Keller Interviewed for Minnesota Lawyer Magazine Article

Why are there so few mandatory minimums for firearms?

By: Kevin Featherly
February 21, 2018

This article appeared in Minnesota Lawyer online publication

Guns are giving a lot of people heartburn these days. They have Department of Corrections Commissioner Tom Roy reaching for antacids.

“It is not just speculation that there are more guns,” said Roy, who doubles as DOC’s representative on the Minnesota Sentencing Guidelines Commission. “There are more guns out there in the hands of people that shouldn’t have them.”

He points to data included in the Guidelines Commission’s 2018 Report to the Legislature. He finds two sets of those numbers particularly nettlesome.

First is the number of cases in which criminal defendants allegedly possessed or used firearms while committing crimes. In 2008, Guidelines Commission data shows, 645 such cases were alleged. In 2015, that tally doubled to 1,211 cases statewide.

Between 1996 and 2012, there were never as many as 1,000 such cases. Since 2013, there have never been fewer than 1,000.

Roy’s second set of nettlesome numbers are departures from mandatory minimum sentences under Minnesota Statutes Chapter 609.11.

The law imposes an automatic three-year sentence for possessing a firearm during a first-offense felony count of major assault, burglary, kidnapping and several other crimes. A gun charge during a second or subsequent offense puts the defendant away, automatically, for five years.

Except it’s not so automatic, Roy contends.

The 2018 legislative report shows that, of 1,116 designated-offense firearms allegations processed between July 1, 2016, and June 30, 2017, 1,052 were criminally charged. Of those, 757 were convicted of the underlying offense.

From there, the numbers get smaller. Among those convicted, fact-finders firmly established the presence of firearms in only 687 cases. All 687, by statute, qualify for automatic minimum sentences.

They didn’t all get them. Among the 2016-17 defendants, 285 received departures — meaning probation or a shorter term of incarcerations. That means that, of the 1,116 accused only 402 got the mandatory minimum five-year sentences.

Hot topic

Roy knows he is wading into hot water on a subject that yet again became a flash point on Feb. 14, when 17 people were murdered at a Florida high school. And while Roy has long advocated keeping more people out of prison, guns are a critical public safety issue. Violators deserve to do time, he contends.

He cannot point to confirming data, but Roy said he believes that if felons with prior convictions consciously possess firearms during the commission of new crimes, chances are that they will shoot.

It is already happening, he said. “People are dying, regularly — it’s a weekly event almost in our urban areas,” he said. “The streets are red with blood.”

The commissioner does not point fingers but does want to know why there are so many departures. “I see an incongruence in the cases involved, firearms and the final mandatory minimums,” Roy said.

The answer, as with so many public policy debates, is: It depends on whom you ask.

Minnesota Lawyer reached out to three judges, two of whom — Mark Wernick and Caroline Lennon — are members of the Sentencing Guidelines Commission. Neither was available for comment.

Robert Small, the retired Hennepin County District Court judge, offered only one brief comment. “If you talk to the commissioner of corrections, he may identify this as a problem,” Small said. “If you talk to the defense bar, they may not see it as a problem.”

Indeed, Max Keller, chair of the Minnesota State Bar Association’s criminal law section doesn’t see a big problem here.

Keller said that the 285 departures in 2016-17 equals about 42 percent of offenders convicted of possessing guns under 609.11 during the period. The other 58 percent got the mandatory minimum.

“You could say that the system worked correctly,” Keller said.

Depending on your viewpoint, the number has arguably improved over time. Guidelines Commission data shows that between 2007 and 2016, 46 percent of offenders sentenced under Chapter 609.11 for second-degree assault, first-degree armed robbery, felon in possession of a gun and controlled-substance offenses got mandatory minimum sentences. The rest received probation or shorter sentences.

Over that period, there were big discrepancies between counties. In Anoka County, for example, 57 percent of offenders received reduced sentences for first-degree aggravated robbery, compared to 36 percent in Ramsey and 43 percent in Hennepin. Statewide, the average for that offense was 40 percent over the period.

Anoka County departed in 69 percent of second-degree assault sentences between 2007 and 2016. That compares to 35 percent in Ramsey and 56 percent in Hennepin. The statewide average for the period was 57 percent.

