Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent).

Mark D. Nyvold, 386 North Wabasha Street, Suite 654, St. Paul, MN 55102 (for appellant).

Considered and decided by Short, Presiding Judge, Randall, Judge, and Davies, Judge.

Appellant challenges the trial court's decision to impose a 50 percent upward durational departure for his conviction of second-degree intentional murder for the stabbing of his wife. We reverse and remand.

On the evening of May 3, 1995, after three drinks at a bar, appellant came home and got into an argument with Christa about her extra-marital affair. In past discussions about ending the couples' marriage, Christa had been agreeable to Chelsey living with appellant. That night, however, Christa told appellant that she had changed her mind about Chelsey living with him. According to appellant, as the two were standing in the kitchen, Christa told appellant that if they got a divorce she was going to take Chelsey from him. Appellant stated that he then "lost control," grabbed a knife with a six-inch blade, and began stabbing Christa. She attempted to get away, but appellant followed her, stabbing her continually. The two moved from the kitchen, to the lower level of the house, and then to the front yard. When Christa finally stopped struggling, appellant dragged her body to the garage where he left her. Appellant testified that Chelsey witnessed what occurred in the garage.

Later that day, after several family members attempted to contact Christa and Chelsey did not report to school, the police were dispatched to the Moman residence. There they observed blood smears on the front of the house next to the garage door, a large amount of blood in the front yard, and a large bloody drag mark leading across a portion of the driveway into the garage. When the reporting officer looked into the garage he saw the partially-clad body of Christa Moman lying on the floor. Next to the body was a bloody knife and the word "Hi" was written in blood on Christa's buttocks.

The medical examiner concluded that Christa had been stabbed 148 times. Of these, 90 were "defensive" wounds to Christa's arms and hands. Another 38 stab wounds were to Christa's chest. It was determined that 4 of the 38 stab wounds caused Christa's death. One severed her aorta, two penetrated the left lung causing it to fill with blood, and the last one penetrated her right lung. Christa also suffered eight wounds to her back, two of which severed her liver. The medical examiner concluded that the wounds to the liver were inflicted very near the time of death or after death. In addition, Christa received stab wounds to the head and face with one penetrating her right eye.

Appellant was indicted for murder in the first degree. On April 4, 1996, he pleaded guilty to murder in the second degree in violation of Minn. Stat. § 609.19, subd. 1. At the sentencing hearing, the state called one witness, Christa's mother, Joann Jahn. Jahn testified about the effect of the murder on Chelsey, reading parts of her (Jahn's) diary in which she noted several poignant moments when Chelsey would volunteer information about Christa's death. The comments by Chelsey show that she was scared during the fight between appellant and her mother, that she knew appellant lied to her about the incident, and that she was afraid of her dad and of being cut. Jahn also stated Chelsey had a difficult time returning to school because the other children would ask her questions about what had happened and that for a period of time Chelsey had trouble sleeping.

The defense presented numerous letters from appellant's friends and family members expressing disbelief that appellant was capable of such an act and that it was completely out of character for him. The district court commented on two letters it received from appellant's two ex-wives stating that, although their marriages had failed, it was not because of any abuse by appellant.

The district court imposed a sentence of 459 months (38-1/4 years) in prison, a 153-month upward departure from the presumptive 306-month term called for in the sentencing guidelines.

Here, the trial court found that there were "[n]o mitigating factors recognized in the law relating to this particular crime." The trial court found that three aggravating factors were present: (1) the particular cruelty to the victim in that the victim was stabbed 148 times and that the attack took place in two locations in the house and also outside in the front yard; (2) that the incident took place in front of the couple's then five-year-old daughter Chelsey; and (3) that the writing of the word "Hi" on the victim's buttocks was a particularly demeaning act to the victim's body. On these grounds, the trial court imposed a sentence of 459 months in prison, a 50 percent upward durational departure from the presumptive sentence of 306 months.

