A call to account

In his Star Tribune story on Joseph Duncan this morning, reporter Paul Gustafson relates the comment of Becker County Attorney Joe Evans regarding Duncan’s bail on the pending second criminal sexual misconduct that led to Duncan’s release. Having posted the relatively modest $15,000 bail on the charge, Duncan proceeded on the rape/murder rampage that made national headlines over the past few weeks.
According to the prosecutor, knowledge of the details of Duncan’s horrendous prior record — a 1982 conviction for the torture and rape of a 14-year old boy at gun point — wouldn’t have changed his thinking about Duncan’s bail on the pending charge. Why? “Duncan, Evans said, was charged with a crime — sexually touching a child without force — for which the state’s guidelines recommend a non-prison sentence even for someone with Duncan’s record.” Is that accurate?
I spoke with Paul Gustafson this afternoon to ask if he had checked Evans’s statement for accuracy. Gustafson said that he had; he had relied on Minnesota’s state sentencing guidelines for second degree criminal sexual misconduct that provide a so-called presumptive stayed sentence of 33 months for a defendant with a prior felony conviction (see the sentencing grid on page 51).
Gustafson was apparently unaware of the applicability of Minn. Stat. section 609.109 to Duncan’s possible sentence. Under the statute, the court may be required to depart from the presumptive sentences of repeat sex offenders. Subdivision 6 provides that the court is required to sentence a defendant convicted of criminal sexual misconduct to at least twice the presumptive sentence if the judge determines at the time of sentencing that the crime involved an aggravating factor that would provide grounds for an upward departure under the guidelines.
Duncan’s conviction would certainly have been subject to this mandatory upward sentencing departure because of the presence of at least one, and probably two, aggravating factors. One aggravating factor expressly recognized under the sentencing guidelines is a conviction for a criminal sexual conduct offense where the defendant has a prior felony conviction for a criminal sexual conduct offense. Another aggravating factor is the victim’s vulnerability due to his age (Duncan’s Minnesota victim was seven years old). The comments to the sentencing guidelines accordingly provide that “an aggravated sentence would be appropriate when the current conviction is for a Criminal Sexual Conduct offense…and there is a prior felony conviction for a Criminal Sexual Conduct offense…”
The mandatory sentencing departure would at the minimum have doubled the 33-month stayed sentence to 66 months. If that were the only sentencing departure, Duncan’s conviction on the Minnesota offense would still not have resulted in incarceration. But the mandatory sentencing departure could well have included “dispositional departure” — i.e, an executed rather than a stayed sentence. In any event, departure from the otherwise presumed sentence would have been mandatory.
I may be wrong but, contrary to the gist of today’s Star Tribune story, I suggest that the Becker County Attorney’s office should answer for its action in Duncan’s case beyond the superficial blow-off served up to Gustafson.
UPDATE: Please see the correction I posted here.

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