Whenever there is a high profile criminal case in the news, the comments always seem to be the same: the sentence was too light. Many people are under the mistaken belief that judges can sentence someone to any number they choose.

In Minnesota, we have a complex system of sentencing guidelines, established by an independent commission. The sentencing grid has the severity level of the offense on one axis, and the defendant’s criminal history score on the other. There are detailed rules for calculating both of those numbers, and the end result is a “box” on the grid with a presumptive sentencing range. You can look at these grids online at http://mn.gov/sentencing-guidelines/guidelines. The approximate midpoint of that range is what we refer to as the “guideline sentence.” The boxes closest to the beginning of the grid are shaded, which signifies a presumptive “stayed” prison sentence with terms of probation. For example, a defendant with two prior felonies (criminal history score of 2) who is found guilty of 2nd Degree Burglary (level 6 offense) would have a presumptive sentence of 33 months, but stayed for a term of probation. If the defendant violates probation, then the stay could be revoked and the defendant sent to prison.

A judge can only deviate from those presumptive sentences under certain circumstances. This is called a departure. Upward departures, meaning a sentence more than the guidelines, can only occur if the defendant consents, or if a jury (or judge, if the defendant waives a jury) finds specified aggravating factors in the crime. Examples of this include when a victim is treated with extreme cruelty, or the defendant qualifies as a career offender under Minnesota law. Absent an aggravating factor, the upper limit of the judge’s discretion is the maximum presumptive sentence. This is often inconsistent with press coverage at the time of arrest, which typically recites the maximum penalty under the criminal statute set forth in the complaint. That number does not factor in the sentencing guidelines.

Downward departures are more common, and can be two types. A downward durational departure means a prison term but for fewer months than the guidelines. This decision is often because the offense is less serious than the usual fact pattern. A downward dispositional departure is when a judge gives the defendant a chance on probation when the guidelines call for a prison sentence. That decision is based on whether the defendant is particularly amenable to probation, such as when someone really needs chemical dependency treatment or mental health counseling. For either upward or downward departures, a judge has to provide his or her reasons in writing as justification.

Plea negotiations can have a major impact on the guideline sentence. For example, the State can agree to accept a plea to a lesser charge, which changes the presumptive sentence from prison to probation. Sometimes the parties will even agree to a departure, but the ultimate decision whether to accept that agreement is up to the judge. Those are some of the hardest decisions a judge has to make. This is particularly true when the plea deal calls for punishment that is probably too light for the crime, but where there are weaknesses in the prosecution’s case that might result in an acquittal if the judge forces the case to go to trial.

If you think a sentence is too harsh or too light, remember that the judge cannot just pick any number, but is required to follow those guidelines unless a departure is legally justified. If you disagree with the guideline sentence, you can submit input to the Sentencing Guidelines Commission when they do their annual review. The web site has more information on how that process works.


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