Rep. Jamie Long, DFL-Minneapolis, is author of a bill that would cap Minnesota probation terms for most felons at five years. A second, related bill would direct the Sentencing Guidelines Commission to produce probation guidelines. (Staff photo: Kevin Featherly)

Had she rejected the deal, chances are that Jennifer Lynn Schroeder, 36, would be out getting out of prison around mid-May. Her subsequent probation likely would’ve ended in February 2022.

But back in 2013, Wright County Judge Michele A. Davis offered Schroeder an alternative to prison. Rather than serve 98 months on her first-degree drug conviction, the judge said that Schroeder could spend just one year in Buffalo’s Wright County jail, with credit for time served.

After that, she’d serve 40 years’ probation. Schroeder took the deal.

She thought that would mean faster reunification with her daughter. But it didn’t work out. The child instead was adopted into another family. Fortunately, they have good rapport with Schroeder and allow her to share in her daughter’s life. But her daughter doesn’t call her Mom anymore.

After her release from custody, Schroeder entered a sober-living house where she thrived. She soon became its house manager while also studying to become a drug and alcohol counselor. She graduated college with a 4.0 grade point average, she said.

She now is a career counselor and active volunteer in her church who keeps her nose clean, she said. “I did above and beyond what they asked me,” she said of her ongoing probation, “because I wanted change.”

There’s not much more she can do to demonstrate that she is rehabilitated, she said, yet she has 34 years left to serve. She said she doesn’t qualify for early release for another two decades.

She knows the slightest slip-up could send her to prison to serve out her term, she said. “That fear is within me all the time, every day.”

Beyond that, she must make special arrangements with the state to travel. She can’t vote until she is in her seventies. If she applies for new jobs, she must endure a lengthy “set-aside” process and background checks that make even prospective employers fully aware of her past. She is barred from entering jails to help fellow addicts recover.

Schroeder, whose personality is considerably sunnier than this depiction might suggest, doesn’t begrudge her conviction. She got caught with 21 grams of meth during a traffic stop and fully planned to sell it, she said. She owns that she caused damage to her community.

But if she knew in 2013 what she knows now, Schroeder said, she might opt for prison, rather than live under the state of Minnesota’s perpetual sword of Damocles.

“I have to ask,” she told reporters at a Feb. 12 Capitol press conference. “What is the point when what you have done—and what you are continuing to do—is enough to say that you are fully a member of society again?”

Five-year cap

Democrats in the Minnesota House are wondering the same thing, and not just on Schroeder’s account.

Minnesota has among the lowest incarceration rates in the nation; it currently houses fewer than 10,000 prisoners. But to balance the scales, the state puts a lot of people on probation. And unlike many states that cap probation terms at five years, Minnesota’s can last up to 40 years. Schroeder got the statutory maximum.

An April 2018 report from the U.S. Department of Justice’s Bureau of Justice Statistics showed that nearly 97,000 Minnesotans were on felony probation at the end of 2016. That’s a rate of 2,280 probationers for every 100,000 people in Minnesota. Only Idaho, Ohio and Rhode Island had higher rates.

Worse, according to reform advocates, the state doesn’t mete out probations evenly. Where an offender lives can have everything to do with how long probation lasts.

A January report from the state’s Sentencing Guidelines Commission shows that felons in the Iron Range’s 6th Judicial District get sentenced to an average of 40.4 months’ probation—about three years. But in east-central Minnesota’s vast 7th Judicial District, the average probation for all felony crimes is 87 months—more than seven years.

The disparities are ever worse for drug offenses. In the 7th District, the average felony drug probation is 108 months—nine years. In Hennepin County’s 4th Judicial District it’s 36 months—three years.

Offenders can petition the courts for early probation release, but according to State Public Defender Bill Ward, that rarely works. And the early-release system is equally lacking in uniformity, he said. “To me, that’s a nice way of saying that existing culture in a county basically governs early discharge,” Ward said.

Rep. Carlos Mariani, DFL-St. Paul, is chair of the House Public Safety and Criminal Justice Reform committee. He thinks that Minnesota’s probation system is ripe for reform.

“As opposed to having a probation system that is really set up to just watch and wait for you to make a little mistake,” Mariani said, “we want a much more helpful probation system.” Such a system would interact “in real ways with the lives of the folks in our corrections system.”

Mariani’s committee last week heard a collection of bills that constituted a kind of “probation week” at the Capitol. Two from Rep. Jamie Long, DFL-Minneapolis, House File 689 and House File 997, are at the heart of its efforts.

HF 689 would impose a simple five-year cap on probation terms for all convicted felon other than murderers and sex offenders. It was heard in Mariani’s committee on Feb. 12 and laid over for possible inclusion in a future Public Safety omnibus bill.

The bipartisan bill has four GOP and eight DFL House co-authors. Schroeder is one of its biggest supporters—though it’s questionable whether her case would be affected.

“A cap on probation could prevent a judge from having a bad day and handing down a sentence that she may not have if she was having a good day,” she told committee members Feb. 12.

Ramsey County Attorney John Choi testified on Feb. 12 as the Minnesota County Attorneys Association’s representative. He said his group supports standardizing probation durations and reducing disparities. Research suggests that probation’s effectiveness in preventing recidivism and helping offenders reintegrate diminishes between year three and year five, Choi said.

Still, he encouraged lawmakers to be thoughtful moving forward. Every crime and every criminal is unique, he said, and some local prosecutors might not appreciate a one-size-fits-all approach.

“It could lead to a result that may not be good,” Choi said. “You might have the county attorney then recommend that the person should go to prison instead of having a probationary time period.”

New mandate

House File 997 was heard the following day and also laid over. Long, its lone author, said it complements his five-year probation cap.

HF 997 would expand the Sentencing Guidelines Commission’s mandate to include probation-data collection and analysis. The group would then be directed to use that data to develop probation-sentence guidelines, just as it does for prison terms.

Kelly Mitchell, who leads the Robina Institute at the University of Minnesota Law School, is the Sentencing Guidelines Commission’s former executive director. She told lawmakers that Minnesota statutes give the commission full latitude to take on probation.

In fact, she said, while the practice isn’t widespread, several states already factor probation into their sentencing guidelines. Oregon and Kansas are two examples.

Long agrees there is nothing to prevent the commission from expanding its mandate. He suggested that the group should have been doing it all along.

“It has had 41 years and hasn’t taken action,” he said. “I believe a nudge from this committee and the legislature is appropriate.”

Corrections Commissioner Paul Schnell, an incoming member of the Sentencing Guidelines Commission, didn’t testify on Tuesday but was present on Feb. 13 to support HF 997. He said he doesn’t speak for the entire commission, but agrees the statute appears to support an expanded role for the panel.

Ben Feist, the ACLU’s Minnesota legislative director, supports both of Long’s bills. He called probation a key contributor to mass incarceration. It is over-utilized and keeps Minnesota offenders under correctional control far too long, he said.

Feist stressed that HF 969 should not be seen as an alternative to the five-year cap proposal. HF 969 would encourage the commission to dive deeper into the role of probation in our criminal justice system, he said.

“And we certainly believe that is much-needed right now,” Feist said.

Neither of Long’s bills as yet has a Senate companion.