Dec. 7—The punishment for felony crimes in Minnesota may get a bit lighter, depending on an upcoming vote by the state's Sentencing Guidelines Commission.
At a Nov. 4 meeting, the commission voted 6-4 to do away with the in-custody point when determining an offender's sentence. That means judges would no longer be able to take into consideration whether the offender committed the crime while in custody, on probation or on supervised release.
The commission typically has 11 members but only 10 members voted as a victim representative was not seated. That position is appointed by the governor. Gov. Tim Walz filled the position effective Nov. 17.
The commission will meet again for a public hearing on the matter at 1 p.m. Dec. 16 in Room G-3 of the Minnesota Capitol building. A remote viewing option is also available.
VIEWS ON THE ISSUE
Those in favor say the move could potentially free up 536 prison beds — at least temporarily — and say programs and probation do more to rehabilitate an offender than incarceration.
"I think that we need to end this 'us versus them' when it comes to public safety," said Tonja Honsey, the public representative. "Public safety needs to include everyone."
Those against it say the change is a blow against public safety because offenders could potentially serve less time and the judge would be given less discretionary leeway in sentencing.
"The concern is, we're talking about eliminating the custody status point for everyone, not just those low-level offenders," said member Michelle A. Larkin, a Minnesota Court of Appeals judge. "We're talking about a complete philosophical switch."
Modifications are subject to final adoption by the commission at a Jan. 13 meeting. If adopted, those modifications will be implemented Aug. 1, unless the Legislature intervenes.
The Minnesota Legislature in 1980 enacted sentencing guidelines with the goal of trimming down mass incarceration of offenders and reducing sentencing disparities. The guidelines use a grid that assigns a point for different factors which, when added up, guide a judge on how much prison time an offender should receive.
One side of the grid refers to the severity of the crime, listing 11 felony-level offenses. Starting at the bottom with assault, the severity increases the higher up the grid through theft and burglary to murder. Sex crimes have their own grid, ranging from failing to register as a predatory offender to rape. Drug charges also have a grid, ranging from possession to manufacturing of controlled substances.
The top of the grid assigns points depending on the criminal history of an offender. Points are given for prior felonies, prior misdemeanors, previous juvenile matters, convictions in jurisdictions other than Minnesota and whether the crime was committed while the offender was in custody or on some type of probation.
Before sentencing, the points are added up and the sentence moves across the grid from the offense, picking up extra months depending on the offender's criminal history.
The formula is meant to assign "blameworthiness" to the sentence. For example, an offender with no criminal history who snapped in the heat of the moment and punched someone should receive a lighter sentence than a person arrested multiple times for assault.
A judge's discretion is limited to the box in the grid, with a few extenuating circumstances.
WHO'S ON THE COMMISSION?
The Minnesota Sentencing Guidelines Commission currently is made up of Kelly Lyn Mitchell, chair and public member; Valerie Estrada, vice-chair and corrections unit supervisor for Hennepin County Community Corrections and Rehabilitation; Brooke Blakey, Metro Transit Police captain; Honsey, a public member; David Knutson, First Judicial District Court judge; Kyra Ladd, Wadena county attorney; Larkin, Minnesota Court of Appeals judge; Cathryn Middlebrook, Chief Appellate public defender; Gordon L. Moore III, Minnesota Supreme Court justice; Brooke Morath, a public member; Paul Schnell, commissioner of Corrections; and Brooke Morath, victim representative.
The three members from the judiciary are appointed to four-year terms by the chief justice of the state Supreme Court. The remaining members are appointed by the governor to four-year terms that coincide with the governor's term in office.
IN-CUSTODY POINT PROS AND CONS
The commission was tasked with figuring out what to do with the half-point — previously a full point — assigned to felons if they commit a crime in prison, while on probation — instead of prison — or on supervised release.
The commission voted on three options: Keeping the status quo, doing away with the point altogether or replacing the custody point with an added aggravated factor. The commission voted for doing away with the point.
Both public members, the public defender, both prison reps and the police representative voted in favor. All three judges and the prosecuting attorney voted against. And the victim representative had not yet been appointed.
"I entered this debate, coming in as a new member, thinking we were going to find some clarification for what we do with the half a point which has morphed into the elimination of the custody status point which I don't think is right, and I can't support," Knutson said. "If a person is in custody or on probation, they are more culpable; they are more deserving; they are more blameworthy. We haven't gotten their attention. They are out violating the safety of the public."
For Schnell, who oversees the state Department of Corrections' $630 million budget, it came down to funding. The second option offered the most empty prison beds.
"Sentencing as a crime-reduction strategy in and of itself is not a sustainable strategy," he said. "If we think that sentence length, as a mechanism of fighting crime, has been effective, we're going to get to a point where the system is simply way too costly for us to be able to maintain."