What Is A Downward Departure? - Arechigo & Stokka

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Feb 10, 2025 | Posted by John Arechigo | Read Time: 5 minutes Jump to Section hide 1. Hear it From an Expert – John Arechigo – 2019 Attorney of the Year 2. What Are Minnesota Sentencing Guidelines? 3. What Sentencing Factors Does a Judge Consider? 3.1. Why Would a Judge Choose Downward Departure? 3.2. Ask Arechigo & Stokka About Downward Departure Sentencing

A downward departure occurs when a judge imposes a sentence below the range recommended by the sentencing guidelines due to mitigating factors. One common form—known as a downward dispositional departure, allows the court to stay a presumptive prison sentence and place the defendant on probation when incarceration is not necessary based on the defendant’s amenability to community-based rehabilitation.

If you face a conviction for a felony offense, you may worry about sentencing requirements.

Minnesota uses a formula known as sentencing guidelines to determine recommended sentences for felony crimes. Guideline sentences are not mandatory, but they are presumptive.

While a judge is supposed to follow the guidelines, you still have options for a lighter sentence. In some cases, a judge can use discretion to reduce the severity level of your conviction.

This concept, called downward departure, occurs when a federal judge gives a defendant a sentence that is less severe than the minimum sentence recommended by the sentencing guidelines.

The judge may have many reasons for a downward departure, such as a first-time offense or extenuating circumstances. A good criminal defense attorney attempts to persuade a judge to use lighter sentencing.

If you think lighter sentencing should apply to your case, you may ask, “What is a downward departure?”

To understand legal options for Minnesota sentencing, you should know a few things about a downward departure.

Here, we will discuss the following to help you gain a better understanding of downward departure:

  • What are Minnesota sentencing guidelines?
  • What sentencing factors does a judge consider?
  • Why would a judge choose to grant a downward departure?

Hear it From an Expert – John Arechigo – 2019 Attorney of the Year

John Arechigo, a practicing criminal defense attorney in St. Paul, explains what you should know about downwards departures.

Recently, John Arechigo was named the 2019 Attorney of the Year by Minnesota Lawyer.

He sheds some useful insight based on his years of experience within the criminal defense.

So, before deciding to hire any criminal defense attorney to consider if you are hiring an attorney with the experience you need to get the court ruling you deserve.

Q: Can you describe your experience and a few examples/results dealing with downward departures?

A: A criminal defense lawyer should always have a downward departure in mind anytime a client is charged with a felony offense.

Departure arguments aren’t something a defense lawyer should throw together just prior to a sentencing hearing.

It’s vital to begin preparing for successful departure arguments at the beginning of a case. A felony offense carries the risk of a prison sentence and the lasting impact of a felony conviction.

A downward dispositional departure occurs when a probationary sentence is imposed rather than an expected prison sentence. A downward durational departure occurs when a judge imposes a gross misdemeanor sentence on a felony offense, which allows a client to avoid a felony conviction.

I’ve secured downward dispositional departures for clients facing prison for offenses of Murder, First Degree Aggravated Robbery, Felony Theft, and serious Assaults.

I’ve secured downward durational departures for clients convicted of a variety of felony offenses, including Third Degree Assault, Criminal Vehicular Operation, Fleeing Police in a Motor Vehicle, felony drug offenses, and felony bank theft.

Q: Based on your experience, what can you tell readers about dispositional departures?

A: A sentencing judge largely focuses on the individual being sentenced in determining whether to send that person to prison or grant a defense request for a dispositional departure and instead place the person on probation.

A judge tries to determine what’s best for the individual, public safety, and also properly accounts for the seriousness of the offense.

Dispositional departures are largely a function of what’s known as caselaw. Caselaw is what lawyers refer to when the outcome of an issue is largely controlled by prior decisions handed down by our court of appeals or state Supreme Court.

There’s no statute in the law that explains dispositional departures. Our court of appeals and Supreme Court lets a judge know which factors should influence a decision on a dispositional departure.

You should be prepared to ask a defense lawyer questions about their experience and success with dispositional departures anytime you are seeking representation on a felony offense.

We know the factors that are going to influence a judge’s decision and are experienced in personally tailoring dispositional departure arguments for each individual client.

