Panel OKs Senate confirmations for sentencing panel

By a party-line vote, a Senate committee on Monday agreed to require most Sentencing Guidelines Commission members to stand for Senate confirmation.

The bill, Senate File 2851, also mandates that the commission give seven days’ public notice for any intended votes. The bill passed the Senate Judiciary and Public Safety committee, 6-3. Only Democrats were opposed.

It was clear from his commentary that committee Chair Sen. Warren Limmer, R-Maple Grove, remains angry that the commission on Jan. 9 approved a presumptive five-year limit on most felony probations. To Limmer, that was an unacceptable encroachment by the unelected body onto legislative turf.

“Some say that the Sentencing Guidelines Commission has gone rogue,” he said.

His bill would require nine of the commission’s 11 members to be confirmed by the Senate. Only two permanent slots, for the Supreme Court chief justice and the state corrections commissioner, would be exempt.

Gov. Tim Walz on Tuesday indicated that he would not sign the legislation if it managed to pass the Senate and House — itself an unlikely prospect.

“It’s never going to happen and they know that,” Walz said. “This is just a way of bringing this up in the frustration.”

‘Great offense’

The bill’s inevitable failure means that six of the governor’s seven commission appointees can rest easy—at least as long as Democrats hold onto either the House or the Governor’s Residence.

However, Walz’s corrections commissioner, Paul Schnell, might have fresh cause for worry.

As corrections chief, Schnell already faces Senate confirmation. And because of the leading role he played in shoehorning a hard, five-year probation cap onto the commission’s Nov. 6 meeting agenda, Limmer indicated that Schnell’s prospects for being confirmed as DOC commissioner might be damaged.

“I think there’s a lot of members that are questioning that right now,” Limmer said.

Walz reacted impatiently when asked about that Tuesday. He said threatening Schnell’s confirmation is akin to playing poker with “an incredible public servant.”

“I take great offense about trying to make this personal about confirmations,” he said.

The board’s decision to approve the reform was not Schnell’s alone, Walz pointed out. “It was a majority of a nonpartisan board that has functioned incredibly well,” he said. “So this is looking for the problem that doesn’t exist.”

Monday’s Senate committee debate lasted 90 minutes, during which time Limmer carefully laid out his case. Under his plan, should a Guidelines Commission member fail to be confirmed that member would lose his or her spot on the commission.

“If someone is going to write law on behalf of the people in this state, they should at least be accountable to the ones who granted them that authority—and that is the Legislature,” Limmer said. “I believe that is vitally important.”

Much of his critique centered on Schnell’s role. It was Schnell who, late on the afternoon of Nov. 5, emailed other commissioners proposing a hard five-year probation cap. The next day, without public notice, that pitch was put to a vote and tentatively approved by a 6-5 vote.

“Was this issue weaponized instead of depoliticizing it?” Limmer said. “That might be the question to ask.”

But that vote was not the commission’s final word on the matter. It simply sent the proposal forward to a Dec. 19 public hearing, during which several hours of testimony were heard—including Limmer’s. Final action was deferred to Jan. 9.

By Jan. 2, after taking feedback into account, the proposal was watered down. A draft distributed that day nixed the hard five-year cap, replacing it with presumptive five-year probation terms while preserving judicial discretion to add more time. The judge would only have to offer substantial and compelling reasons for an upward departure.

After reviewing both versions, the state Attorney General’s Office wrote a Jan. 8 opinion stating that Schnell’s original idea violated the commission’s statutory authority. However, the revised version did not, the AG’s office said, and the panel could put it to a final vote. The next day, it did and the new proposal passed, 8-3.

At this point, to stop it both houses would have to pass bills nixing the proposal and the governor would have to sign the legislation.

But with the Legislature split between two political parties, that is highly unlikely. That fact was clearly on the minds of Limmer and other GOP supporters of his bill.

“The idea that we can pass legislation to overturn the sentencing guidelines, I think, is kind of disingenuous at best,” said Sen. Jerry Relph, R-St. Cloud. “We shouldn’t have to do that if the Guidelines Commission stays within the scope of its authority.”

Marching orders

Whether probation policy lies outside the commission’s mandate remains one of the hotter parts of the controversy. Commission Executive Director Nate Reitz told senators Monday that it is within the panel’s zone of operations.

The enacting 1978 statute, Minn. Stat. Sec. 244.09, gave the group two marching orders, Reitz said—one mandatory, the other optional. The law ordered the group to create sentencing guidelines for imprisoned felons, Reitz said. It spent the first few years of its existence focused exclusively on that job.

But it also had the option of creating guidelines for offenders for whom imprisonment not appropriate, Reitz said. The statute specifically mentions “probation and the conditions thereof” among those possible additional guidelines.

Reitz said that until now the group has never acted on the issue, despite repeated legislative prodding during the 1980s. “But clearly from the outset, the commission had the authority to establish non-imprisonment guidelines,” Reitz said.

Reitz admitted that the panel’s November vote was unusual. While the commission had, since 2018, studied probation-length disparities across various Minnesota judicial districts, the Nov. 6 proposal appears to be its first concrete attempt to do anything about it, he said.

GOP members weren’t impressed with the explanation. Relph said that for the commission to count probation among its responsibilities for when “incarceration is not appropriate” is “a broad interpretation of the enabling statute.”

In effect, Relph said, by instituting the five-year presumptive probation cap, the commission overruled lawmakers’ sentencing decisions, truncating sentences that the Legislature has imposed.

“What is its role?” Relph asked rhetorically. “Is it legislative? If so, I would take exception to that. And it appears that that is what is happening here.”

Sen. Ron Latz, DFL-St. Louis Park, expressed some support for Limmer’s bill. The amendment establishing improved public notice is a good idea, he said.

But the plan to force commissioners to stand for Senate confirmation is “troubling,” Latz said, and makes little sense. Despite the rocky start in November, the commission spent two months working the kinks out of its proposal, collected significant public input and finally altered it to adhere to its statutory authority.

Latz pointed out that section 244.09 orders the commission’s procedures to be “based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.” The concept of sentencing, Latz said, includes probation.

“So the commission was doing exactly what they were tasked with doing—trying to create more uniformity in sentencing in Minnesota, not less,” Latz said.

The real problem, Latz suggested, is that GOP lawmakers dislike the outcome and their inability to do anything about it. Instead of depoliticizing the commission, he said, forcing members to stand for confirmation would risk the opposite.

As Monday’s debate closed, Limmer said that confirmation is preferable to eliminating the commission—something he proposed in a bill several years ago before changing his mind. Criminology is complex, he said, and legislators needs its members’ expert advice.

But ever since the Legislature adopted the commission’s 2016 drug-sentencing reform recommendations, he said, it has gradually asserted increasing, quasi-legislative authority. That must stop, Limmer said.

“So instead of going whole hog and getting rid of the Sentencing Guidelines Commission, I think it is reasonable effort to simply require Senate confirmation,” Limmer said.

The bill now moves onto the Senate State Government Committee, which has yet to schedule it for a hearing. The bill’s companion, House File 2857 from Rep. Brian Johnson, R-Cambridge, is not scheduled for a hearing, either.