The distinction that doesn’t bark in Minnesota

I have now had a chance to read the Minnesota Sentencing Guidelines Commission’s “short-term report,” and it is yet another rich document with highlights both big and small. Ron did a terrific review here, and I particularly want to reiterate his observations about “two loudly ticking time bombs” to be found in the report’s discussion of criminal history calculations and probation revocations (at pp. 10-11). It would have been useful, though perhaps disconcerting, to know the number of Minnesota cases per year that involve criminal history calculations and/or probation revocations that might now be Blakely problematic. My guess is that this number could be quite large.

I also wanted to highlight something that the Minnesota report does not say. I believe Minnesota’s sentencing guidelines are produced administratively by a commission (like the federal sentencing guidelines), and thus are not statutorily enacted like the Washington guideline scheme invalidated in Blakely. Thus, it would seem that Minnesota’s Commission could try to assert for the Minnesota system, as has DOJ and the USSC and some federal judges have asserted for the federal system, that Blakely is wholly inapplicable because the decision only concerns statutory guideline systems. But, tellingly, the Minnesota report does not even mention this administrative/statutory guidelines distinction, let alone try to claim that this distinction could allow the Minnesota sentencing system to avoid having to directly confront Blakely.

Finally, here and here are a few early press accounts of the Minnesota report.