A federal grand jury has indicted former Minneapolis Police officers Derek Chauvin, Tou Thao, Thomas Lane, and J. Alexander Kueng for violating George Floyd's civil rights under color of state law. This is great news in the fight against police brutality, but it also has led to a lot of confusion. The purpose of this article is to explain to lay people what awaits these four officers in federal court. We will cover the statute that they are charged under, explain what dual sovereignty is, and we will calculate their likely sentences under the United States Sentencing Guidelines (USSG).
18 U.S.C. 242 - Deprivation of rights under color of law
All four officers are charged with violating 18 U.S.C. 242. 18 U.S.C. 242 addresses deprivation of civil rights under color of law and pertains specifically to law enforcement officers. The body of the statute reads as follows:
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death." - 18 U.S.C. 242 (https://www.law.cornell.edu/uscode/text/18/242)
Derek Chauvin is charged with depriving George Floyd of his constitutional right to be free from unreasonable force resulting in death. Specifically, Chauvin placed his knee of Floyd's neck for over nine minutes during which Floyd was not responsive for several minutes. He is also charged with being deliberately indifferent to Floyd's serious medical needs. The statutory maximum for violations of 18 U.S.C. 242 resulting in death is death. Chauvin is also charged with depriving a 14 year old boy of his civil rights resulting in bodily in jury in 2017. We are uploading a copy of the indictment against Chauvin as a PDF with this article (see PDF icon above).
Officers Tou Thao and J. Alexander Kueng are charged with willfully failing to intervene to stop Chauvin's unreasonable use of force resulting in death. They are also charged with being deliberately indifferent to Floyd's medical needs.
Officer Lane appears to only be charged with deliberate indifference to Floyd's serious medical needs.
People are quick to ask if this prosecution violates the double jeopardy clause of the Fifth Amendment which reads "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." We believe that it does, but the courts do not agree with us. Derek Chauvin was just convicted of murder in the state of Minnesota for his conduct in this incident. We believe that the Fifth Amendment should prohibit prosecuting someone in both state and federal court for the same conduct because usually such prosecutions are carried out to impose excessive sentences on people that do not deserve them. Victims of such prosecutions have argued unsuccessfully that they have been twice put in jeopardy of life or limb for the same offense. Those arguments failed because of dual sovereignty also known as the separate sovereigns doctrine. The most recent notable challenge to dual sovereignty was the 2019 case of Gamble v. United States (https://supreme.justia.com/cases/federal/us/587/17-646/). Gamble pled guilty being a felon in possession of a firearm under Alabama law and was subsequently charged with being a felon in possession of a firearm under federal law. Gamble argued that his federal prosecution violated double jeopardy by twice putting him in jeopardy for the same offense. The Supreme Court ruled that when there are two sovereigns there are two laws and therefore two offenses even thought the statutes of both sovereigns prohibited the same behavior and were used to prosecute the same conduct.
We are against dual sovereignty in cases involving prosecutions in both state and federal courts because federal jurisdiction includes the states in cases like this one. It is one thing if someone commits crimes in different states during the same course of conduct and is charged by both states. That requires that someone cause crimes to be committed in two different places. It is another thing to apply dual sovereignty to a single event that takes place in one specific location just because one sovereign inhabits a sub-area of a larger sovereign. The state of Minnesota is basically a subdivision of the United States and as such the government should have to pick one court. They should not be able to force people through two separate trials for the same conduct. Dual sovereignty has been abused over the years to give the government a second chance at convictions when people have been acquitted in state courts. It gives the feds the ability to look at how the state screwed up and make sure not to make those mistakes.
Does our position on dual sovereignty mean that justice for George Floyd should not be possible? No, it just means that Chauvin should never have been put on trial by the state of Minnesota. Usually when the feds take a case they ask state prosecutors to dismiss all charges. They do that because they don't want to risk something happening in state court that prejudices the federal case and to conserve judicial resources. People charged by the feds almost always face significantly longer sentences and those sentences are supposed to be served concurrently with any state sentence when based on the same conduct. It usually does not make sense for the state to go to the trouble of obtaining a lighter sentence that would inevitably be served concurrently with a federal sentence. They only consider it worth their time in exceptionally extreme cases.
What is Chauvin's Likely Sentence?