The presumptive sentence for intentional second-degree murder in Minnesota is 306 months, which equals 25-1/2 years. As with all Minnesota sentences, assuming no disciplinary penalties in prison, exactly two-thirds is spent behind bars and the remaining one-third on probation. Thus, with just the presumptive sentence imposed, appellant will spend 17 years in a state penitentiary before he is even eligible to begin eight and one-half years of probation. Just a few years ago (1989), when a person was convicted of murder in the first degree in Minnesota and received a life sentence, he became eligible for parole consideration after 17 years. He was not guaranteed parole, but could become eligible for parole consideration. The average length of time that people convicted of murder in the first degree served in this state used to range from approximately 21 to 25 years. Since 1989, the minimum time that is served for murder in the first degree before parole eligibility begins is now 30 years. It can be noted that since 1989 there has been no correlation showing any drop in the rate of first-degree murders since the minimum time has been raised from 17 to 30 years before parole eligibility begins. Those connected with the correctional system and all those outside the system who take time to seriously study sentencing practices and crime and justice understand that crime is not "sentence driven."

To the point; Minnesota's already high presumptive sentence for intentional murder in the second degree is the highest in the nation in terms of the requirement that 17 years be spent behind bars before eligibility for probation begins. Thus, Minnesota's presumptive sentence for second-degree murder already exceeds all known bounds when compared to other states.

After the institution of the 1980 sentencing guidelines (May 1, 1980), the presumptive sentence for second-degree murder with no criminal history score was 116 months, meaning 9 years and 8 months. That would mean the incarcerated man or woman would do 6 years and 3 months behind bars before going on probation. The 1980 presumptive, like all presumptive sentences at that time, was based on a thorough and well-thought-out look at the existing norms for convicted criminals. Prior to 1980, those serving time for second-degree murder were generally released on probation between 4 to 8 years. The recidivism or repeat offender rate for those persons convicted of intentional murder is low, far lower than the repeat offender rate for lesser crimes such as car theft or check forgery.

Although the sentence was up to a maximum of 40 years, the same as it is today, only a tiny handful of inmates serve anywhere close to the 17 years behind bars that today's high presumptive calls for.

The prison population between 1980 and 1989 increased. As soon as the 1980 guideline sentences were increased, neither crime nor the prison population decreased, but started to increase.

The prison population between 1989 and today has increased dramatically because, during that time, sentences have again been lengthened. Put another way, today's rhetoric, at times amounting to demagoguery, calling for longer and longer sentences and more punishments, correlates from a statistical standpoint to an increase in crime rather than a decrease. Put another way, sensible sentencing policies seem to have a reasonable effect on the level of crime whereas rush-to-judgment sentencing policies both drain the state of its precious finite amount of taxpayers' money and seem to "increase crime" in the sense that as we continue to build and build prisons, "they will come."

The presumptive sentence for appellant of 25-1/2 years is enough for the crime committed. It is enough because it is approximately three times the presumptive sentence that this crime called for in 1980 at the outset of the guidelines. Thus, the sentence we impose today on appellant is a triple upward departure from the original intent of the presumptive sentencing guidelines, which was

to establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender's criminal history.

Minn. Sent. Guidelines I. (1996).

As to the victim being stabbed multiple times, the undisputed facts leading to the attack and the emotional state of appellant give the explanation. They do not give an excuse for the crime. But they give comprehensible and honest reasons why it happened with multiple stab wounds in a "rage reaction."

Appellant argues that the upward departure imposed by the trial court is in error. Appellant claims he snapped under the weight of Christa's refusal to end her lesbian love affair and the fact that, if they divorced, she intended to take Chelsey with her. Dr. Carl P. Malmquist, a licensed psychiatrist who completed a psychological evaluation of appellant, stated that:

A rage reaction occurred in the context of his wife cutting off [appellant's] last source of support as he viewed it, namely the loss of his daughter. It was not simply her being in relationships with other women and lying about it, that pushed the final breaking point with him. Rather, it was when she also took away his last source of support which he saw as a final betrayal since there was very little else in his life. In that context, all the anger and rage welled-up in him, resulting in a homicidal act.

