Judge Peter Cahill will sentence Derek Chauvin for the murder of George Floyd this Friday. Important but less publicized documents have been filed since the unanimous jury of 12 found Chauvin guilty in April of all three charges—second-degree murder- unintentional, third-degree murder, and second-degree manslaughter. Those memos and orders give us insight into what sentence Chauvin is likely to receive.
A probation officer has completed a pre-sentence investigation (PSI) that includes the calculation of the appropriate sentence under the Minnesota Sentencing Guidelines. The PSI also includes personal details from an in-depth interview with Chauvin, which is why it is not a public document. Chauvin had the opportunity to talk to probation about the offense but based on the memos filed by each side, it appears he did not take that opportunity.
Although the jury convicted Chauvin of all three counts, he will not be sentenced on all three, nor will he receive consecutive or “stacked,” sentences. If a person engages in a single behavior, the prosecution can strategically charge different legal theories. Even if the jury convicts on more than one theory, however, the person can only be sentenced on the most serious count. That is why Judge Cahill will only impose a sentence on the second-degree murder -unintentional conviction.
Under the guidelines, felony sentences are calculated by the seriousness of the conviction and the person’s criminal history. With no criminal history, Chauvin’s presumptive sentence would be executed (as opposed to stayed) prison time of between 128 and 180 months. He would do two-thirds of that sentence in prison and the remaining third on supervised release (essentially parole).
A judge can depart or give a longer sentence than the guidelines allow if the prosecution asks for aggravating factors and they are proven beyond a reasonable doubt during the trial. Before trial, the prosecution proposed aggravating factors on five grounds. Both sides submitted memos about the aggravating factors, but Cahill determined that four of the five factors had been proven.
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In my opinion, Cahill’s memo on the aggravating factors is a clear signal that the judge will depart upward. He wrote in detail about Chauvin abusing his authority as a peace officer, inflicted particular cruelty on Floyd, and murdered him in front of children. Under Minnesota law, Cahill can probably impose a double departure from 180 months to 360 months, or 30 years, without being reversed by the court of appeals. So, Chauvin is looking at a range of between 15 (180 months) and 30 years (360 months).
Both sides have submitted memos asking Cahill to impose specific sentences. The prosecution team is asking for 360 months or 30 years. The defense is asking for dispositional and durational departures. In other words, the defense wants Cahill to dispositionally depart to give Chauvin probation, but if Cahill is sending him to prison the defense is asking for less prison time or a downward durational departure from the guidelines.
An important factor in a judge’s sentencing decision is whether the person takes responsibility for his actions and whether he shows remorse or empathy for the victim. This is more difficult for a person who maintains his innocence after conviction and pending appeal, as well as a federal indictment, but it can still be done. Interestingly, the defense made no attempt to do either, which I think will result in Cahill’s sentence being closer to 30 years.
The defense memo continues the trial narrative that Chauvin did nothing wrong, writing that his, “…offense is best described as an error made in good faith reliance on his own experience as a police officer and the training he had received…” The defense also writes, “Here, Mr. Chauvin was unaware that he was even committing a crime.” There is no empathy in this memo for George Floyd or his loved ones. There is also the puzzling statement that Chauvin was the product of a “broken” system.” There is no explanation of what that means, which makes me wonder whether the defense will elaborate at sentencing.
At the sentencing, Judge Cahill will have read all materials submitted by both sides, as well as the pre-sentence investigation report. He will ask whether one of Floyd’s loved ones wishes to give what is called victim impact statements. These must be directed to the judge and not at Chauvin.
Judge Cahill will then impose his sentence, after explaining to Chauvin why he believes this number is appropriate. Chauvin will then be led away by deputies to begin serving his sentence.