Behind the guidelines

Published 10:51 am Saturday, August 24, 2019

Editor’s note: This article is the first of a two-part series focusing on Minnesota’s sentencing guidelines.

Read the second part here:  Law enforcement can feel the frustration

When it comes to sentencing individuals who have been found guilty or pleaded guilty to a crime, courts in Minnesota are subject to the state’s sentencing guidelines.

Email newsletter signup

Created by the state legislature, the purpose of the guidelines “is to establish rational and consistent sentencing standards that promote public safety, reduce sentencing disparity, and ensure that the sanctions imposed for felony convictions are proportional to the severity of the conviction offense and the offender’s criminal history,” according to the Minnesota Sentencing Guidelines Commission.

Under the guidelines, crimes are categorized in three grids:

• Standard Grid – crimes such as murder, assault, robbery and theft

• Sex Offender Grid

Drug Offender Grid

Each grid denotes the severity level of the criminal offense and the criminal history score, i.e. prior convictions. The grid is broken down into a series of columns with boxes that contain numbers denoting the potential sentence. Boxes are either white, indicating a presumptive commitment to prison, or gray, indicating a presumptive stayed sentence with probation.

The severity of the offense, factored with the defendant’s criminal history score, determines the sentence. For example, on the drug offender scale, an offender found guilty of a first-degree substance crime, such as sale of 17 grams or more of methamphetamine, who has a criminal history score of two could face anywhere from 73 to 102 months in prison. On the other hand, a first time drug offender (criminal history score of zero) found guilty of a fifth-degree controlled substance crime would get probation and a possible stayed sentence of 12 months and one day in prison should they violate again.

“It’s supposed to be truth in sentencing so that everybody who commits that crime with the same points gets that sentence,” said Mower County Attorney Kristen Nelsen, whose office is responsible for the prosecutorial procedures in criminal cases.

“I trust the Minnesota Sentencing Guidelines Commission and the experts they bring in to review Minnesota’s guidelines,” said Sen. Dan Sparks (DFL-27). “Overall, the guidelines strike a balance between fairness and reducing recidivism while providing the proper sentences for crimes that have been committed.”

Extenuating circumstances can play a role in determining a sentence.

“There are situations where we can file an aggravated motion for a sentence because something is particularly heinous or there are certain aggravating factors that are enumerated in the guidelines,” Nelsen said. “The defense can also file for mitigating factors to say (the defendant) shouldn’t get that box, but those have to be exceptional circumstances on both ends.”

In some cases, particularly for repeat offenders, the criminal score and severity will fall into a box that has a number range representing the number of months for which an offender can be sentenced to prison. With many cases resulting in plea agreements, Nelsen said the ranges allow for the ability to negotiate.

“There are goals for both sides in plea bargains,” she said. “The defendant wants to get the least amount of time and the least amount of punishment possible. That does give us some negotiating room. We can say ‘you’re going to plea to this, but we’ll agree to the bottom of the box’ or ‘we’re going to let you plea to this and not file an aggravated sentence motion, but then you have to agree to the top of the box.’”

“Our goal in a plea bargain is first to look at what is fair, especially to the victim,” she added. “Public safety is always in the forefront when we make these agreements. If we don’t get what we think we can keep the community safe with, those are the cases that go to trial.”

But, while the purpose of the sentencing guidelines is to ensure equity in sentencing, Nelsen said they are sometimes a source of frustration when it comes to repeat offenders, particularly regarding the maximum sentences set by the state.

“A crime will say it’s punishable by up to 10 years in prison, but then when you look at where it comes on the grid, it’s not even possible to get prison until you’ve had probation,” she said. “Is that crime punishable by up to 10 years in prison? Sure. Can you get there? No. Even when you get six or more criminal history points, which are a lot of points, you’re not getting anywhere close to the maximum sentence. It’s kind of frustrating for us because I understand that is the maximum penalty, but you can’t actually get there. As a result, people are thinking we’re giving lesser sentences when we’re just following the guidelines and can’t get to a maximum sentence.”

“We don’t have a lot of leeway in these, except when deciding what they should lean to (in the ranges),” she added. “Unless there are exceptional circumstances on either end, the court doesn’t have a lot of leeway.”

Another issue some have with the current guidelines is the perceived leniency that comes with certain offenses. For example, lower level drug crimes commonly carry probation sentences.

“On drug crimes, people get repeated shots at probation,” Nelsen said. “On their first violation, unless it is something heinous, they generally don’t go to prison. They get another chance at treatment, another chance to rehabilitate themselves, so you will see people with multiple chances. Generally the people that reoffend we ask to have sent to prison. Sometimes that happens, sometimes that doesn’t.”

But drug crimes are not the only crimes in which probation tends to be the first sentence. Theft, burglary, robbery and assault also carry probation on the sentencing guidelines grid, even after multiple offenses in some cases.

“In a lot of theft crimes, people are very angry that somebody has stolen their property and they’re not going to prison,” Nelsen said. “But, for a lot of those theft crimes, prison is not even an option for us, according to the guidelines. We can’t get enough points to get them there. That is how the legislature decided it wanted to handle the sentencing guidelines and that’s why a large portion of this grid is gray; leaving prison for the most heinous offenses and trying to handle everybody else under community supervision. People can argue whether that’s right or wrong, but it is what it is.”

“Minnesota has the second lowest incarceration rate in the nation which is something for which to be proud and feel as though we are handling sentencing in an efficient manner,” said Rep. Jeanne Poppe (DFL-27B). “However, we have the fifth highest probation rate in the country.  We have nine times more people on probation than are incarcerated. That seems to suggest we need some reform or adjustments. In Minnesota, we have some of the longest probation terms in the nation. Probation status can lead to inability to secure jobs and housing. That gives us more reason to consider how our probation system needs adjusting.”

“This session, the House Public Safety and Criminal Justice Reform Committee to look at ways to reform the probation system,” she added. “Lots of discussion eventually resulted in the county attorneys and public defenders agreeing to a compromise plan. That is really a big deal, as they do not often see eye to eye. The Senate Republicans did not agree with the plan.”

Another source of frustration is individuals with stayed sentences violating probation, but not being required to execute their stayed sentence.

“In an ideal world, what should happen is that if you’re still on probation, this should be violated and you should serve an executed sentence, meaning you should be going to jail,” Nelsen said.

“If continuing probation is not a successful deterrent in keeping individuals from re-offending, I believe that it should not be used,” Sparks said. “Instead, they should serve their stayed sentence.”

Sparks noted that the Minnesota Sentencing Guidelines Commission brings suggested changes to the legislature every year to improve the sentencing guidelines.

“We have a responsibility to implement those changes that make sense,” he said. “I am supportive of them continuing to do this work.”

But until changes come, Nelsen said she understands the frustration of the general public.

“We do appreciate people’s frustration; we feel it too,” she said. “It is simply how our system is and we’ve learned to simply operate. There’s a mismatch between the maximum penalty and what’s prescribed by the guidelines and that is the message we can never seem to get across.”