A call for more more transparency in judicial performance

Interest in judicial performance is growing — and rightfully so.

There are far too many examples of judges departing from sentencing guidelines, or issuing unreasonably low bail/conditions, which place criminals back on our streets instead of properly holding them in custody. Of course, there are other system partners that play a part in this, but it is reasonable to demand more from the bench. 

In the June 2022 Minnesota Sentencing Guidelines Commission report on sentencing practices for 2020 (read here), the commission reported the following troubling trends:

• Judges are departing downward in 26% of sentences overall
• Judges are departing downward in 43.2% of sentences for which there is a presumptive commitment (guidelines recommend prison sentence).  This is the highest departure rate ever observed.  The next highest rates on record occurred in 2019 and 2018 respectively.
• Judges are departing downward on duration of sentences for aggravated robbery in 38% of cases.
• The 5-year rate (2016-2020) reflects judges departed downward in the duration of executed prison sentences for black defendants in 30.5% of cases, and for white defendants in 17.6% of cases.

These departures are taking place at a time when our crime rate is rising to unacceptable levels, and our incarceration rate is falling. See chart below.

Minnesota currently ranks 48th out of 50 of states with the lowest incarceration rate — 132/100,000. The national average is 303/100,000. The narrative that our prisons are full is false. We have the cells to accommodate more prisoners, and given our escalating crime rate, it is a reasonable to expect our criminal justice system and judges to keep more criminals in custody.

Historically it has been difficult to track the performance of individual judges. Current rules mandate the Sentencing Guidelines Commission track only aggregate data from judges statewide. This is somewhat intentional to insulate judges from scrutiny and pressure, and to maintain their independence. However, the voting public should have access to data that helps to evaluate how a judge has performed.

There is the Minnesota Board of Judicial Standards that responds to complaints about judges. However this is predominately related to judicial conduct and demeanor, and not on legal decisions or rulings which the public is more concerned with. More on the Board can be found here.

There are at least four House Republican bills waiting for vote by the Minnesota Legislature next session. These bills intend to address the lack of accountability by judges and other criminal justice partners that depart from sentencing guidelines or mandatory minimum penalties, etc. These bills would create searchable data bases for the public to track judicial and county attorney performance on such cases.

The bills and Minnesota House of Representative authors are:

• Sentencing departures required to be posted on Sentencing Guidelines Commission website – HF 3330 (Novotny)

• Judges and prosecutors who depart from mandatory minimum sentences for crimes of violence that include a firearm must be publicly posted on the Sentencing Guidelines website – HF 3353 (Johnson)

• Sentencing Guidelines Commission reporting when mandatory minimums not imposed – HF 3357 (Grossell)

• County Attorneys required to report on cases where charges are dropped – HF 3355 (Scott)

More transparency and accountability from the bench and other criminal justice system partners will translate into better public safety for all Minnesotans.