Robbins: Sentencing matters in the Derek Chauvin case

Aggravate. To make worse, more serious, or more severe; to intensify unpleasantly.

Mitigate. To cause to become less harsh or hostile; to make less severe or painful.

Convicted of the killing of George Floyd, Derek Chauvin rightly sits in a prison cell in the Oak Park Heights maximum-security state prison in Minnesota. Any way he looks at it, the former police officer is going to be looking at the inside of a cell for a long, long while. Precisely how long has not yet been determined.

Sentencing is set for late June.

Consisting of a jury of six whites and six persons of color, in March Chauvin was found guilty of three counts: unintentional second-degree murder; third-degree murder; and second-degree manslaughter.

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In Minnesota, the crime of second-degree murder is causing the death of a human being, without intent to cause that death, while committing or attempting to commit another felony. In this case, the felony was third-degree assault.

To convict him on this count, the jurors found that Chauvin intended to commit an assault that was susceptible of causing bodily harm. It was not necessary for the state to prove that Chauvin intended to kill Floyd, only that he committed, or attempted to commit, the underlying felony.

Third-degree murder is unintentionally causing someone’s death by committing an act that is “eminently dangerous” to other persons while exhibiting a depraved mind, with reckless disregard for human life. Under Minnesota law, an act that is “eminently dangerous” is one that “is highly likely to cause death.”

Even though the act may not have been specifically intended to cause death and may not have been specifically directed at the person whose death occurred, it must have been committed with a conscious indifference to the loss of life. A “depraved mind” is defined under Minnesota law as a state of mind devoid of regard for human life.

Second-degree manslaughter is culpable (or blame-worthy) negligence where a person creates an unreasonable risk and consciously takes the chance of causing death or great bodily harm to someone else. “Culpable negligence” is intentional conduct that the defendant may not have intended to be harmful, but that an ordinary and reasonably prudent person would recognize as having a strong probability of causing injury to others.

In each state, judges use the ranges set out in sentencing guidelines to make their sentencing decisions. In Minnesota, second-degree murder carries a maximum sentence of 40 years in prison, third-degree murder has a maximum of 25 years, and second-degree manslaughter, a maximum sentence of 10 years. There is also something called a “presumptive sentence” which is exactly what it sounds like — what is most likely, or presumed to happen.

Under Minnesota law, Chauvin will only be sentenced for the most serious crime — second degree murder. While that count carries a 40-year maximum sentence, more than likely he will not receive that much. The betting money among legal experts is that the maximum he will face is 30 years. And maybe less.

Because all of the charges flowed from a single act carried out against one person, under controlling law, Chauvin will not face multiple sentences. Typically, multiple sentences are handed down where there are convictions for offenses against multiple victims or for the commission of multiple crimes against one victim. Here, rather than multiple crimes committed against George Floyd, the case involved three different theories stemming from the same act or behavior toward the same person.

Even though sentencing guidelines are advisory — and are meant to establish uniformity absent considerations such as race or gender — under Minnesota law, the presumptive sentences are deemed appropriate and judges should only depart from then when “substantial and compelling circumstances can be identified and articulated.”

For second-degree murder, the guidelines hold that the presumptive sentence for someone with no criminal record, such as Chauvin, would be 12.5 years. A judge could sentence someone in such circumstances to as little as 10 years and 8 months or as much as 15 years and still be within the guidelines. But in this case, prosecutors are seeking a sentence that deviates from the guidelines, seeking what is called an “upward departure.” And here’s where aggravating factors come in.

An aggravating factor is one that makes things worse, one that weights against a defendant in his or her sentencing. A mitigating factor is the opposite; one that lifts at least a bit of the opprobrium and weight from the criminal wrong-doing.

Here, the aggravating factors being pushed by the prosecution include that Floyd was vulnerable, that Chauvin was a uniformed officer acting in a position of authority, and that his crime was witnessed by multiple children, one as young as 9.

At least one mitigating factor — despite what has come to light as 18 prior complaints against the officer — is the Chauvin has never previously been convicted of a crime.

Mark Osler, a professor at University of St. Thomas School of Law, said that, in a 1981 case, the Minnesota Supreme Court set a standard maximum for upward departures, finding generally that when an upward departure is justified “the upper limit will be double the presumptive sentence in length.”

So … you may be wondering, if the maximum sentence is 40 years, the upper limit of the guidelines is 15 years, and the “standard maximum for upward departures” is 30 years, how does all that reconcile? Well, the Minnesota Supreme Court has made clear that, while it would be extremely rare, a judge could be justified in going even higher than the standard maximum departure.

Regardless of what Chauvin gets, in Minnesota, it’s presumed that a defendant, with good behavior, will serve two-thirds of his sentence in prison and the rest on supervised parole. As such, if Chauvin gets 30 years, he’ll like serve 20 behind bars.

Is this justice for George Floyd?

Well, it is at least according to the system. And former officer Chauvin will have lots of time to hear the echoes of George Floyd gasping that he couldn’t breathe.

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