Thirteenth Circuit Judge Thomas Power was recently told by the Michigan Court of Appeals in a 2-1 decision that he needed to adequately explain why he sentenced a now 19-year-old man to about twice what was called for under state sentencing guidelines. The judge sentenced the man to a minimum of 40 years in prison, despite state sentencing guidelines that called for a minimum sentence of between 13 and 22 years.

The man, then 17, was convicted by a Grand Traverse County jury in October 2011 of second-degree murder for killing a 16-year-old girl. The two were family friends, and the victim's family had allowed the man to stay with them after he was kicked out of his parents' home. In June 2011, the man assaulted and stabbed the girl to death, then hid her body in a sand pile.

Michigan has primarily an indeterminate felony sentence structure where all three branches of government play a role: the maximum term is set by the Legislature, the minimum is set by the sentencing judge, and the actual term served by a defendant is determined by the parole board, a part of the executive branch. Prior to the mid-1980s, sentencing was largely in the hands of judges who had broad discretion in determining minimum sentences.

In order to decrease trial court discretion and the resultant disparity in sentences, current state sentencing guidelines were enacted in 1998. The guidelines use a series of variables to determine an appropriate sentence for a convicted person. Such variables include the person's prior offenses, the circumstances of the crime, the degree of intent to cause harm, the degree of harm to the victim, as well as various other factors.

The sentencing guidelines structure a trial court's discretion in sentencing a defendant, but they do not entirely eliminate it. Sentencing judges retain discretion within the guidelines, and also have the ability to depart from the guidelines-by going either above or below the called-for minimum sentence. In order to depart, the trial court must have substantial and compelling reasons to do so-and it must state the reasons for departure on the record.

The Michigan Court of Appeals remanded Judge Power's sentence because he failed to adequately state or explain on the record why he departed and imposed a sentence that was about twice as long as called for under the guidelines. The higher court instructed the trial court judge to either explain the departure in clearer and more adequate terms, or to re-sentence the man within the guidelines.

The judge recently released his ruling and reduced the convicted killer's sentence by two years, so that his minimum sentence is now 38 years. The judge stated that he disagreed that he failed to state substantial and compelling reasons for his departure on the trial court record. He claims that his reasons were that the defendant stabbed the victim during a heated argument, and that some evidence indicated that she survived for a period of time after the initial stabbing-during which the defendant failed to help her. The judge also spoke of the victim and her family's generosity towards the defendant in providing him a home and support when he had none, just prior to the murder. The defendant will likely appeal this sentence as well.