Welcome to our ongoing post-trial coverage of Minnesota v. Chauvin, following Chauvin being found guilty on all counts. I am Attorney Andrew Branca for Law of Self Defense.
With the guilt phase of Chauvin’s trial now completed with verdicts of guilt on all counts—second-degree “felony” murder, third-degree “reckless” murder, and second-degree “reckless” manslaughter—we now move on to the sentencing phase of the legal process.
Incidentally, if you’re enjoying this content on the day of publication April 21, 2021, you might be interested in the Derek Chauvin Post-Trial Analysis webinar I’ll be doing live with Professor William Jacobson over at Legal Insurrection tonight at 8PM EDT. We’ll each provide our own perspectives on the trial and the political dynamics surrounding the trial, as well as have live Q&A. If the timing doesn’t work, or is already passed when you learn of this, you can also catch a recording of the webinar after the fact.
Either option requires a free registration, which you can do by clicking the link below:
OK, with that out of the way, let’s jump into what to expect in terms of the sentencing of now-convict Derek Chauvin.
Minnesota uses sentencing guidelines for this purpose, as do most states these days, and for those interested I’ve embedded some of the guideline materials below in this post. Generally speaking, sentencing guidelines calculate a sentence range based on the severity of the crime, and then adjust that range up or down primarily based on any prior convictions of the defendant being sentenced.
Once an initial range is determined, however, that range can be further reduced below the initial range if there are mitigating factors, or alternatively increased above the initial range if there are aggravating factors, now known as Blakely factors, in reference to the US Supreme Court decision on sentencing enhancement, Blakely v. Washington, 1264 S. Ct. 2531 (2004).
Blakely is an interesting case, because it resulted in a profound revision of how sentencing guidelines are understood and applied in criminal law.
Criminal offenses typically have a maximum sentence—say 40 years for second-degree “felony” murder—and then the sentencing guidelines suggest some fraction of that maximum for, say, a convict with no prior convictions—say, 10.5 years for that same-second degree murder.
The traditional practice had long been that a judge could consider a variety of mitigating and aggravating factors in ordering a shorter or longer sentence than the guidelines suggested, and that this consideration was entirely in the discretion of the sentencing judge—so long as the sentence ordered did not exceed the maximum statutory sentence for that particular offense for which the defendant had been found guilty.
So, in the context of our second-degree “felony” murder conviction, a jury of the defendant’s peers had found him guilty of that crime, punishable by up to 40 years, and now it was within the discretion of the sentencing judge to start sentencing considerations using the recommended sentence suggested by the guidelines, and then adjusting upward or downward based on his own discretion, with no further involvement by a jury.
The only time further involvement of a jury would be required, then, would be if the judge wished to exceed the statutory maximum sentence for the crime for which the defendant had been convicted—in effect, the defendant would need to be convicted of a separate offense that carried a longer than 40 year maximum if the judge wanted to sentence the defendant to additional time beyond the 40, and of course a separate conviction would once again trigger the right to a jury to do the fact finding.
That is how sentencing departures typically worked—a sentencing judge had no need to involve a jury in sentencing so long as the judge did not attempt to exceed the maximum statutory sentence for the crime for which the jury had already found the defendant guilty.
Blakely changed all that.
Under Blakely, the judge still needed to involve a jury if he wanted to sentence beyond the maximum statutory range for the crime for which the defendant was convicted. But Blakely also held that a judge needed to involve a jury if he wanted to sentence a convict beyond the range suggested by the sentencing guideline.
In effect, the limit of the sentencing judge’s discretion was no longer the statutory maximum for the crime in question. Under Blakely the limit of the sentencing judge’s discretion became whatever sentence was suggested by the sentencing guidelines. If the sentencing judge wanted to exceed the guideline suggestion of sentence, under Blakely the convict now has a right to a jury to do the fact finding on that decision.
In the case of Minnesota v. Chauvin, the state months ago filed notice with the court that if Chauvin were found guilty, they intended to seek sentencing departure above and beyond the normal range based on a variety of aggravating factors they claimd to exist, which they outlined in a motion filed last October 12, 2020.
Immediately after yesterday’s reading of the guilty verdicts, Judge Cahill informed the parties that they would have one week to file arguments on Blakely factors in this case, and that he would render his factual findings of aggravating factors for sentencing within the following week.
Separately, Judge Cahill ordered a pre-trial investigation (PSI) to be conducted, returnable in four weeks, and arguments on the PSI findings two weeks after that, and final sentencing a further two weeks after that—so, final sentencing will be 8 weeks from yesterday’s verdict.
