Last week, a jury convicted Derek Chauvin on two counts of murder and one count of manslaughter in the death of George Floyd, for which he could face up to 40 years in prison.
Ultimately, it’s up to Judge Peter Cahill to decide Chauvin’s prison sentence, which he’s slated to announce at a sentencing hearing in Hennepin County Court in roughly seven weeks, on June 16 (Update as of April 28: The hearing has been moved to June 25).
Sentences for crimes committed in Minnesota are set by a commission, but judges do have some leeway in the matter: the recommendations include ranges, but in some cases, judges can go up or down from them depending on the circumstances of the case. Here are the factors in play that will determine how Chauvin is sentenced:
What is the recommended sentence for someone convicted of Chauvin’s crimes?
The sentencing guidelines, which can be found here in the form of a chart, outline what the Sentencing Guidelines Commission has deemed an appropriate range of sentences based on the severity of a crime and the defendant’s criminal history. Judges use the ranges set out in the guidelines to make their sentencing decisions.
Last week, Chauvin was convicted of second-degree murder, with a maximum sentence of 40 years in prison, third-degree murder, with a maximum sentence of 25 years, and second-degree manslaughter, with a maximum sentence of 10 years.
The presumptive sentence for Chauvin, meaning the sentence he would get based on the definition of the crime alone and not being convicted of a crime in the past, is 12.5 years, with a range of 10.67 years to 15 years. Prosecutors are requesting a stiffer penalty than the guidelines call for in Chauvin’s case based on some of the factors in the case.
With good behavior, people who get prison time in Minnesota are typically released to parole after they’ve served two-thirds of their sentence in prison.
On what grounds are prosecutors asking for a harsher sentence?
A judge can give a defendant a harsher sentence than is prescribed in the sentencing guidelines, called an upward departure from guidelines, because of what are called aggravating factors — things that make the crime worse than the textbook case.
“In Minnesota, we have the guidelines, and if you depart upward or downward from the guidelines, there’s supposed to be specific factors involved,” said Mary Moriarty, former chief public defender in Hennepin County.
Those factors are set out in law. In a memo notifying the court they would seek an upward departure, prosecutors indicated they believe at least five aggravating factors were at play when Chauvin killed Floyd. They include that Floyd was “particularly vulnerable” because he was handcuffed when Chauvin knelt on him; that Chauvin exhibited particular cruelty, given Floyd’s pleas that he couldn’t breathe and bystanders insistence that Chauvin stop; that Chauvin was in a position of authority; committed the crime in a group of three or more; and that he committed the crime in front of children.
Normally, a jury would find that these factors were present in a case or not, but Chauvin waived his right to have a jury decide, which means Cahill will make the decision.
There’s no correlation between the number of aggravating factors and the number of years tacked onto a sentence, Moriarty said. If Cahill does depart on Chauvin’s sentence, he’ll have to justify that decision in writing.
Maximum sentences for each of Chauvin’s convictions — 40 years, 25 years and 10 years — add up to 75. Why is Chauvin only facing a maximum of 40 years in prison?
Under Minnesota law, some people convicted of crimes serve concurrent sentences, meaning they serve time for multiple crimes at the same time. (For example, two 12 year sentences served concurrently would be 12 years.) Others serve consecutive sentences, meaning the years are added up (two 12 year sentences served consecutively would mean 24 years). How the sentence is served can depend on how many crimes were committed and how many victims there were.
Chauvin’s sentence will be neither consecutive nor concurrent: Because his three convictions are related to a single action he committed, Chauvin will only be sentenced on the most severe charge, Moriarty said. That’s why Chauvin faces up to 40 years — the maximum sentence for second-degree murder — instead of up to 75, which is what the three crimes’ maximum sentences add up to.
So how many years is Chauvin likely to get?
That’s a good question. Probably not 40 years.
Moriarty thinks Chauvin to get more than the 12.5 year presumptive sentence. (Mohamed Noor, the former Minneapolis Police Officer convicted of third-degree murder in Justine Damond’s 2017 death got the presumptive sentence of 12.5 years.)
Case law could potentially be used to justify up to a 30-year sentence, or double the maximum 15 years set out in the guidelines, in Chauvin’s case. Any departure will be scrutinized upon appeal, but anything beyond that would be much more scrutinized, said Bradford Colbert, a professor of law at Mitchell Hamline School of Law.
“I don’t anticipate Judge Cahill imposing more than a double departure because the Supreme Court has indicated that should not happen,” Colbert said.
In an interview with 60 Minutes, Attorney General Keith Ellison, whose team led the prosecution, said he hoped for a sentence that fits the crime.
“I think it is important for the court to not go light or heavy. I don’t know if it’s right for a judge to send a message through a sentence because the sentence should be tailored to the offense, tailored to the circumstances of the case,” he said. “Look, the state never wanted revenge against Derek Chauvin, we just wanted accountability.”
What would happen if the second-degree murder conviction was overturned on appeal?
If the second-degree murder conviction, the only crime Chauvin will be sentenced for, is overturned on appeal, Chauvin could be re-sentenced on one of the lesser charges, Colbert said.
Why does sentencing take so long?
Chauvin’s trial itself lasted for three weeks. Now, everyone watching it closely has to wait eight weeks to learn what Chauvin’s sentence will be.
That’s a little longer than in many cases, but there’s a lot that has to get done before then, Moriarty said.
Both the prosecution and defense have to prepare arguments for what they think the sentence should be. Cahill has to read up on similar cases in the past to learn what sentencing looked like, and what types of departures, if any, were given.
“What the judge will be looking at [is] what other people have received … if somebody’s departed, what were those factors. Sentencing is supposed to be proportional,” Moriarty said, meaning it’s supposed to correspond to the crime committed.
Probation officers try to do a pre-sentencing investigation, which would involve an interview with the defendant about their social history, including things like childhood, past crimes and any mental health history, Moriarty said.
This investigation isn’t made public because of the sensitive information it can include, but is given to the judge to help inform their sentencing decision. And not all defendants submit to it, particularly if they feel they’ve been wrongly convicted, because any information it contains can be used in an appeal.
What will happen at the sentencing hearing?
Attorneys for the prosecution and defense will each have a chance to make statements arguing what they believe the appropriate sentence is, likely focusing on whether or not there should be a departure, Colbert said. Floyd’s family will have the opportunity to tell the judge the impact his killing has had on them, and Chauvin, who did not testify in the case and was barely heard at all during the trial, will have a chance to make a statement on his own behalf, though he may not.
“People who have been convicted at trial are in a bit of a conundrum because judges want people to take responsibility and express remorse,” Moriarty said. But people who feel they’ve been wrongfully convicted and want to seek an appeal don’t necessarily want to help their prosecutors.
Chauvin is likely to appeal his conviction, and his lawyers can formally file to appeal the verdict after the sentencing is entered.
Will I be able to watch Chauvin’s sentencing hearing?
Yes, like the trial, Moriarty said the sentencing hearing is expected to be livestreamed.