Dr. Malmquist concluded by saying,

[this] is a sad case of a person with meager psychological resources to deal with the reality problems in his life. Coping with the loss of a wife and daughter were too much for him. However, it would not appear that [appellant] would not have known the nature of his acts or that they were wrong. A 'blinding rage' perhaps best describes it.

Appellant claims that his long-standing depression, the history of betrayal he experienced in his previous relationships, Christa's unwillingness to end her lesbian affair, and the knowledge that he might lose Chelsey mitigate his culpability.

We conclude, as did the trial court, that those factors do not mitigate appellant's culpability. This case is not about a downward departure. This case is about whether today's presumptive sentence, a triple upward departure since the start of the guidelines, is a proper sentence. The factors listed by appellant do have a bearing on his psychological make-up. While they are not a defense to his actions, they explain his out-of-character conduct. Although appellant had a 1979 conviction for assault in the third degree in Missouri, appellant has had no prior criminal record involving violent behavior since that time. Dr. R. Owen Nelson, a licensed psychologist who examined appellant in the Anoka County jail at the request of Dr. Malmquist, concluded that

[appellant] was * * * an emotionally dependent individual who rigidly applies unrealistically high standards to himself and to others. He presents as a ruminative, insecure, self-deprecating man who is quick to accept that he is at fault, especially as this relates to others' feelings and problems. He is unable to express his anger in a modulated, adaptive manner and to take an assertive stance to protect his own self-interests. He appears to present a life-long pattern of being manipulated, exploited, and disregarded.

Further evidence that appellant's conduct was out-of-character are the letters received by the trial court from appellant's two ex-wives. One stated that, "Bill, at no time was ever violent, cruel or threatening in any way." (Emphasis in original.) The other noted that even after she left appellant for his best friend, "Billy was not at all happy with this but never posed any threat to either of us."

An upward durational departure is simply questionable policy when the presumptive sentence, the longest "hard time" sentence in this country for murder in the second degree, is already in place.

What has happened since 1980 is that prosecutors and trial judges have taken the bench, and without having practiced criminal law before 1980, are out of touch with the realities of the sensible sentencing practices in place when the Sentencing Guidelines Commission and its guidelines were established.

The trial court listed three aggravating factors: (1) particular cruelty; (2) the incident took place in front of the couple's five-year old daughter; (3) and the writing of the word "Hi" on the victim's buttocks. These factors led to an additional 13 years on to the already long presumptive second-degree murder sentence of 25-1/2 years.

It can be noted that assuming appellant had been tried separately for number 3 and had been found guilty by proof beyond a reasonable doubt after a full and fair trial, he would have been guilty of intentionally mutilating human skeletal remains, which crime if charged out separately, is a felony carrying a presumptive stayed sentence of just a year and a day. Minn. Stat. § 307.08, subd. 2 (1996); Sent. Guidelines IV, V. That means that if the mutilation had been charged out separately, the longest possible sentence would have been a year and a day to be served consecutively to the presumptive sentence of 25-1/2 years. That sentence would have added just eight months behind bars to the presumptive sentence. Instead, this mindless act helped add another 13 years to appellant's sentence. 13 years is longer than the entire presumptive sentence for second-degree murder when the guidelines were instituted in 1980!

What has happened since 1980 is that the Minnesota Sentencing Guidelines Commission, to its own dismay, has become politicized by the legislature and forced into ratcheting up presumptive sentences. That has been coupled with the gutting by trial and appellate courts of any meaningful threshold for aggravating factors. Case law states that just the presence of one aggravating factor can be used to affirm a trial court's upward departure. See State v. Turcotte, 348 N.W.2d 110, 112 (Minn. App. 1984) (holding an upward departure from the presumptive sentence justified where only one aggravating factor present).

