Two days after Min­neso­ta Gov­er­nor Tim Walz asked state Attor­ney Gen­er­al Kei­th Elli­son to take over for Hen­nepin Coun­ty Attor­ney Mike Free­man as the lead pros­e­cu­tor in the George Floyd case, Min­neapo­lis Police offi­cer Derek Chau­vin has had the charge against him upgrad­ed from third-degree to sec­ond-degree murder.

The three oth­er offi­cers at the scene – J. Alexan­der Kueng, Thomas Lane and Tou Thao – were each charged with aid­ing and abet­ting sec­ond degree mur­der while com­mit­ting a felony and with aid­ing and abet­ting sec­ond degree mur­der with cul­pa­ble neg­li­gence. (We strong­ly rec­om­mend view­ing the video at the top of this para­graph for Attor­ney Gen­er­al Ellison’s statement.)

As can be seen here, at the top of page fifty-nine of the Com­men­tary for the Min­neso­ta Sen­tenc­ing Guidelines:

1. Sec­ond- and Third-Degree Mur­der. Minn. Stat. § 609.107, Manda­to­ry Penal­ty for Cer­tain Mur­der­ers, deter­mines the pre­sump­tive sen­tence for an offend­er sen­tenced under that statute.

Min­neso­ta Statute § 609.107 states:

When a per­son is con­vict­ed of vio­lat­ing sec­tion 609.19 or 609.195, the court shall sen­tence the per­son to the statu­to­ry max­i­mum sen­tence for the offense if the per­son was pre­vi­ous­ly con­vict­ed of a heinous crime as defined in sec­tion 609.106 and 15 years have not elapsed since the per­son was dis­charged from the sen­tence imposed for that con­vic­tion. The court may not stay the impo­si­tion or exe­cu­tion of the sen­tence, notwith­stand­ing sec­tion 609.135.

Min­neso­ta Statute § 609.19 spec­i­fies two types of Mur­der in the Sec­ond Degree – inten­tion­al mur­der, which includes dri­ve-by shoot­ings, and unin­ten­tion­al murder:

Subd. 2. Unin­ten­tion­al mur­ders. Who­ev­er does either of the fol­low­ing is guilty of unin­ten­tion­al mur­der in the sec­ond degree and may be sen­tenced to impris­on­ment for not more than 40 years:

(1) caus­es the death of a human being, with­out intent to effect the death of any per­son, while com­mit­ting or attempt­ing to com­mit a felony offense oth­er than crim­i­nal sex­u­al con­duct in the first or sec­ond degree with force or vio­lence or a dri­ve-by shoot­ing; or

(2) caus­es the death of a human being with­out intent to effect the death of any per­son, while inten­tion­al­ly inflict­ing or attempt­ing to inflict bod­i­ly harm upon the vic­tim, when the per­pe­tra­tor is restrained under an order for pro­tec­tion and the vic­tim is a per­son des­ig­nat­ed to receive pro­tec­tion under the order. As used in this clause, “order for pro­tec­tion” includes an order for pro­tec­tion issued under chap­ter 518B; a harass­ment restrain­ing order issued under sec­tion 609.748; a court order set­ting con­di­tions of pre­tri­al release or con­di­tions of a crim­i­nal sen­tence or juve­nile court dis­po­si­tion; a restrain­ing order issued in a mar­riage dis­so­lu­tion action; and any order issued by a court of anoth­er state or of the Unit­ed States that is sim­i­lar to any of these orders.

Min­neso­ta Statute § 609.05 spec­i­fies lia­bil­i­ty for the crimes of anoth­er – the most rel­e­vant points are these:

Sub­di­vi­sion 1. Aid­ing, abet­ting; liability.

A per­son is crim­i­nal­ly liable for a crime com­mit­ted by anoth­er if the per­son inten­tion­al­ly aids, advis­es, hires, coun­sels, or con­spires with or oth­er­wise pro­cures the oth­er to com­mit the crime.

Subd. 2. Expan­sive liability.

A per­son liable under sub­di­vi­sion 1 is also liable for any oth­er crime com­mit­ted in pur­suance of the intend­ed crime if rea­son­ably fore­see­able by the per­son as a prob­a­ble con­se­quence of com­mit­ting or attempt­ing to com­mit the crime intended.

Subd. 4. Cir­cum­stances of conviction.

A per­son liable under this sec­tion may be charged with and con­vict­ed of the crime although the per­son who direct­ly com­mit­ted it has not been con­vict­ed, or has been con­vict­ed of some oth­er degree of the crime or of some oth­er crime based on the same act, or if the per­son is a juve­nile who has not been found delin­quent for the act.

Min­neso­ta Statute § 609.205 defines manslaugh­ter in the sec­ond degree – the most rel­e­vant points are these:

A per­son who caus­es the death of anoth­er by any of the fol­low­ing means is guilty of manslaugh­ter in the sec­ond degree and may be sen­tenced to impris­on­ment for not more than ten years or to pay­ment of a fine of not more than $20,000, or both:

(1) by the per­son­’s cul­pa­ble neg­li­gence where­by the per­son cre­ates an unrea­son­able risk, and con­scious­ly takes chances of caus­ing death or great bod­i­ly harm to another;

Min­neso­ta uses a series of sen­tenc­ing guide­lines grids, depend­ing on the type of crime involved. For its Stan­dard Grid, its axes are the Crim­i­nal His­to­ry Score and the Sever­i­ty Lev­el of Con­vic­tion Offense.

If none of the Min­neapo­lis Police offi­cers involved were shown to have any rel­e­vant cir­cum­stances that would increase their like­ly Crim­i­nal His­to­ry Score of zero, if found guilty, Offi­cer Chau­vin would like­ly serve between just under eleven and fif­teen years in prison for Unin­ten­tion­al Mur­der in the Sec­ond Degree.

Offi­cers Kueng, Lane and Thao are unlike­ly to serve longer prison terms than Offi­cer Chau­vin if con­vict­ed, but in the­o­ry could serve up to ten years on the charge of aid­ing and abet­ting in the death of George Floyd.

A Fed­er­al inves­ti­ga­tion is also in progress, led by US Attor­ney Eri­ca Mac­don­ald, with an empha­sis on “all alle­ga­tions involv­ing the depri­va­tion of civ­il rights, includ­ing ‘col­or of law’ vio­la­tions – offi­cial actions tak­en by per­sons act­ing under the author­i­ty of local, state, fed­er­al, or trib­al laws to will­ful­ly deprive some­one of a right or priv­i­lege secured or pro­tect­ed by the Con­sti­tu­tion or laws of the Unit­ed States.”

The Min­neso­ta Depart­ment of Human Rights has also launched an inves­ti­ga­tion into the Min­neapo­lis Police Depart­ment after fil­ing a civ­il rights charge relat­ed to the mur­der of George Floyd. Floyd is due to be laid to rest lat­er this week.