The 2017 legislative session is just getting started. As we headed into the session this time last year, the Minnesota Department of Corrections was forecasting that the prison population would continue to exceed capacity and that an expansion to the Rush City Correctional Facility would be necessary. In advance of the session, Senator Ron Latz called together the Prison Population Task Force to identify why the prison population was growing and to brainstorm ideas for bringing the population under control. I was honored to have participated in that group. Several ideas were discussed, including changes to Minnesota’s drug laws, and some ideas were signed into law by the end of the 2016 session. But one key issue remained on the table. And it is my hope that 2017 will be the year that it gets discussed.
Though Minnesota continues to have one of the lowest incarceration rates in the country (as of 2014, Minnesota had the 4th lowest incarceration rate)1, the often untold story is that Minnesota also has one of the highest community supervision populations in proportion to its population. In 2015, Minnesota had the 7th highest rate of community supervision with 2,490 of every 100,000 adults 18 and over in Minnesota serving on probation.2 In total, this amounted to just over 105,000 individuals. As a point of comparison, the total number of individuals serving on probation in Wisconsin at the same time was 65,600.3
On the one hand, having a high proportion of offenders on probation rather than in prison is a good thing. After all, there are a lot of benefits to the general approach of utilizing community supervision. It means that Minnesota prioritizes its prisons for offenders who commit more severe crimes or who have longer and more extensive criminal records. And offenders who serve their sentences in the community have the opportunity to maintain employment, to get an education, and to continue to participate in the family unit and parent their children. But when the total number of individuals on probation is very high, it can be an indicator that something else is going on. In Minnesota, that something else is probation length.
About a quarter of the roughly 15,000 individuals sentenced for felony offenses in Minnesota each year receive a prison sentence. The other 75% receive probation, often in combination with a jail term of less than a year.4 When the court imposes probation, Minnesota law provides that the length of the probation term must be “for not more than four years or the maximum period for which the sentence of imprisonment might have been imposed, whichever is longer.”5 This opens up a wide range of possible probation terms from 4 years to 40 years (the maximum possible sentence short of life under Minnesota law). As an example, second-degree controlled substance crimes, which might involve criminal activity such as sale of 3 grams of cocaine, carry a maximum sentence of 25 years, so probation could be imposed for 25 years. Anecdotally, we’ve all heard stories that these very long sentences do occur.
A special report from the Sentencing Guidelines Commission demonstrates that the courts routinely impose probation sentences longer than the minimum of four years, and that the pattern by which these sentences are imposed varies significantly by offense type and region. For cases sentenced in 2014 and 2015, the average probation term overall was 66 months, or about 5-1/2 years. But when broken down by offense type, we see the average is about 4-1/2 years for person offenses, 6-1/2 years for drug offenses, and nearly 13-1/2 years for sex offenses (Figure 1). It seems especially discordant that person offenses would garner a shorter probation term than nearly every other offense type. But the discord does not end there.
Figure 1. Average Probation Length by Offense Type: Felonies Sentenced 2014-20156
When average probation terms are viewed by judicial district, additional variation is revealed. For example, the average probation term in the Fourth Judicial District, which includes Minneapolis, is just over 3 years whereas the average probation term in the Seventh Judicial District, which includes St. Cloud, is just over 7 years. Thus, two offenders committing the same crime in Minneapolis and St. Cloud might be subject to probation terms that differ by as much as four years simply due to geography (Figure 2).
Figure 2. Average Probation Length by District: Felonies Sentenced 2014-20157
The geographic differences in sentencing continue when one looks as the average probation terms by offense type and region. Probation terms for drug offenses offer a particularly striking example of this variation. In the Sixth Judicial District, which includes Duluth, the average probation term for drug offenses is just over 3 years. But in the Third Judicial District, which includes Rochester, the average probation term for drug offenses is 9 years. The means the average sentence in the Rochester area is three times greater than the average sentence in the Duluth area. And similar variances can be seen across every offense type.
The question Minnesota needs to ask itself is, is this fair and just? What can possibly justify a sentence that is three times greater in one part of the state than another? Similarly, are the differences by offense type justifiable? There might be a better argument for variations by offense type because one would have to really dig in to figure out which crimes make up the person category before deciding if those crimes merit more or less time than drug or DWI offenses. But the point is that no one is doing that. There’s virtually no guidance beyond the “4 years to statutory maximum” sentencing term dictated by Minnesota law, so probation terms have developed as a matter of local culture. 2017 should be the year this changes.
