Hasty effort to cap probation terms could force Minn. lawmakers to act in 2020
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By Dana Ferguson via Forum News Service
Minnesota defendants sentenced beginning in August could see their probation sentences capped at five years under a proposal up for consideration Thursday.
The Minnesota Sentencing Guidelines Commission is set to take public testimony on the proposal that would set a five-year presumptive probation cap for defendants except for those convicted of homicides of sex offenses.
Members narrowly approved the measure last month and are set to vote in January to place it in a report to the Minnesota Legislature. If lawmakers don't intervene, it will take effect beginning in August.
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Minnesota has had clear prison sentencing guidelines for decades. But those guidelines don’t cover probation and supervision sentencing, resulting in different probation lengths across the state.
While defendants in Hennepin County face probation terms that average three years, those in the 7th Judicial District, a swath of the west-central region of the state, face average probation sentences of seven years. And for about 5 percent of those sentenced in Minnesota, probation terms range from 15 to 40 years, according to the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota.
Research suggests that there’s no benefit to having probation terms stretch into the decades. If an offender does not re-offend within seven years of their first offense, the likelihood of them committing another crime later is about equal to someone who has never committed a crime.
The extensive sentences have roiled faith, civil rights and criminal justice reform groups, that have pushed for reforms in the Legislature and on the sentencing guidelines commission. And county attorneys, judges, public defenders and victim advocacy groups have also come to the table in the last several years to work toward a reform plan.
While those reform efforts failed in the Statehouse earlier this year, Corrections Commissioner Paul Schnell said he wanted to ensure lawmakers would be forced to take them up in 2020. And so he rushed a proposal to set a five-year cap on most offenses and put the issue to the commission last month for a vote.
"For me, acting now is really about trying to avoid people being harmed by excessively-long probation terms going forward," Schnell said. "There's just no good way to explain the disparities that exist across our state. It doesn't make sense."
The move irked commission members who felt they didn't have time to consider the plan and confused stakeholders who'd been involved in the effort to draft legislation that would create a similar cap but with more flexibility for judges. While many supported the bipartisan five-year probation cap that came up in the Legislature, they said they planned to publicly oppose the measure put forth by Schnell.
Attorneys, judges raise red flags
The Schnell plan raises red flags for some because it wouldn't exempt from the five-year cap violent crimes like assault, aggravated robbery, making terroristic threats and kidnapping. And it doesn't provide potential five-year probation extensions for defendants that continue to pose a threat to public safety, fail to complete treatment or pay restitution.
"It's a one-size-fits-all and I think we need to have judicial discretion to have a tailor-made probation term for each individual offender rather than to have this rigid rule of five years," Retired Minnesota Supreme Court Justice and Commission Member Christopher Dietzen said. "There was one discussion: it was the Schnell proposal and it wasn't even discussed, it was summarily discussed."
Dietzen and Court of Appeals Judge Michelle Larkin last week raised concerns about the commission's authority to set the cap without legislative approval and warned that rushing the plan through the process may have violated state open meetings laws. The pair along with 1st Judicial District Court Judge Caroline Lennon, St. Paul Police Sgt. Salim Omari and Washington County Attorney Pete Orput on Thursday, Dec. 12 voted to delay the public hearing.
But other members of the panel said there was too much at stake to wait for public testimony and action on the plan.
“I have some major concerns that you are more worried about the process and some unwritten rules than you are about people who are actually suffering in the community from this,” Tonja Honsey, a public member of the commission, said. “Try sitting for 40 years on probation, try sitting 25 years on probation and you want to talk about feeling ambushed.”
Honsey, Schnell, public member Abby Honold, public defender Cathryn Middlebrook, Hennepin County Corrections Unit supervisor Valerie Estrada and commission chair Kelly Lyn Mitchell voted to allow the public hearing to advance.
Plan at the ready
Lawmakers considered a proposal to cap probation terms for non-violent offenders at five years this year, but the measure didn't survive in the divided Legislature.
With the same cast of characters set to consider reform in 2020, Schnell said he wanted to submit the language in the commission's report to force lawmakers to act. If the sentencing guidelines commission again approves the probation cap proposal before Jan. 15, it will be added to their report and will go into effect without legislative action.
"The Legislature failed to act, particularly the Senate, we just couldn't get a hearing there," Schnell said. "I respect the authority of the Legislature to act and to really create these policies and so I'm hopeful that if there is a desire to not have happen what I hope will happen that they will act."
He said the department might also bring a bill in 2020 in an effort to get more stakeholders on board.
A Senate Republican and House Democrat who carried a proposal to cap probation terms this year said they plan to do so again in 2020 and this time they could have a better shot at the Senate, where a key gatekeeper has said he wants to discuss probation reform.
And Sen. Warren Limmer, R-Maple Grove, chairs the Judiciary and Public Safety Committee and determines which proposals get a hearing. He told Forum News Service this fall that he hopes to take up proposals to make probation sentences more uniform.
Gov. Tim Walz has been a vocal supporter of criminal justice reform and he said he backed the commission's efforts to press forward with the five-year cap.
