Michigan Governor Rick Snyder recently signed into law a bill referred to as “VO-4,” or the “Four Strikes Law.” The law allows for certain repeat felony offenders in Michigan to be sentenced to a mandatory minimum sentence of 25 years in prison. Governor Snyder said, “By holding chronic offenders accountable we can keep our communities safe, bring peace of mind to victims and their families, and help Michigan reach its full potential.”
Clearly, the stakes are high, as nobody wants to be sentenced to a minimum of 25 years of incarceration. Therefore, it is important that defendants really have a thorough understanding of what this law entails. To that end, I will break down this new law piece by piece.
First, to qualify for this new sentencing scheme, the criminal defendant must have three or more prior felony convictions. These felony convictions can be Michigan felony convictions, out-of-state felony convictions, or even out-of-state misdemeanor convictions, provided that the criminal act would have been considered a felony offense under Michigan law. It is considered a prior felony conviction if the felon was convicted of attempt of a felony crime. Fortunately, the law was amended at the last minute to include a provision that the prior felony convictions must have been from separate criminal transactions, rather than multiple felony convictions arising from the same criminal act.
However, at least one of the prior felony convictions must have been for a “listed prior felony.”
This is a legal term of art, and includes convictions for the following felonies and convictions of attempts of the following felonies:
(1) First degree fleeing and eluding causing death
(2) Second degree fleeing and eluding causing serious injury
(3) Second degree fleeing and eluding causing serious impairment of a body function
(4) Drugged or drunk driving causing death
(5) Drug crimes that are punishable by more than 4 years
(6) Arson of a dwelling house
(7) Felonious assault
(8) Assault with intent to commit murder
(9) Assault with intent to do great bodily harm
(10) Torture
(11) Assault with intent to maim
(12) Assault with intent to commit a felony
(13) Unarmed assault with intent to rob and steal
(14) Armed assault with intent to rob and steal
(15) Attempted murder
(16) First degree home invasion
(17) Second degree home invasion
(18) First degree child abuse
(19) Second degree child abuse
(20) First degree vulnerable adult abuse
(21) Second degree vulnerable adult abuse
(22) Solicitation to commit murder
(23) Escape from confinement or assault of employee during escape from confinement
(24) Carrying firearm or weapon with unlawful intent
(25) Carrying concealed weapon
(26) Second or subsequent offense of felony firearm
(27) Intentional discharge of a firearm from a vehicle
(28) Intentional discharge of a firearm at a dwelling or occupied structure
(29) Intentional discharge of a firearm at an emergency or law enforcement vehicle
(30) Second degree murder
(31) Manslaughter
(32) Death resulting from a pointed firearm without malice
(33) Kidnapping
(34) Prisoner taking another person hostage
(35) Leading, taking, carrying away, decoying, or enticing away child under 14
(36) Mayhem
(37) Felony stalking of a victim under 18 years of age
(38) Aggravated stalking
(39) First degree criminal sexual conduct
(40) Second degree criminal sexual conduct
(41) Third degree criminal sexual conduct
(42) Assault with intent to commit criminal sexual conduct
(43) Armed robbery
(44) Carjacking
(45) Unarmed robbery
(46) Inciting a riot at state correctional facility
Then, the current felony conviction must be for a “serious crime.” This is another legal term of art, and it means a conviction of one of the following felonies or a conviction of conspiracy to commit one of the following felonies:
(1) Assault with intent to commit murder
(2) Assault with intent to do great bodily harm
(3) Assault with intent to maim
(4) Unarmed assault with intent to rob and steal
(5) Armed assault with intent to rob and steal
(6) Second degree murder
(7) Manslaughter
(8) Kidnapping
(9) Prisoner taking another person hostage
(10) Leading, taking, carrying away, decoying, or enticing away child under 14
(11) Mayhem
(12) First degree criminal sexual conduct
(13) Second degree criminal sexual conduct
(14) Third degree criminal sexual conduct
(15) Assault with intent to commit criminal sexual conduct in the first or third degrees
(16) Armed robbery
(17) Carjacking
Finally, the prosecutor has to give notice to the defendant that they are asking the court to enhance the defendant’s sentence as a fourth or subsequent habitual offender. Prosecutors are not required to seek sentence enhancements for habitual offenders. However, if the prosecutor does seek a sentence enhancement, and the defendant meets all of the above qualifications, the 25 year minimum sentence is mandatory. The statute says the defendant “shall” be punished to a minimum of 25 years.
As a criminal defense attorney, I am unnerved by the fact that this new statute takes away the judge’s discretion for qualifying felony convictions. This leaves me less room to do my job if a qualifying defendant is being sentenced. Sometimes, criminal defendants have sympathetic stories that judges take into account during sentencing, even if the defendant has multiple felony convictions in his or her past. People hire attorneys to fight cases and to argue that the case should be dismissed or that sentencing should be lenient.
Of course, I can always try to negotiate with the prosecutor to not ask for sentence enhancement. But, I don’t like that the prosecutor will be able to use this law as a bargaining chip. For example, a prosecutor may have agreed to recommend a sentence of 5 years in prison before this new law. But with the law in effect, the prosecutor may now only agree to recommend a sentence of 10 years in prison, because the prosecutor is betting on the fact that a defendant would rather take a plea deal that recommends 10 years in prison than face the mandatory minimum of 25 years in prison if he or she loses at a trial.
I believe each and every criminal defendant should have their chance to argue for leniency, extenuating circumstances, mitigating facts and other considerations, rather than face automatic minimum sentencing. That is why, in my opinion, this “four strikes” law is a strike out!