Minority report states case against probation max.

Byline: Kevin Featherly

The dissenting view of the three Sentencing Guidelines commissioners who lost the fight over probation reform has been included in the commission's annual legislative report, released on Jan. 15.

Retired Supreme Court Associate Justice Christopher Dietzen, Court of Appeals Judge Michelle Larkin and St. Paul Police Sgt. Salim Omari authored the dissent.

The reform makes five years a presumptive maximum probation term for most felons, though it allows judges some discretion to depart upward. The minority report, written almost in the form of legal opinion, lists four objections to that change.

Inconsistency

The adopted reform is inconsistent with standard Minnesota Sentencing Guidelines, the trio writes. It could lead to situations where a first-time offender, convicted of first-degree assault, might receive an executed 86-month prison sentence rather than a five-year probation term that the judge feels is too short.

Conversely, they write, a first-time offender with a fourth-degree assault convictionwhich carries a presumptive one-year stayed sentencewould face five years' probation because that is "presumed appropriate for this offender under the majority's proposal."

"In sum, the majority's proposal replaces one unacceptable disparity with another," the report says.

Kelly Mitchell, the Sentencing Guidelines Commission chair who supported the change, said that the new guideline does not dictate five years' probation, as the minority seems to suggest.

"It has an up-to five-year term," she said. "So it actually gives judges some room to figure out what the right amount of time is, given the needs of the person may have."

Justice Dietzen, contacted by email, did not reply before deadline.

'Unprecedented requirement'

The minority also contends that the reform "imposes an unprecedented requirement of a 12-member jury" for probation terms longer than five years.

Under the U.S. Supreme Court's 2001 Blakely v. Washington decision, facts used to justify extended sentences must either be admitted or proved in a jury trial. That standard has routinely been applied to prison sentences, but not probation.

But now that changes, because the reform as written suggests the same level of fact-finding is necessary to justify probation, the dissenters write. That will lead to costly trials and squander limited judicial resources, they say.

"The minority is concerned that the unprecedented, cost-increasing Blakely trial requirement...