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Tougher child-porn penalties sought in Minn.

By: Bridgetower Media Newswires//July 25, 2019//

Tougher child-porn penalties sought in Minn.

By: Bridgetower Media Newswires//July 25, 2019//

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Bill Lemons, staff attorney for the Minnesota County Attorneys Association, reads out a statement to the Minnesota Sentencing Guidelines Commission on July 18. County attorneys oppose a proposed severity ranking for a child-porn crime. (Photos by Kevin Featherly)
Bill Lemons, staff attorney for the Minnesota County Attorneys Association, reads out a statement to the Minnesota Sentencing Guidelines Commission on July 18. County attorneys oppose a proposed severity ranking for a child-porn crime. (Photos by Kevin Featherly)

By Kevin Featherly
BridgeTower Media

Minnesota’s county attorneys think a newly defined aggravating crime factor, child pornography with kids under age 13, should be treated more severely than the state’s Sentencing Guidelines Commission is contemplating.

On June 6, the commission tentatively voted to maintain status quo severity rankings on the state’s sex-offender grid for possession of child pornography featuring minors under age 13. Lawmakers last session declared that age to be an aggravating factor in child pornography cases.

Possession offenses committed by repeat or predatory offenders already were considered aggravating factors in child-porn crimes.

The new aggravating factor carries a maximum of 10 years in prison. Given that, commission staff last month recommended ranking the offense at severity level F, the current severity ranking for prior and predatory offenders. The commission then approved that ranking.

For dissemination of child porn involving a child under age 13, lawmakers raised the statutory maximum to 15 years; the commission voted to set that crime’s severity level at D. That also is already true for prior and predatory offenders.

For use of minors in a “sexual performance” — defined as “any play, dance or other exhibition presented before an audience or for purposes of visual or mechanical reproduction” — the new law creates a 15-year maximum sentence for all three aggravating factors. Staff commission ranked that at severity level D.

Unlike the state’s numerically ranked standard sentencing grid, the sex-offender grid ranks severity alphabetically. An A ranking is reserved for the worst crime — 1st-degree criminal sexual assault. It carries a presumptive prison sentence even if the offender has no prior criminal history.

Rankings of B and C on the sex-crimes grid cover 2nd- and 3rd-degree criminal sex conduct. Both also include presumptive prison stints regardless of prior criminal history score.

However, because the highest proposed severity ranking for the new child-porn crime is D, offenders with low criminal history scores would get presumptively stayed sentences.

The Minnesota County Attorneys Association opposed that during the commission’s July 18 hearing, where public input was gathered on the new severity levels. “It urges the commission to raise each of the severity levels to at least one higher severity level on the sex offender grid,” said Bill Lemons, the association’s staff attorney.

Lawmakers clearly meant for the newly defined offenses to be treated as more serious than they were considered to be prior to the law’s passage, Lemons said. The Legislature increased maximum fines, for example, and also boosted conditional release terms from 10 to 15 year for repeat violators.

“As they’re more serious,” Lemons said, “to maintain the existing severity levels and have the sentences for those offenses be the same as before the legislative changes just does not make common sense.”

Lemons acknowledged that the new rankings carry an asterisk—even if formally approved at the commission’s hearing Thursday (July 25), they could be altered later on. The Legislature has ordered a review of the entire sex-offender grid and members said on June 6 that their new rankings could change after that study is completed.

But county attorneys aren’t keen to wait around, Lemons said. “We don’t know how long this review will take,” he said. “The commission should make these changes to reflect the clear legislative view that the presence of any of the three factors make the offenses more serious and negatively impacts public safety.”

Lemons noted that four commission members were absent when the severity rankings passed by a 4-3 vote last month. In a brief interview afterward, he said the missing commissioners’ presence might well have changed that June 6 vote’s outcome.

“We would urge the commission to revisit this matter with all 11 commissioners present,” Lemons told the Sentencing Guidelines Commission.

Members took Lemons’ input without comment and asked him no follow-up questions.

More severity rankings

No one else offered input on any the other three new severity level changes to be voted on Thursday.

Among those are rankings for 3rd-degree and 4th-degree criminal sexual conduct by peace officers.

The 3rd-degree crime has a tentative C ranking, which carries no presumptive sentence stay regardless of criminal history score. The 4th-degree crime has an E ranking, which has a presumptive stay until the offenders’ criminal history score reaches 3.

Another newly defined crime, using an “observation device” to surreptitiously spy on minors with sexual intent, was assigned a severity level of G—the second lowest ranking on the sex offender grid. But that crime would join a list of offenses eligible for permissive consecutive sentencing.

The state’s wage theft law is the other newly ranked offense. It has several severity levels on the standard sentencing guidelines grid, depending on the amount of money involved.

The most severe offense, wage theft of more than $35,000, was tentatively set at severity level 6 on the standard grid. That carries presumptive prison sentences for offenders with criminal history scores of at least 3. A lesser score presumes a stayed sentence.

The Minnesota County Attorneys Association did not oppose rankings for those three new crime categories, nor did anyone else.

Kelly Mitchell, right, chair of the Sentencing Guidelines Commission, listens as Executive Director Nate Reitz offers guidance during a July 18 hearing. (Photo by Kevin Featherly)
Kelly Mitchell, right, chair of the Sentencing Guidelines Commission, listens as Executive Director Nate Reitz offers guidance during a July 18 hearing.

What’s next

The commission was scheduled to cast a final vote on severity levels for all four new crime categories Thursday at 1:30 p.m.

Kelly Mitchell, the commission’s chair, said that before those votes are cast, commission members will discuss any input they have received. That includes written input, which was accepted through July 23.

“Then we’ll have the real final vote that allows the guidelines to go into effect,” Mitchell said.

After Thursday’s vote, Mitchell said, the panel will discuss ideas about the next set of priorities that the group should tackle. Mitchell has invited commission members to submit their ideas in advance of Thursday’s meeting.

Mitchell, who has mentioned that probation reform among her personal priorities, has also said she plans to give priority to other commissioners’ ideas early in her term. She has been commission chair for just a few months.

Thursday’s hearing will be held in the Centennial Office Building, 658 Cedar St. in St. Paul. If the severity rankings get approved, they go into effect on Aug. 1.

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