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November 18, 2014

Investigation reveals "mandatory" Minnesota gun sentence not imposed in majority of cases

635518507863570129-sent-5This interesting local investigative press report from Minnesota provides further evidence that mandatory minimum sentencing schemes are rarely applied consistently or evenly.  The article is headlined "Mandatory sentences not always the case for Minnesota gun crimes," and here are excerpts:

Hennepin County judges have come under fire recently for their sentencing habits. Several top Minneapolis leaders are claiming some judges are soft on gun crimes, allowing dangerous criminals back on the streets when they could be in prison. To separate fact from fiction, KARE 11 Investigators analyzed every sentence for every felony gun crime during the past three years. We found that judges do not hand down mandatory minimum sentences in the majority of gun crime cases.

Under Minnesota law there is a mandatory minimum amount of time criminals who use a gun should be sentenced to serve in prison. But our KARE 11 investigation found the amount of time they are sentenced to prison, if they get prison time at all, varies greatly from court to court and judge to judge....

Our analysis of sentencing data provided by the Minnesota Sentencing Guidelines Commission reveals in gun cases across all of Minnesota, judges give less than the mandatory minimum sentence 53% of the time. In Hennepin County, that jumps to 56%. Judge Richard Scherer, Judge Susan Robiner, Judge Mark Wernick, Judge Joseph Klein and Judge Daniel Moreno downward depart from mandatory sentencing in felony gun cases in more than two thirds of the cases they oversee. "And that's too much" said Hennepin County Attorney Mike Freeman.

Freeman's office routinely butts heads with district judges when it comes to sentencing in gun cases, especially when the conviction is for a felon being in possession of a handgun. On average in Minnesota, prosecutor's object to a judge's reduced sentence in gun cases only 12% of the time. But in Hennepin County, it happens in nearly 30% of gun cases. "I think the numbers speak for themselves. There's a different climate on this bench than there is elsewhere in this state," said Freeman.

But 4th District Chief Judge Peter Cahill disagrees. He says judges cannot be a rubber stamp for police and prosecutors, and the most important thing for them is to be fair and impartial. "We can't worry about stats," said Cahill. When KARE 11 Investigative reporter A.J. Lagoe asked Chief Judge Cahill if mandatory did not mean mandatory in Minnesota, Cahill responded, "not really." He says calling the state's mandatory minimum sentences mandatory is a "bit of a misnomer."

Cahill said the issue is very complex, and added "If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme." There is a section in Minnesota's minimum sentencing law that allows judges to disregard mandatory sentencing in gun cases if there are "substantial and compelling" reasons to do so. “If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme.”

Are there truly "substantial and compelling reasons" to hand down a lesser sentence in the majority of gun cases? It depends on who you ask. In the wake of a series of deadly summer shootings, Minneapolis's Police Chief Janee Harteau said, "we are arresting people who should have been kept in jail." Harteau and City Council President Barb Johnson began publically calling out Hennepin County judges for being soft on gun crimes and allowing dangerous criminals back on the street unnecessarily. "I am calling to them publicly this time to take gun crime seriously," said Johnson. "The penalties are there, impose them! When someone is arrested with a gun they need to do time!"

Minnesota sentencing statutes have a section referred to by the legal community as "mandatory mandatory sentences." If you're convicted a second time for a gun offense, judges are given no wiggle room. The law requires them to hand down at least the mandatory minimum. "Those are what we call hard 'mandatories' where there's no leeway for the court and we do impose those," said Chief Judge Cahill.

But KARE 11's investigation found that's not always the case. Take for example the rap sheet of Khayree Copeland. Copeland was busted in 2008 as a juvenile for possession of a short barreled shotgun. In 2011, now an adult, he was caught again with a gun. As a felon in possession, the mandatory minimum sentence he was facing was five years in prison. However Judge Robiner sentenced him to probation. Later that same year, Copeland was arrested again while carrying a handgun. His second offense as an adult, this time the law requires he get the "mandatory- mandatory" five years. But court records show Judge Richard Scherer gave him only four years in prison. "Members of my office protested both times and rightly so," said Freeman....

NOTE: While Hennepin judges see far and away more gun crime cases than any other jurisdiction, Carlton County judges are the most likely to cut a defendant a break. Judges there gave less than the mandatory minimum 100% of the time in the past three years.

November 18, 2014 at 08:42 AM | Permalink

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I'm a private attorney here in Minnesota. My practice includes a significant amount of criminal defense work, and I've served tours relatively recently as a judicial law clerk and as a law clerk in the public defender's office. Our rules of criminal procedure allow for prosecution sentencing appeals in felony cases. The question I had while reading this article is, if a county attorney is so bent out of shape about supposedly unwarranted departures, where are the appeals? I don't know; they're almost never filed.

The reason that the mandatory minimum is so often departed from is that it's so out of line with other sentences in this state for usually much more serious conduct. Five years in prison (in Minnesota, you serve at least 2/3rds) is a long time, especially here, where there are mandatory sentencing guidelines which have a fairly strong preference for probation. (As a comparison, sixty months in prison is the same sentence as a middle-of-the-box guideline sentence for sexual contact with a child under 13 for someone with a pretty significant criminal history.) Obviously, this story focuses on some rather bad characters. That said, I've seen a lot of much more sympathetic defendants - people who have had low-level drug or property crimes who are permanently ineligible to possess a firearm but do so under circumstances where no one is likely to be harmed. Prosecutors objecting to 30% of departure sentences in Hennepin County still means that 70% are going unobjected to, and I have to believe that a fair chunk of the remaining 30% are for people who are deserving. In addition, those objections are often cursory and amount to a wink wink, nod nod. Saying "the State objects, Your Honor" ain't much of an objection; if you really don't want a judge to impose the objected-to sentence, you'll go beyond that.

Posted by: David L. | Nov 18, 2014 10:54:46 AM

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