Warning: This article contains quotes from the Minnesota Sentencing Guidelines Commission report that are disturbing and graphic.
After public pressure to toughen penalties on predators, a 2019 law authored by Republican Senate leadership increased the maximum penalties for trafficking in child sexual abuse imagery (child pornography) if the child is under the age of 13, and asked the Minnesota Sentencing Guidelines Commission (MSGC) to examine the issue further.
Many activists criticized the 2019 bill as being ineffective. Over the last five years, Minnesota gave probation instead of prison to predators on 85 percent of convictions for possession of child sexual abuse imagery, and gave probation on about 75 percent of production and distribution convictions. Minnesota also fails to prosecute cases in the first place, relative to other states. Critics feared that increasing the maximum statutory penalties would do nothing to change the presumption of probation.
Sure enough, the MSGC’s final decision and report — in response to the 2019 law calling for the MSGC to examine changes — was released in January 2021. The report, sponsored by a slim majority of the MSGC, shows disregard for the safety and rights of trafficked and abused children.
The MSGC members
The MSGC is tasked with implementing the sentencing guidelines that directly guide judges and prosecutors. The stated purpose is to implement the Legislature’s will in sentencing, but the MSGC has shown its own power in deviating from the Legislature’s intention — unless the Legislature specifically acts to correct the matter.
The MSGC is made up of 11 members, three of whom are from the judiciary and appointed by the chief justice of the Minnesota Supreme Court, with the remaining eight appointed by the governor.
The report and decision by the MSGC was opposed by the five judicial and law enforcement members of the MSGC.
Chair Kelly Lyn Mitchell, Commissioner of Corrections Paul Schell, and the four remaining members — all appointed by Gov. Tim Walz — voted for the majority report and decision. Judge Kevin Mark also expressed concern about raising penalties on predators in hearings, but sided with the minority in disputing the majority decision.
The report’s decision
The MSGC announced only several changes to existing guidelines. First, the MSGC notes that possible sentences were already increased in response to the 2019 law for “enhanced” crimes — if the predator is a repeat offender or the child pornography depicts a child under the age of 13 — though the presumptive sentence is still probation.
The majority’s report even states that “because a large number of child pornography collections contain images of such young children, this [existing] ranking will have a significant impact on sentencing.” The majority goes on to complain that increasing “the rankings further [to stop presuming probation] would result in disproportionate penalties for the enhanced offenses and result in the need for 55 additional prison beds annually.”
Next, the MSGC increased the sentencing guidelines severity for “enhanced” child sexual abuse imagery production — where a child is under age 13 — to “a level where prison is the presumptive sentence for a first-time offense.”
Finally, the MSGC worried about these supposedly increased penalties targeting minors who are sexting each other, and worried about constitutional issues based off of the U.S. Supreme Court’s definition of pornography.
The MSGC’s blatant disregard for reality
On each of these points, the MSGC exhibited a complete disregard for reality.
The MSGC is wasting time, and asking the Legislature to waste time, on a problem that doesn’t exist. Minnesota has a problem with lax penalties on child predators, not a problem with prosecuting teenage sexters — only one such case was found by the MSGC and the judge in the case dismissed it swiftly. There is also no constitutional problem with Minnesota’s laws on child predator penalties.
On the issue of the MSGC finally making prison the presumptive sentence for child pornography production when a child is under the age of 13, it shocks the conscience that it took until 2021 to move in such a direction. Indeed, the MSGC admits that Minnesota gave probation in a stunning 74 percent of production convictions.
Just what types of crimes only received probation, and will likely still only receive probation because the victim was over the age of 12? The MSGC’s report details production cases involving teenage victims where probation is still presumed:
“Five cases involved the offender recording sex acts between the child and himself. In two of these cases, the child was being prostituted; in a third, the child was using drugs during sex. At least three of the cases involved offenders in their thirties or forties. In one case, not involving money or drugs, a 21-year-old recorded sex acts with a 15-year-old. Four other cases involved older men offering teenage children money, fame, or shelter in apparent exchange for taking nude pictures of them. Three other cases involved 19-, 20-, and 37-year-old men sexting with 17-, 14-, and 16-year-old children, respectively. A fourth sexting case involved an 18-year-old man using a previously sexted picture as leverage to coerce the 16-year-old victim into taking pictures of her younger sister.”
