Crimes involving firearms – a case for judicial accountability
The Minnesota legislative intent is clear — use a gun in a crime, and you will go to prison.
Minnesota statute 609.11 establishes a mandatory minimum sentence of 3 years in prison for possessing a firearm during the commission of a long list of crimes. A second conviction mandates a minimum of five years in prison.
To emphasize the seriousness of such crime, the legislature added a “No Early Release” provision to this statute, making those convicted of using a firearm during the commission of a crime ineligible for “probation, parole, discharge, or supervised release until that person has served the full term of imprisonment…”
Finally, in an effort to ensure transparency and accountability the legislature added a provision to this statute requiring prosecutors to report whether the case was charged or dismissed; whether the defendant was convicted of the offense or a lesser offense; and whether the mandatory minimum sentence required under this section was imposed and executed or was waived by the prosecutor or court.
On its face, 609.11 is tough and should send a resolute message to violent offenders. Unfortunately, that message is being short-circuited in Minnesota by the very entities we rely on to keep us safe — our prosecutors and judges.
Data maintained by the Minnesota Sentencing Guidelines Commission paints a troubling picture of a system failing to hold violent offenders accountable, as directed by law.
A review of data from 2015-2020 on cases in which the offender used/possessed a firearm during the commission of a crime indicates the following:
- There was a total of 3,854 people convicted that met the criteria of being armed or using a firearm in connection with their offence as described in 609.11.
- Despite the law mandating a minimum 3-year prison sentence, Minnesota judges departed from a prison commitment in 1,410 sentences or 36.6% of the time.
- Of the 63% of these offenders who received a prison sentence, nearly 1 in 5 received a “mitigated durational departure” meaning they received less time than the statute mandated.
- This equates to nearly half (48.5%) of these offenders who the legislature intended to receive a mandatory minimum sentence didn’t receive one as prescribed.
How is this possible? 609.11 has a provision that gives prosecutors and judges an out. It reads: “When presented with the motion (from the prosecution), or on its own motion, the court may sentence the defendant without regard to the mandatory minimum sentences established by this section if the court finds substantial and compelling reasons to do so.”
The most common reasons cited by the courts for departing from the mandatory sentences were:
- “Defendant is amenable to probation”
- “Defendant shows remorse/accepts responsibility
In about half of the departures the prosecutors either didn’t object or made the motion to depart themselves. In about a quarter of the cases the prosecutor objected to the departure, and in the remaining cases the position of the prosecutor was not known.
This information is important. Far too often we hear the narrative that we over-incarcerate and that we need to save our limited prison space for violent offenders. This information clearly shows that in the case of crimes involving a firearm, our prosecutors and judges are failing to incarcerate enough.
If the Minnesota legislature is serious about violent crime, it would address this issue by reducing the opportunities for sentencing departures. Sadly, we have seen the priorities of the incoming legislative majority, and they seem more intent on issues like legalizing marijuana use than keeping citizens safe.