Judicious Application of a Trial Tax

The Michigan Supreme Court, in a split decision, reversed a trial court's rather explicit imposition of a "trial tax" when sentencing a defendant who chose not to plead guilty:

We do not quarrel with the Court of Appeals finding that this crime was extremely brutal. However, the sentencing judge stated that she did not believe that defendant was entitled to the same sentence as his accomplices, “who were able to step up to the plate and say what they did and to admit their guilt,” while defendant subjected the victims to “having to testify.” A sentencing court, cannot, in whole, or in part, base its sentence on a defendant’s refusal to admit guilt. People v Wesley, 428 Mich 708, 711 (1987); People v Yennoir, 399 Mich 892 (1977). Nor can a defendant be punished for exercising his right to trial. United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968); People v Courts, 401 Mich 57 (1977).

The sentencing court also commented on the “excessive brutality, violence, and terrorism” to which the victims were subjected. But the 50-point score defendant received on Offense Variable 7 already accounted for these circumstances. A sentencing court may base a departure on a characteristic already taken into account by the sentencing guidelines only if the court finds that the characteristic was given inadequate or disproportionate weight.

I think Justice Corrigan, concurring in part and dissenting in part, hopes to educate the trial judge on how to properly engage in upward departure from the Michigan sentencing guidelines on remand. But then, it was a particularly nasty crime.