Despite Chauvin facing the death penalty, he probably will not receive it. He is also not likely to get a life sentence because Congress advised judges to follow the USSG (https://www.ussc.gov/guidelines/2018-guidelines-manual-annotated). The USSG is strictly advisory, so judges are free to depart from the sentencing ranges recommended under it for any reason, but rarely do so unless those departures are specifically authorized by the guidelines. The USSG is used to calculate recommended sentences based on the offender's criminal history, severity of the offense, and certain aggravating or mitigating factors.
The base offense level for violations of 18 U.S.C. 242 is determined by USSG 2H1.1 (https://www.ussc.gov/guidelines/2018-guidelines-manual/2018-chapter-2-e-k). When an offense involves violence the base offense level is 10. However, Chauvin "was a public official at the time of the offense" and "the offense was committed under color of law," so the offense level should be increased by 6 levels for a total offense level of 16.
Criminal history is calculated using USSG 4A1.1 (https://www.ussc.gov/guidelines/2018-guidelines-manual/annotated-2018-chapter-4). By the time Chauvin is tried in federal court he will have already been sentenced to more than one year for murder by the state of Minnesota, so he will have 3 history points. A person with 3 points has a criminal history category of 2. However, Chauvin faces two separate federal prosecutions under two separate indictment. The most notable is the George Floyd case, but also important is the 2017 case which is likely to be tried separately (https://www.justice.gov/opa/press-release/file/1392446/download). Unless Chauvin is found not guilty in the first one of those cases that is resolved then he will likely get 3 additional history points (2 if sentenced to less than a year) by the time that the second case is resolved. A person with 5 or 6 history points has a criminal history category of 6.
Enhancements applicable to Chauvin in the George Floyd case likely include the following:
3A1.3. Restraint of Victim
If a victim was physically restrained in the course of the offense, increase by 2 levels.
3B1.1 Aggravating Role
If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
We also looked into the possibility of Chauvin being considered a career offender due to his final conviction likely being his third violent felony conviction. However, we concluded that 18 U.S.C. 242 does not qualify as a crime of violence for the purpose of sentencing. It does not qualify because federal courts use a categorical approach based on the underlying statute. Under that approach a statute must require a violent element for every violation. 18 U.S.C. 242 can be violated violently and non-violently, so it does not qualify as a violent offense under the categorical approach (https://www.ussc.gov/sites/default/files/pdf/training/primers/2019_Primer_Categorical_Approach.pdf).
Chauvin's likely recommended sentence in each of his future cases will depend on the resolution of the other case for the purpose of his history, but under the other USSG factors with the exception of death will remain basically the same. We will calculate his likely recommended sentence should he be convicted in the 2017 case before he is convicted in the Derek Chauvin case.
Likely Sentence for 2017 Case
If convicted in the 2017 case before being convicted in the George Floyd case: He will have a criminal history category of 2; his base offense level will be 16 (10 points due to use of force and 6 points for being a public official); and he will receive a 2 point enhancement for physically restraining the victim. The recommended sentence for an offense level of 18 with a criminal history category of 2 is 30-37 months (2.5-3 years).
Likely Sentence for George Floyd's Case
If convicted in the George Floyd case after being convicted in the 2017 case: He will have a criminal history category of 3; his base offense level will be 16 (10 points for using force and 6 points for being a public official); and he will receive 4 points of enhancements for restraint of the victim (2 points) and having an aggravating role due to his supervisory position (2 points). The recommended sentence for an offense level of 20 with a criminal history category of 3 is 41-51 months (3.4-4.25 years).
Consecutive and Concurrent Sentences
Because the 2017 case is a separate criminal episode the sentence must be served consecutively to that of the George Floyd case, so Chauvin will likely face a maximum of 8.25 years in federal prison for both offenses under the guidelines. However, because the conduct at issue in the George Floyd case is the same conduct at issue in his state murder prosecution, his federal sentence must be served concurrently to his state sentence for that offense (https://guidelines.ussc.gov/gl/%C2%A75G1.3). Chauvin is not likely to receive more that 15 years for his state murder conviction (https://copblaster.com/blast/35503/derek-chauvin-found-guilty-af-but-he-was-undercharged). Since his federal civil rights conviction from that conduct will have to run concurrently, he will probably only get 3 more years added on to that due to the 2017 case. That means that his recommended combined sentences under applicable guidelines would not be more than 18 years, but aggravating factors apply.