The factors for upward departure are subjective and mushy to start with. See Minn. Sent. Guidelines II.D. 2.b (providing nonexhaustive list of factors relevant to decision to depart). Aggravating factors talk about "vulnerability." In fact, virtually all victims, whether young, middle-aged, or old are to some extent caught in vulnerable positions when they are attacked. People in vulnerable positions tend to bear the brunt of crime. Thus, people in vulnerable positions are not "untypical" but are typical, and the guidelines allow upward departures only when the crimes are "untypical" or out of the ordinary. See Best, 449 N.W.2d at 427 (upward departure justified only where defendant's conduct is significantly more serious than typically involved in the commission of that particular crime).

The aggravating factor of "particular cruelty" visited on a victim is a nonissue. "Particular cruelty," when one is murdered, raped or physically assaulted is part and parcel of the crime. Violent crimes are heinous and have egregious results on the victim. There is no such thing as a "typical" murder, rape or physical assault; yet, Minnesota Supreme Court case law and thus, our own, dictate that we try to divine what is a "typical homicide" or a "typical assault."

I can only note that no one has ever pointed out what "Ward and June Cleaver" in white suburbia do when they kill or assault a victim. If there is "the norm," let us search for a set of facts to describe it. But none will be found. Whether in affluent society, middle class society, or in a poor neighborhood, whether in suburbia, in town, or in the inner city, crime is individual. Sentencing calls for a consideration of honest, not cosmetic, factors that bear on appropriate sentencing.

There are some common threads in violent crime. Over half the time victims and defendants know each other, ranging from casual acquaintances to relatives, to married couples, as we have here. Well over half the time, violent crimes have identifiable elements, such as greed, anger, lust, alcohol or other drug abuse, and dysfunctional personality and character traits as we have here. But those common threads do not make any crime "typical" to the victim, nor should any individual be given the indignity of being labeled "a typical rapist," or "a typical murderer." No victim should be given the indignity of being labeled someone who suffered "from a typical crime." Each victim is an individual human being. Each defendant is personally accountable for who they are and what they do.

Continuing on with the misguided policy of attempting to justify upward departures by stating that one crime is "typical," but another crime is not, assume a defendant assaults an individual. If defendant commits the crime in the victim's home, the law says that the victim's "zone of privacy" has been invaded, thereby justifying an upward durational departure. State v. Davis, 546 N.W.2d 30, 36 (Minn. App. 1996) (upward durational departure justified where victim is raped on the enclosed porch of her home), review denied (Minn. May 21, 1996); see also State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (holding zone of privacy to include victim's home and curtilage). If, on the other hand, a defendant commits a crime not in a "zone of privacy" and then drops the victim off in a cornfield, the law states that this behavior constitutes "particular cruelty" and that defendant has placed the victim away from aid; also justifying an upward durational departure. State v. Frank, 416 N.W.2d 744, 748 (Minn. App. 1987), review denied (Minn. Feb. 8, 1988); State v. Strommen, 411 N.W.2d 540, 544 (Minn. App. 1987) (companion case), review denied (Minn. Oct. 28, 1987).

The "zone of privacy" concept is an absurdity if you are looking for an "untypical" crime on which to base an upward departure. Go through the thousands of physical and sexual assaults in this state (or around the country if you wish), and you will find that the vast majority happened in what we so loosely term "zones of privacy." They take place in homes, office buildings, cabins, hotels, motels, places of business, parking ramps, public buildings, and all other places where you "expect to feel safe." In fact, in this country, there are not any officially designated "zones" where you are supposed to feel "not safe." Each of the above-listed places at one time or another have been held by an appellate court to be a "zone of privacy" for which the crime committed therein can be ratcheted upward at sentencing time. It would be remarkable to see a list of all such crimes in Minnesota that were committed in "non-zones of privacy." That list, being far shorter than the zone of privacy list, would then logically be the only crimes for which an upward departure could be justified as they are the "untypical" ones. All crimes committed in a zone of privacy, being "typical," would now stand in line for a presumptive sentence.

