The Michigan Supreme Court’s 2025-2026 term brought resolution to a number of high impact sentencing questions: long sentences for youthful offenders, the limits of sex offender registration, felony murder sentences under Aaron¹, and recreational marijuana use for probationers. The Court also weighed in on compelled psychological evaluations for youthful offenders in a Miller² hearing. 

Left unresolved: Lifetime electronic monitoring and the thorny question when to score Offense Variable 3 in a situation involving death and a non-homicide offense.

Long term-of-years sentences and youth: Last year, the Court extended the Parks³, rule to 19- and 20-year-old offenders, meaning those individuals are now entitled to a special hearing at sentencing for first-degree murder. This year, the Court examined a long term of years for youthful offenders (the defendant was 16 at the time of the crime, but the Court made clear that it intended its ruling to apply to all those under the age of 21). The ruling: for second-degree murder and a young offender, a sentence of 50 to 75 years imprisonment constitutes cruel or unusual punishment. The Court noted that the sentence was “at least as severe as [the] parolable life sentence” struck down in People v Stovall, 510 Mich 301 (2022). The Court did not define what constitutes a “de facto” life sentence, but it concluded that 1) the sentence before it exceeded what would be presumptively imposed against a youthful offender for first-degree murder, 2) the youthful offender would be subject to the parole board’s discretion for a lifetime (after serving 50 years in this case), and might not live long enough to become eligible for parole, 3) the sentence was inconsistent with national trends for youthful offenders, and 4) the sentence did not serve the penological goal of rehabilitation. The Court indicated its decision would be retroactive to those on collateral review. People v Eads, ___ Mich ___ (Docket No. 168205, 7/30/26).

Self-incrimination, state experts, and Miller hearings: A defendant’s state and federal constitutional rights against self-incrimination are not violated in the context of a Miller hearing where defendant intends to present an expert defense report/witness and is ordered to cooperate with a state expert’s evaluation for rebuttal purposes. The prosecutor may not use the evidence in its case-in-chief. Although a defendant must decide before the hearing whether to submit to the court-ordered evaluation, they may choose, after the prosecution rests its case, not to present their own expert, and this will necessarily preclude any reference by the prosecutor to the court-ordered evaluation. People v Black, ___ Mich ___ (Docket No. 168159, 7/30/26).

Mandatory life and felony murder: Without deciding the retroactivity of its 1980 Aaron decision, the Court nevertheless concluded that a sentence of mandatory life imprisonment without parole for felony murder would constitute cruel or unusual punishment when two conditions are met: 1) the jury was not instructed on the required element of malice in a pre-Aaron case, and 2) the prosecutor cannot now prove beyond a reasonable doubt, from the facts elicited at trial, that a rational jury would have found malice. If both requirements are met, the remedy is to strike the no-parole portion of the life sentence. People v Langston, ___ Mich ___ (Docket No. 163968, 7/28/26). (Note, this defendant was 23 years old at the time of the crime.)

Probation and recreational marijuana use: The Michigan Regulation and Taxation of Marihuana Act (MRTMA), is not preempted by federal law barring recreational marijuana use, and the Michigan probation act, MCL 771.1 et seq, likewise is inconsistent with MRTMA to the extent that it incorporates the federal ban on marijuana use. It cannot be a mandatory condition of probation under Michigan law that a defendant not engage in recreational marijuana use on the theory that all defendants are precluded from violating federal law; instead, the MRTMA controls in this setting. Whether a trial judge may impose a ban on recreational marijuana use as a discretionary condition of probation (i.e., tied to the defendant’s specific rehabilitation needs), remains a question left for another day. People v Hess, ___ Mich ___ (Docket No. 167895, 7/6/26).

Trial court must have accurate guidelines before imposing sentence: Although the recommended ranges of the legislative sentencing guidelines are now advisory, consideration of the guidelines range is mandatory. Where the trial judge failed to resolve how the guidelines should be scored in response to a post-sentence motion, merely indicating that it would have imposed the same sentence, but that sentence now constitutes a departure from accurately scored guidelines, resentencing is required. The starting point for a sentencing decision is accurately scored guidelines. People v Armogeda, ___ Mich ___ (Docket No. 167760, 7/29/26).

SORA 2011 and retroactivity: The decision in People v Betts, 507 Mich 527 (2021), that the 2011 version of the Sex Offender Registration Act (SORA) constitutes punishment and may not be applied to a crime occurring before 2011, is a retroactive decision given its substantive nature. It therefore applies on collateral review. People v Shaver, ___ Mich ___ (Docket No. 167736, 5/29/26).

SORA 2021 is punishment, but Tier III lifetime registration for CSC-I is not cruel or unusual punishment: Although the 2021 version of SORA constitutes punishment, it is not cruel and/or unusual punishment with reference to an as-applied challenge to a defendant who was convicted of first-degree CSC and subject to lifetime registration. Nor is it cruel and/or unusual punishment on its face as to all Tier III offenders. The Court did not decide an ex post facto claim (one was not raised, although defendant was convicted, sentenced and resentenced before the 2021 version of SORA). The Court also did not reach several challenges to lifetime electronic monitoring. People v Kardasz, ___ Mich ___ (Docket No. 165008, 12/19/25). (Note, this decision leaves open an as-applied challenge under different facts.)

