Carlos Mariani to sentencing panel: ‘Fulfill duty’

In an unusual move, a powerful DFL House committee chair made a soft-spoken but direct appeal to Minnesota’s Sentencing Guidelines Commission, telling members to “fulfill your duty” by developing new probation guidelines, even without enabling legislation.

“We believe that you already have that authority,” said chair Carlos Mariani, DFL-St. Paul, who chairs House Public Safety and Criminal Justice Reform. “I am here to insist that you embrace that authority and to act, with or without legislation.”

Mariani spoke on Feb. 14 after his own committee heard two probation-related bills authored by Rep. Jamie Long, DFL-Minneapolis. House File 689 aims to cap most felons’ probations at five years while doing away with the current 40-year statutory maximum. Murderers and sex offenders would be exempt from the statewide cap.

House File 997 assigns the guidelines commission new authority to collect in-depth probation data and use it to develop new, statewide probation-sentence guidelines. Both bills have the support of new Corrections Commissioner Paul Schnell.

Mariani told commissioners that there are wide racial and regional disparities in Minnesota probations. For example, felons in the Iron Range’s 6th Judicial District get sentenced to an average of 40.4 months’ probation, yet in the east-central 7th District the average is 87 months.

Mariani urged the group to “fulfill your duty” and tackle probation policy. The guidelines commission briefly considered doing that in the early 1980s, but abandoned the effort by 1983 and never took it up again.

“It is within your scope,” Mariani said. “It is within your power, it is frankly within your duty and I think it is, frankly, within the right moral values that we share in common as a state.”

When Mariani finished, commissioners cordially thanked him but offered no questions or comment. He then quietly left to attend a House floor session.

Court of Appeals Judge Heidi Schellhas, the commission’s vice chair, was asked for her reaction to Mariani’s insistent message.

“I will pass it onto the chair,” she replied.

Murky language

The two bills’ proponents say Minnesota’s stance on probation is far outside the national norm. Others counter that long probations are the price Minnesota pays for its low incarceration rate.

At least 12 states cap probations at one to five years, according to the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, which surveyed probation policy in 21 of the 50 states in 2014.

That survey found just three other states that, like Minnesota, permit probation durations to equal the felony-sentence maximum, short of life without parole. Two other states have uncapped and entirely discretionary terms.

Even before Mariani arrived for the Feb. 14 hearing, there was discussion about the two bills. Commission Executive Director Nate Reitz noted that probation is a topic the panel “has been interested in for some time.” In fact, probation revocation was the topic of a commission study released on Jan. 31.

Among its findings, that paper showed that average probations tend to be longer for property crimes than for “person crimes”—a category that includes various kinds of major and minor assault. That caught Schellhas’ eye. “I just really think this area demands our attention,” she said.

Speaking after the Feb. 14 hearing, Reitz said Mariani might be correct that, even without enabling legislation, the commission can take up what the two bills ask—though he probably would need another staffer to pull it off. Yet he is not fully certain the authority is there.

Minnesota Statutes Section 244.09, the commission’s enacting statute, says: “The sentencing guidelines promulgated by the commission may also establish appropriate sanctions for offenders for whom imprisonment is not proper.” That would include probation, Reitz said, but he noted the passage doesn’t specify the commission’s authority over probation durations.

The statute then goes on to address establishing new guidelines, and there things get a little murkier. One passage says that such guidelines “shall make specific reference” to a long list of non-institutional sanctions — day fines, incarceration in local facilities, community work orders and numerous others among them.

HF 997 would grant the commission authority to integrate with more state agencies to collect data and use it develop new probation guidelines. A late amendment to that bill would alter “shall make” to “may make” in that passage.

In hearing testimony on Feb. 12, Long said the tweak would give the commission flexibility to choose which listed factors to reference while ignoring anachronisms like “day fines” that no longer are in use in Minnesota.

Reitz said it is possible previous commissions found the maxim “shall make” an impediment to formulating guidelines, which could explain why they abandoned the effort. If true, Long’s amendment — and therefore his bill — might need to pass to sweep that impediment away.

But Reitz isn’t sure one way or the other. “I don’t want to say,” he said. “I don’t know how the commission has interpreted it in the past. … There is certainly language in the statute that gives the commission authority to do something.”

‘Unprecedented’

Schellhas said no legislator ever made a similar presentation similar to Mariani’s, at least not she joined the commission in 2011. Former Supreme Court Associate Justice Christopher Dietzen, the commission’s chair, was not present at that hearing.

The 11-member commission is appointed by the governor and the state Supreme Court’s chief justice. David Schultz, the Hamline university political science professor and attorney, said it is meant to operate somewhat apart from the political fray and called Mariani’s appearance there “unprecedented.”

Sen. Warren Limmer, R-Maple Grove, agreed. A lawmaker since 1988, he said he never saw a legislator make such a direct political appeal to the commission and was critical of the move. “It is not for us to circumvent its advising role and go to them to tell us what we want to hear,” he said.

Schultz wonders if Mariani’s Feb. 14 appearance reflects a lack of confidence in the two bills’ Senate prospects. If so, there might be reason for concern.

Limmer is the Senate Judiciary chair who selects which bills get heard there. Long’s two bills would need to clear Limmer’s committee before reaching the Senate floor. Limmer supports neither of them. And as yet neither even has a Senate companion to consider.

Limmer said the Sentencing Guidelines Commission has recently been a little more assertive in exercising its sentence-reduction authority than he prefers. HF 997 might propel it a little farther in that direction, he said.

Prospects for the probation-cap bill, HF 418, also are bleak. While Limmer agrees that 40-year maximum probations might be worth revisiting, he is uninterested in a five-year cap. “It’s just absolutely out of the question,” he said.

“A one-size-fits-all is not wise to do,” Limmer said. “We recognize the concept of proportionality in our criminal sentences. And we should recognize proportionality — due to the severity of the criminal activity that took place — in probation terms as well.”