the most well-known examples include:

• Bank robbery/safebreaking, life maximum, Class C

• Possession of burglar tools, 10-year maximum, Class E

• Forgery/uttering and publishing, 14-year maximum, Class E

• Larceny in a building, 4-year maximum, Class G

• Possession schedule 1 or 2 drugs under 50 grams, 4-year maximum, Class G

When the Commission presented its final product to the legislature, the legislature adopted the proposed sentencing guidelines with only a few changes (e.g., the lower level of ranges was widened for class E to H crimes).⁷ But within two years, the legislature increased the crime classification for a number of crimes, including:

• Child abuse first degree, 15-year maximum, ⁸ moved from Class C to B

• Criminal sexual conduct third-degree, 15-year maximum, moved from Class C to B

• Retail fraud first degree, maximum increased from 2 years to 5 years, moved from Class H to E

• Perjury, capital case, life maximum, moved from Class H to B

• Perjury, non-capital case, 15-year maximum, moved from Class H to C

• Subornation of perjury, 15-year maximum, moved from Class E to C

The legislature has since changed the crime classification for other crimes, most notably for first-degree fleeing and eluding (moved from Class C to B) and second-degree fleeing and eluding (moved from Class D to E). It has also created new crimes where the maximum penalty and crime classification are clearly at odds, e.g., aggravated possession of child sexually abusive material, maximum 10 years, crime Class B.

On the whole, most crimes within the legislative sentencing guidelines contain recommended ranges that correspond with the statutory maximum penalty. But there are a number of instances where the legislature has acted more loosely, classifying crimes based on a subjective approach to harm that is at odds with the statutory maximum penalty. To be clear, the legislature may do this, but it calls into question why the legislature would alter only one boundary of punishment. Why not alter the maximum penalty as well? No answer has been offered, although there may be logistical or political reasons for the disconnect, especially with different legislative bodies having different priorities. In the end, for better or worse, the legislature uses crime classification – at times without alteration of the statutory maximum penalty - as a subtle way to control the punishment for select crimes.

² See State of Michigan, Sentencing Guidelines Manual (1984); People v Hegwood, 465 Mich 432 (2001).

³ Report of the Sentencing Guidelines Commission, 12/2/97, page 10 (emphasis in original).

⁴ Id. Page 2.

⁵ Id. See also MCL 769.33, repealed by 2002 PA 31 (setting forth duties of the Sentencing Commission).

⁶ Report of the Sentencing Commission, p. 10.

⁷ See Paul L. Maloney, The Michigan Sentencing Guidelines, 16 T M Cooley L Rev 13, 21 (1999).

⁸ In 2012, the legislature subsequently increased the maximum penalty to life and moved the crime class to A. 2012 PA 195. 

Anne Yantus is a sentencing consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. 

Due to the volume of inquiries, Anne is not able to respond to non-attorney requests for assistance or analysis of individual fact situations.

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