In the Hopper: Prison terms; child porn, pre-sentence reports

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With the first bill deadline approaching on Friday, there is a mad scramble for the legislative chambers to pass bills.

On Jan. 26, the House and Senate agreed that March 12 would be the session’s first committee deadline. That’s the day by which most committees must pass bills in their house of origin. The House and Senate bonding, taxes, finance and rules committees are all exempt from the deadline.

A week later, work on bills and companions that met the first deadline must finish. The third and final committee deadline, for all finance bills, is April 9.

Here are a few bills of interest to lawyers and the courts that have moved in recent days.

House File 901 (chief author, Rep, Kelly Moller, DFL-Shoreview). The bill creates a uniform way for prosecutors to revisit sentences and petition courts to reduce prison and probation terms for those deemed deserving.

“This legislation recognizes the role that prosecutors have as ministers of justice by enabling them to seek sentence reductions for people who have been rehabilitated,” Moller told the House Public Safety committee on March 4.

It gives the county attorney who prosecuted an offender a way to petition the court for a sentence reduction, but the final call would be the judge’s to make. It prohibits using the process to increase sentences.

The bill allows prosecutors to review cases at their discretion, but requires that, if they move ahead, they must make good-faith efforts to seek input from crime victims. The Corrections commissioner, probation agents or the offender also may request a sentencing review, though the prosecutor would not be required to act on, or even respond to their requests.

After the offender is served with the petition and victims are notified, the court would have 60 days to hold a hearing. The judge must consider victims’ input before making a final decision, the bill says.

HF 901 has support from Ramsey County Attorney John Choi, Hennepin County Attorney Mike Freeman, Attorney General Keith Ellison, Corrections Commissioner Paul Schnell and the Second Chance Coalition, among others. It is modeled on a California law that passed in 2019.

Choi urged lawmakers to vote for it in the interests of redemption, rehabilitation and reconciliation. “We should actually care about what happens to people’s rehabilitation and what happens in prison,” he said. “Otherwise, what we are really doing are just locking people up and throwing away the key and moving onto the next case.”

Rep. Brian Johnson, R-Cambridge, the committee’s former chair, spoke against the bill. He said it fails to pay enough attention to victims—something bill proponents deny. “I have a lot of problems with this,” he said. “The county attorneys are supposed to represent the victims.”

Moller, herself a prosecutor, said that’s not exactly right. “While county attorneys work very closely with victims and try very hard to represent the interests of victims,” she said, “at the end of the day, the county attorneys represent the people of Minnesota.”

The bill passed Public Safety by a 13-5 vote, with two Republicans joining the Democrats to move the bill to the House floor. It has no Senate companion.

Senate File 1457 (Sen. Warren Limmer, R-Maple Grove). This bill is part of the Senate Judiciary chair’s continuing efforts to serve as a check on the Minnesota Sentencing Guidelines Commission’s controlling, liberal majority.

His bill, heard in his Judiciary committee on March 8, adopts the viewpoint of the commission’s minority report included in its 2021 year-end policy summary. In it, the commission’s law enforcement and judiciary representatives opposed the majority’s approach to two legislatively enhanced child-porn crimes.

The majority opted not to increase severity rankings on enhanced child-porn possession and dissemination, though it did increase the ranking for the related, but arguably more severe crime of child-porn production. The added severity point means that a conviction on the production offense includes presumptive imprisonment.

Kelly Lyn Mitchell, the commission’s chair, said the group spent a year reviewing the enhanced offenses passed in 2019. It found that between 81% and 85% of those charged with the base-level possession and dissemination offenses also qualify for enhanced charges under the 2019 law. “We are already increasing sentences for those crimes,” she said.

Another reason the commission rejected higher severity rankings is because of Minnesota’s practice of “Hernandizing” criminal charges. That practice, she said, means that most people charged with possession and dissemination likely face multiple charges, based on the same conduct. Someone could be charged with separate offenses for downloading a child-porn file on two different dates, for example, Mitchell said.

“That happens for child pornography more often than for other kinds of offenses,” she said.

The final deciding factor, she said, was that child-porn possession and dissemination offenders have atypically low recidivism rates. But Sen. Mary Kiffmeyer, R-Big Lake, wasn’t very impressed with that.

Even if recidivism were as low as 50%, the senator said, it’s not nearly good enough. “That’s still 50% who are out there and doing this again to the innocent,” Kiffmeyer said.

Limmer said his bill aims to clarify the Legislature’s intent for punishing child porn crimes. His bill rejects the commission majority’s recommendation and adds one additional point to the guidelines’ severity level grid for both crimes.

“We need to better protect our children from the heinous crimes of these offenses,” he said. “And this makes our intent crystal clear.”

Mitchell urged senators to vote against the bill, arguing it would lead to disproportionate sentencing, but to no avail.

Senate Judiciary voted to pass Limmer’s bill 7-2 vote. Sen Karla Bigham, DFL-Cottage Grove, crossed over to vote with the Republicans. It was then sent to Senate Finance.

The Limmer bill has no House companion.

House File 167 (Rep. Zack Stephenson, DFL-Coon Rapids). This bill would do away with pre-sentence investigations for many—but not all—felony crimes. And it would also better align state statute with Minnesota court rules.

Stephenson, a prosecutor, told House Judiciary on March 5 that pre-sentence investigations—those six- to eight-page reports written by a probation agents that basically relate an offender’s life story—can be crucial to help determine whether a sentence departure is merited. But for many convictions, Stephenson argued, they just aren’t needed.

“That is particularly true when thinking about lower level offenses like property and drug crimes, where we know that the defendant is going to be on probation,” Stephenson said. “Generating an eight-page document that few people if anyone will read is, frankly, wasteful of our state’s resources.”

Valerie Dorff, a Corrections Department field services agent from Moorhead, testified for the bill. While it wouldn’t end the chronic problem of probation agents’ overwhelming caseloads, she said, it would help them do their jobs better.

“Our hope is this bill will allow agents more time to actually work with offenders, to affect the change we all wish to see,” she said.

The bill also would better align statute with the Minnesota Courts’ Rules of Criminal Procedure, said House Research Analyst Ben Johnson.

Right now, Johnson said, statute requires pre-sentence investigation reports to be prepared for all felony convictions. But Rule 27.03 of the state’s Rules of Criminal Procedure makes them optional for all felony cases, he said.

“In general, the courts feel they have the right to control all procedural matters, while the Legislature has the right to control all substantive matters,” Johnson said. “I believe that the courts have determined this is essentially a procedural matter.”

As amended, the bill requires that pre-sentence investigations be conducted upon order of the court. But the court is told to order them for a specific set of felony crimes—domestic assault by strangulation, sex trafficking, solicitation of a child and interference with an emergency call among them.

The bill passed 14-0 and was referred to House Public Safety. Its companion, Senate File 371 (Bigham) has yet to be heard by Senate Judiciary.