Each of the charges on which Chauvin was convicted carries its own maximum sentence, but that maximum is rarely imposed in the absence of prior convictions, so generally the defendant without priors—now, convict, after being found guilty—can expect to be sentenced to some sizeable fraction of the maximum sentence.
In the context of second-degree “felony” the maximum sentence is 40 years in prison, and a convict without priors could expect to be sentenced to 10.5 years.
In the context of 3rd-degree “reckless” murder, the maximum sentence is 25 years, and a convict without priors could expect to be sentenced to 10.5 years.
In the context of 2nd-degree “reckless” manslaughter, the maximum sentence is 10 years, and a convict without priors could expect to be sentenced to 4 years and/or a fine of up to $20,000.
Normally those sentences would be ordered to run concurrently, in parallel with each other, not consecutively, so that Chauvin as a convict without priors would expect to be sentenced to 10.5 years in prison, and to be eligible for early release in some substantial fraction of that time.
The state’s pursuit of a Blakely upward departure in sentencing, however, means that if Judge Cahill agrees with the factual Blakely claims by the state, he will be free to sentence Chauvin to substantially more time than the 10.5 years the guidelines would otherwise suggest.
The state’s October motion cites several specific Blakely factors in its argument for an upward sentencing departure—we should assume that the same factors, and additional factors, will be made in the state’s Blakely motion submitted to Judge Cahill in the coming week.
First, that George Floyd was “particularly vulnerable” when he was killed by Chauvin. This is based on the facts that Floyd’s arms were handcuffed behind his back, that Chauvin pressed him into the street, and that Floyd was rendered unconscious.
Second, that Derek Chauvin’s conduct qualifies as an abuse of his position of authority, committed while a police officer and in full uniform at the time of the offense.
While those were the only Blakely factors mentioned in the October 2020 motion I’ve mentioned, there are additional Blakely factors applicable to the facts of this case, and we should expect those to be argued in this week’s Blakely motion by the state.
These additional Blakely factors include argument that Floyd was treated with particular cruelty, that Chauvin committed his crimes as part of a group of three or more persons, and that Chauvin committed his crime in the presence of, and witnessed by, multiple children.
Because consideration of these Blakely factors involve making findings of fact—for example, were there actually present persons under the age of 18?—the defendant has a US Constitutional right to have a jury determine if Blakley factors have been proven, as discussed above.
Alternatively, a defendant can waive this right to a jury finding on Blakely factors, and instead have the sentencing judge do the fact finding on these factors. This is akin to a defendant waiving their right to a jury trial entirely and electing to instead have a bench trial in which the judge plays the role of finder of fact in place of the jury playing that role.
In this case, prior to the verdicts being announced Chauvin had informed the court that he chose to waive his right to jury fact finding on Blakely factors, and would defer to the court on that.
This was probably prudent—the Blakely factors are only relevant if the jury has returned a guilty verdict, and a jury that has just returned a guilty verdict seems unlikely to be favorably disposed in the next moment to being lenient on Blakely factors.
Had this Blakely fact-finding been left to the jury, however, the jury would have been provided with an additional fact-finding form, in addition to the jury verdict forms for each criminal count, on which the various factual claims of Blakely factors are listed and the jury is asked to indicated if each Blakely claim has been proven.
In anticipation of this possibility—that Chauvin would demand jury fact-finding on Blakely factors, the prosecution had prepared just such a fact-finding form for the jury. Although this form was ultimately not needed, as already explained, but I’ve nevertheless included it below.
Here’s the state’s October 2020 motion on Blakely factors in this case:
And here’s the jury fact-finding form on Blakely factors, prepared but never actually used:
Also, here are the current Minnesota sentencing guidelines:
And the current Minnesota sentencing guidelines grid that provides a graphical view of how the guidelines are intended to be applied:
Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including Pandora, iHeart, Spotify, Apple Podcast, Google Podcast, simple RSS feed, and more.
Until next time, stay safe!
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike. He wrote the first edition of the “Law of Self Defense” in 1997, which you can now order in its current edition for just the price of shipping and handling by clicking here. To know YOUR state’s use-of-force laws in an actionable way that will keep you safer physically and legally, take our state-specific advanced use of force class either streamed online or via a shipped DVD with a 100% no-question- asked money-back guarantee, here: Law of Self Defense State Specific Use-Of-Force Class.
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