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July 27, 2008 -- Winona Daily News (MN)

Judges, Lawyers Question Fairness Of Mandatory Sentences

By Kevin Behr

A 16-year-old girl nearly died at the hands of three rapists in a West End apartment on Nov. 4, 2004.

Sue "Acorn" Hang, 21, used an empty beer can to sexually assault the unconscious teen and was sentenced to 8 3/4 years in prison.

Three years later, on the other end of town, Carl Dickalo Gipson, 33, sold seven grams of cocaine -- a little more than the weight of a U.S. nickel -- to a police informant. He was sentenced to nine years in prison.

How does a drug dealer receive nearly the same sentence as a brutal rapist?

Minnesota judges are bound by a Legislature-mandated sentencing guidelines developed in the late 1970s.

Some herald the guidelines as a way to administer similar sentences to like offenders. Others, including some Winona judges, express a kind of claustrophobia regarding the guidelines and want more leeway to ensure that the punishments fit the crimes.

The guidelines are subject to regular amendments and revisions, but the road to widespread change is difficult. Nevertheless, judges, prosecutors and public defenders say the same thing: Something needs to change.

How It Works

In 1978 and 1979, a commission was formed by the Legislature to develop rules, structure and standardization in sentencing.

Judges were issuing vastly different sentences for similar crimes. Prisons were overcrowded, and parole boards were releasing violent offenders to make room for burglars and shoplifters.

Lawmakers were concerned that without some sort of review, those boards were essentially making backdoor decisions, said Isabel Gomez, executive director of what is now the Minnesota Sentencing Guidelines Commission.

The commission developed a sentence-standardization grid that was implemented in 1980. Since then, it has been amended and made over several times, but the philosophy behind the system is the same.

It works like this:

The system is split into 11 levels. The lowest levels are for the least severe crimes -making threats or assaulting a police horse, for example. The highest levels are for the most severe crimes, such as murder.

The system also takes into account a criminal's history. Each time a criminal is convicted of a crime, he is assigned points.

Judges plot a criminal's point score with the crime level to find the appropriate sentence. The grid provides judges a fixed range for jail time.

For example, someone who committed first-degree assault who has one criminal history point could be sentenced to eight years of prison with an acceptable range of seven years to nine years and nine months.

The lower left corner of the grid, shaded gray, is for criminals who don't qualify for jail time. For example, someone convicted of theft of property worth more than $5,000 with three criminal history points would receive a stay of 17 months in prison and would be placed on probation.

A separate but similar grid was developed in 2006 for sex offenses.

Judges can depart from the grid, but a separate jury trial must be held to find sufficient aggravating factors or the defendant must agree to let the judge depart.

Once a departure has been made, the judge must then file a report to the commission detailing reasons for departure.

Judges say departures are increasingly rare, partly because the jury trials they require are cumbersome and partly because of budget cuts to the state judiciary. Judges departed from the guidelines in no more than 15 percent of cases between 1981 and 2006, according to the commission.

Gomez, who is also a former judge, said holding extra hearings for departures is "not a cosmic event" and is easier than some judges make it out to be. To make it easier, the guidelines commission broadened the acceptable ranges judges could use to sentence people, she said.

"I truly believe that any judge ought to be able to give what he or she believes is a just sentence," she said. "I never gave a sentence that I didn't believe in."

Limitations and Flaws

But for all the logic and apparent success of the guidelines, frustration abounds. Much of the criticism comes from the public.

When Jonathan Jenard Jackson, 35, was sentenced in May to a little more than five years in prison for aiding Paul Allan Gordon after the triple murder of Stacy Smith, her unborn child and her 10-year-old daughter, Daily News readers seemed bewildered.

"Five years? Are you kidding me?" one person posted on the Daily News Web site. "What a joke. Parole in 2010, just a simple slap on the hand for 'aiding' in the deaths of people that were wrongfully killed."

Similar frustration seems to run deeper than public outcry. Winona County Attorney Chuck MacLean calls the guidelines "lazy and unrealistic."

Under the current guidelines, an assault with a sword is treated the same way as an assault with a butter knife, and sexually assaulting a 12-year-old child results in the same punishment as a sexual assault of a 5-year-old, he said.

"That's nuts. That's dumb," he said. "It doesn't make sense. The guidelines represent the dumbing down of the criminal justice system."

MacLean also said the guidelines keep judges from putting repeat offenders in prison: Someone convicted of theft of property worth $2,499 or less would need 12 convictions for the same crime before being eligible for prison.

"A good deal of what a judge does is determined by the (Sentencing Guidelines Commission)," Winona County District Court Judge Jeff Thompson said. "We don't get to impose what we think is right and just."

What's Next?

The commission constantly reviews the guidelines and is now studying whether drug-related sentences are disproportionate to other felonies.

Under the current guidelines, first-degree non-violent drug offenses -- - possession of more than 25 grams of cocaine or selling 10 grams over a 90-day period, for example -- have punishments similar to that for rape.

The commission recently offered to redraft the drug-offense rankings on the guidelines grid, Gomez said. The Minnesota Legislature agreed that was the best course of action because it wouldn't require rewriting drug laws, but after the commission took heat from the public and the state County Attorneys Association in open hearings, the commission back-pedaled, saying the laws will have to be reworked.

Gomez said it would have been a great chance to put pressure on those involved to make real changes to the system.

"I think it was a wasted opportunity," she said.

Some say the system needs a more dramatic change.

Karin Sonneman, a public defender who represents clients across southeast Minnesota, said the first change should be to call the guidelines what they really are: "sentencing requirements." She said they need to be made into true guidelines as a starting point for judges rather than being mandatory rules. For many basic cases, the guidelines work just fine, but in more unusual cases, there needs to be more flexibility, Sonneman said.

"It leaves judges frustrated and takes away discretion from the court," she said. "The court's hands are tied."

Thompson said he would like to see the same changes, but it's ultimately up to the Legislature to decide. He is skeptical of any significant immediate change, in part because lawmakers are afraid a judge will sentence somebody to probation on a second-degree murder charge, he said.

Gomez cautions against calling for sweeping change without concrete alternatives in mind. Great Britain used a discretionary system that allowed judges to impose whatever sentence they wanted up to a maximum, she said. The prison populations doubled and parole boards were forced to let dangerous people out to make room for less serious offenders, she said. The same thing is happening in Florida right now, she said.

She argued judges need to have the discipline the guidelines provide to prevent outrageous sentencing and overcrowded state prisons. What they're calling for is a variation of doing "whatever they want," a concept that sparked the guidelines, Gomez said.

"I truly believe that any judge ought to be able to give what he or she believes is a just sentence," Gomez said. "And if they can't, maybe they need to get a different job."

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