1/9/2020 3:40:00 PM Debate on probation term caps expands
A debate on revising probation guidelines for felony and gross misdemeanor offenders in Minnesota is heating up. Observers believe the amendments being advanced for probation in Minnesota, includeing a five year cap on certain offense levels, is either a step in the right direction towards offenders getting back to a normalized community role or changes to probation would weaken the right to impose local controls over penalties.
Minnesota has the fifth highest number of citizens on probation as a number of the state population per 1,000 adults in the U.S. Minnesota is only behind Idaho, Pennsylvania, Ohio, Rhode Island.
A private lawsuit started much of this debate.
Filed by four defendants on probation, they are seeking reinstatement of voting rights in Minnesota even though their lengthy probation terms are on-going. In Minnesota you can be “on probation” for anywhere from a year, to 15 or even 40 years. Until you are discharged from probation, you can not vote.
Lawmakers started to review bills in 2019 on revising length of probation and addressing issues with perceptions of inequality in terms. The MN Sentencing Guidelines Commission took probation itself under its wing and began to develop amendments to probation and declared last month it was ready to adopt changes if the legislature didn’t.
MN Dept. of Corrections Commissioner Schnell stated in a memo to the Sentencing Guidelines Commission which has been advancing probation term amendments; that the number of years you are placed on probation shouldn’t matter what judicial district zip code you are in.
Chisago County is in the Tenth Judicial District and a study of data from 2011 to 2016 showed the Tenth District had the third highest average length of probation terms at 6.8 years.
The top two are the Seventh and the Third Districts at 7.4 and 7.1 years. Charts in the study showed the revocations of probation due to violating conditions and not new offenses, indicate the revocation actions drop off at 60 months of being on probation.
The highest instances of revoking probation are in the first 18 months. Commissioner Schnell stated there is “no compelling reason” to impose probation terms beyond five years.
Versions of new laws heard in the last legislature session had called for reducing the identified six years’ probation for gross misdemeanors to five maximum. Felonies-- with exceptions for homicides and sex offenses-- were proposed to be capped at five years’ probation. The language now says four years. But, the current cap or maximum can be the period for which imprisonment might have been imposed. Probation is for “whichever is longer” under existing wording. The Sentencing Guidelines Commission followed through on a recommendation it supported to amend the probation guidelines, and last month the commission voted 6-5 to revise these guidelines itself.
The commission meets today (Jan 9) to presumably include this as part of a “report” that goes to the legislature. The meeting schedule also shows Commission sessions February 13 and March 12.
The legislature will need to adopt a bill in 2020 if it wants to not allow to become effective what’s in the report includes.
In last year’s session, House File 689 (which had bipartisan support according to the MN House website listing authors)was introduced, but it didn’t get onto either floor for a full vote. The Senate companion bill 1606 didn’t get scheduled at the public safety committee.
Viewpoints locally Local MN Representative Brian Johnson, R-Cambridge represents northern Chisago County-- and opposes both the amendment and process. He said the commission is “...trying to usurp the authority of the legislature.”
Rep. Johnson added there is no “clear authority under state law” for the Sentencing Guidelines Commission to take this action.
The commission also would be intruding on the court’s authority to set sentences by making the probation cap mandatory, Johnson continued.
Since the last Sentencing Guidelines Commission last met, Schnell has released some compromise wording on terms of probation. (Jan 2, 2020 guideline revisions)
More discretion for judges to impose probation and depart from guidelines is one of the compromises.
The compromise includes adding criminal vehicular homicide to the exclusions in the new guidelines.
According to Rep. Johnson, who serves on the House Public Safety and Criminal Justice Reform Division, his impression is also that the process has been flawed, and the sentencing guidelines group had the probation cap on its December monthly meeting agenda only as a discussion item.
(The Press viewed a November 18 public notice posted by the Sentencing Guidelines Commission that alluded to a public hearing, declaring the commission would have the amendment ‘for comment’ December 19.)
Rep. Johnson says “Governor Walz and the Democrats are intent on jamming this change through.”
Chisago County Attorney Janet Reiter didn’t word it quite like that, but partly agrees. She said the recommended amendment capping probation is too restrictive and there are offenders who need more supervision than five years-- when restitution payment is being monitored, for example. She added most prosecutors do not find the inflexible cap first proposed acceptable.
“A change of this significance is best addressed through a better more rigorous discussion, with meaningful input from all stakeholders,” she continued. “Generally I believe prosecutors agree there are some significant disparities and inequities in this area that require examination, and perhaps, some changes. However, this (original) proposal and the fact that it is moving forward in this fashion is wrong for several reasons.”