Order Michigan Supreme Court 

Lansing, Michigan 

January 3, 2006 Clifford W. Taylor,

 Chief Justice 

128629 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, 

Robert P. Young, Jr. 

Stephen J. Markman,

 Justices 

v SC: 128629 

 COA: 253115 

Oakland CC: 03-189690-FC 

JAMES DURRELL JACKSON, 

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the March 15, 2005 

judgment of the Court of Appeals is considered and, pursuant to MCR 7. 302(G)(1), in 

lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of 

Appeals and REMAND this case to the Oakland Circuit Court for resentencing within the 

appropriate sentencing guidelines range or, if the sentencing judge believes that a 

departure is justified, for a statement of substantial and compelling reasons supporting the 

departure. 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. MCL 769.34(3)(b); People v Babcock, 469 Mich 247, 268 

(2003). No such finding was made here. 
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In all other respects, the application for leave to appeal is DENIED. 

CORRIGAN, J., concurs and states as follows: 

I concur in the majority’s conclusion that the sentencing court improperly 

sentenced defendant on the basis of defendant’s refusal to admit guilt. I also reluctantly 

concur in the majority’s decision to remand this case for resentencing because the trial 

court failed to articulate the factors in this case that were “‘given inadequate or 

disproportionate weight,’” the precise magic language necessary to sustain a departure 

under People v Babcock, 469 Mich 247, 268, 272 (2003). I write separately to reiterate 

that sentencing judges need to comply precisely with the Babcock requirements so that 

unnecessary remands may be avoided. 

Defendant and his accomplices committed an unimaginably brutal crime. He and 

his three accomplices broke into a home in search of marijuana. The home, however, 

was at the time occupied by the victims, a married couple who were housesitting for the 

owners, and their two-year-old son. Over a period of two to three hours, defendant and 

his accomplices terrorized the victims through beatings and sexual assaults. The Court of 

Appeals thoroughly illustrated the objective and verifiable acts of defendant and his 

accomplices. It stated: 

The guidelines as scored simply do not contemplate the following 

objective and verifiable acts illustrating that each of the multiple victims in 

this case experienced sadism, torture or excessive brutality: (1) in the 

presence of the wife and the two-year old son, the husband endured a 

severe beating for a prolonged period, at least one-half hour with occasional 

beating thereafter, that split open the skin on his skull and caused multiple 

bruises and lacerations all over his body; the husband felt countless strikes 

by a shotgun, fists, feet and a whipping by an extension cord, and the wife 

saw the husband struck fifty or sixty times; (2) the assailants forced the 

husband to strip off his clothing by “point[ing] the gun to [the wife’s] head 

and then to [the] son’s head and ask[ing] if [they] wanted to die”; (3) while 

Anderson held the shotgun to the wife’s face, he and defendant forced her 

to remove her clothing; defendant and the other assailants issued repeated 

threats, including that Anderson should shoot the victim because she had 

seen his face, and that they “should shoot [the wife] for bleeding, bitch”; 

they also advised the husband, “[B]itch, give us the shit or we’re going to 

rape your girl”; (4) on one occasion, defendant committed three acts of 

vaginal and rectal penetration of the wife while she was forced to perform 

fellatio on Anderson, before the two other assailants also forced the wife to 

fellate them; during one of the last two acts of fellatio, someone penetrated 

the wife’s vagina from behind; the husband repeatedly was beaten and 

forced to watch many of the penetrations of the wife; (5) defendant and the 
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other assailants forced the wife to fellate the husband briefly before 

punching and hitting the wife, and making her get on top of her husband 

and make sexual contact for a short time, all of which occurred while the 

two-year old son cried and screamed in the wife’s arms; (6) the assailants 

repeatedly separated the victims, especially the wife, who was taken from 

place to place to facilitate multiple acts of sexual penetration with the 

various assailants; and (7) after the crimes, which occurred over the course 

of between two to three hours, (a) police officers indicated that the wife 

appeared hysterical and devastated; the wife subsequently lost her job and 

developed an ongoing anxiety disorder that requires daily medication, (b) a 

police officer reported that the husband exhibited “extremely upset, 

hysterical” behaviors, and (c) the mother observed that the son repeatedly 

exhibited aggressive behaviors. [Unpublished opinion per curiam of the 

Court of Appeals, issued March 15, 2005 (Docket No. 253115).] 

At sentencing, the trial judge stated that “an upward departure is justifiable 

considering the excessive brutality, violence, the terrorism that had occurred to both these 

victims but most significantly, to [the female victim].” These factors, however, were 

already considered in the scoring of the offense variables. 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.’” Babcock, supra at 268; MCL 769.34(3)(b). The trial court did not so state. It 

appears to me that such magic language is now indisputably required before this Court 

will sustain an upward departure. 

It is beyond peradventure that objective and verifiable reasons that keenly and 

irresistibly grab one’s attention are present on this tragic record. In my nearly fourteen 

years as an appellate judge, I cannot recall such abject depravity, cruelty, and sadism 

toward victims—a married couple and their child—as the Court of Appeals has 

described. Defendant’s crimes are “off the charts” in terms of extreme brutality, 

terrorism, and violence. Because the trial court failed to state that the factor of excessive 

brutality, violence, and terrorism was given inadequate weight under the guidelines, I join 

in remanding for resentencing. 

WEAVER, J., concurs in part and dissents in part and states as follows: 

I concur in the majority’s holding that the sentencing court improperly sentenced 

on the basis of defendant’s refusal to admit guilt. United States v Jackson, 390 US 570 

(1968). 

I dissent from the portion of the order remanding this case to the trial court on the 

basis of People v Babcock, 469 Mich 247 (2003). Applying the analysis of my partial 

dissent and partial concurrence in People v Babcock, supra, at 280-284, I would 
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find that the trial court satisfied the requirement for “a substantial and compelling reason” 

for its departure from the sentencing guidelines, and its decision did not venture beyond 

the range of principled outcomes under the circumstances.

 YOUNG, J., would deny leave to appeal. 

s1227 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

January 3, 2006 

Clerk