SORA 2021 recapture provision is cruel or unusual punishment when the new felony conviction is for a non-sexual offense: The 2021 SORA recapture provision of MCL 28.723(1)(e) constitutes punishment and is cruel or unusual when the new felony conviction (in this case, attempted unarmed robbery) is a non-sexual offense, i.e., not a listed offense under SORA. The triggering offense for constitutional analysis is the new felony conviction, not the old sexual offense. The Court also indicated that its holding applies to defendant and other similarly-situated individuals (note, this defendant raised the issue on direct appeal). The issue was ripe for review despite the defendant’s residence in South Bend, Indiana and the fact that he is not currently required to register in Michigan because the judgment of sentence is a final order and it contains a requirement of registration. People v Ellis, ___ Mich ___ (Docket No 166766, 7/22/26).

Unresolved - Lifetime electronic monitoring: After hearing oral argument on several challenges to lifetime electronic monitoring (LEM) for first-degree criminal sexual conduct, the Supreme Court denied leave to appeal on this particular issue in both cases. People v Kardasz, ___ Mich ___ (Docket No. 165008, 12/19/25); People v Martin, lv den ___ Mich ___ (Docket No. 166339, 12/19/25). Subsequently, the Supreme Court granted leave to appeal in a new case raising the same three challenges, this time with reference to a conviction of second-degree criminal sexual conduct: (1) is it cruel and/or unusual punishment where there is no way to remove the individual and no individualized assessment for those convicted of second-degree CSC, (2) is the punishment cruel and/or unusual as applied to this defendant, and (3) is there an unconstitutional search and seizure. People v Ringle, ___ Mich ___ (Docket No. 164043, 12/29/25).

Unresolved – Offense Variable 3 and death: This appears to be a difficult area for the Supreme Court. Last year, it granted oral argument to address whether the victim’s brother, who arrived after the assault and engaged in a shootout with the defendant leading to the brother’s death, could be considered a victim under OV 3 for purposes of the assault conviction (note, defendant was not charged with the brother’s death and there was no homicide conviction). Prosecutor Timothy Baughman of Wayne County argued that 100 points should be assessed under OV 3 where “death results from the commission of a crime,” and the language “results from” has broader application and would include post-offense conduct as occurred here. After hearing oral argument, the Supreme Court denied leave to appeal, leaving intact the Court of Appeals decision finding scoring error under OV 3 because post-offense conduct was scored contrary to People v McGraw. People v Jackson, ___ Mich App ___ (Docket No 366078, 8/29/24), mini oral argument granted 15 NW3d 598 (Docket No. 167677, 1/24/25), leave denied after oral argument ___ NW3d ___ (1/28/26)

The scoring of OV 3 remains a hot topic. A few months later, and in lieu of deciding the retroactivity of its earlier decision on acquitted conduct in People v Beck⁴, the Supreme Court vacated a separate Court of Appeals decision and remanded for consideration by the Court of Appeals of the following three questions: “1) whether the jury’s acquittal of the defendant on the charge of homicide resolved whether the victim’s death ‘result[ed] from the commission of a crime’” pursuant to Instruction 2b of OV 3, 2) whether OV 3 was properly assessed 100 points for death of a victim despite the homicide acquittal because OV 3 uses the language “results” from rather than “caused,” and 3) whether the Beck decision “is applicable considering that defendant was acquitted of homicide, but convicted of two counts of assault with intent to murder for separate victims.” People v Motten, ___ Mich ___ (Docket No. 167190, 7/10/26), vacating 351 Mich App 311 (2024).

Unresolved – Restitution for decedent’s future lost earnings: Although the Supreme Court granted oral argument on a restitution question in addition to a jury instruction challenge, it resolved the case on the latter ground and did not reach the restitution question. But in a concurring and dissenting opinion, Justice Welch questioned the propriety of a restitution award of over $1 million for the deceased victim’s future lost earnings, and she suggested the Court will need to address this question as well as the scope of its earlier restitution decision in People v Garrison, 495 Mich 362 (2014), in another case. People v Joesel, ___ Mich ___ (Docket No. 167705-6, 6/26/26).

Unresolved – Offense Variable 15 and McGraw: In an unpublished decision, the Court of Appeals affirmed an assessment of five points under OV 15 based on drug trafficking. The Supreme Court asked to hear oral argument on a McGraw type of claim, namely whether OV 15 must be scored based on the sentencing offense alone (in this case, possession of meth) or whether the court may consider conduct that was part of the sentencing offense but formed the basis of a dismissed charge (presumably possession with intent to deliver and/or delivery based on defendant’s admission that he was “trafficking” narcotics and intended to sell the 23 grams of meth found in his backpack by the end of the day – he also had scales, baggies and $594 in cash on him). After hearing oral argument, the Supreme Court denied leave to appeal. People v Walker, unpublished opinion per curiam of the Court of Appeals, issued 1/28/24 (Docket No. 363199), mini oral argument granted 15 NW3d 582 (Docket No. 166722, 1/17/25), leave denied after oral argument___ NW3d ___ (1/23/26).

² Miller v Alabama, 567 US 460 (2012).

³ People v Parks, 510 Mich 225 (2022).

⁴ People v Beck, 504 Mich 605 (2019).

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.

Subscriber Comments

• You must be a subscriber to view comments