They’ve tried in the Minnesota state Legislature. They’re trying in the courts. And now advocates for capping post-release probation for most felons in Minnesota have taken up the issue before a relatively obscure administrative panel — where they’re succeeding.

On Thursday, Dec. 19, the Minnesota Sentencing Guidelines Commission will hold a hearing on a plan pushed by state Corrections Commissioner Paul Schnell that will prevent judges from setting probation longer than five years, save exceptions for those convicted of homicide and sex offenses. 

The language proposed by Schnell is similar to a measure proposed by House DFLers during the 2019 session of the Legislature, where it was opposed by the Republican-controlled Senate and failed to be adopted.

But the latest move represents a way around legislative opposition. Under state law, the 11-member commission sets standards for sentence lengths handed down by judges. Any changes it makes to those guidelines automatically take effect in August — unless the Legislature rejects them, something unlikely given Minnesota’s divided government, with Republicans controlling the Senate and the DFL controlling the House. 

To be submitted to the Legislature’s 2020 session, however, any change must be approved by the commission no later than January 15. And since it was first brought before the commission at its November meeting, a hearing must be held this month if the issue can be voted on at the commission’s January 9 meeting. 

That was a problem for five of the commission members — including a former state Supreme Court justice, a current court of appeals judge, a current district court judge, a county attorney and a police officer — who said that such a timeline is too fast for such a sweeping change in state sentencing law.

An arbitrary system

Minnesota has the fifth lowest incarceration rate in the U.S., with 380 of each 100,000 adults in prison. But it has the fifth highest percentage of residents on community supervision: 2,450 out of every 100,000 adults. 

Those divergent numbers are partly due to  how the state sets its prison terms. While sentencing guidelines account for the severity of a crime and an offender’s criminal history, no such guidelines sets standards for post-incarceration probation. In fact, the only time limit on probation terms for felonies is whatever maximum sentence for an offense exists in state law. According to research conducted by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota, 82 percent of probation terms are five years or less, while another 13 percent are sentenced to terms of up to 10 years; the rest are sentenced to probation terms of 15-to-40 years.

The lack of guidelines has to some headline-grabbing probationary periods, illustrated best perhaps by the case of Jennifer Schroeder. Though her non-violent drug offense landed her a one-year jail sentence, Schroeder’s post-incarceration supervision will last for 40 years. And despite the fact that Schroeder has completed college and now works as a drug and alcohol counselor, she cannot vote and has had difficulty getting housing, she has told the commission and the Legislature.

The current system has also led to vast differences in probation lengths depending on where an offender is sentenced. According to the Robina Institute, the average length of probation in the 6th Judicial District in northeast Minnesota is 3.3 years. But in the 7th Judicial District in west central Minnesota, it’s 7.4 years.

Most striking is the difference in the average length of probation between Hennepin and Ramsey counties. It’s 3.3 years in Hennepin County, but 5.9 years in Ramsey County.

Questions over transparency, open meetings law

One member of the sentencing guidelines commission, former Justice Christopher Dietzen, said Thursday he thinks probation reform is needed. But he said the proposal by Schnell was a “blunt instrument” that applied the same regardless of the offense committed or the criminal history of the offender. 

He also said he worried that in instances where judges have more discretion in prison lengths, they might extend prison time if they feel five-years of probation isn’t adequate. Some 43 percent of felony convictions don’t currently include any prison time but that could change as well under the Schnell plan.

“I think the Schnell proposal is premature,” Dietzen said. “At the end of the day, it might be a good proposal. But we haven’t talked about alternatives.”

But Dietzen’s primary concern Thursday was over the process for considering the change. While he has served on the commission, proposals are included on the advance meeting agenda so the public and commissioners are aware it is coming. And, in order to provide adequate time for consideration and input, proposals can’t be adopted or advanced at the first meeting they are discussed, he said. The rule also was designed to prevent commissioners from “being blindsided or surprised.”

Yet the Schnell proposal was listed on the advance agenda for the commission’s Nov. 6 meeting only as “probation — next steps (discussion item),” and members received the proposal by email the evening before the gathering. Dietzen said the agenda was not amended before the meeting to change the “discussion item” to an action item before being approved for a public hearing on a 6-5 vote.

He cautioned against adopting such a major proposal using an unusual and — because of the apparent violations of notice rules under the state Open Meetings Law — potentially illegal process. “It seems to me this will seriously undermine the credibility and integrity of this commission and put it into disrepute before the Legislature and the public,” Dietzen said.

In written comments, Commissioner Michelle Larkin, a state court of appeals judge, also said she thinks the commission does not have the legal authority to put a strict cap on the length of probation, citing both U.S. Supreme Court and state Supreme Court cases.

