Sentencing Guidelines Commission Chair Kelly Lyn Mitchell
Commissioners see no hope for updated severity rankings before September
f you’re looking for an example of how things go screwy when the legislature doesn’t get its work done on time, seek no further than Thursday’s Minnesota Sentencing Guidelines meeting.
Typically, its early June hearing is when the commission reviews new criminal laws passed during the regular legislative session. It’s when the panel starts mulling how to rank crimes’ severity levels on the sentencing guideline grids.
That is a crucial decision. Depending on how lawmakers write a new law and where it fits within the context of other ranked crimes, the commission’s choice can be the difference between presumptive probation and an extended prison stay.
Problem is, by passing only 31 total bills during the regular session, lawmakers left the Sentencing Guidelines Commission with precious little to do Thursday—and some serious confusion about comes next.
They resolved that confusion as best they could, but as commission Chair Kelly Lyn Mitchell told members at the end of Thursday meeting, they were being a just bit optimistic about it.
More about that later. First, we’ll talk about the bit of work the commission actually accomplished Thursday.
What got done
Members voted to postpone a planned July 15 public hearing on the only new criminal law that legislators managed to pass with any material impact on sentencing guidelines.
In other words, the 11-member commission kicked the can down the road. And, at least arguably, they did it for good reasons.
The crime in question—identity theft as part of a child-pornography offense—is one that, so far as commission staff can tell, practically never gets charged. Besides that, the legislature’s modification of the law is highly technical.
All lawmakers did was separate a child-porn/ID theft crime from two other ID theft crimes listed in the same paragraph of statute. One of the others involves ID thieves with eight or more direct victims. The third has to do with crimes involving total losses of more than $35,000.
Nate Reitz, the commission’s executive director, said the legislature split the child-porn crime off into a new paragraph, because some ID thieves in their constituencies apparently complained they had been branded as child pornographers, even though they never committed that crime. It was affecting their ability to get jobs and housing, Reitz said.
What the new law didn’t change was the child-porn/ID theft crime’s presumptive maximum sentence, so the commission doesn’t even need to alter its severity ranking. It simply needs make note of the statutory rewrite when it publishes its updated set of guidelines later this year.
The only real active question, then, was whether to provisionally adopt that minor change and send it to a required public hearing in seven weeks’ time, or postpone the public hearing. Reitz suggested it’s not worth the expense to assemble a full-on public hearing on such a tiny matter.
That’s particularly true, he said, given that lawmakers are going into special session on June 14 to pass a potentially big bunch of new criminal laws, which the commission also would have to deal with. Proposals include a major overhaul of sex-crime statutes, which has support in both chambers.
So the panel voted Thursday to provisionally adopt the technical change to the ID theft law, but put off its required public hearing until Sept. 1.
Its regular follow-up to that meeting, where approval would be formal and final, would have taken place July 22. But that has been moved to Sept. 9. By that point, the commission could have a whole lot more productive work to do.
No agreements yet
That’s actually where things get a bit interesting.
At the time of this writing, no spreadsheets were posted to the House and Senate web pages to indicate whether special session budget-and-policy agreements have been reached on a judiciary/public safety omnibus.
The legislature has already blasted past a least one major post-session deadline. It was supposed to post budget spreadsheets on May 28. Today was the deadline for policy provision agreements. So far, neither has happened in the judiciary/public safety sector.
Sen. Ron Latz, DFL-St. Louis Park, said Thursday that he has seen offers emailed back and forth among public safety/judiciary workgroup members—which, like workgroups in all the budget divisions, is working out of the public eye. Progress has been made on a few issues, Latz said, but much work remained to be done.
If a budget isn’t approved by the end of the fiscal year on June 30, the government shuts down.
If that happens, things would play out differently than other years. As Peter Callaghan of MinnPost has studiously unpacked, the state Supreme Court’s decision in 2017’s Ninetieth Minnesota State Senate v. Dayton foreclosed the option of relying on courts to dole out partial government funding and keep “essential” workers on the job through a shutdown.
But let’s say lawmakers get everything done by June 30. That still doesn’t necessarily solve every problem. For the courts, for instance, it could leave some vexing sentencing guidelines-related issues in place, at least temporarily.
Why? Because typically, newly passed criminal laws go into effect on Aug. 1. That’s also when the commission usually publishes its updated guidelines, including new severity rankings.
For various reasons, that schedule is already thrown off track. The Sentencing Guidelines Commission could still hold its regularly scheduled July 22 meeting to review new criminal laws—if they are passed by July 18, that is—and it could provisionally adopt new severity rankings then.