But the MSGC pats itself on the back for finally making it the status quo that producers of materials depicting children under 13 go to prison.
MSGC refuses to get tough on predators
As stated, the MSGC did already raise the sentencing severity for offenders trading in and possessing child sexual abuse imagery when a child is under age 13 or if the predator is a repeat offender. Yet the presumption, despite this supposed increase in severity, remains probation and not prison time.
As an excuse for this decision, the MSGC cherry-picked data from several other states in order to make Minnesota look like it was in-line with the rest of the nation. The results were embarrassing. The MSGC says that according to “statutorily permissible” sentences, Minnesota is in line with the rest of the nation. But there’s a difference between what’s in the statute and what actually happens in sentencing, with the latter being up to the MSGC.
By the MSGC’s own data, Minnesota is among the worst in the nation in terms of child safety, and possibly even dead last. As stated above, Minnesota gives prison in only 14 percent of possession crimes and 25 percent of dissemination crimes. That is far lower than the states picked out by the MSGC — Oregon, Washington, North Carolina, and Kansas.
Worse, Minnesota also has a habit of disproportionately choosing to charge with possession instead of dissemination — prosecutors can usually charge either but possession carries a lower sentence. Still worse, Minnesota has much lower prosecutions per capita than every state studied (North Carolina looks slightly worse, but North Carolina law enforcement refers ten times the number of cases to federal prosecutors than does Minnesota law enforcement). In other words, not only is Minnesota soft on child predators trading in these materials when it comes to sentencing, Minnesota does a poor job of catching these predators in the first place. The lack of law enforcement resources toward this problem, and the signal sent to law enforcement by their decision, was lost on the MSGC.
Minnesota’s average prison sentences, in the occasion a prison sentence is received, are longer than some of the compared states. Yet this is because Minnesota is only giving out prison sentences in the most egregious cases, likely where other large crimes are involved.
In the end, the MSGC admits that — even when comparing Minnesota to the MSGC’s cherry-picked states — Minnesota is the only state out of the five states where the sentencing guidelines recommend probation, not a prison sentence, for supposed “first-time” offenders with “no criminal history” who are in possession of a collection of child sexual abuse imagery. It is highly likely that Minnesota is the only state, or one among only a small handful of states, to presume probation for these materials in the country.
The MSGC also admits that federal law, which presumes a five year prison sentence for trading in child sexual abuse imagery, is far tougher on predators. According to the report, Minnesota’s child pornography investigators have testified to criticize the Minnesota sentencing guidelines relative to the federal law.
The excuses
According to the majority:
“The Commission acknowledges that, by comparison to other states and the United States, Minnesota’s child pornography sentencing scheme — in statute, in sentencing guidelines, and in practice — may be viewed as more lenient than other jurisdictions. Minnesota has a long tradition of parsimony and precision when it expends correctional resources, and child pornography sentencing is no exception.”
The majority claims that tougher penalties aren’t needed because prosecutors can get tougher by Hernandizing, or stringing together, different crimes into one larger sentence. But this ignores what happens in practice. On top of this, Chair Mitchell said she wants to limit Hernandizing for child sexual abuse imagery offenses, which could happen next year.
As another justification of the status quo, the MSGC cherry-picks again to claim that “internet sex offenders” have a low risk of recidivism, when even the research cited by the MSGC stresses it is inconclusive because it is only measuring when predators are caught again by authorities. The MSGC looks at Minnesota’s data to say the same, but doesn’t consider the obvious fact that many predators evade detection after being caught a first time, especially in a state with relatively low prosecutions.