The sentencing guidelines approved by past commissions are advisory, not mandatory, she said, though judges are required to state in writing why they are deviating from standards and such deviations are subject to appeal. As such, “there is a significant difference between a ‘guideline’ and a ‘cap,’ especially when one considers that the commission’s guidelines are ‘advisory,’” Larkin wrote. “Thus it is not clear that the proposal’s five-year cap on probation terms is a ‘guideline’ within the meaning of (state law).”

Larkin also said that at least two of the backers of the idea — Schnell and Commission Chair Kelly Lyn Mitchell — said at the November meeting that they think changes are needed to the underlying plan. Among those additions could be offenses exempted from the cap, such as criminal vehicular homicide or setting different probation lengths for different crimes, as long as they are five years or less.

Larkin said her intent in supporting a delay in the hearing isn’t to silence the public but to have a more-deliberative process. But she also wrote the public hearing must be on the plan that is subject to being adopted; any significant changes to the plan at the January meeting would trigger the need for an additional hearing.

“I realize what we’re asking for is unpopular, but it is necessary because the process we have used here has not resulted in a fulsome consideration of a necessary probation reform and we do a significant disservice to the public to go forward with this proposal without notice, without input from our stakeholders, without considering any alternatives, without having time to amend the proposal,” Larkin said. “We’re simply not prepared for a public hearing.” 

Her reference to popularity was in relation to efforts made by groups such as ISAIAH, a faith-based racial and economic justice organization that has pushed for the cap, and other sentencing reform organizations that have objected to any delays. 

The commission meeting packet included written comments supporting the Dec. 19 hearing, including a statement from ISAIAH: “A few politicians and people in power who powerfully and financially benefit from the perpetual punishment of Black, white and brown people in our state must not continue to set the terms of who’s deserving of redemption.”

Commissioner Tonja Honsey also objected to any delay in the hearing. “I have some major concerns that you are more worried about the process and some unwritten rules than you are about people who are actually suffering in the community from this,” Honsey said. “You’re more worried about hearing the voices of the stakeholders you are talking about, but correct me if I’m wrong but that’s what the public hearing is about, hearing those voices.”

In response to complaints that some commissioners felt ambushed by the late timing of the proposal, Honsey said: “Guess what, try sitting for 40 years on probation, try sitting 25 years on probation and you want to talk about feeling ambushed.” 

And she criticized Larkin for arguing that the council’s potential action might not be legal. “I don’t understand the ethics of that at all,” she said. “You’re here as a commission member, not as a sitting judge.”

Abby Honold, a public member who is an advocate for rape victims, said she reached out to victims organizations to get their opinions on the proposal. “They all said they are not remotely opposed to this,” she said. “Most victims that I know are not impacted necessarily by the length of probation, it is not something I hear frequently from victims.” 

She said the only additional offense that victims she spoke to would want considered exempt from the cap is domestic violence.

Schnell, the former Inver Grove Heights police chief appointed by Gov. Tim Walz as prisons commissioner, said one of his motivations for the plan was “conscience.” 

“Ultimately we have to start by giving people a voice when we know, when the data is crystal clear, that on a day-to-day basis …  where you live is going to determine often times what your term of probation is going to be,” Schnell said. “And that’s simply not okay.”

He said the hearing would give people the opportunity to have their voices heard.“If this is not the language, then let’s come up with something different,” he said. 

Attending the meeting was Justin Terrell, the executive director of the Council for Minnesotans of African Heritage, who testified in favor of the Schnell proposal in November. He said Friday that probation periods are set up to either help people succeed or fail. Capping probation at five years will help probation officers focus on the former rather than on looking for minor violations that often send probationers back to prison.

“Best practices say that you if you don’t reoffend after three and a half years to four years, chances are you’re not going to reoffend,” he said. “I don’t know that there’s a fair argument to be made for 20-year probation or 40-year probation.” 

He also said the impact falls disproportionately on African-Americans and making the change as quickly as possible is important.

Terrell also said a more-complicated system could end up having a similar disproportionate impact on people of color. “We have a problem with locking black folks up in the state of Minnesota,” he said. “If we’re going to address that problem, we have to set some pretty significant standards. So I think a five-year cap would slow down the revolving door and have an impact on our community.”

The vote against a motion to postpone the hearing failed on the same 6-5 vote that approved the hearing date at the November meeting. Voting to postpone were Dietzen, Larkin, District Court Judge Caroline Lennon, Washington County Attorney Pete Orput and St. Paul Police Sgt. Salim Omari. 

Voting to keep the hearing on schedule were Schnell, public defender Cathryn Middlebrook, Hennepin County Corrections Unit supervisor Valerie Estrada, public members Honsey and Honold and commission chair Kelly Lyn Mitchell. Mitchell is a former commission executive director who now runs the Robina Institute.