• Attorney Michael Horowitz

"Trial Tax" unconstitutional (again)

As reported by Michigan Public Radio, the Michigan Court of Appeals held, for the second time, that a Wayne County judge's policy of penalizing defendants for going to trial was unconstitutional.


In People v. Pennington, --- N.W.2d ----, 2018 WL 1437501, at*6 (Mich. App. Mar. 22, 2018), the Michigan Court of Appeals addressed Judge Lillard'spractice of sentencing defendants found guilty at trial to the top of the guidelines. The judge's rationale was that she was rewarding defendants that accepted responsibility by pleading guilty.

The Court of Appeals explained that the judge may not have intended to punish defendants for exercising their trial rights, but the impact is the same regardless. Ultimately, the Court held that Judge Lillard's trial tax violated three different constitutional principles. First. the policy of sentencing all defendants who go to trial to the top of the guidelines is fundamentally inconsistent with the principle of individualized sentences. Second, the judge's policy ran afoul of the principle that a court cannot base its sentence even in part on a defendant's refusal to admit guilt. Third, it violates due process to punish a person for asserting a protected statutory or constitutional right.

Overall, the opinion included some pretty strong wording that should be helpful in combating bad sentencing practices. The Court previously admonished Judge Lillard for the same practice back in 2016 in an unpublished, non-precedential opinion, and it is fairly obvious that the judges were not too impressed that they had to address the issue again.

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