Sentencing Guidelines Commission opens study of Minnesota’s 'Hernandizing' rule after staff data shows rising use and dispositional impact

The Minnesota Sentencing Guidelines Commission on Feb. 12 began a detailed review of the Hernandez sentencing rule — informally called "hernandizing" — after staff presented data showing both the number and the share of sentences using the rule have increased over the last two decades.

The matter matters because hernandizing can raise a defendant’s criminal-history score in a single sentencing event, sometimes moving a case from a presumptive stay of execution to presumptive commitment. "The percentage of all cases that are being hernandized has increased from about just under 20 percent back in 2001 to over 25 percent now," staff analyst Matt Hilna said during the meeting.

Why the commission is studying it

The review began with an explanation from Linda McBrayer of how the rule works and its two statutory exceptions: a single-course-of-conduct exception and a multiple-victims exception. "So what the Hernandez case did was explain what before meant," McBrayer said, describing how the rule causes one imposed sentence to be counted as prior history for another when multiple offenses are sentenced at the same hearing.

Professor Daniel Reitz (law school researcher) told the…