An invisible hand behind Minnesota’s weak record on sentencing for sexual violence is the state’s sentencing guidelines. The guidelines are essentially the voice of the status quo, telling prosecutors and judges what’s expected and customary in sentencing.
While Minnesota citizens might assume criminal penalties are set by their elected lawmakers, in practice penalties are largely determined through the use of “presumptive” guidelines set by an 11-member appointed Commission (the MSGC).
A copy of the Sentencing Guidelines Sex Offender Grid, used by judges at sentencing (and by county attorneys in fashioning plea agreements), can be found here.
Sentencing guidelines can tie prosecutors’ hands (see below), yet we found that in most counties sentencing is routinely lighter than even the guidelines recommend. When it comes to child sexual exploitation crimes, Minnesota’s sentencing guidelines are extremely weak and do appear to tie prosecutors’ hands.
While the guidelines are technically “advisory” for judges, the passage of time and higher court rulings appear to have determined otherwise. When PROTECT asked the Commission whether its guidelines are, in fact, “advisory,” the Commission referred us to State v. Shattuck, an appeals ruling on the case of a man who raped a 17-year-old girl.
In the Shattuck decision, the appeals court writes:
“The state argues that the Sentencing Guidelines as written are advisory to the district court and therefore do not implicate Sixth Amendment concerns. … We disagree with the state’s position.”
The appeals court went on to say:
… [W]e have placed limitations on the length of durational sentencing departures. As a general rule, the maximum upward durational departure that can be justified by aggravating circumstances is double the presumptive sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn.1981). Only in cases of “severe aggravating circumstances” may the district court impose a greater-than-double departure from the presumptive sentence; in such cases the only absolute limit on duration is the maximum provided in the statute defining the offense. State v. Mortland, 399 N.W.2d 92, 94 & n. 1 (Minn.1987). Such cases, we have stated, are “extremely rare.” State v. Spain, 590 N.W.2d 85, 89 (Minn.1999) [emphasis added].
If you are a Minnesotan who would like to see reform and strengthening of the sentencing guidelines, it’s important to note that County Attorneys, as a group, have the greatest responsibility and power to advocate for change statewide. We hope that the improved transparency offered by this website will encourage some county attorneys to assist lawmakers in strengthening sentencing guidelines, making them more consistent with the intent of Minnesota’s laws.