By Jake Polinsky*
On February 18th, former Brooklyn Center Police Officer Kimberly Potter was sentenced to two years in prison for killing Daunte Wright. This sentence was a downward departure from the seven years recommended by the Minnesota sentencing guidelines for her first-degree manslaughter conviction. In explaining Potter’s sentence, Judge Chu did not focus on the tragedy of a young man who lost his life over expired license tags and a bench warrant. Instead, she spoke solemnly of the tragedy of an officer whose life has been inalterably changed over what she called “a tragic mistake.” The tragedy in the judge’s eyes was not another senseless killing of an unarmed Black man by Minnesota police, but rather the effect this killing had on “a woman who touched a lot of people in a good way.”
This sentence is yet another example of the criminal justice system’s inability to hold police officers responsible for abusing their positions of power. Of the at least fifteen officers who have caused death or injury by mistaking their gun for their taser in the last twenty years, only three have been found guilty. The two officers found guilty of manslaughter were sentenced to only two and four years in prison respectively. Of the eleven police officers convicted of murder between 2005 and the conviction of Derek Chauvin in 2021, officers received a sentence on average of 21.7 years (compared to an average of 48.8 years for civilians who commit murder).
A major reason police officers receive such disproportionately lax sentences is the way courts apply the purposes of punishment to them. The five main purposes of punishment are incapacitation, rehabilitation, retribution, specific deterrence, and general deterrence. Incapacitation aims to prevent future crime by imprisoning defendants at a high-risk of reoffending. Rehabilitation seeks to identify why someone commits crime and treat these issues so that they will not reoffend. Retribution punishes defendants in proportion to their blameworthiness for the crime they are convicted of committing. Specific deterrence attempts to prevent the defendant from committing future crimes by making them fear receiving the same or greater punishment again. Lastly, general deterrence similarly seeks to deter other potential offenders by making them fear getting a similar sentence to the defendant.
Judge Chu’s sentencing of Potter is a perfect case study of how these purposes of punishment are used to the benefit of police defendants. Potter, like many other officers charged and convicted of high-profile abuses of police power, was fired from her job as an officer, thus Judge Chu reasoned incapacitation would not be served as Potter is unlikely to commit further crimes. Judge Chu determined rehabilitation would not be served either because Potter, as a former police officer, had spent her life up to the point of killing Daunte Wright as a law-abiding citizen. In a similar vein, Judge Chu did not believe specific deterrence would be served, as again she viewed Potter as a law-abiding citizen who will not commit further crimes. The sole purpose Judge Chu believed would be served was retribution for the death of Daunte Wright. Similar justifications for a downward departure have been given in other police brutality cases, most notably in the sentencing of two of the police officers who beat Rodney King.
There are multiple problems in this reasoning which minimize the crimes of police officers and harm efforts to prevent them. For one, the repeated emphasis on how officers like Potter have lived crime-free lives and are unlikely to reoffend ignores the fact that this is considered by the sentencing guidelines. While the maximum sentence for first-degree manslaughter in Minnesota is fifteen years, the guideline recommends a sentence of about six to eight and a half years for defendants such as Potter who have no prior criminal history. Second, as the Ninth Circuit noted when it overturned the downward departure in sentencing of the officers who beat Rodney King, all criminal convictions carry with them collateral consequences, not just incidents of police brutality where officers lose their jobs and face societal condemnation. While it is a severe problem in the criminal justice system that these collateral consequences are often not considered, it leads to disproportionate justice when this only influences the sentences of police.
Lastly, and perhaps most important, Judge Chu spoke of the deterrent effect of incarcerating Potter only in terms of specific deterrence, not general deterrence. As she is no longer a police officer, it is true that Potter does not need to be deterred from committing further crimes of police brutality. But what of other officers? Potter killed Daunte Wright the very same week that Derek Chauvin was convicted of second and third-degree murder for killing George Floyd. In shooting Daunte Wright, Potter tragically added him to a long list of Minnesotans senselessly killed by police, including Jamar Clark, Philando Castile, Justine Damond, and most recently Amir Locke. While Potter’s attorneys argued a harsh sentence would send a dangerous message to police that their lives could be ruined for making mistakes, what of the message it would send that this conduct is unacceptable? What of the message it would send that the lives of Daunte Wright, George Floyd, Jamar Clark, Philando Castile, Justine Damond, and Amir Locke mattered, and that police can no longer treat these lives with so little care?
The downward departure in sentencing Kim Potter also illustrates the racial disparities in our criminal justice system. The United States Sentencing Commission has found that Black male defendants receive sentences on average 19.1 percent longer than similarly situated white male defendants. Black male defendants are 21.2 percent less likely to receive non-government sponsored downward departures, and even when they do receive non-government sponsored downward departures, they receive sentences that are 16.8 percent longer. As the Wright family’s attorney pointed out, former Minnesota officer Mohamed Noor, a Black Somali immigrant who shot and killed a white woman, was sentenced to fifty-seven months for committing second-degree manslaughter. Judge Chu differentiated the case, saying Noor’s conduct was more dangerous as he intentionally shot across his partner killing an unarmed woman. Of course, as the prosecution noted when they considered raising aggravated factors for an upward departure, Potter shot Wright while he was in the driver’s seat of his car, creating a danger to others in the car and passing vehicles as the vehicle then traveled forward into traffic.
Perhaps the difference that mattered was a white woman killing a Black man rather than a Black man killing a white woman. Studies of the death penalty across the country have found that defendants are more likely to be sentenced to the death penalty when their victim is white. Research has found in particular that defendants are more likely to receive the death penalty when the victim is a white woman. When the ACLU looked into the death penalty in 2003, it found that one hundred and seventy-eight Black defendants whose victims were white had been executed, compared to just twelve white defendants whose victims were Black. While Noor’s appellate lawyer Peter Wold would not go as far as to say race was determinative in the different sentences, he said “I don’t think it looks good.”
A harsher prison sentence for Kim Potter cannot bring Daunte Wright back. His life and future are forever lost. It could have brought a sense of some sort of justice for his family and the community that mourns his loss, however. Further, it could have sent a message that mistake or not, we cannot let police continue to take the lives of so many young Black men. Law enforcement is entrusted by the public with a great degree of power; they have a duty to handle that power with the greatest degree of care, not recklessly with little regard for the lives of the citizens they’re supposed to serve. If we want to avoid more tragedies like this, we need to stop granting police downward departures that tell them even when they’re convicted, they’re still above the law.
*J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member