Most important, the MSGC completely ignores research that says otherwise on recidivism for pedophilia, and research that says at least half of those possessing and trading in “collections” of child sexual abuse imagery are actively abusing a child (contact offenders). Certainly, the vast majority of the public would also view all of these criminals as being an active threat to children.
Finally, the MSGC majority complains about the added cost of “55 additional prison beds annually,” which ignores the cost and resource commitment required of law enforcement to track and monitor predators who have received only probation.
The material
What is a typical case where Minnesota is giving only probation? Here, the MSGC report can speak for itself:
“In its 2012 report to Congress, the U.S. Sentencing Commission reported that child pornography collections can be very large and can contain a spectrum of images from legal child images, sexually explicit poses, sex acts, violence, humiliation, bondage, and bestiality. Some collections can be organized and specialized. The overwhelming majority of federal child pornography collections included images depicting oral, vaginal, or anal penetration of a prepubescent child. A substantial minority included images depicting sex acts involving infants or toddlers. Most images were of girls; images of boys were more likely to involve younger children. While the Commission did not conduct such a rigorous content analysis of Minnesota child pornography collections, MSGC staff reviewed the facts alleged in a large number of criminal complaints as part of this review. The Commission’s impression is that the U.S. Sentencing Commission’s disturbing findings generally apply to child pornography collections found in typical Minnesota possession and dissemination cases.”
Alpha News has learned that many politicians in St. Paul are worried about tougher penalties on people who “accidentally clicked on the wrong thing.” It appears these politicians have no idea what they are talking about. According to the MSGC, after a review of Minnesota’s cases, “MSGC staff found that typical cases involve large collections of images and videos.”
The minority also provided further details on what is a regular example of the materials being possessed by these predators. The most egregious examples given by the MSGC minority have been taken out of this article but still can be found in the MSGC report, which summarizes the material thusly:
“Child-pornography images frequently depict children, toddlers, and infants being sexually assaulted, physically abused, tortured, and humiliated.”
The minority on the SGC is right
The minority on the SGC correctly point out that these materials require greater sentencing in the interest of public safety, and slam the majority for directly deviating from the Legislature’s loosely-given intent:
“The Commission has an obligation to protect children and promote public safety by appropriately penalizing enhanced offenders who disseminate and possess such images. See Minn. Stat. § 244.09, subd. 5 (2018) (‘In establishing and modifying the Sentencing Guidelines, the primary consideration of the commission shall be public safety’). The minority therefore recommends that the Legislature increase the severity ranking for enhanced dissemination and enhanced possession of child pornography by one level … ”
Because of this, the minority of the MSGC — four or five members depending on the issue— would recommend increasing the penalties for possession and for dissemination.
Is the minority approach enough?
Readers are likely upset by the description of what is in these “collections,” and what is happening to vulnerable children across the country. They have power over what happens here in Minnesota. Minnesotans can wait upon the MSGC to do the right thing, or pressure Walz for his bad picks to the MSGC, but the answer lies in the Legislature taking solid and decisive action.
Proponents of tougher penalties on predators say that Minnesota should have mandatory minimums mirroring the federal law for these materials, which would end once-and-for-all the MSGC’s ability to dilute the will of the Legislature. A bill sponsored by Reps. Matt Grossell (R-Clearbrook), Paul Novotny (R-Elk River), Jay Xiong (DFL-St. Paul), and Peggy Bennett (R-Albert Lea) — HF 229 — seeks a Minnesota version of the federal law. Yet similar efforts in the past have been ignored or even shot down by leadership on both sides. Currently, the Democratic Party in the Minnesota House has refused to even give 229 a hearing.
Next, Minnesota can act in other areas. Experts say that Minnesota can enhance its law enforcement resources geared toward stopping child trafficking and child exploitation. A first step is Alecia’s Law, which sets up a dedicated source of funds for the severely-underfunded local Internet Crimes Against Children (ICAC) task force.
There are many other steps to take after this, but even accomplishing these two steps will be tough in a state as apathetic as Minnesota. In the end, the MSGC members appointed by Gov. Walz, and thus far the Legislature, are responsible for the status quo.
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.
