Jun. 1—ROCHESTER — White people with felony convictions who are found in possession of firearms or ammunition are twice as likely to receive a lighter sentence in Olmsted County as Black offenders.

However, Olmsted County’s numbers are based on a small set of data — 30 such cases from 2017-2021.

Ryan Predmore, an attorney who brought the disparity to the attention of the court last month, said he’s unsure why the difference is so pronounced in Olmsted County. He speculated an Olmsted County Attorney’s Office policy and unconscious bias from judges presiding over cases are factors.

From 2017 through 2021, five of 17 Black offenders were given a sentence below state guidelines for the offense while eight of 13 white offenders received lighter sentences. Those numbers also count only cases that were charged and convicted at the felony level and not cases that were settled as a lesser offense.

Prosecutors with the Olmsted County Attorney’s Office follow a policy of not dismissing or departing from mandated sentencing in convictions of felons in possession of a firearm or ammunition.

“My policy is not to depart — period,” said Mark Ostrem, Olmsted County Attorney. “I need to hold a hard line on guns.”

That policy might be leading to biased outcomes in the cases, said Predmore, who is on the Minnesota Board of Public Defense. It was his office that compiled the numbers.

Predmore was preparing to argue in court that his client Kenneth Aschan, 29, deserved a downward departure from the sentencing guidelines.

Aschan faced two charges related to possession of a firearm. One of the charges is felony-level due to a felony domestic assault conviction in Iowa from 2016. The other is a gross misdemeanor level of the charge.

The charges stemmed from an incident on July 24, 2022, when Aschan was in a fight. Witnesses say before the fight, Aschan pulled a black, semi‐automatic pistol from his pants and handed it to another person who put it in a car, according to the criminal complaint.

No other charges were filed against Aschan in the incident.

Predmore, aware of the county prosecutor’s policy on not pleading or negotiating on such charges, knew any lesser sentence would be up to the judge in the case. He prepared to make his case for a lesser sentence since the crime itself didn’t accompany other charges or a violent offense. To bolster his argument, Predmore had office staff look at sentencing statistics for people in Olmsted County and across Minnesota who were convicted of felony-level possession-while-ineligible over five years from 2017 through 2012.

Statewide, he found white offenders were given lesser sentences more frequently than Black offenders. From 2017 through 2022, courts stayed the execution of sentences for white offenders 47.6% of the time in circumstances when state sentencing guidelines call for the execution of a sentence. That happened 35.6% for Black offenders. In Olmsted County, that happened for 61.5% of white offenders but only 29.4% of Black offenders.

In Aschan’s sentencing hearing, Predmore presented District Court Judge Christa M. Daily with his office’s findings. He said it’s hard to draw hard conclusions from the small amount of data, but it does at least indicate a trend. Predmore wrote that “unconscious bias in general throughout the system may have an effect” on the outcomes. Predmore also stated he believed the county attorney’s office’s policy to not deal in firearms possession cases “has inadvertently impacted departure rates” by race.

Predmore said the letter and statistics he provided weren’t intended to convince a judge that Aschan should receive a lighter sentence based on his being Black, but were intended to be informative in the same way jurors are instructed to look for, recognize and resolve their own unconscious biases when deciding a verdict.

“We instruct juries about unconscious biases,” Predmore said. “We give specific ways they can think about it when they’re deliberating.”

Judges aren’t specifically instructed the same way when deliberating a sentence.

“I don’t have any specific answers,” Predmore said. “This is about getting some discussion on these numbers.”

Predmore’s presentation did spark some discussion in the courtroom at Aschan’s hearing. Predmore read from the letter and recited his office’s findings to Daily. She rejected his request for a lighter sentence, but called the information he provided “helpful” and acknowledged the results show some sort of bias within the system.

“It’s helpful to know,” Daily said. “You can’t fix what you don’t know.”

Daily declined an interview request for this article.

As a general policy, Ostrem said his office looks for ways to avoid prison, especially for non-violent offenders, he said. The numbers bear that out. Of the approximately 9,000 people in Minnesota prisons, slightly more than 200 are from Olmsted County.

However, Ostrem takes a hard line on two types of charges — possession of firearms or ammunition as a felon, and fentanyl sales.

“Frankly, there are too many guns out there and too many violent offenders with guns,” he said. “If we have proof, we’re going to charge and we’re not going to come off of it.”

Often the felony charge of possession of a firearm is an additional charge to other serious charges. It’s not unusual for the charge to be dismissed as part of a plea agreement to other charges. That’s not the case in Olmsted County, Ostrem said.

“If they want to plea, they have to plea to both,” he said.

Ostrem said he doubts that policy has led to the gap in sentencing outcomes by race since it’s a universal policy regardless of the demographics of the people charged.

“All throughout the process, we try not to bring demographics into how we proceed,” Ostrem said, adding he’s not sure the cause of the disparity in sentences.

Many factors come into play, Ostrem said, and it likely isn’t due to a singular cause.

“It does beg some level of speculation,” he said.

Ostrem said reduced sentences on such charges are up to the district court judges. A conviction without reducing the sentence or the charge results in an automatic five-year prison sentence under state guidelines.

“It’s all or nothing in these decisions,” he said. “Sometimes that might seem out of proportion for the offense.”

That might lead some judges to depart from the felony charge, Ostrem added.

“We have seven unique judges (in Olmsted County),” he said. “They may or may not make the same decision.”

The fact that Black people are overrepresented in the criminal justice system could be a factor in the disparity as well, Ostrem added.

“Minorities are still overrepresented in the system,” he said. “It probably starts there.”