Minnesota Judges set record high rate of departures from prison sentences in 2021

Sentencing Practices – 2021

On 12/15/22, the Minnesota Sentencing Guidelines Commission received a briefing on 2021 sentencing practices. The trends in criminal sentencing continue to be troubling.

In 2021, Minnesota judges failed to sentence criminal defendants to prison in 46 percent of the cases in which a “presumptive” commitment to prison was recommended by the guidelines. This represents a new record high percentage of dispositional departures for the fourth consecutive year.

Particularly troubling is the case types that some of the highest departure rates came from — 2nd Degree Assault (shooting someone), Threats of Violence, Failure to Register as a Predatory Offender, Motor Vehicle Theft, Burglary, and Felony DWI — all well over 50 percent. 

You are reading this correctly — in 2021, defendants who were convicted of 2nd assault/dangerous weapon were likely to be spared from prison in six out of every ten cases. This is inexcusable for any case type, let alone crimes of violence.  

You can review the draft findings of the 2021 sentencing practices here.

It is concerning that Minnesota judges are departing from the sentencing guidelines at such high rates. The proper response should be for the legislature and sentencing guidelines commission to take actions that make it harder for judges to depart from the sentencing guidelines. Unfortunately, some policy makers believe the departures represent flaws in the sentencing guidelines themselves, rather than in the judicial sentencing practices. We all must remain alert for attempts to modify the sentencing guidelines that will simply mask improper judicial sentencing practices, and continue to make us less, not more safe.

Custody Status Point Resolution

The commission also received public comment on a proposed resolution to the “1/2 custody status point” issue that has plagued the application of ½ custody status points in the calculation of sentences for several years. Find the proposal details here.

It appears likely that the proposal will be formally accepted at the January 15th meeting, and if that holds true, it will restore a full custody status point to a smaller list of more serious situations and eliminate the ½ custody status point altogether in the remaining “lower level” situations. Given previous proposals that had urged the elimination of custody status points altogether, this proposal is a step back towards the responsible application of custody status at sentencing. The judicial representatives on the commission, especially Judge Larkin, should be recognized for their thoughtful and diligent efforts in crafting and advancing this proposal. These efforts appear to have salvaged a good deal of accountability.

My comments to the commission:

Good afternoon, I want to thank the commission for holding this public hearing, and for allowing me time to speak.

My name is David Zimmer. I am a retired peace officer who served 33 years as a deputy sheriff, a detective, and a senior executive overseeing a wide range of public safety roles. One of those roles was managing the Hennepin County Jail, one of the largest detention facilities in the Midwest. In that capacity I worked alongside my criminal justice system colleagues to ensure the finite bed space in the Hennepin County Jail was used wisely and justly to maximize our public safety efforts.

Since my retirement from public service, I’ve joined Center of the American Experiment as a policy fellow focusing on public safety. In this role I now have the time to dig deep into data surrounding the serious issues impacting our collective public safety.

My perspective on the work conducted by this commission is backed by decades of public safety experience and is supported by data held by the commission and other state public safety agencies.

I’m here to voice concern over the ½ point custody status point issues under debate.

As I understand it, the commission voted in 2019 to permit ½ custody status points in the calculation of criminal history scores for certain lower-level crimes. The intent was clear as it recognized that a serious prior offense should impact sentencing more than a less serious prior offense. There was little opposition to this change which intended to improve fairness. Unfortunately, this change created a scoring problem.

Rather than making a technical correction, this commission has spent the better part of two years debating even more profound actions up to and including the complete elimination custody status points. As a result of this prolonged debate, applicable cases have presented themselves in our courts for two years, and the courts have been unable to appropriately apply the ½ custody status point as this commission originally intended.

The latest proposal from Commissioner Larkin is an earnest attempt to salvage some form of accountability for those who had a custody status at the time they committed a new offense. It would restore a full custody status point for a smaller list of more serious situations and eliminate the ½ custody status point altogether in the remaining situations.

As a practical matter, I’m supportive of salvaging something. But on principle I feel compelled to comment that the public has repeatedly made clear that it does not support efforts that weaken rather than strengthen accountability for criminal offenders in Minnesota. As noted at the last meeting, each of the proposals made on this issue represent a reduction in beds compared to pre-Beganovic status. That does not strengthen accountability.

The data and the antidotal evidence are clear – we are failing to incarcerate those who our legislature intended to be incarnated. The issue is getting worse, not better, and the very neighborhoods and communities that criminal justice reform efforts are trying to help, are the neighborhoods and communities paying the highest price.

I urge the commission to start and end every discussion with the reminder of its statutory mandate – “In establishing and modifying the sentencing guidelines, the primary consideration of the commission shall be public safety.” At a time when our state incarceration rate remains near the bottom in country, any considerations that further reduce our incarceration rate, are in my opinion, and in the opinion of many, not properly considering public safety.

Thank you