Statute permits both prosecutors and judges to seek departures. And while they are more reticent to grant them, prosecutors uniformly agree there are good reasons occasionally to do so.

Hennepin County Attorney Mike Freeman says his policy is not to depart without “really, really good reasons.”

Sometimes those reasons are highly pragmatic. For instance, he said, Minnesota defendants must be charged and appear before a judge within 36 hours of arrest. That can force prosecutors to make snap decisions about the quality of evidence — and sometimes that evidence “goes south,” he said. In such cases, deals can get struck.

Other times, he said, prosecutors might trade away a mandatory minimum sentence for testimony against a bigger offender — as long as the gun-toting defendant still gets significant jail time.

In still others, a defendant might turn out to be an important confidential informant. Prosecutors will cut a deal to keep that information flowing, Freeman said.

“That’s just part of the business we are in,” Freeman said. “Anyone who says it’s not is just naïve. That’s how it works.”

What to do?

Richard Dusterhoft, criminal division director for the Ramsey County Attorney’s Office, says prosecutors sometimes do weigh the severity of the crime against the sentence in recommending departures. A young man convicted 15 years ago as a felon before the offense became gross misdemeanor under the state’s Drug Sentencing Reform Act, is not necessarily a hardened criminal if he gets busted with a small bindle of meth while packing a gun in his car’s console.

“He has got a gun that he is not supposed to have, but he lives in a bad neighborhood and he is trying to protect himself,’ Dusterhoft said. “That’s just not the same as the guy who is out is carrying a gun because he is looking for someone to victimize.”

Both Freeman and Washington County Attorney Pete Orput — himself a Sentencing Guidelines commissioner — agree that such factors should be taken into consideration. Yet all three prosecutors agree that judges, far more often than prosecutors, are meting out lighter sentences.

“Sometimes they do that over our objection, just to move cases along,” Dusterhoft said. “Because they feel like somebody admitting what they did is worth something.”

Both Dusterhoft and Freeman offer statistics to support their contention that judges go lighter than prosecutors. In 2016-17, Dusterhoft said, there were 21 Ramsey County 609.11 cases that resulted in departures. Prosecutors asked for seven of them; judges gave out 21.

Freeman says that between July 1, 2010, and June 30, 2011, Hennepin County prosecutors sought 30 departures under 609.11; judges granted 76. In 2014-15, prosecutors sought 21; judges granted 75. In 2015, prosecutors departed on 49 cases; judges on 89.

Hennepin’s raw numbers, then, are increasing, harking back to Roy’s argument: Guns in the streets are proliferating. Dusterhoft and Orput don’t dispute the Guidelines Commission’s report, but neither has noticed a big spike in gun offenses and were a little surprised by findings.

Freeman, however, spends a lot of time studying the topic and says he has noticed. “I am very concerned about guns,” he said. “I want to put as much effort and energy against guns as we can.”

There is no consensus on what, if anything, to do about departure rates. Keller says judges are under a lot of pressure to make the call to reduce mandatory minimums, but he’s not sure that’s a bad thing. “That’s why they are paid the big bucks,” he said.

Dusterhoft thinks it might be worth considering a new, separate sentencing grid for gun offenses under 609.11. Currently, he notes, criminal history scores are not factored into the mandatory minimums. A separate grid would consider the scores and give the public greater insight into sentences, even if departures remain relatively static, as he expects they would.

Keller and Orput disagree. Adding another grid to a list that already includes separate grids for sex and drug crimes would over-complicate the sentencing guidelines system and tilt it toward meaninglessness, the men say.

Orput isn’t sure what if anything is to be done because he doesn’t feel he has enough data. He suggested that an organization like the University of Minnesota’s Robina Institute dig in and examine the question of gun-crime departures and report back with solid findings and policy recommendations.

“We need to get policy analysts to study this,” he said. “Then we’ll see if they can draw some stronger correlations that would compel us to make some statutory changes.”

Nonetheless, Orput, does share Roy’s concerns that something might not be right.

“I have had that worry,” Orput said. “I do think that bringing a gun to a crime greatly ups the ante and puts everybody at risk of something really bad happening. That’s been my reality, my whole career.”

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Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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