21 April 2021 – And so Chauvin was found guilty, but that is a low bar in a minutely documented, open-and-shut case. The sobering truth is that instances of White accountability for Black bloodshed are all too rare in the United States. And still, even as the world heard the justice system build an overwhelming case against one of its own, another White Minnesota police officer erased another Black life, with the killing of 20-year-old Daunte Wright. In fact, during the trial, the New York Times reported, police across the nation killed more than three people a day — more than half of them Black or Latino.
Who thinks the bodies will not continue to pile up? How can one not despair when we know that it will be just a matter of time until the next horrific police killing? A few arrests and convictions of officers do not add up to justice. There can be no justice when police can still eliminate non-White people at any time. The truth is America faces a battle that goes much deeper than questions of public-safety policy and rhetoric. Yet I hear the same misplaced euphoria I heard after Amanda Gorman’s tone poem at the Biden inauguration. One poem does not undo 4 years of horror. One conviction does not undo entrenched, systemic racism.
Talk with anybody who “does this stuff” and you come away with their two greatest fears:
1. The worry is that one officer’s conviction will be held up as proof that the systemic problems highlighted by Floyd’s killing were solved. If that sentiment takes hold, activists warned, it would blunt the urgency of a year-long movement. People are going to try to use this incident to say we’re healed from racism without actually doing the real work to get at the root of the problem. The moment will pass, and people will say Floyd’s name on the anniversary of the day, just like they say Trayvon’s name, just like they say Breonna Taylor’s name. The system has not corrected itself in addressing this thing that we all have been socialized in, which is white supremacy.
2. The U.S. has a sprawling, decentralized system of policing. The country has roughly 18,000 police departments each with their own use of force policy, hiring practices and oversight mechanisms making universal reform near impossible. And the Trump administration certainly sent the very limited progress that had been made towards reform hurtling backwards. There has been no revolution in racial justice or policing in the U.S. since George Floyd was killed on 25 May 2020. The U.S. Justice Department just launched an investigation into possible patterns of discrimination and excessive force in the Minneapolis police department but DoJ officials readily admitted it will take years to make up for the time lost by the Trump Administration when it pulled the plug on such investigations.
And Chauvin’s sentence? I turn to Ira Robbins who is a Professor at American University’s Washington College of Law. He is an expert on criminal law and procedure, the death penalty, habeas corpus, prisoners’ rights, privatization of prisons and jails, conspiracy, insanity, and other legal issues. Most likely you’ve seen him on CNN or quoted in such publications as Time, Newsweek, U.S. News & World Report, London Times, New York Times, The New Yorker magazine, Washington Post, the ABA Journal, etc., etc. We actually met not at a legal conference but at an event at the National Geographic Society. He is an award-winning photographer.
Here is Ira’s play on the Chauvin trial:
(1) The jury did an excellent job. The evidence was overwhelming. Convictions on two murder charges and one manslaughter charge. Yet people are asking me, “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. Will Chauvin get 40 years? Not likely. Minnesota, like many states, has 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. 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.
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 which Judge Cahill will consider before the sentencing proceeding in about 8 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. 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.
(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.
This is why the Minnesota state prosecutor is key. As Michael Fisher, a former Illinois state prosecutor, said during a Clubhouse chat today the prosecutor will ask for a lengthier sentence – that “upward sentencing departure” noted above by Ira – citing aggravating factors including the killing of Floyd happened in the presence of children, that Floyd was treated with “particular cruelty” by Chauvin, and that Chauvin, as a police officer, “abused his position of authority.”