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July 28, 2008

Is Booker Heading to Minnesota?

This interesting article discusses the plight of Minnesota judges forced to sentence within a strict state guidelines regime.  Sound familiar?  Here are some excerpts describing the system and its shortcomings:

The system is split into 11 levels.  The lowest levels are for the least severe crimes -- making threats or assaulting a police horse, for example.  The highest levels are for the most severe crimes, such as murder.  The system also takes into account a criminal’s history.  Each time a criminal is convicted of a crime, he is assigned points.

Judges plot a criminal’s point score with the crime level to find the appropriate sentence.  The grid provides judges a fixed range for jail time.

* * *

Judges can depart from the grid, but a separate jury trial must be held to find sufficient aggravating factors or the defendant must agree to let the judge depart.  Once a departure has been made, the judge must then file a report to the commission detailing reasons for departure.  Judges say departures are increasingly rare, partly because the jury trials they require are cumbersome and partly because of budget cuts to the state judiciary.  Judges departed from the guidelines in no more than 15 percent of cases between 1981 and 2006, according to the commission.

The complaints in Minnesota that the grid does not properly account for variations within the same classes of crimes are similar to those heard in the federal system before Booker.  If Minnesota's response to Blakely was to require a jury trial before a judge could depart from the grid, do these complaints suggest that even that system is too inflexible?  Will Minnesota's sentencing experiment survive, or is it proof that Booker's remedy really was a good alternative?

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July 28, 2008 at 02:22 PM | Permalink


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I'm a part time public defender in St. Paul. It's not that unusual to read about prosecutors and some judges complaining that the Guidelines are too lenient. That complaint ignores the dramatic ratcheting up of the sentencing ranges over the life of the Guidelines. That complaint also simply doesn't support dispensing with the Guidelines or with converting them to an advisory system, something that the Minnesota Supreme Court rejected shortly after Blakely came down. The Guidelines are emphatic, as the enabling legislation requires, that the guidelines sentence should be the actual sentence that is imposed; only when there are compelling circumstances do those Guidelines allow departures. Blakely now requires that a jury find the existence of those compelling circumstances. It's been my experience, and those of my fellow St. Paul public defenders, that the separate "trial" following a conviction to present these aggravating factors to a jury is not especially time consuming, at least in comparison to the time required to obtain the initial conviction. And while it's true that the judiciary, and the public defender system, took a huge monetary hit, we are still in the business of trying criminal cases; another half day, following a multiple day trial, is not going to break the bank.

I came to Minnesota from Kentucky, which has jury sentencing. The jury sets the term of imprisonment within the range of years specified by the legislature for the crime of conviction. When I practiced in Kentucky, jury sentencing was a sporting event; it was a "victory" if the jury returned a sentence that was equal to or less than the prosecutor's final offer. This is hardly conducive to rational, consistent punishment.

I don't know that the views of a couple of judges and a county attorney in southeast Minnesota represent the consensus view around the state. There will always be cases that produce a sentence that seems disproportionate to the crime one way of the other; to say that the Guidelines make it "too cumbersome" to achieve a fair result seems more slothful than thoughtful.

Posted by: Michael C. Davis | Jul 28, 2008 10:28:25 PM

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