The Minnesota Sentencing Guidelines Commission has done what the state Legislature was unable to do. On an 8-3 vote Thursday, it placed a limit of five years on the length of probation for people convicted of crimes.

The decision comes in response to concerns raised by advocates — and some in the criminal justice system — who say Minnesota’s lengthy probation terms do little to enhance public safety or keep those convicted of crimes from reoffending. The state has the nation’s fifth highest percentage of residents on community supervision: 2,450 out of every 100,000 adults. And while 82 percent of current probation terms are five years or less, another 13 percent on felons received probation terms of up to 10 years, while the rest are sentenced to probation terms of 15-to-40 years.

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.

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Opponents of the five-year limit said Thursday that while they favor reform, the process for adopting it has been rushed, and that shorter probationary terms could lead judges to implement longer prison stays. Minnesota currently has the fifth lowest incarceration rate in the U.S., with 380 of each 100,000 adults in prison.

While state law permits the state Legislature to block any changes to the sentencing system approved by the commission, or replace them with minor amendments, it’s unlikely lawmakers will do so. While the Republicans who control the state Senate have expressed opposition to the change, the DFL House majority mostly supports them.

The new sentencing guidelines would take effect Aug. 1 but the changes are not retroactive, and therefore won’t change probation terms of those currently “on paper.”

Opposition to process

Thursday’s vote came after an initial plan to limit probation in Minnesota was amended. Under that proposal, the cap would have applied to all of those convicted, except those convicted of homicide and most sex offenses, and judges would have no discretion to vary from the five-year limit, even though they can depart from prison sentence guidelines if they state acceptable reasons.

Minnesota Commissioner of Corrections Paul Schnell, the prime sponsor of the change, asked that his proposal be changed to allow judges to depart from the five-year probation either with less time or more if they can state acceptable reasons. The plan was also amended to exempt criminal vehicular homicide from the five-year limit. Both changes, Schnell said, resulted from concerns raised by other commissioners and at the commission’s public hearing in December.

The changes also came in response to a letter from Deputy Attorney General David Voigt, who told the commission that it lacked the legal authority to place a hard cap on probation terms but could adopt a plan that included some judicial discretion. Voigt also said because that change does not pose a “substantially different proposal” than the one presented at the public hearing, an additional public hearing in not required under state law.

The latter opinion is significant; in order to meet the law for changes to the sentencing system, the probation changes must be presented to the Legislature by Jan. 15. That deadline would not have been met if the commission needed a second public hearing on the amended proposal.

The Thursday vote was more supportive of the Schnell proposal than a preliminary vote in December, which attempted to delay and trigger a longer process. That vote was 6-5 against delay. On Thursday, Schnell’s new proposal got additional “yes” votes from Judge Kevin Mark, who was serving his first meeting, and from Washington County Attorney Peter Orput, who had voted to delay in November but voted yes Thursday despite saying he felt rushed.

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Also voting yes were Schnell; commission Chair Kelly Lyn Mitchell; community corrections supervisor Valerie Estrada; public members Abby Honold and Tonja Honsey; and Chief Appellate Public Defender Cathryn Middlebrook.

Voting no were former state Supreme Court Justice Christopher Dietzen, current court of appeals Judge Michelle Larkin and St. Paul Police Captain Salim Omari.

Larkin and Dietzen were most vocal in their opposition, not to the concept, they said, but because of the lack of time for deliberation and to consider possible problems. Larkin said the Legislature often acts quickly under pressure of public opinion but then expects commissions like the Sentencing Guidelines Commission to take time on the details.

“I support probation reform,” Larkin said. “I don’t think people should be on probation for five years. My concerns are how we get there,” adding that the proposal could create a mess that the courts and the commission will have to sort out later.

Larkin pointed out that a judge that wants to exceed five years would need to impanel a 12-person jury to hear the reasoning, an additional expense. Dietzen said he thinks judges who worry that five years might not be enough to ensure drug or domestic violence treatment might instead add to a prison term, something no one in the system wants.

But Commission Chair Mitchell, who also serves as the director of the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota, said most sentences result from plea agreements, not juries, and the probation changes wouldn’t change that.

Both Larkin and Dietzen also raised questions about the commission’s authority to act, and about the state’s Open Meetings Law in how the proposal was initially put on the commission agenda, and whether the amendments approved Thursday should trigger additional public comment.

Mitchell said she sometimes felt like Alice in Wonderland when hearing concerns that five years might not be long enough. She said she just attended a national conference where she heard that the national trend is to limit probation to three years.

“We are very much behind the curve,” Mitchell said.

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Limiting the length of probation will tell the criminal justice system to move more quickly with treatment and other rehabilitation measures, said Mitchell, because the first two years of probation are critical to whether someone convicted of a crime stays out of trouble.

Added public representative Tonja Honsey, herself a former prisoner: “These are people, not offenders, not cases. These are people.” Delaying changes to the system will hurt many of those people, she said.

Gov. Tim Walz supports the changes, and his choice of Schnell to lead to the Department of Corrections and his appointees to the commission were significant toward winning approval. And House Majority Leader Ryan Winkler Thursday said there is strong support in the DFL caucus for letting it go forward.

“We passed a very robust set of criminal justice reforms in the House last year, most of which were stopped by Warren Limmer in the Senate,” Winkler said.

Senate Judiciary Committee Chair Limmer, R-Maple Grove, testified at the commission’s public hearing that he opposes the cap. “We’ll be forced to take it up if they pass the ideas that acting Commissioner Schnell has suggested,” he said. “I’m open to reviewing the probation system, I’ve always said that. But doing an end-run around the Legislature that’s responsible to the public, as opposed to the sentencing guidelines commission that’s responsible to the administration, I think is improper.”

But the Senate cannot act alone, and if the House doesn’t intervene the new guidelines will become law.