It’s this experience and understanding that has helped us secure dispositional departures for clients charged with serious offenses including Murder, First Degree Aggravated Robbery, Felony Theft, and serious Assaults.

Q: Based on your experience, what can you tell readers about durational departures?

A: A judge will need to be convinced that the facts and circumstances of a particular felony offense are less serious than the “typical” felony offense for which the person has been convicted to impose a gross misdemeanor sentence rather than a felony sentence.

A successful durational departure argument will explain to a sentencing judge why the facts this particular client’s felony fleeing from police in a motor vehicle is less serious than a “typical” fleeing police in a motor vehicle case, for example.

A defense lawyer will need to be familiar with facts and circumstances of prior cases and be able to distinguish their client’s conduct from those prior cases.

My experience and understanding of prior cases has helped clients avoid the lasting impact of felony convictions for offenses of Third Degree Assault, Criminal Vehicular Operation, Fleeing Police in a Motor Vehicle, felony drug offenses, and felony bank theft. These clients have received gross misdemeanor or even misdemeanor sentences on these felony offenses which allowed them to avoid the stigma and consequences of a felony conviction.

Q: How many cases have you handled dealing with defense departures?

A: A defense departure motion is almost always made anytime a client is convicted of a felony offense. I’ve represented a lot of clients charged with felony offenses.

I always prepare a case for potential departure arguments.

Thankfully, we haven’t always had to actually file a departure motion because we’re either able to get the charges dismissed, secure an acquittal at trial, or negotiate a non-felony resolution.

But the motions are always ready, if needed.

Q: You mentioned that there are separate factors that go into each departure argument, can you briefly speak to that and describe your successes?

A: A dispositional departure will focus on the particular individual being sentenced.

A sentencing judge needs to be convinced that the individual is a good candidate to succeed and probation, and that probation really provides for better supervision and attention to a particular individual’s needs.

The judge will consider the individual’s age, prior criminal record (if any), the level of acceptance of responsibility and cooperation, and the person’s support system. Highlighting the support of an individual’s friends & family can make a big impact with a judge.

There are different ways of doing this, but submitting letters of support is a common method. Chemical substance dependency issues can also influence a judge’s decision. An individual with chemical dependency issues who shows the judge that they are motivated to complete a treatment program can definitely make an impression.

Judges know community-based treatment options are typically better than those offered by the department of corrections. It’s important to have a defense lawyer with experience working with clients battling a chemical addiction.

It’ll be necessary to help a client schedule a chemical dependency evaluation and to explore appropriate treatment options. I have several expert connections in this area that have helped a number of clients.

Q: Can you please provide any other information that you feel your readers would like to know?

A: In addition to my experience Need lawyer experienced and knowledgeable of factors available to you or in your case that will get a departure. Can build in to negotiations with state. Best to get state’s agreement to a departure instead of leaving decision entirely to sentencing judge.

Individuals facing felony offense should make sure their prospective defense lawyer has experience, and success, with sentencing departures.

In addition to my familiarity with departure arguments, I also have dispositional advisors available to clients.

These are sentencing experts who bring enormous value to a client’s case and chances for success in front of a sentencing judge.

The two different departures – dispositional and durational – require different legal arguments.

A felony offense not only carries the prospect of going to prison, but a felony conviction carries collateral consequences of the stigma of a felony conviction, interference with a variety of professional licenses, potential employment consequences, and the loss of civil liberties, including the ability to vote and to own or possess a firearm.

Make sure your defense lawyer understands the arguments that will help you avoid these lasting consequences.

What Are Minnesota Sentencing Guidelines?

Sentencing guidelines are common across the United States. As lawmakers realized some offenders received unfair sentences, they began writing sentencing guidelines. These guidelines give a judge suggested or mandatory sentences for each crime.

Minnesota Sentencing Guidelines first went into effect in 1980 and continue to be revised and renewed. The latest guidelines went into effect in August of 2019.

The sentencing guidelines seek to promote consistent sentencing and public safety while reducing judicial bias factors.

Different Minnesota Sentencing Guidelines are used for “standard” offenses, sex offenses, and drug offenses and outline minimum and maximum sentences using a grid system that accounts for a person’s prior criminal history and the severity of the current sentencing offense.

