Many Minnesotans have criticized metro-area politicians for being soft on crime. But when it comes to crimes against children, it isn’t that simple—and overall, the state has a terrible track record.
For Criminal Sexual Conduct (CSC) involving a child, there are tough penalties available to prosecutors but the actual record of sentencing isn’t strong. In Hennepin county, about half of CSC offenders—where the victim is under age 13—are given a stay, or probation, and did not serve prison time (looking at data from 2007 to 2016).
When probation was given, 30% of offenders received a stay of imposition, where the crime was reduced to a misdemeanor. This often allows the offender’s history to remain hidden from both parents and employers. The other 70% were given a stay of execution, which is traditional probation. And of the nearly 50% of CSC offenders who received stays, when the victim was under 13, about 99% served less than a year in local jail.
That’s lenient. But a trip north to Anoka County shows county attorney Tony Polumbo is only giving prison sentences 38% of the time for CSC involving a victim under age 13. Of the 61% of predators granted a stay, a quarter of these predators had their charges reduced to a misdemeanor. The other predators served no more than a year of jail-time.
In Washington County, where Woodbury is the largest city, probation is given 57% of the time for CSC when the victim is under age 13; in Blue Earth County, where Mankato is the largest city, probation is given 52% of the time; further to the south, in Martin County led by county attorney Terry Viesselman, probation is given 75% of the time (examining data from 2007 to 2016).
Prosecutors counter that they are only following the Minnesota Sentencing Guidelines. Washington County attorney Pete Orput said as much last year, responding to criticism that his office was soft on child predators. But Mr. Orput happens to be one of 11 members on the Sentencing Guidelines Commission, and prosecutors have a huge say in how tough the Guidelines are.
By the way, the state legislature has asked the Sentencing Guidelines Commission to reexamine penalties for cases of sexual violence against children. Yet a reexamination doesn’t ensure any meaningful change.
Not only that, but there’s a clear differentiation in counties record on combatting these crimes, depending on who the prosecutor is. John Choi in Ramsey County puts the other prosecutors to shame, with only 43% of CSC cases involving a child under the age of 13 receiving probation.
No excuses
Another excuse prosecutors make is that it’s incredibly hard to have a child victim testify. Thus, quite often for CSC cases involving child victims, they charge multiple CSC offenses, and then accept a plea bargain for a lesser CSC offense (for example, third degree CSC). But when it comes to predators trading violent child abuse images or videos in the dark corners of the internet, that’s no excuse.
If an offender is in possession of these child exploitation materials, prosecutors only need a technical expert to take the stand. It’s an open and shut case.
Not only that, a growing body of research—put together by the National Association to Protect Children (“PROTECT”)—shows that at least 55% of those who are found possessing and sharing child abuse imagery are also “contact offenders” with local child victims, or “dual offenders.”
In other words, these bad-guys aren’t just a threat to children around them, they are often actively abusing a child. This should break our hearts, says Grier Weeks, Senior Executive at PROTECT. The material being traded online by the bad-guys is an absolute threat “far worse than heroin or meth,” says Weeks. “It’s like anthrax.”
Yet overall, Minnesota is granting stays, or probation, 90 percent of the time for criminals caught with violent child abuse images. It’s so bad in Minnesota that local Police say that if they want to put a bad guy away, they need to use federal law that has carefully crafted mandatory minimums—and ignore the state prosecutors altogether.
Several years ago, one of these stays resulted in a Minnesota man killing a woman and raping a child. The stay was given, even though police and prosecutors knew this man had the urge to violently re-enact what he was viewing.
Again, counties have varying track-records. In John Choi’s Ramsey County, probation is given 79% of the time—examining child sexual exploitation of minor victims, from 2007 to 2016. But Hennepin County prosecutor Mike Freeman’s office gave out probation (stays) 93% of the time.
In Washington County, headed up by Pete Orput, who is again on the Sentencing Commission, the crime of the exploitation of minors from 2007 to 2016 resulted in a stay 97% of the time—only 2.7% were sent to prison. And 86% of those who served local jail time served less than 90 days.
In Blue Earth County, out of 19 convictions, probation was given 100% of the time; in Dakota County, out of 94 convictions, probation was given 90% of the time. Overall in Minnesota, even in cases of possession by a “registered predatory offender,” Minnesota judges are granting probation instead of prison 38% of the time.
The worst thing, according to PROTECT, is that only 2-7% of known suspects are being investigated, due to a lack of resources—because both states and the federal government have habitually underfunded the Internet Crimes Against Children (ICAC) taskforces. Again, that’s not just a failure to lock up the bad guys, that’s a failure to rescue children who are being actively abused.
The state of trafficking
We hear a lot about sex trafficking in Minnesota. How are our prosecutors doing on this front? Where a minor was trafficked between 2007 and 2016, Washington County gave probation 90% of the time, out of 11 convictions. Out of 17 convictions, Dakota County gave probation 82% of the time. In Hennepin County, out of 40 convictions, probation is given out 50% of the time.
