Reducing Convictions / Diversion

Between 1985 and 2005, Minnesota’s population increased by approximately 23 percent.20 During that same period of time, the crime rate dropped by about 19 percent.21 Even with a fairly stable population growth and a declining crime rate, the number of felons sentenced increased dramatically, by 148 percent over those 20 years.22 Minnesota’s prison population saw an even more substantial growth rate during this time: 288 percent.23 The chart below illustrates the percent changes over time, with the 1990 figures representing the percentage of change from 1985.

Minnesota’s criminal justice system has for many years allowed for the fact that many people who break the law deserve an opportunity to avoid being permanently labeled as criminals. Our sentencing guidelines make provisions for downward departures from presumptive sentences. Judges are allowed to place people who have committed crimes on probation without formally imposing a sentence and to reduce the seriousness of their convictions, or eliminate them entirely, if they complete probation successfully.24 First-time drug offenders may avoid a conviction by complying with probationary conditions.25 Some jurisdictions have drug courts, or other “problem-solving” courts that may provide alternatives to conviction for successful participants.

Some prosecutors are willing to agree to dispositions in which cases are set aside without being resolved; if the defendant meets certain conditions, the case is dismissed (continuance for dismissal). Some prosecutors and judges are willing to give defendants who admit guilt a stay of adjudication, in which the judge delays accepting a plea and entering a finding of guilty for a determined time; if the defendant meets specified conditions, the finding is never entered and there is never a record of conviction.

What many of these procedures have in common is that their availability depends almost entirely on where the defendant is charged and by whom. As is true of every group of human beings, prosecutors have various ideas of right and wrong, and they face various kinds of political pressures. Some set standards for determining whether a defendant will be offered a break of this kind, and they make the dispositions available to all defendants, regardless of their race, gender, class and legal counsel. Some, particularly those from private offices who bid for municipal contacts for prosecutorial services, may feel an obligation to make money for the community they represent and, therefore, require that defendants pay costs that put continuances for dismissal beyond the reach of some people. Some prosecutors who want good conviction statistics will not offer continuances for dismissal to defendants who don’t ask for them, which unrepresented defendants usually do not know enough to do. Judges may see it as their responsibility to exercise their power so as to make mercy available to all suitable candidates. However, some are comfortable enacting whatever plea bargains are presented to them and routinely order rich and poor to pay identical costs and fines, even though the poor will fail to make the required payment and, therefore, will never get the benefit of the bargain.

The location of the court in which a defendant is charged affects the likelihood of avoiding a criminal record, because judicial districts do not offer equal rehabilitative services. If there is a drug court, or other problem-solving court, in a district, defendants will have opportunities that are not available where such alternatives do not exist. A judge is able to fashion probationary conditions that make a stay of imposition reasonable in districts where there are sufficient rehabilitative programs to enhance the likelihood that the defendant will put his lawbreaking behind him. In a district where appropriate programs do not exist, a stay may seem less desirable.

Although our sentencing guidelines work to make sentencing practices uniform throughout the state, they appropriately provide judges with significant discretion. To the extent that judges have discretion to depart from specific sentences, there will be disparity in the sentencing of similar people for similar crimes.

The Committee certainly does not advocate that judges lose their discretion, but it does want to convey the reality that the kinds of differences among prosecutors, judges and districts that are described here have meant that Minnesotans do not benefit equally from the laws and practices we have created to protect deserving individuals from conviction records.


  1. Re-evaluate the legal mechanisms Minnesota law provides to spare deserving individuals from having criminal convictions, and refine and augment them to increase their impact and make them equally available to all qualified defendants.
  2. Design and implement a mandatory statewide diversion program based on an appropriate actuarial risk assessment tool. This initiative would be enacted in every judicial district and affect all eligible defendants equally.

In 1993 and 1994, the Minnesota Legislature mandated that county attorneys establish a pretrial diversion program for adults charged with crimes and a pretrial diversion program for juveniles petitioned on delinquency charges.26 However, only those counties participating in the Community Corrections Act were required to establish these diversion programs; it was not a statewide mandate. As of July 1, 2006, 32 of Minnesota’s 87 counties have elected to operate programming under the Community Corrections Act of 1973.27 Because only a fraction of Minnesota’s counties operate under this Act, diversion programs are not available throughout the state. Minnesotans should have equal access to diversion.

Every felony conviction is a large barrier in the offender’s path to full employment. It is evident that many convictions are the direct and fair consequence of behavior that justly requires the offender to surrender both liberty and the opportunities available to the law-abiding. But the remarkable increase in the number of felonies sentenced in Minnesota during a period in which neither the population nor the crime rate increased significantly suggests the possibility that we have expanded the criminal net to the point where the societal cost is outweighing the societal benefit.

It was legislators who defined more and more behavior as felonious, and only legislators can reduce the number of felonies. The Committee understands that it is far more difficult politically to lessen penalties than to increase them. We believe, however, that both criminal justice professionals and the public at large would accept a truly rational system for diverting low-risk offenders throughout the state from the criminal courts. In the twenty-first century, it has become possible to design actuarially-based risk assessments that, employed conservatively, can predict reliably which defendants can safely be diverted and granted the opportunity to maintain a clean record.

Consider, for example, the experience of the state of Virginia. The Virginia Criminal Sentencing Commission (VCSC) has devised a risk assessment instrument, a tool voluntarily used by the courts, to determine who should be sent to prison and who should receive alternative sanctions. Eleven specific factors are used in the risk assessment worksheet: sex, age, marital status, employment status, presence of accomplice, additional offenses (based on severity), prior arrest/confinement in last 12 months, total prior record, prior drug convictions/adjudications, prior adult incarcerations, and prior juvenile incarcerations. 28 Each of these factors is given a score based on its relative importance to recidivism.29 Richard Kern, Executive Director of the VCSC, described Virginia’s assessment tool at the 2007 Conference of the National Association of Sentencing Commissions. He explained that, by diverting only individuals well within the range of those assessed as low-risk, Virginia had employed the tool very successfully, experiencing minimal failures.

An independent evaluation by the National Center for State Courts (NCSC) found Virginia’s risk assessment instrument to be highly cost effective, estimating an annual savings to the state of around $3 million.30

The Virginia system illustrates the level of confidence with which risk can now be evaluated and the value of using assessment in making sentencing decisions. Of course, Minnesota will have to determine its own goals for diversion and use a risk-assessment tool validated in our own state. It will be desirable to employ more ingenuity than we have thus far in designing non-incarcerative sanctions for the diverted individuals. Correctional resources would have to be shifted from jails and prisons to evidenced-based community programs aimed at lessening the chance of recidivism. It should be remembered that, to the extent new programs are required, the right programs will prove less costly and more effective at promoting public safety than the jails we now rely upon so heavily.31

20 U.S. Bureau of the Census. (1996), (2001).

21 Minnesota Department of Public Safety. (1991), (1996), (2001), (2006). 22 Minnesota Sentencing Guidelines Commission. (2007).

23 Minnesota Department of Corrections. (2006).

24 M.S. §609.135 (1963). 25 M.S. §152.18

26 M.S. §401.065 (1993); M.S. §388.24 (1994).

27 Minnesota Association of Community Corrections Act Counties. (2007). 28 Ostrom, B. (2002).

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