Criminal sentences spark backlash, but Minnesota guidelines are set by state commission

BEMIDJI, Minn. -- One month after a jury found him guilty of second-degree unintentional murder, Brian Keith Jourdain once again stood in front of Judge Paul Benshoof, this time to find out how long he would spend in prison.

BEMIDJI, Minn. -- One month after a jury found him guilty of second-degree unintentional murder, Brian Keith Jourdain once again stood in front of Judge Paul Benshoof, this time to find out how long he would spend in prison.

The criminal complaint against Jourdain, which described how he stabbed his girlfriend, Krista Marie Fisherman, and left her in the Paul Bunyan Mall parking lot where she died, listed the maximum penalty for second-degree unintentional murder as 40 years in prison. But as Jourdain’s lawyer, John Schmid, and Beltrami County Attorney Annie Claesson-Huseby argued for different sentences, it became clear that the statutory maximum bore little resemblance to the amount of time Jourdain could actually serve.

Schmid asked Benshoof to sentence Jourdain to 10 years and eight months in prison, while Claesson-Huseby asked for a 15-year sentence. Benshoof settled on a sentence of 12 years and six months, with Jourdain eligible for supervised release after eight years and four months.

Jourdain’s sentence sparked backlash on social media and a letter to the Pioneer from those who viewed it as light, criticizing Benshoof and the justice system as a whole, something that, according to Claesson-Huseby, is not uncommon.

“I can appreciate and I can understand why that would cause frustration,” Claesson-Huseby said. “Why on earth would a person who had a statutory sentence of 40 years receive an eight-year sentence?”


The answer lies in a grid created by the Minnesota Sentencing Guidelines Commission more than 30 years ago. One axis of the sentencing guidelines grid shows criminal history scores, from zero to six. A criminal history score is based on a perpetrator’s previous offenses and is calculated by the Minnesota Department of Corrections during a pre-sentence investigation, required before all felony-level sentencings.

The other axis lists the severity level of different crimes, from crimes such as fourth-degree assault, which has a severity level of one, to second-degree intentional murder, which is listed as severity level 11. The body of the grid is divided into squares, each showing the number of months a person can be required to spend in prison based on their criminal history score and the severity level of a given offense. After a pre-sentence investigation, the Department of Corrections creates a sentencing worksheet based on the grid, showing the judge and attorneys involved in the case the guideline sentence.

When he went to trial, Jourdain had a criminal history score of zero. Second-degree unintentional murder has a severity level of 10. Despite the statutory maximum sentence of 40 years, the most time Jourdain could spend in prison, based on his criminal history score, was 180 months.

A set of standards The Minnesota Sentencing Guidelines Commission was created by the Minnesota State Legislature in 1978, in order to create rational, fair and uniform sentencing standards for the state according to the Commission’s Executive Director Nate Reitz. The first set of sentencing guidelines was put in place in 1980, making statutory maximums nearly irrelevant.  

“Following the legislative creation of the sentencing guidelines in 1978 and going into effect in 1980, the statutory maximum sentence has less bearing on the actual sentence that defendants receive than do the Minnesota Sentencing Guidelines,” Reitz said.

The commission must be composed of the Chief Justice of the Minnesota Supreme Court or a designee, one judge from the Minnesota Court of Appeals, one district court judge, one public defender, one county attorney, the Commissioner of Corrections or a designee, one peace officer, one probation or parole officer and three members of the public, one of whom must be the victim of a felony.

Judges must follow the guidelines created by the commission, or risk seeing their decision overturned. Judges have some leeway, though. Many boxes in the grid list a range of months; for example a person like Jourdain, who has been convicted of a severity level 10 offense and has a criminal history score of zero, could receive a sentence of 128 to 180 months. The grid also lists a presumptive sentence, also called a middle-of-the-box sentence by judges and attorneys.

Benshoof sentenced Jourdain to a middle-of-the-box sentence of 150 months, rather than the more lenient sentence his attorney requested or the top-of-the-box sentence Claesson-Huseby requested.


Benshoof could not comment on the reasons for his decision in the Jourdain case, but said that in most felony cases the defendant receives the presumptive sentence, though the range allows for some variation.

“It’s to give the judge some discretion to fashion a sentence that, while uniform with all the other sentences of a similar crime elsewhere in the state, still gives the judge some discretion,” Benshoof said.

What is typical? Of course, every rule has an exception.

“The guidelines are designed to cover a typical case,” Reitz said. “In order to cover a typical case there has to be something you can do for an atypical case.”

Because of this, judges can depart from sentencing guidelines under very specific circumstances. In cases where a prosecutor believes there are aggravating factors -- meaning there are certain things about a crime that make it worse than a typical offense -- they can request an upward departure from the guideline sentence. But first a prosecutor must prove that those aggravating factors are present, either by proving their existence to a jury beyond a reasonable doubt or coming to an agreement with the defendant.

Attempts to establish aggravating factors -- also known as Blakely factors after a 2004 United States Supreme Court case that prohibited judges from increasing sentences based on anything not decided by a jury or admitted by a defendant -- can be difficult.

Claesson-Huseby tried to argue that Jourdain treated Fisherman with particular cruelty -- one of many possible aggravating factors.

“The state’s position was that leaving the victim to die alone was cruel and unusual, and was particularly cruel,” Claesson-Huseby said. “The defense argued that leaving victims after after killing them is actually not particularly cruel, but rather something that many defendants who kill someone do.”


The defense was successful.

If aggravating factors are found, the judge can then decide whether to depart upward and sentence a person to a longer prison term than is given in the guidelines. Judges can also give a defendant a shorter sentence than is recommended by the guidelines if the judge finds “substantial and compelling and identifiable circumstances” to justify it, Reitz said. Both upward and downward departures can leave a case vulnerable to appeal.

“We do find that from time to time the court of appeals or the Supreme Court will reverse a judge’s departure from the sentencing guidelines based on the lack of those substantial and compelling circumstances,” Reitz said.

Despite the relative limits when it comes to handing down a sentence, Benshoof said it is still something every judge takes seriously.

“There’s not a judge in the state who doesn’t lose sleep over his or her cases and what the appropriate sentences should be,” Benshoof said. “We’re taking someone’s liberty away.”

Related Topics: CRIME
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