Again, prosecutors might complain that they are only following the sentencing guidelines. Ignoring the fact that they can influence the sentencing guidelines, look at John Choi in Ramsey County: Out of 29 convictions for sex trafficking where the victim was a minor, probation is only being given out 27% of the time in Ramsey County.
One caveat is required to the data on trafficking. According to PROTECT, this data on trafficking may be a bit dubious, because during the time period studied, the definition of trafficking changed to include all prostitution. The law also, during the period studied (2007-2016) may have treated prostituted teens, adults, and johns all as “offenders,” which may cloud the data. Nevertheless, the stark difference between Choi’s record, compared to other prosecutors, is telling. This is one area where more data is needed.
What to do
One answer is tougher sentences, but prosecutors have consistently charged lesser (or probationable) offenses instead.
A related answer is mandatory minimums. But some states have mandatory minimums for CSC involving a child, but prosecutors still have the option of charging things that don’t have a minimum sentence, in order to get a plea agreement.
Yet there’s one specific area where mandatory minimums should be examined. Mr. Weeks believes that copying the federal mandatory minimum law for the crime of receipt of material depicting the sexual exploitation of a child is something the state legislature should pursue. Here, the government must show how a possessor came into possession of the material—a way to charge the vast majority of possession crimes—and the crime carries a minimum 5 year term. In federal law, material depicting extreme torture and abuse would be sentencing enhancements, which would allow prosecutors to go for longer prison-time.
Here, Minnesota could develop a mandatory minimum, similar to the federal law, especially when the material depicts torture and abuse. If the legislature doesn’t want to opt for minimums, then the legislature could easily develop statutory language describing possession and/or distribution of torture and sadistic acts, which could be either a sentencing enhancement or a separate crime—giving prosecutors more tools to put the bad guys away.
Right now, Minnesota’s current law on this awful material isn’t even in the Chapter 609 Criminal Code, but is instead under the obscenity section—and it’s incredibly weak. Essentially, this despicable crime is now decriminalized in Minnesota.
Another solution, for crimes against children across the board, is the legislature and the sentencing guidelines commission adopting charging and sentencing enhancements, which give prosecutors more tools when confronting particularly egregious crimes.
Past efforts show tough path ahead
But some caution is warranted. In the last few years, select lawmakers in Minnesota have tried to toughen our laws, to no avail. In 2017, Rep. Matt Grossell (R-Clearbrook), a former law enforcement officer, introduced HF 1572.
Provisions in the bill sought tougher penalties for child exploitation materials, and sought to make stays of adjudication resulting from sex crimes against children—which result in only a misdemeanor—discoverable to parents and the public. Right now, without Grossell’s legislation, the effect of these stays means that offenders are able to be around kids, without the ability for parents to know. And Grossell’s bill meant stays of adjudication could be used against the offender if they committed another crime.
The push for the bill occurred after several heart-wrenching stories of offenders being hidden from parents, being hired as bus drivers, or violently re-offending. Yet HF 1572 died after failing to receive DFL support, failing to receive GOP support in the Senate, and after prosecutors criticized the bill for tying their hands.
Yet another bill, HF 2943, introduced in 2018, sought to limit the ability to place offenders back in the home with victimized children. Stunningly, this happens far too often in Minnesota. These re-victimized children are then hostages, and will likely never report abuse again. This bill has also stalled.
In response, Grossell has split up his original bill—now he’s got a separate bill on a mandatory penalty for child exploitation materials, getting offenders registered if they receive a stay of adjudication, and on keeping offenders from being school bus drivers.
The DFL supports a watered-down bill on mandatory penalties for child exploitation materials, but won’t even give the other bills a hearing. Meanwhile, the Senate GOP—especially the Judiciary Committee headed by Sen. Warren Limmer (R-Maple Grove)—has refused to give Grossell’s bills a hearing.
An unnamed Republican Senator told Rep. Grossell that he “needs to learn how things work.” Yet Rep. Grossell says he’s received great support from House GOP leadership, headed up by Rep. Kurt Daudt.
In the end, sunlight may be the best disinfectant. Minnesotans should demand answers from their legislators, and carefully crafted minimums especially for the exploitation of children should be pursued. But citizens can also demand answers from their county attorneys, who run prosecutions in the state of Minnesota. John Choi, for example, is a prosecutor not turning a blind eye to abused children. Mr. Weeks recommends citizens use PROTECT’s “safety tool,” to find out what their local prosecutor is doing. Both local prosecutors, and state legislators, are elected by the people.
Willis Krumholz
Willis L. Krumholz is a fellow at Defense Priorities. He holds a JD and MBA degree from the University of St. Thomas, and works in the financial services industry. The views expressed are those of the author only. You can follow Willis on Twitter @WillKrumholz.