I am fully aware that appellant's young daughter, Chelsey, witnessed part of the crime. With 17 years as a trial attorney, including considerable defense work, before I took the bench, I appreciate and understand as well as anybody the trauma that Chelsey not only went through that day, but will carry with her the rest of her life. But lengthy experience teaches us that family members, friends, and acquaintances, young and old, witnessing part or all of crimes between spouses is not "untypical." In many cases it is the norm. Some crimes are committed "in the dark of night" and only circumstantial evidence and confessions lead to the solving. But more often than not, eye witnesses to part or all of a crime scene are an integral part, a "typical" part of a state's case. Adding years to an already lengthy sentence because someone saw the crime is just one more piece of politically correct sugar coating we use at sentencing time. An upward departure because someone witnessed a crime makes sentencing policy look good to the victim's family; in reality we know better. That upward departure has nothing to do with deterrence or prevention. It is for show only.

The realities in this case are that if appellant had done a cold-blooded intentional thing, he likely would have tried to do it in secret and most certainly out of Chelsey's sight. What happened was a terrible thing. Ill-thought out sentencing policy will not change that.

It comes down to a desire on the part of elected officials who want to "talk or sentence crime away" and look good by talking tough while doing it. Talking tough plays on and misuses the grief of a victim's family, nothing more. Chelsey's ability to deal with what happened, the loss of her mother by her father's hand, will depend entirely on her own inner strength of character and the ability and devotion of her support group, her relatives, acquaintances, and friends, and their willingness to love her and support her. It will not be productive to continue to tell her what a monster her father is. Her father's 25-year presumptive sentence, with its mandated 17 years behind bars, and her memory of what things she witnessed will always be a part of her life. Chelsey's ability to grow and work through this trauma will be the result of her own strength and the strength of her support group. Chelsey has to go on with her life. Whether her father serves a sentence of 38 years or 25 years is not part of her recovery. Her inner struggle and the struggle of those around her are what is important.

As a state, we need to strongly reconsider our sentencing policy around 1980 when the prison population was low and the violent crime rate was far less than it is today. We need to use the years just preceding 1980 as a sensible guide to sentencing.

The purposes of the sentencing guidelines cannot be achieved unless the presumptive sentences are applied with a high degree of regularity. Sentencing disparity cannot be reduced if judges depart from the guidelines frequently. Certainty in sentencing cannot be attained if departure rates are high.

Minn. Sent. Guidelines cmt. II.D.03. (italics in original, bold emphasis added).

"Aggravating factors" in the guidelines were soft to start with, and in the last 17 years have been stripped of any meaning. Basically, trial courts depart upward when they want to, and appellate courts nearly always affirm.

The guidelines may have been a good idea in 1980. Today, the sentencing norms for upward departure in Minnesota have fallen so low (because of get tough on crime and political rhetoric) that commonplace plea offers by prosecutors are: plead guilty straight up for the offense charged, and we won't go for an upward departure.

This custom has led directly to the rational practice of criminal defense attorneys, their clients, and criminal prosecutors sanctioned (with thoughtful foresight) by State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). In the case of a negotiated plea bargain, a defendant may waive his right to be sentenced under the Minnesota Sentencing Guidelines, provided that such waiver be knowing, voluntary and intelligent. Id. at 777.

We see no reason not to allow a defendant to agree to a departure as part of a plea bargain with the prosecutor. Accordingly, today we hold that defendants may relinquish their right to be sentenced under the guidelines.

Id.

At least now, to avoid the total unknown of upward departures, defense attorneys and their clients can bargain for a modest upward departure to avoid getting hit by an unexpected cannon shot from a trial court or an appellate tribunal. Givens is the case that really returned "truth in sentencing."