The sentencing guidelines are advisory to the court, meaning they are not mandatory. The guidelines allow a judge to depart from suggested sentencing when “substantial and compelling circumstances” arise.

It is a criminal defense attorney’s job to effectively convince a judge that such compelling circumstances apply to your case.

What Sentencing Factors Does a Judge Consider?

Downward departure means an offender receives a more lenient sentence than the Minnesota Sentencing Guidelines recommend.

Judges consider the following factors before allowing a downward departure sentence.

  • Public safety. This is the primary factor in downward departure sentencing. A judge wants to protect the public from crime.
  • Retribution. This sentencing element punishes the offender for their crime. The severity of the retribution should be proportional to the seriousness of the offense and the offender’s prior criminal record.
  • Incapacitation. This sentencing goal takes away an offender’s ability to commit future crimes by keeping the offender in prison.
  • Deterrence. This element attempts to deter criminal behavior by the threat of harsh sentencing. In theory, if a judgment is too light it may not deter people from committing additional crimes in the future.
  • Restitution. This objective tries to pay the victim or society back for the harm done. Restitution comes in three forms: monetary, community service, and service to victims. Offenders with short criminal histories who committed non-violent crimes might be eligible for restitution, like community service.
  • Rehabilitation. This goal seeks to reform the convicted individual in an effort to eliminate future offenses upon release from prison. Rehabilitation services include substance abuse, education, and mental health services. Some prisons may not have rehabilitation services. The absence of rehabilitation resources does not justify a longer prison sentence.

A judge balances these factors when determining whether a downward departure is appropriate for an offender.

Why Would a Judge Choose Downward Departure?

A judge can depart from suggested sentencing grids in two ways:

  • Aggravated Durational Departure. This occurs when a judge orders a sentence at least 20 percent higher than the sentence in the grid.
  • Mitigated Durational Departure. This occurs when the court orders a sentence that is more than 15 percent lower than that suggested on the grid.

Your criminal defense attorney will argue for substantial and compelling circumstances that necessitate a mitigated durational departure.

This is a significant downward departure. This means your sentence will become at least 15 percent lighter than sentencing guidelines suggest.

A plea bargain is a form of a downward departure.

A plea bargain involves a defendant pleading guilty for a lesser charge in exchange for a lighter sentence. This moves the case through the court quickly and spares a defendant from facing a maximum sentence.

Another situation that may invite downward departure sentences is when a defendant cooperates with the prosecuting attorney.

This could mean that the defendant provides information that helps the prosecution with their case.

The defendant could assist with the current case or another case, causing the prosecution to request a downward departure sentence.

A judge may also consider reasons for a downward departure in these situations:

  • The defendant was an accomplice to the crime.
  • The defendant didn’t understand the criminal nature of the act.
  • The defendant has a mental disorder that requires specialized treatment.
  • The victim initiated or provoked the crime.
  • The defendant committed the crime under duress.
  • The defendant was too young to understand the consequences of criminal behavior.
  • The need for restitution to the victim is greater than the need for prison time.

After applying a downward departure sentence, the judge completes a departure report explaining why the downward departure was applied. (Minn. R. Crim. P. 27.03, subd. 4(c)).

Ask Arechigo & Stokka About Downward Departure Sentencing

If you have questions about downward departure and whether it might apply to your offense, call Arechigo & Stokka for legal advice. The criminal defense attorneys at Arechigo & Stokka have decades of experience defending Minnesota clients.

Call for a complimentary consultation and learn the best defense for your case as well as possible reasons for a downward departure. Arechigo & Stokka have the courtroom experience, compassion, and courage your case deserves.

They will advocate for your best legal option, whether that’s acquittal or downward departure.

Author Photo John T. Arechigo, Esq.

Attorney John Arechigo has a passion for criminal defense. John received his J.D. from Hamline University School of Law in 2006 and also carries a Bachelor of Arts from The University of Minnesota. John was named Attorney of the Year in 2015 and 2019 by Minnesota Lawyer. Additionally, John was also named as a Rising Star from 2017–2019 and has been selected to Minnesota Super Lawyers from 2021–2024. He devotes nearly 100% of his practice to defending individuals charged with a crime.

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