Starting Aug. 1, If you’re convicted of a felony, you can expect a standard length of probation anywhere in Minnesota.
That’s not true now, since average probation terms vary from three to seven years depending on the judicial district.
Some of the state’s longest probation terms are currently handed out by judges in the 10-county Seventh Judicial District, which includes the counties of Becker, Otter Tail, Clay, Wadena and Todd.
The Minnesota Sentencing Guidelines Commission had proposed a maximum hard cap of five years probation for most crimes. But after pushback from county attorneys and judges, the commission earlier in January softened its position and gave district judges the power to treat probation terms as a guideline, not a hard cap, according to Becker County District Judge Jay Carlson, the chief judge of the Seventh Judicial District, who is chaired in Detroit Lakes.
That’s good news for district judges, who will have the option of deviating from the new probation guidelines, provided they justify their reasons for doing so.
It’s not a novel concept: The same “guideline” process has been used since 1980 by Minnesota judges at the time of sentencing. Those sentencing guidelines give judges a grid system: The severity of the crime, plus the defendant’s criminal history, equals the presumptive sentence. The judge has some discretion within a limited range of possible punishments.
If they opt to deviate from state sentencing guidelines, they can give a defendant a harsher or lighter sentence than the grid system calls for, but they must justify it in their sentencing order.
In the case of setting the length of probation in felony cases, the deviation will likely be toward a term longer than five years, not shorter, Carlson said in an interview.
By state statute, the probation term must be “for not more than four years or the maximum period for which the sentence of imprisonment might have been imposed, whichever is longer,” explains a blog by Kelly Lyn Mitchell, executive director of the Robina Institute, University of Minnesota Law School.
“This opens up a wide range of possible probation terms from four years to 40 years (the maximum possible sentence short of life under Minnesota law),” she wrote. “As an example, second-degree controlled substance crimes, which might involve criminal activity such as sale of 3 grams of cocaine, carry a maximum sentence of 25 years, so probation could be imposed for 25 years.”
“The Guideline Commission has indicated it will extend to probation, not just sentences,” Carlson said. “If a sentence is stayed, it’s presumed you get a five-year probation sentence. It was supposed to be a hard cap, but after input and debate from the County Attorneys Association and some judges, it’s a guideline, not a hard cap.”
But a judge must have a substantial, compelling reason for not following the probation guideline, he added.
The shorter probation guidelines don’t extend to people convicted of murder, vehicular homicide, sex crimes and conspiracy to commit crimes, he said.
The five-year probation guideline will, however, apply to specialty courts like Drug Court, DWI Court and Veterans Court. “Hopefully they won’t go away. Those treatment courts are very helpful,” Carlson said. So many crimes are drug-related these days, and the court system is trying to focus more on helping people to beat the addiction, he said.
Carlson, who sits on the state’s Judicial Council, said there is an increasing body of evidence that says long-term probation isn’t particularly effective. “After three, four, five years, they’ve reached the point of maximum rehabilitation,” he said. “That is the push-back,” against long probation terms.
But there's no doubt probation lengths now vary widely across the state. In the Sixth Judicial District, which includes Duluth, the average probation term for drug offenses is just over three years. But in the Third Judicial District, which includes Rochester, the average probation term for drug offenses is nine years. “This means the average sentence in the Rochester area is three times greater than the average sentence in the Duluth area. And similar variances can be seen across every offense type,” Mitchell wrote, pointing to a special report from the Sentencing Guidelines Commission. The report did not track how long offenders were actually kept on probation. In Becker County, for example, offenders are sometimes released from probation early, after just a few years, if they meet court conditions.
The move by the state Sentencing Guideline Commission to set standard probation lengths is not without controversy, Carlson said.
"It’s a debate whether it’s a proper move of authority from the Legislature to the Sentencing Commission to set the length of probation,” he said. “There is also the issue of separation of powers -- the courts versus the Legislature. The Legislature will need to act if it’s unhappy with this decision.”
That may not happen quickly, since power in Minnesota is divided among a Republican-controlled Senate, a Democrat-controlled House and a Democratic governor. Democrats tend to favor the five-year maximum and Republicans tend to favor longer probationary terms, he said.
At any rate, “the courts are pleased to have the discretion to extend the probation period in certain cases,” he said. Although “sentencing hearings may become more controversial.”
For many judges, it’s kind of a trade off, he said. If they are going to stay a sentence in a difficult case, they want to have probationary supervision of the offender for a longer period of time. The inability to do that may lead to more prison sentences being executed rather than stayed.
The main point of the sentencing guidelines is public safety, but they also promote fairness in sentencing, regardless of race, gender or anything else. The idea is to make sentencing as neutral, logical, and consistent as possible.
Do the sentencing guidelines work? Since they were put into effect in 1980, Minnesota has consistently ranked in the top three states with the lowest imprisonment rates, according to the Sentencing Guideline Commission’s 2019 Report to the Legislature.
Minnesota’s imprisonment rate in 2016 was around 190 for every 100,000 residents. That’s less than half the rate of all other states, which was 387 per 100,000 residents.
The 11 Sentencing Guideline Commission members include three members of the public, a retired state supreme court justice, the state commissioner of corrections, the state’s chief appellate public defender, a St. Paul police sergeant, a district judge, the Washington County attorney, an appeals court judge, and the Hennepin County corrections unit supervisor. The commission voted 8-3 on Jan. 9 to move ahead with the five-year maximum probationary period.
Members of the Minnesota Legislature's People of Color and Indigenous Caucus applauded the move toward shorter probation terms when the Sentencing Commission took preliminary action in November, saying in a news release that it could help make sentences more equitable.
"For far too long in our state, both the number of individuals sentenced to probation and the length of the terms have exceeded what’s needed to promote deterrence or reduce recidivism," the group of 19 lawmakers said. "The cost of Minnesota’s failure to consistently apply fair and useful probation terms has been particularly harmful to communities of color and to Indigenous communities."
The change is not retroactive, so about 50,000 Minnesotans now serving felony probation sentences will not be affected.