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After the guilty verdicts in the trial of former officer Derek Chauvin, the next court proceeding will be the sentencing hearing. Judge Peter Cahill will determine what criminal penalty is appropriate for Chauvin’s murder of George Floyd.

In documents filed May 12, 2021, Judge Cahill announced his conclusion that Derek Chauvin’s actions support four aggravating sentencing factors in causing the death of George Floyd. Many are demanding and hoping that Judge Cahill will impose “the maximum sentence” for second-degree unintentional murder – a term of 40 years. Outrage at this offense has been expressed worldwide. The attention to the case was perhaps magnified because of the videos that documented these human rights violations for all to see. Few disagree that Mr. Chauvin deserves accountability for his actions.

The court must follow the rule of law and provide due process to Mr. Chauvin

Regardless of the attention on this case, however, Judge Cahill must base his ruling on Mr. Chauvin’s actions, according to the law on sentencing. In Minnesota, felony sentencing is determined by the Minnesota Sentencing Guidelines. The purpose of the Sentencing Guidelines is to provide consistent sentencing by judges throughout the state. The Guidelines sentence is based mainly upon the criminal history of the offender and the offense upon which the court is passing sentence. The court must impose the Guidelines sentencing term – the presumptive sentence – unless the court finds substantial and compelling reasons to depart from the sentence.

Four aggravating factors support departure from the Sentencing Guidelines

Judge Cahill found four aggravating factors:

• Mr. Chauvin behaved with particular cruelty in pinning Mr. Floyd with indifference for six minutes while Mr. Floyd was alive, begged for his life, and knew he would die. Mr. Chauvin then continued to pin Mr. Floyd even after his unconsciousness and death.
• At least 3 children witnessed the murder, including teens and a 9-year-old, visibly a child.
• Mr. Chauvin violated the position of trust given to police, entrusted to use reasonable force. Mr. Chauvin failed to limit his use of force to reasonable force standards.
• Mr. Chauvin acted as part of a group, involving 3 other officers, who acted in concert as Mr. Floyd died.

When such factors are proven beyond a reasonable doubt, as Judge Cahill has found here, they can support a departure from the presumptive Guidelines sentence. In this case, second-degree unintentional murder is the most serious offense Mr. Chauvin faces, and thus the only sentence that will be imposed. The longest presumptive Guidelines sentence for that offense is 15 years. But the finding of aggravating factors gives Judge Cahill the discretion to depart upward from that sentence, and if so, how much to depart.

Limitations on judicial discretion in sentencing

The judge’s departure discretion is not unlimited, however. Minnesota appellate court decisions generally cap the judge’s departure discretion to double the presumptive sentence. That would be 30 years for this offense. Even with four aggravating factors, the court generally cannot depart beyond double the presumptive sentence. Only in “extremely rare” cases have the reviewing courts allowed more than double the presumptive sentence. Those have generally involved very gratuitous, intentional infliction of injury or cruelty, a very lengthy history of criminal behavior, or meticulous planning or scheming in the commission of the offense.

Giving the finding of four aggravating factors, it would be unsurprising for Judge Cahill to depart and impose more than the presumptive sentence. But it is unlikely that he will try to justify departing more than double the presumptive sentence; the extreme factors needed for such a departure are likely not present here. A double departure to 30 years equates this case with the presumptive sentence for intentional murder in the second degree – when a defendant intended to kill the victim. A reviewing court would consider that equation if Judge Cahill departs to more than 30 years. Judge Cahill is unlikely to impose “the maximum sentence” called for by many, and that will be the result of following the rule of law in this case.

George Floyd suffered a tragic, tortuous death at the hands of a person sworn to protect rather than kill. But the State of Minnesota has enacted a series of protections and limitations to help ensure that the trial judge does not get carried away by the anger and sorrow of a horrible situation. Minnesota, after all, has one of the four lowest rates of state incarceration in the United States. It is times like this that emphasize the need for consistency and proportionality in the treatment of the criminal defendant.

The court should not be swayed by the communal anger and sorrow engendered by this case. The collective fury at the historic disparate treatment of Black people and other marginalized groups by police and criminal systems cannot be the basis for Judge Cahill’s sentence.

In other words, the outrageousness of Mr. Floyd’s death cannot justify ignoring the rule of law. That is precisely what Derek Chauvin did – ignored the rule of law by killing Mr. Floyd without due process. Ignoring the legal limitations on sentencing is not justified because Mr. Floyd’s death was unjust.

If Minnesotans are disappointed by the presumptive sentence for this offense, committed at the hands of an agent of the State, they can lobby to change it. Perhaps residents would support enhanced penalties for violations of human or civil rights by police officers. That can be discussed for future offenses. But Mr. Chauvin is entitled to sentencing under the scheme applicable at the time of his offense. To do otherwise would itself violate the human rights concepts of due process and other rights in the administration of justice.

Conclusion

In very challenging or tragic circumstances, it is tempting to throw out the rules and act out of anger or sorrow. In such times it is perhaps most important for state actors such as Judge Cahill to adhere to the rule of law, making decisions with cool precision rather than untamed emotion. When the rule of law prevails in hard cases, it protects all our human rights.

By Kaarin Long, staff attorney with The Advocates’ Women’s Human Rights Program and former prosecutor.