Reforms in favor of more leniency and compassion
A promising, yet surprising, trend has been revealed over the past few years. Changes to Minnesota criminal statutes and sentencing laws (including the Minnesota Sentencing Guidelines) have recently seemed to reform the laws in favor of more leniency and compassion for those facing criminal charges or convictions. Another slate of these reforms is now close to being finalized. While it appears Minnesota County Attorneys Association will approve the changes, there is one extremely important caveat: The reforms cannot be retroactive, said Bob Small, the group’s executive director.
Why is that such an important loss in an otherwise complete win? It means although the law is changing, those who have already been sentenced under the current (soon to be “old”) guidelines cannot receive the benefit of being resentence under the new regime. While it is understandable that prosecutors would be unhappy with all the extra work such “retroactivity” would require of them, I am always troubled by new laws not being given retroactivity for a simple reason: When a rule/law is changed in recognition that the former was unfair, denying retroactivity guarantees that those sentenced under the unfair rule/law simple must shut up an live with it. If it is unfair now, it was unfair then!
Any modifications would not be retroactive
The Association has made clear, any attempt at the Legislature to make these modifications retroactive would end up meaning they would oppose the modifications in their entirety. The Association is concerned because of the Minnesota Supreme Court’s 2017 State v. Kirby decision. That ruling applied the amelioration doctrine to Minnesota’s 2016 Drug Sentencing Reform Act. That meant one particular defendant — and potentially hundreds of others — needed resentencing to reflect newly lowered presumptive sentences for some drug offenses. Small said he doesn’t want that to happen to the new reforms.
As far as the commission goes, Small and his association have already got their wish. The changes specifically affect only criminal offenses taking place after Aug. 1, 2019, when the reforms go into effect. Last week’s public hearing was the last chance for stakeholders to air their views on seven sentencing reforms that likely will be adopted Thursday during the commission’s final meeting of the year.
Those reforms include:
- Decay policy. Decay is the time beyond which an offense’s criminal history score no longer figures in the sentencing of any new offense. For executed prison sentences, nothing changes here—decay still starts 15 years after the prison sentence expires. The reform affects probationary sentences for which a prison term is never executed. In that case, the offense would begin decaying 15 years after sentencing—rather than 15 years after probation. That would stop what some commissioners have called a perverse outcome in which offenders who serve out prison terms get a better deal than those who serve probation. “In my opinion, it is neither rational nor fair to penalize the probationer in that situation,” said Commission Chair Christopher Dietzen.
- One-half custody status point. Custody status points are a kind of Damocles’ sword that hangs over an offender during probation—it adds one point to the criminal history score, and thus potentially to prison time, if a new offense occurs. Currently a full point is automatically assessed on offenders regardless of their underlying crime’s severity. The reform package has several changes to how that works. In this case, if the previous offense rated only one-half of a point on the sentencing guidelines grid, only one-half of a custody status point would get assessed. “Lowering the custody status point from one point to one-half a custody point for those low-level offenses does save quite a bit of prison bed space,” said Commissioner Mark Wernick, a retired Hennepin County district court judge.
- Early discharge. In short, this reform means the custody status point goes away upon early discharge from probation. It restores a pre-2001 policy to say that an offender must be under supervision at the time a new offense gets committed for a custody status point to affect sentencing. That eliminates a problem in which people discharged early from probation still can get nailed with longer sentences after successfully completing probation and getting an early discharge.
- Stays of adjudication. This reform would eliminate the assignment of a custody status point for stays of adjudication.
- Status point waivers. This plan gives courts discretion to waive custody status points. If a judge grants a waiver, the offender’s criminal history score and presumptive sentence would be calculated without the status point. Waivers would be allowed only when offenders can show that public safety would not be compromised. For some higher severity level crimes, courts would not have this latitude. Judges would not be required to waive the point.
- Severe violent offenses. These reforms establish increased sentences for second or subsequent severe violent offenses. The change would increase jail terms between one and three extra years, depending on the number of prior severe violent convictions. “Severe violent offenses” are defined on a list of 16 crimes that include everything from first-degree murder to first-degree arson. Most of those are crimes rated at severity level 8 and above. However, one Level 6 offense—second-degree assault with a dangerous weapon causing substantial bodily harm—also is included on the list. Adding a second Level 6 crime, fleeing a police officer causing severe harm, was considered but later dropped.
The seventh reform is a technical correction to policy involving misdemeanors.