Minnesota could make two changes that would bring greater uniformity and proportionality to probation sentences. First, Minnesota could impose a cap on probation terms. A data brief on probation length published by the Robina Institute shows that a common cap on the length of probation in other states is 5 years. Minnesota could amend its law to institute a similar cap, or it could set differing caps by offense type. Second, either in conjunction with a new probation cap or as an alternative to that solution, Minnesota could task the Sentencing Guidelines Commission with developing presumptive probation terms and incorporating them into the sentencing grids. Both Oregon and Kansas, two states with well-established sentencing guidelines similar to Minnesota, incorporate probation terms into their guidelines (see Oregon Grid and Kansas Grid).
Instituting a cap or probation guidelines raises the inevitable question: How long should probation terms be? There is no clearly established answer to that question, but there are a few benchmarks that could be referenced. First, the average prison sentence in Minnesota in 2014 and 2015 was about 45 months. This is nearly 2 years shorter than the average probation sentence. If the individuals sentenced to probation are those that are supposed to be a lesser threat to public safety, how can we justify imposing a sentence that actually punishes these individuals longer than individuals who are sentenced to prison? Second, in Missouri, where the average probation term in 2012 was 53 months (which is about a year shorter than the average probation term in Minnesota), probationers reduced their probation terms through an incentive program by an average of 14 months without any change in recidivism rates and thus no evident impact on public safety.8 Third, several sources have demonstrated that probation revocations tend to occur within the first 2-3 years of probation.9 Thus, lengthy probation terms appear not to be necessary from a public safety standpoint because the behavior that tends to result in failure on probation occurs much earlier in the probation term. Instead, lengthy probation terms may actually harm public safety because they may act as a disincentive for probationers to engage in rehabilitative programming, and because they may prolong the period of difficulty for individuals attempting to obtain housing or employment, which are both critical factors to offender success.
Probation terms need to be long enough to provide for adequate punishment, to protect public safety, and to allow probationers to engage in rehabilitative services. But they do not need to rival prison sentences in length. Minnesota was a leader when it was one of the earliest states to adopt the community corrections approach to supervision, and it was a leader again when it enacted the first set of sentencing guidelines in the nation. But when it comes to the length of probation, Minnesota is lagging. It’s time to move to the forefront again.
- 1. The Sentencing Project, State Rankings for State Imprisonment Rate, available at http://www.sentencingproject.org/the-facts/#rankings?dataset-option=SIR.
- 2. Bureau of Justice Statistics, Correctional Populations in the United States, 2015, 12 (Dec. 2016), available at https://www.bjs.gov/content/pub/pdf/cpus15.pdf.
- 3. Id. at 13.
- 4. Minnesota Sentencing Guidelines Commission, Probation Revocations 3 (November 2016), available at http://mn.gov/msgc-stat/documents/reports/2015/2015MSGCRevocationReport.pdf.
- 5. Minn. Stat. § 609.135, subd. 2 (2016).
- 6. Source: Minnesota Sentencing Guidelines Commission, Length of Stayed Sentences: Sentenced 2014-2015 (10/17/2016).
- 7. Source: Minnesota Sentencing Guidelines Commission, Length of Stayed Sentences: Sentenced 2014-2015 (10/17/2016).
- 8. The Pew Charitable Trusts, Missouri Policy Shortens Probation and Parole Terms, Protects Public Safety 5-6 (Aug. 2016), available at http://www.sentencing.ks.gov/docs/default-source/default-document-library/2015_nondrug_and_drug_grid_quick_reference_guide.pdf?sfvrsn=0.
- 9. See e.g., Minnesota Sentencing Guidelines, Probation Revocations 2 (Nov. 2016) (finding that most probation revocations occur within the first two years); Scott Belshaw, Are All Probation Revocations Treated Equal? An Examination of Felony Probation Revocations in a Large Texas County, 7 Int’l J. Punishment & Sentencing 67, 73 (2011) (finding that in a study of over 2000 revoked probationers in Texas the average time to revocation was 2.5 years into the sentence); James Austin, Reducing America’s Correctional Populations: A Strategic Plan, 12 Justice Research Policy 9, 35 (2010) (commenting that that there is no evidence that extending or reducing the period of probation impacts recidivism, and that most supervision failures occur within the first 12 months).