I am not now talking about downward departures. That is not the issue here. The appropriateness of a presumptive sentence is. Relative to downward departures, they are never an issue. I had never seen one in 13 years on this court that has not had a record supporting it. Downward departures are rare and trial courts have always been able to justify the reasons why they went from a presumptive to a downward departure. It is only the glut of upward departures, avidly sought by prosecutors, that are creating the true disparity today in Minnesota sentencing practices, which lead directly to the overcrowding in prisons. That leads directly to the terribly expensive new institutions we build today which will penalize the next three generations of Minnesota taxpayers.

It can be noted that a recent U. S. Justice Department study placed Maine number one and Minnesota number two in the entire nation in the "mean minimum time" to be served by violent criminals; and our required time behind bars before eligibility for probation begins exceeds even that of Maine.

One of the chief culprits preventing trial judges from honestly assessing a defendant's personality and character and using that reality to fashion an honest and appropriate sentence is the ill-thought-out and less than courageous sentencing guideline of II.D.1, which states in part:

1. Factors that should not be used as reasons for departure: The following factors should not be used as reasons for departing from the presumptive sentence provided in the Sentencing Guidelines Grid:

* * * *

b. Sex

c. Employment factors, including:

(1) occupation or impact of sentence on profession or occupation;

(2) employment history;

(3) employment at time of offense;

(4) employment at time of sentencing.

d. Social factors, including:

(1) educational attainment;

(2) living arrangements at time of offense of sentencing;

(3) length of residence;

(4) marital status.

Minn. Sent. Guidelines II.D.1.

That, coupled with Comment II.D.101, prevents trial judges from using the only true factors that trial judges ever really used before 1980 in attempting to fashion a sentence to fit the person who committed the crime. Comment II.D.101 is simply insufferable political correctness.

What II.D.1 and Comment II.D.101 prevent a trial judge from doing is recognizing for anybody those factors that traditionally have been argued by attorneys and listened to by judges as possible reasons for a sentence something less than the maximum. I am not inferring, much less stating, that any factor in II.D.1.b.-1.d., if missing, should be a reason for an upward departure. That would be a severe injustice and injustices need to be identified in our criminal sentencing system and rooted out mercilessly. But it is an injustice to deny to any man or woman of any color the respect their life has earned so as to deny them the right to even argue that those factors should be looked at for consideration. I do not infer, much less state, that defendants are "entitled" to a downward departure when favorable employment and social factors are present. They are not. The presumptive sentence is always in order. The injustice is in forbidding II.D.1.b.-1.d factors from even being considered.

The factor of gender, within the realities of human existence, is important. If the defendant, man or woman, is single and has no children to support, the lack of any children to support is "a neutral." It cannot be used to consider an upward departure. The fact is then disregarded and the presumptive sentence is in play along with any other legitimate factor suggesting departure or presumptive. But if a defendant has minor children he or she is supporting, for whom he is the breadwinner, and for whom she has joint or sole physical custody, trial judges have to be allowed to at least look at that fact. It would be an injustice to use that factor to argue that a downward departure is mandated. It would be an injustice to argue that lack of children is a factor supporting upward departure. But it is a terrible injustice not to allow a trial judge to consider the presence of minor children a defendant is supporting as a legitimate factor to work into the mix of what is a proper sentence.

Another example: assume a woman or man, regardless of color or race, is up for sentencing on a serious felony. The trial court's options are, as always, three; downward departure, upward departure, or presumptive sentence. From the presentence investigation (PSI), the defendant presents a history of having been employed steadily 10, 15, or 20 years. The PSI indicates that because of the person's profession, a harsh sentence has already been visited on them as they have lost their job with no hope of getting it back. Assume the PSI indicates that the person has attained a good level of education and has been married with a stable family life for a considerable period of time. Assume the PSI indicates that the defendant owns a home and has children, none of whom are in trouble with the law, and some of whom are on their way to professional degrees. Now I state very carefully that the presence of some or all of those factors is not a mandate that a downward departure be given. But the presence of some or all of those factors is a reason the trial courts should be allowed to at least consider a downward departure. Those have always been the traditional factors legitimately in the mix in deciding how much time behind bars is needed before a man or a woman can reasonably be expected to be released and move back into society as a productive citizen. If none of those factors is present, their absence cannot be used to depart upward because they have nothing to do with the crime. If those factors are missing, that is simply "a neutral." The presumptive sentence gets a good hard look. But the presence of those factors is a positive.

