Stacking the Sentencing Guidelines Commission — a legislative effort to push our sentencing practices further left

I have written frequently this past year on the role the Minnesota Sentencing Guidelines Commission (MSGC) plays in our overall public safety. Current legislative efforts to stack the MSGC (including adding a spot for an incarceration survivor), and give the governor more influence in the appointments will serve to further politicize the commission, further weaken our sentencing practices, and ultimately harm our public safety efforts.

The legislature created the MSGC in 1978, mandating its “primary consideration” to be “public safety.” The goal of the commission was to produce guidelines that created consistency of sentencing by offense across the state. Guidelines were created to provide a presumptive sentencing range for the various crimes and associated criminal history. As created, the MSGC has eleven commissioners, eight appointed by the governor and three appointed by the Chief of the Minnesota Supreme Court.

Over the last several years, Governor Walz’s appointees to the commission have consistently advocated for reduced penalties and reduced incarceration. Such criminal justice reform policies have caused many to complain that the system appears more concerned with the impact of consequences on criminal offenders than the impact of their crimes on the victims and the community as a whole.

Over the past several years, the judicial members of the commission have consistently voted against proposals that would reduce penalties for felony offenders. Under statute, those judicial members have always been appointed by the Chief Justice of the Minnesota Supreme Court. Companion bills in the legislature (HF 2956, and SF 3060) are set to take appointing authority for two of those judicial members — the court of appeals member and the district court member — away from the Chief Justice. Under the bills, the Chief Judge of the Minnesota Court of Appeals would appoint the court of appeals member and the Minnesota District Judges Association would appoint the district court member. The bill’s author asserts that the change is necessary to ensure that the judicial members are better connected to the concerns of the bench, of which the judge is a member. That assertion begs the question: Who has complained that the judicial members do not represent the views of a majority of their respective benches?

What the proposal actually does is move control — directly and indirectly — of the appointments of the court of appeals and district court judge members to Governor Walz. As to the court of appeals, the connection is direct. Under statute, the governor designates one of the nineteen court of appeals judges to serve as chief judge for a three-year term. That process is unlike the manner in which the Chief Justice of the Supreme Court is selected: by the voters. As to the district court bench, the connection is more nuanced. Service on committees and commissions such as the Sentencing Guidelines Commission is often what sets judges apart from their peers as leaders. Moreover, such additional service is often a basis for gubernatorial appointments to higher judicial office. Thus, a district court judge who serves on the commission and votes with the Walz majority could be viewed favorably when seeking gubernatorial promotion within the judicial branch.

For those reasons, one can reasonably assume that the real purpose of the bills is to provide a means of replacing the court of appeals and district court commission members who have consistently voted against the Walz majority with judges who are more likely to vote with the majority.

In addition to changing the appointing authority for two of the three judicial members, the bills add two additional commissioners — an academic and a treatment professional — and it requires that one of the governor’s public member appointments go to an “incarceration survivor.” The bill’s author asserts that these changes are necessary to bring additional voices to the table. That assertion is dubious given the ability the commission has to invite “additional voices” to present and speak to the commission whenever they choose. Lastly, nothing prevents the governor from appointing a so-called “incarceration survivor” as a public representative on the commission under the existing format. Indeed, one of the governor’s current appointees described herself as such.

These bills are a thinly veiled attempt to create a super-majority that favors current criminal justice reform policies, which would be less likely to give merit or weight to the position of the commissioners in the minority.

For far too long, the work of the MSGC has carried on comfortably out of sight and out of the influence of everyday Minnesotans. That needs to change. Now is the time to let the our legislative leaders and our governor know that the public remains concerned about the level of violent crime in Minnesota, that the public will not accept the criminal-justice-reform movement’s assurance that reducing penalties will reduce crime and recidivism, and that the public does not support changes to the constitution of the MSGC that are clearly intended to advance such policies. Instead, the public wants appropriate checks and balances to remain in place within the commission by maintaining appointing authority for all three judicial members with the Chief Justice of the Minnesota Supreme Court, and by maintaining the number of commissioners at nine (9).