The Sentencing Commission recognizes several aggravating factors that if present justify departing upward from the recommended sentencing range in accordance with 18 U.S.C. 3553(b)(1), "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." (https://www.law.cornell.edu/uscode/text/18/3553). Those factors include death, physical injury, and extreme conduct (https://www.ussc.gov/guidelines/2018-guidelines-manual/annotated-2018-chapter-5).
The USSG policy statement on death as an aggravating factor reads as follows:
5K2.1. Death (Policy Statement)
If death resulted, the court may increase the sentence above the authorized guideline range. Loss of life does not automatically suggest a sentence at or near the statutory maximum. The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant's state of mind and the degree of planning or preparation. Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken. The extent of the increase should depend on the dangerousness of the defendant's conduct, the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of personal injury. For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud.
In the case of George Floyd, the base offense level for 18 U.S.C. 242 does not "reflect an allowance for the risk of personal injury" because the statute does not qualify as a violent offense under the categorical approach. This means that the court will almost certainly depart upwards from the guidelines. There is no limit to how far upward the court may depart. The only limit on the court is the statutory maximum which is death. Since there was little to no premeditation and the state murder charge was only one of "unintentional" murder we do not think that the death penalty is possible. He might not even get a life sentence unless the court thinks that he intended to kill George Floyd. We believe that the court will likely order Chauvin to spend decades in federal prison due to the death which he clearly "knowingly risked" and we believe he intended.
The USSG policy statement on bodily injury reads as follows:
5K2.2. Physical Injury (Policy Statement)
If significant physical injury resulted, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent of the injury, the degree to which it may prove permanent, and the extent to which the injury was intended or knowingly risked. When the victim suffers a major, permanent disability and when such injury was intentionally inflicted, a substantial departure may be appropriate. If the injury is less serious or if the defendant (though criminally negligent) did not knowingly create the risk of harm, a less substantial departure would be indicated. In general, the same considerations apply as in 5K2.1.
In the 2017 case, the base offense level of 18 U.S.C. 242 does not reflect the injuries inflicted by Chauvin on the 14 year old boy. Therefore an upward departure will be warranted, but the injuries suffered by the boy were not severe, so it probably will not be much of a departure. George Floyd on the other hand suffered a fatal inury that under this policy justifies a substantial upward departure. When this policy statement is read in conjunction with the one on death we can conclude that Chauvin will likely receive a significant upward departure towards the high end of the statutory maximum. Possibly in the 30-40 year range.
The USSG policy statement on extreme conduct reads as follows:
5K2.8. Extreme Conduct (Policy Statement)
If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.
We believe that the prolonged pain and suffering inflicted on George Floyd qualifies. His conduct was so extreme that it resulted in the most disgusting video that this author has ever seen. He humiliated Floyd in public by slowly choking the life out of him.
Officers Thao, Kueng, and Lane
We believe that Thao and Kueng will likely enter their federal cases with criminal history categories of 2 once their state cases are complete. Their base offense levels will likely be 12 (6 for the base and 6 more for being public officials). Their recommended guidelines sentences will probably be 12-18 months (1-1.5 years). They could potentially be more if the court concludes that the force Floyd was subjected to could be applied to Thao Kueng's failure to intervene. Right now they are charged with doing nothing which is categorically different than kneeling on Floyd's neck. Since death resulted they will almost certainly receive a significant upward departure, but nothing near what Chauvin will receive. We can picture them getting as much a 10 years, but probably no more.
They face more time for failing to provide Floyd with medical care than they do for failing to intervene because that activity involved more than two participants. The base offense level will be 18 (12 for involving more than two people and 6 for being public officials). A category 2 with an offense level of 18 faces a recommended sentence of 30-37 months (2.5-2 years). This is only crime that Thomas Lane is charged with and because it is the more severe of conduct from the others' criminal episode they will likely receive a concurrent sentence. Needless to say, the guidelines does not contemplate death of the victim, so they will likely receive upward departures.
Derek Chauvin will likely spend at least 30-40 years or possibly more in federal prison. The USSG does not give us a good idea of his exposure because the results of his conduct is covered by vague upward departure exceptions that vest discretion to the court. The other officers will likely receive much lighter sentences.