Sentencing Guidelines Commission approves 5-year felony probation cap

Within six months on probation, Brian Fullman had seen the error of his ways.

But a nonviolent felony drug conviction in his youth earned him 6 ½ more years of close supervision, and he had a long way to go.

"I felt it was more about them waiting to send me back," said Fullman, now an organizer for the interfaith group Isaiah Minnesota. "It was very inhumane."

Starting Aug. 1, most felons sentenced to probation will be spared a similar fate.

The Minnesota Sentencing Guidelines Commission on Thursday approved a presumptive five-year cap on felony probation lengths, a move advocates say will limit the disparate nature of punishment in the state by providing more consistency in sentencing.

The 8-3 vote passed a measure that would, in most circumstances, limit probation terms for all felons, except for those convicted of homicides or sex offenses. Unless the Legislature overrules its decision, new guidelines automatically take effect this summer.

"We are proposing a big change for Minnesota, but it's not a big change nationally," said Commission Chair Kelly Lyn Mitchell. "We are very much behind the curve of what modern probation should be."

The decision puts Minnesota in line with peer states like Iowa and Missouri, which have already implemented five-year probation caps. However, the guidelines are not retroactive, meaning that an estimated 50,000 Minnesotans now serving felony probation sentences would not benefit.

Legislation to limit probation sentences in Minnesota — which has one of the nation's largest rates of post-release supervision — has long been a top priority among Democratic lawmakers but failed to pass during the 11th-hour budget negotiations last session.

Corrections Commissioner Paul Schnell has long been an outspoken critic of the state's long probation terms, which can span decades and lack uniformity between neighboring counties.

Last month, the commission held a public hearing on his proposal, which drew dozens of passionate speakers largely in favor of reform.

Policy experts at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota testified that felons are most likely to reoffend in the first few years — and very few commit new crimes after five years under supervision. Probation officers also argued that research doesn't support that lengthy periods of community supervision increase public safety or reduce recidivism.

But Schnell's proposal faced resistance from several fellow commissioners, along with the Minnesota County Attorneys Association, who didn't want to rush into such a sweeping change in state sentencing law.

Other detractors questioned whether the commission had the authority to vote on hard probation caps, rather than presumptive sentencing guidelines that allow judges more discretion based on the respective crimes. As a result, the Minnesota Attorney General's Office also penned a formal letter advising the body to move away from mandatory caps.

To assuage those concerns, the original proposal was then amended to allow judges the freedom to depart from the five-year probation terms in special circumstances when public safety warrants it. Criminal vehicular homicide was also added to the list of crimes that would fall outside the bounds of the five-year cap.

Those changes didn't appear to satisfy several commissioners, who insisted that a failure to hammer out specific provisions would leave the door open to constitutional challenges in court.

"I feel rushed on this," Washington County Attorney Pete Orput said ahead of the vote. "I suggest we spend a little more time on this to get it right."

Last-minute tweaks to verbiage helped Orput change his mind. He ultimately voted to adopt the guidelines. A final roll call prompted a round of applause from those gathered in the St. Paul committee room.

The three dissenting votes were cast by former Minnesota Supreme Court Justice Christopher Dietzen, Court of Appeals Judge Michelle Larkin and St. Paul Police Sgt. Salim Omari.

State Rep. Brian Johnson, Republican lead on the House Public Safety Division, issued a statement condemning the vote as a "major overreach" of the commission's authority and vowed to try to overturn it.

"It is the role of the Legislature and judiciary — not an unelected group of 11 people — to determine appropriate probation terms for heinous crimes, including sex trafficking, domestic assault and aggravated robbery," said Johnson, R-Cambridge. "I plan to introduce legislation to reverse this administrative decision and ensure that the entire Legislature can weigh in and determine whether this policy is one the courts should follow."

Commissioner Tonja Honsey said she isn't worried, because the issue has received bipartisan support, including from conservative groups like Americans for Prosperity.

"It feels good," Honsey said. "We made history, y'all!"

Liz Sawyer • 612-673-4648