The Sentencing Guidelines Commission on Oct. 9 reviewed a multi-part consensus package that would change how criminal history scores are calculated, alter several offense severity rankings and add a new "true first offender" departure factor — a proposal that prompted detailed debate over legal risk and judicial practice.

Commissioners heard staff present the package and timeline, discussed whether the proposed new departure factor should be allowed to support both dispositional and durational departures, and ultimately withdrew a motion to add explicit language authorizing that dual use while moving forward with consideration of the broader package.

The package presented by staff would make four broad changes to how criminal history affects presumptive sentences: shorten the decay period for prior felonies from 15 to 10 years; shorten the decay period for prior misdemeanors and gross misdemeanors from 10 to 7 years; stop counting juvenile adjudications as points in adult criminal-history scores; and change how custody status at the time of the offense affects recommended duration by converting the current custody-status rule to a durational increase rather than a factor that can move a defendant across the grid. Staff said the custody-status change is intended to increase recommended durations without moving defendants across the disposition line (so someone not presumptively subject to prison would not be driven into prison solely by custody status).

On offense severity, the package would: raise second-degree assault that causes substantial bodily harm from severity level 6 to 7; raise criminal vehicular operation causing great bodily harm to severity level 6 when gross negligence or impairment is involved; move certain third- and fourth-degree assault offenses up one or two severity levels (including domestic strangulation and third-degree assault with substantial bodily harm); replace a criminal-vehicular homicide 50% durational modifier with a higher severity ranking for comparable cases; and pair a proposed reduction in ranking for first-degree assault resulting in great bodily harm with a separate legislative recommendation to create a new severity-level-9 offense for intentional infliction of great bodily harm.

Other proposed changes include clarifying guideline purposes, displaying the full sentencing ranges in grid cells, revising example offenses on the standard grid to reflect the ranking moves, and clarifying that the burden to prove how to count out-of-state convictions lies with the prosecutor.

A central focus of the meeting was the proposed new departure factor described in the materials as a "true first offender" factor (sometimes discussed in the meeting as a "true 0"). That factor would identify a defendant with no prior criminal convictions — not merely a criminal-history score of 0 — as a circumstance that "may support" a downward departure. Several commissioners and participants said the factor is intended to address cases where a defendant is presumptively commit under the grid but has no prior convictions and judges want modest reductions in duration for someone who appears less culpable or lower-risk.

Supporters said the factor comes from steering-committee work and that district-court judges raised the issue in practice. "This started as something called the true 0," Commissioner Middlebrook said, noting the steering committee considered adding a true-0 column to the grid but opted for a departure factor instead. Mr. Pritz said he "would have strongly supported a true 0 column on the grid" but supported the departure-factor approach as a smaller first step.

Opponents cited appellate case law that has limited the use of offender-centered factors to support durational departures. Commissioners raised the risk that explicitly stating the commission's intent to allow an offender factor to justify both dispositional and durational departures could conflict with precedent and invite litigation. "I just don't agree with this particular statement of intent," one commissioner said, explaining concern that the commission would be signaling an intent contrary to how courts have read the guidelines. Several commissioners suggested alternatives — for example, limiting any durational relief tied to a true-0 concept to higher-severity, presumptively-commit cells (for instance, severity columns commonly discussed as 8 and 9) or revisiting a grid-column approach that would affect only specific cells rather than asserting a blanket rule.

Commissioner Frace moved to add language expressly saying the factor "may support a dispositional or durational departure," and the motion was seconded. Extensive discussion followed on whether the phrase "may support a dispositional or durational departure" should read "and/or" or otherwise be worded to reflect separate justificatory requirements for two distinct decisions. After deliberation and further concern about case-law tensions, Frace withdrew the motion, saying, "I request to withdraw." The commission then continued review of the broader consensus package without that additional sentence.

Staff repeatedly emphasized process and timing: any preliminary adoption of guideline-language changes today would not be final. As staff explained, preliminary adoption would be followed by a required public hearing and at least one additional meeting before the commission could take final action; adopted changes would be included in the commission's January report to the legislature and staff identified a target effective date in the materials. The executive director also announced upcoming outreach and operational items: beginning Oct. 23 MSGC staff will hold monthly "lunch-and-learn" webinars (with CLE credit planned for lawyers) and a redesigned website and data library are now available.

Next steps identified at the meeting included publishing the proposed changes for public comment, scheduling the public hearing described by staff, and taking final action after the hearing. Commission members asked staff to prepare clarifying commentary for publication (for example, a comment explaining the intended scope of the new factor if the commission later chooses to retain it) and to explore the alternative of a limited grid adjustment if that helps resolve legal concerns.

Votes at a glance
- Adopt agenda: motion by Commissioner Larkin; vote 9–0 to adopt the agenda unanimously.
- Approve Sept. 11 meeting minutes: motion by Commissioner Middlebrook; vote 9–0 to approve the minutes.
- Motion to add explicit language allowing the true-first-offender factor to support both durational and dispositional departures: moved by Commissioner Frace, seconded; motion withdrawn by the mover (no final vote).

The commission scheduled follow-up work, including public outreach and drafting of commentary and asked staff to continue refining the consensus package for the public hearing and subsequent final action.