But by rule, the commission must wait for seven weeks after that to hold its required public hearing to gather feedback. That hearing is now scheduled for Sept. 1. On the following Thursday, Sept. 9, the commission would meet to adopt the new guidelines. Then they’d be published and formally put into effect on Sept. 15.
So why does that all matter? Well, it depends on what lawmakers do. If they follow normal practice and make laws effective on Aug. 1, a bunch of new crimes—notably proposed sex-conduct crimes involving children that likely will make it into the omnibus bill—would be on the books, unranked by severity level, for a month and a half.
That could be bad.
Why? Because when a defendant goes on trial for an unranked offense, the judge decides what the severity ranking for that offense should be.
That creates two major messes. First, it scuttles the entire reason that Minnesota’s Sentencing Guidelines exist—to make sure sentences are handed out, statewide, in a way that is fair and proportional. Putting a judge in charge of a crime’s severity level evokes the specter of disproportionate sentencing.
You might think some judges would like to be in charge of that decision. Maybe some. Most, likely not. That’s because of the second mess that unranked offenses create for the courts.
See, when an offense is unranked and a trial commences, the defense can be expected to lobby hard for probation. Prosecutors, meanwhile, would predictably push for a presumptive prison term. That almost automatically makes for additional litigation and court expense as judges wade through interminable motions and counter-motions.
The problem only gets exacerbated post-trial. Any severity-ranking choice the judge makes ends up as grist for a near-automatic appeal. So then you’d have even more litigation.
And by the way, in the context of the ongoing legislative situation, that describes a good-outcome scenario. It assumes that lawmakers will finish no later than July 18. That way, the commission still gets its July 22 meeting in and it can set things in motion so the new guidelines get published by Sept. 15—after which point the problem of newly created, unranked offenses goes away.
There is a separate potential solution to that problem, too, and the commission voted to pursue it. Reitz will ask lawmakers to delay effective dates of the laws they pass until Sept. 15, timing them with the expected data of the guidelines’ publication. But of course, once the question is asked, the outcome is out of commissioners’ hands.
Now, if lawmakers don’t manage to finish up by July 18, the complexities of scheduling meetings over the fall months would likely push the commission toward throwing in the towel on new guidelines until Jan. 15, 2022, according to Reitz.
Lawmakers could in turn opt to delay the effective date of new criminal laws until that time, which at least would keep unranked crimes off the books. But that’s no certainty. So it remains possible that unranked offenses could be on the books not just for a month and a half but, worst case, for six months.
And there could be other complications besides that, if things don’t pan out well at the Capitol in the coming weeks.
Example: Take the much-publicized criminal justice reform of doing away with the intoxication loophole from the state’s criminal sex-conduct statutes. That’s a strange provision in law that says a sex-crime victim can’t claim that intoxication took away power of consent, unless the intoxicating substance was administered by another person. In other words, voluntary intoxication amounts to a near-free pass for rapists. Very ugly.
If the worst-case scenario plays out, where a tardy legislature passes its bill after July 18 and the Sentencing Guidelines Commission is unable to formally rank new offenses until January, then courts would have to continue operating under the old law—with that intoxication loophole still intact—through mid-January, Reitz said.
Oh, and there is one other little problem that the commission chose not to deal with Thursday.
If there is a lengthy government shutdown, Sentencing Guidelines Commission staff would be among the thousands of government workers laid off. So there wouldn’t be any commission meetings—and no new updated guidelines—until they were back on the job. There’s no saying how long that would last.
Commissioner Christopher Dietzen, a former Supreme Court associate justice and the former Sentencing Guidelines Commission chair, expressed confidence that lawmakers will get their jobs done and that problem will be avoided.
“My feeling is that the legislature wants to pass the law,” he said of the judiciary omnibus, “and they will move forward so that we can make it effective. If they don’t get it done, we can come back and review it.”
Maybe not, replied Mitchell, who said she worries a shutdown is a genuine possibility. “That was the way I was thinking this morning,” she told Dietzen. “But then I realized that we can’t come back and review, because we will be shut down and we will not be meeting.”
Nevertheless, the commission chose not take up or adopt a contingency plan to deal with that possibility before moving on to other business.
If it’s any consolation, Senate Majority Leader Paul Gazelka’s attitude about a shutdown is in line with Dietzen’s. As quoted by Capitol reporter Dana Ferguson on June 2, Gazelka said:
“We will be back and we will stay back until we’re done. We’re not going to just be in for a day, we are going to make sure that we get it done. It’s my intention to stay until we finish.”