I regard as insupportable the statement in Minn. Sent. Guidelines II.D.101 that "[i]t is impossible to reward those employed without, in fact, penalizing those not employed at time of sentencing." (Emphasis in original.) It is dishonest because no one unemployed at time of sentencing can have that used against them as the basis for an upward departure. We do not penalize unemployed people by giving legitimate consideration to those employed.

Some of the above reasoning is dicta, meaning an expression of law or an opinion not technically needed to support the holding of the case. But dicta can be important in the development of law when it is true, just as the technical holding in a case is not all that important in the development of law when it turns out not to be true. On the serious issue before us today, openness, honesty, and a full discussion have a higher priority than brevity for its own sake.

The issue in this case, whether 38 years or 25 years is the appropriate sentence, required soul-searching and examination of conscience on all sides. A hard-working trial judge imposed a sentence of 38 years. That sentence is supported by a straight-forward, well-written dissent. The majority did not come to its conclusion that 25 years was the appropriate sentence without struggle; but that is the conclusion we came to. Either sentence, we hope, would promote justice.

For those in the public who feel that extremely long sentences are proper, today's presumptive sentences for serious crime are an automatic one and one-half to three times upward departure from the presumptive sentences in 1980. In 1980 the State of Minnesota, with input from the judiciary, law enforcement, prosecutors, criminal defense attorneys, and groups outside the criminal justice system, arrived at a consensus as to appropriate sentencing policy. Since then we have lost the way.

We reverse the upward departure and remand to the trial court to resentence appellant consistent with the presumptive sentence for the crime for which he stands convicted.

Reversed and remanded.

DAVIES, Judge (concurring specially).

I write separately, but with no intention of distracting in any way from the message of Judge Randall. His significant observations should be heeded by all with responsibility for making criminal justice policy.

But I have something to add of my own. I was there at the beginning of the guidelines, chairing the Minnesota Senate Judiciary Committee as it processed the bill, giving it support, and serving on the conference committee that put together the final guidelines bill. As Judge Randall suggests, the execution of the guidelines has departed in distressing ways from what I know most legislators intended, certainly from the direction I hoped for.

The objectives of the guidelines were to eliminate, as much as possible, sentencing inequalities--geographically across the state and, certainly, among the races. Less widely understood were the objectives of controlling prison populations and of freeing the prison community from the "con games" that at that time were inherent in the administration of the parole system. Both prison authorities and prisoner groups testified that manipulation by prisoners seeking parole was a serious problem.

Clearly, the guidelines failed to accomplish the objective of controlling prison population. With pressure from the legislature, and with new members giving the guidelines commission a changed philosophy, prison terms have been extended to the point where prison populations have broken free of the control that was provided by the guidelines in their early years and, before that, by the parole board.

This case suggests yet another unintended aspect of the guidelines--their focus, not on the defendant, but rather on the defendant's crime. This case is a tragic example of that focus. Here, the sentence rendered by the sentencing court is based entirely on the horrendous crime Billy Glenn Moman committed, not on a judgment of Moman himself. We have a despicable crime committed by an individual without a history of violence in a few moments of utter rage (so identified in the pre-sentence investigation by the State's psychiatrist).

The focus on those few moments produces a sentence inconsistent with the century-old objectives of incarceration.

