Sentencing Guidelines Commission mulls last-chance modifications

With eight members facing the end of their tenures, the Sentencing Guidelines Commission has cobbled together 12 last-chance policy changes to consider before a new governor takes office. All deal with criminal history score modifications.

One idea would increase scores assigned to prior severe violent crimes, if the offender commits another one. Prior offenses would receive three points toward the criminal history score that helps determine how long an inmate’s sentence will last. The current increase is 1.5 to 2 points.

Another idea could revive pre-2001 policy on the “custody status point,” zeroing it off an offender’s record once probation ends.

Currently a point is tacked onto an offender’s criminal history score at the start of sentence; it goes away only when the pronounced sentence ends. That leaves it hanging over some offender’s heads for years, even after early release from probation. Harsher sentences then can result when a re-offense occurs post-probation but before the sentence’s nominal end.

A third idea would shorten “decay periods” for felony convictions. Decay is a kind of look-back window beyond which old prior felonies stop counting toward the criminal history scores. The proposal would reduce today’s 15-year decay period for felonies to 10 years.

Those are just three of a dozen policy modifications the commission is mulling. The panel has spent at least a year debating the ideas.

The entire slate of possibilities was gathered into a “stakeholder memo” that is being distributed to victim and defendant advocates, prosecutors, the judiciary, legislators, public defenders and the defense bar, and various others in hopes of gathering public input.

That memo is online at the commission’s web site (https://mn.gov/sentencing-guidelines/). Commission Executive Director Nate Reitz said reactions are welcome from anyone interested in the criminal justice system. The commission will meet on Sept. 13 to hear public testimony on its proposals.

Some, many, or none of them could ultimately be adopted at a subsequent hearing. Reitz said none actually requires imminent action. But if any of the changes are to be made, he said, there is urgency to act.

“The clock is ticking,” Reitz said. “If they want something to happen—whatever it is—they have to sort of move on it.”

Custody status points

It is unknown if any of the commission’s gubernatorial appointees will be retained after Mark Dayton leaves office in January—though that option is open.

Governors appoint eight commission members and its chair—though by statute, the Corrections Commissioner or a designee must be seated. Whether a new governor will retain Dayton’s Corrections commissioner, Tom Roy, likewise is unknown.

The state Supreme Court’s chief Justice appoints the commission’s three judicial members, though those appointments are not coterminous with the governor’s. Former Supreme Court Associate Justice Christopher Dietzen is the commission’s current chair.

Because the modifications involve offense severity levels, criminal history scores and possible early releases, statute suggests that any adopted proposals would need to be forwarded by Jan. 15 to the Legislature for review.

At the guidelines commission’s July 26 hearing, a two-hour discussion on the memo focused primarily on its custody status point and severe violent crime proposals.

There are seven proposals for changing the custody status point. One comes from Commissioner Mark Wernick, a former Hennepin County District Court judge, who wants to eliminate it entirely.

Wernick argues that current policy disproportionately affects black, American Indian and Latino offenders, yet it proves a poor predictor of future crime. His idea does not appear to have widespread support on the panel. Still, other commissioners also expressed concern about the custody status point’s effects.

Caroline Lennon, a commissioner and First Judicial District Court judge, noted that a full point often gets assigned when the original felony or gross misdemeanor offense rated only a half-point on the guideline’s severity grid. She also said it is “patently unfair” when offenders released from supervision after three years on a nominal five-year sentence retain an extra criminal history point for two years.

She said other District Court judges with whom she has spoken all were unaware things work that way. “They are all surprised by that—that not having been their intention,” she said.

Some other custody status point (CSP) ideas included in the memo are:

• Replacing the CSP with an “aggravating factor.” Rather than getting a status point, a new offense committed while on custody status would constitute an aggravating factor. This would give prosecutors and courts discretion to add weight to an offenders’ culpability where warranted, the memo says.
• Reducing the CSP to a half-point. This option recognizes that offenses effectively get double-counted now. It would alleviate that effect but still make offenders reckon morally with new offenses committed during probation. The option could eliminate 450 Minnesota prison beds.
• Applying the CSP only to severe offenses. This would apply a status point only to offenses ranked at severity levels 8 to 11 on the standard grid, or to similarly severe offenses on the sex-offender and drug-offender grids. It could eliminate the need for 169 beds, the memo says, and result in 856 offenders spending less time in prison.

Severe crimes

Under Court of Appeals Judge Heidi Shellhas’ plan, prior convictions for severe and violent crimes would count as three points on an offender’s criminal history score if that offender commits another severe, violent crime.

At the July 26 hearing, Shellhas—a guidelines commissioner—said more than 90 percent of criminal cases get resolved by plea agreement. That suggests enhanced penalties available under the state’s career and dangerous offender statutes are not being applied, she said.

“I suspect that the statute has never been applied in connection with a plea agreement,” she said. “Maybe it has, but I doubt it. Because why would somebody give that up?”

People who commit “severe violent crimes”—a specific list of 19 offenses including first-degree murder, kidnapping, aggravated robbery and other grievous offenses—are dangerous, Shellhas said. Therefore, she suggests, they should serve more prison time away from the public.

Her proposal could require 52 additional prison beds over time, according to the stakeholder memo. It calculates that of the 73 offenders sentenced for repeat severe violent crimes in 2016, 47 would have gotten longer sentences under Shellhas’ plan.

Several variants on her idea are also included in the memo. Here are a few:

• Generally increasing sentences for repeat high-severity offenders. This would involve all crimes ranked at severity levels 8 to 11 on the standard grid, not just those on the special list. Under this option, if a new offense is severity-ranked 8 to 11, any prior offense with an 8 ranking would result in two criminal history score points. Any prior with a severity ranking of 9 to 11 would earn the offender three history-score points.
• Increasing sentence durations, not history scores. One justification for this idea is that many severe violent offenders have maxed-out criminal history scores, so adding points doesn’t affect them. This would make them serve more time.

Though commissioners made minor tweaks to the memo’s wording, no proposal was excluded—despite Shellhas’ preference that at least a few be excised.

The plan to reduce decay periods to 10 years for felonies, and five years for misdemeanors and gross misdemeanors, was inserted without comment. So was a proposal eliminating the custody status point for prior gross misdemeanor and targeted misdemeanor offenses. The option could eliminate need for 165 prison beds, according to the memo.

Anyone interested in providing written input can email commission staff at [email protected], or send snail mail to the Minnesota Sentencing Guidelines Commission, 658 Cedar St., Suite G-58, St. Paul, MN 55155. Written input must be submitted by Sept. 5.