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Commissioner Caroline Lennon, a 1st Judicial District judge, cautioned against setting the severity
score at C for use of minors under 13 in a sexual performance. Most charges involving minors in a
sexual performance involve peers of the same age group, she said. (File photo: Kevin Featherly)

Commission stands pat on child porn sentencing ranking

 By: Kevin Featherly  July 31, 2019

The Minnesota County Attorneys Association partially succeeded in getting their case for
increased child-porn penalties reopened by the state’s Sentencing Guidelines Commission
last week. But, at least for now, they have lost.

The Guidelines Commission on July 25 cast final votes setting severity levels for four crimes
newly outlined by the state Legislature. All were approved and their severity rankings went
into effect on Aug. 1.

Only one was controversial. It dealt with child pornography.

Minnesota County Attorneys Association staff counsel Bill Lemons had appeared before the
Guidelines Commission a week earlier asking members to reconsider an earlier vote and
boost severity levels on three new child-porn aggravating factors.

The first was possession of pornography involving a child under age 13. The second was
dissemination of porn involving a child under age 13. The third was use of minors under age
13 in a sexual performance, a category that includes filming sex acts with children with the
intent of displaying them to an audience. All three tentatively passed by a 4-3 commission
vote on June 6.

Four members were absent that day. Given that, Lemons asked that the vote be recast with
more members present and that the severity rankings for each be boosted by at least one
point.

The commission agreed by a 5-4 vote July 25 to reconsider their vote, but only for one of
the new aggravating factors—use of minors under 13 in a sexual performance.

By a 6-3 vote—two members again were absent—the commission declined to increase that
crime’s severity ranking.
Had they voted the other way, offenders would face presumptive prison sentences for the
crime regardless of criminal history. As things now stand, offenders would receive a
presumptive stay if their criminal history scores are less than 2 on the sex-offender grid.

Commissioner Heidi Schellhas, a Court of Appeals judge, was among those who wanted to
avoid that outcome. “The conduct that is contemplated by this statute is depraved conduct,”
she told fellow commissioners. “We should be addressing it accordingly.”

The panel tentatively set the factor’s severity level at D on the sex-offender sentencing grid
back on June 6. That means offenders receive presumptively stayed sentences unless their
criminal history score is 2 or higher.

Schellhas offered a motion to boost that to severity level at C, in line with the county
attorneys’ request. That would set a presumptive prison stay at 48 months, with a departure
range of 41 to 57 months, regardless of criminal history.

Christopher Dietzen, the former state Supreme Court justice and until recently the
commission’s chair, was on board with that. He said the June 6 vote was taken with too few
members present and without due consideration.

“I thought our discussion was fairly limited,” Dietzen said. “And the reasons given in favor of
the motion were not compelling to me.”

One reason offered, he said, was that too many people are already in prison. New
Commissioner Tonja Honsey, herself a former state prison inmate, made that argument at
the June 6 meeting.

As Dietzen frequently has over the years, he asserted that the commission’s primary
statutory mission is to protect public safety. “It seems to me that we can’t favor lighter
sentences to reduce prison populations when we are charged with looking at public safety,”
he said. “Especially when it has to do with children.”

But Commissioner Cathryn Middlebrook, the state’s chief appellate public defender, said that
a D severity ranking is not a lighter penalty. The base minor-in-a-sexual-performance crime,
defined under Minnesota Statutes Section 617.246, is ranked at severity level E on the sex
offender grid. That carries a presumptive stayed sentence up to a criminal history score of 3.

By ranking the aggravating factor at D, Middlebrook said, the commission establishes an

enhanced penalty. “The County Attorneys Association made it seem that we didn’t rank that
one particularly higher,” Middlebrook said. “But we did.”

Commissioner Caroline Lennon, a 1st Judicial District judge, cautioned against setting the
severity score at C. Most charges involving minors in a sexual performance involve peers of
the same age group, she said.

“You have a juvenile who takes a naked picture of a classmate who is younger and that gets
texted around,” she said. “We see this charge most frequently in juvenile court.”

If a level C ranking with a presumptive commitment were adopted, she said, courts’ ability to
seek extended jurisdiction juvenile status or adult certification for the charge would be
altered.

“If that is your intent, fine,” Lennon said. “But understand that that is going to be a big
impact of this that we are maybe not thinking about sitting here today.”

Kelly Mitchell, the commission’s new chair, pointed out that members voting in favor of the D
ranking on June 6 marked their votes with a kind of asterisk.
 They voted yes, she said, understanding that the commission must conduct a legislatively
mandated review of the sex crimes grid — a study intended to help ensure that sex crimes
get sentenced proportionately with other crimes in Minnesota.

That might prompt the panel to rethink and possibly raise the ranking down the road, she
said. Sticking with that course, she said, “is the better plan.”

With that, the commission voted 3-6 to reject the higher ranking for the new aggravated
child-porn factor. It then voted to unanimously to accept all of the proposed severity
rankings.

Rest of the batch

In addition to approving rankings for the two other child porn factors, the commission OK’d
severity rankings for third-degree and fourth-degree criminal sexual conduct by peace
officers.

The third-degree crime has a C ranking, which carries no stayed sentence regardless of
criminal history score. The fourth-degree crime has an E ranking, which carries a
presumptive stay up to a criminal history score of 3.

Use of an “observation device” to surreptitiously spy on minors with the intent of sexual
gratification is ranked at severity level G. That crime also joins the list of offenses eligible for
permissive consecutive sentencing.

The state’s new wage theft law has several severity levels on the standard sentencing grid,
depending on the amount of money stolen or withheld.

The most severe of those crimes, theft of more than $35,000, has a severity ranking of 6.
That carries a presumptive 39-month prison sentence with a criminal history score of 3. A
lesser score carries a presumptive stayed sentence.

ABOUT KEVIN FEATHERLY

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former
freelance writer who has covered politics, law, business, technology and popular
culture for publications and websites in the Twin Cities and nationally since the mid-
1990s.

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