The deterrent effect of Moman's severe sentence is nil. Recidivism by Moman, who is crushed with remorse, is a remote possibility. He could probably be put back on the street tomorrow with no less danger to the community than were he to serve one, five, or ten years, or, the 25-year sentence actually imposed.

This sentence is an irrational consequence of how the guidelines system is executed today. Therefore, I join in the reversal of the departure.

Beyond this individual case, however, it is now appropriate that policymakers re-evaluate, not the idea of sentencing guidelines, but some aspects of their execution, and particularly the policy of having a system that has no procedure for recognizing rehabilitation and no procedure, beyond appellate review, for monitoring sentencing error. We can no longer, I think, live without some system of selective early release. It may be necessary, therefore, to restore to our corrections procedure some sort of parole system--to permit prison authorities, after they have observed a person in the prison community for a period of time, to determine that all utility of incarceration has expired and that the person should be returned to freedom, but on supervised parole.

I suggest there must be restored to the corrections department a politics-free parole board, so that after a reasonable period of incarceration a person of no continuing danger can be placed on supervised release. There must be, in our total prison population of 5,000, dozens of individuals who could be released with little or no danger to the public, and whose release would have little impact on the deterrent effect of our criminal justice system.

Short, Judge (dissenting)

I respectfully dissent. This case does not ask us to determine whether the 1980 presumptive sentence for a second-degree murder is more "appropriate" than the current presumptive guidelines sentence. Rather, we must determine whether the trial court abused its broad discretion by sentencing Moman to a 50 percent upward durational departure. See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (permitting upward departures of over 200 percent where severe aggravating circumstances exist).

Moman admits he acted with particular cruelty in stabbing his wife 148 times, from head to toe, in the course of an attack that began in the parties' kitchen, moved to the lower level of the house, and continued into the front yard. This behavior is distinct from the elements of second-degree murder, and provided a valid basis for the sentencing court's upward durational departure. See State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991) (holding defendant's particularly cruel acts, which were not elements of crime, could support upward departure); State v. Anderson, 370 N.W.2d 703, 707 (Minn. App. 1985) (concluding prolonged nature of attack made a first-degree assault particularly egregious), review denied (Minn. Sept. 19, 1985). Moman also admits he committed the violent crime in the presence of the parties' five-year-old daughter. That conduct constitutes a "particularly outrageous act," which provided another proper basis for the sentencing court's upward departure. See State v. Profit, 323 N.W.2d 34, 36-37 (Minn. 1982) (affirming upward departure where defendant knowingly committed crime in front of children).

While Moman agrees an upward durational departure is supported by the record, he insists the trial court abused its discretion by failing to accord sufficient weight to the circumstances that brought Moman to kill his wife. See, e.g., State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989) (holding years of abuse supported downward departure for wife who shot her husband); State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (concluding 21-year history of mental illness deprived husband of capacity for judgment in strangulation of wife). Moman claims the threatened loss of his wife and custody of their daughter resulted in a "blinding rage." These circumstances, Moman argues, make a 50 percent upward sentencing departure unreasonable and excessive. Minn. Sent. Guidelines II.D.2.a.(3) provides that a "lack[ ] [of] substantial capacity for judgment" may be used as a mitigating factor in sentencing. However, only a rare case would warrant reversal of a sentencing court's refusal to decrease a sentence on that basis. See Wall, 343 N.W.2d at 25 (holding sentencing courts retain discretion to deny downward departure even when mitigating circumstances are clearly present); State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (affirming sentencing court's refusal to make downward departure although mitigating factors existed).

A careful review of the record demonstrates the sentencing court took all of

Moman's evidence into account. This is not the "rare case" warranting reversal of a sentencing court's exercise of discretion. Moman's evidence of an impairment in judgment is different in kind and degree from the extreme mental impairments found in Hennum and Wall, and does not preclude an upward departure from the presumptive sentence for second-degree murder. Because I cannot say the trial court abused its discretion in sentencing Moman to a 50 percent upward durational departure, I would affirm.