Question: If Chauvin can only be sentenced for the most serious offense does it mean he will most likely get 12.5 years according to the Minnesota sentencing guidelines and no more? How likely is Judge Cahill to depart from those guidelines? 

Answer from Prof. Ira Robbins: This is an excellent question. Here’s my take on the Chauvin verdict, the possible sentence, and beyond.

(1) The jury did an excellent job. The evidence was overwhelming. Convictions on two murder charges and one manslaughter charge. Yet people are asking, “How can he be convicted of three homicide crimes? There was only one death. Shouldn’t the jury have come back with just one conviction?” The answer is that in Minnesota (unlike in most states), Chauvin could be convicted on more than one homicide charge, but punished for only one of them. (See  Minn. Stat. Ann. § 609.035: “If a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.”) So Judge Cahill will impose a sentence only for the most serious charge – second-degree murder.

(2) What is the sentence likely to be? The maximum punishment for second-degree murder in Minnesota is 40 years in prison. (See  Minn. Stat. Ann. § 609.19.) Will Chauvin get 40 years? Not likely. Minnesota, like many states, has what are known as Sentencing Guidelines. These Guidelines aim, among other things, to reduce sentencing disparity by recommending punishment that is proportional to the crime’s severity and the offender’s criminal history. (See https://www.lrl.mn.gov/.../sentencing-guidelines....) For second- and third-degree murder, the Guidelines recommend a sentence of 12.5 years for a convicted defendant, like Chauvin, who has no prior convictions. (See https://mn.gov/.../2020StandardSentencingGuidelinesGrid.pdf.)

The judge is permitted to depart from the Guidelines recommendation in various situations. Relevant criteria in this case that would allow for an “upward departure” include: George Floyd was handcuffed and particularly vulnerable; he was treated with particular cruelty; Chauvin abused his authority; and Chauvin committed the crime in a group and in front of children. These factors and others will be presented in the presentence investigation report (PSI), which Judge Cahill will consider before the sentencing proceeding in about eight weeks. How much discretion does the judge have with regard to an upward departure?  Vast discretion. While the judge cannot stack the three convictions and cannot impose a sentence longer than the 40-year maximum, he can opt for anything from 12.5 years to 40 years in prison. (The judge could also opt for a downward departure, but I seriously doubt that would happen.) My guess, subject to further reflection, is that the judge will likely impose a sentence in the 20-to-25-year range.

(3) What will happen then? What about an appeal? Chauvin’s bail was revoked yesterday; he is now in jail. Once he is sentenced, he will be sent to prison. (Conceivably the judge could grant bail pending appeal, but that is a rare occurrence in homicide cases.) In all likelihood, Chauvin will file a notice of appeal, which likely will take at least a year to resolve. It’s too soon to know what issues he will raise regarding the trial proceedings. One interesting aside is that, when Chauvin “pleaded the 5th” and declined to testify in his own behalf, Judge Cahill questioned him directly about whether he was waiving his right to testify willingly and of his own accord. The reason for this inquiry is that, while an attorney can make some decisions for the client, other decisions (such as whether to plead guilty, whether to testify, and whether to take an appeal) must be made by the client (albeit with advice from the attorney). Although judges typically just accept the defendant’s decision not to testify, they do not usually inquire further about it. Undoubtedly Judge Cahill did so for several reasons, including to lessen the likelihood of this becoming an appellate issue.

Apart from any alleged trial errors that Chauvin might raise on appeal, there are some possible issues regarding the substantive charges themselves. Some Minnesota laws are, in a word, quirky. So I would not be surprised to see challenges to Minnesota’s second-degree murder (i.e., felony murder) and third-degree murder statutes. Would these challenges be successful? Nobody knows. There are decisions by the Minnesota Supreme Court dealing with the vagaries of these laws. If the Minnesota Supreme Court were to throw out the second-degree murder conviction, however, the other two convictions would still be on the record. (That’s one of the reasons for allowing convictions on all three homicide counts.) And if the conviction for third-degree murder were also thrown out, the conviction for second-degree manslaughter would be a backup. The maximum penalty for that conviction would be 10 years. (See  Minn. Stat. Ann. § 609.205.) The Sentencing Guidelines recommend a 4-year sentence – again, with the possibility of an upward departure.

Add to all of the above the possibility of time off for good behavior, as well as a period of supervised release. (See https://mn.gov/.../2020StandardSentencingGuidelinesGrid.pdf.)

(4) So what’s the bottom line? Derek Chauvin will serve years in prison. How many? Likely 15 or more. But it’s way too early to know.