George Floyd

Derek Chauvin May Get a Sentence Much Shorter Than the One William Barr Thought Would Be Seen As Too Lenient

The former attorney general reportedly nixed a plea deal that involved a sentence of more than 10 years but would have precluded a federal prosecution.


A few days after George Floyd died under the knee of Minneapolis police officer Derek Chauvin last year, William Barr, then the U.S. attorney general, reportedly nixed a plea deal that would have included a prison term of more than 10 years. Barr's approval was necessary because Chauvin wanted a guarantee that he would not face federal civil rights charges in connection with Floyd's death. The New York Times reports that Barr did not want to preempt Minnesota Attorney General Keith Ellison, who took charge of the case a few days later. Barr also was wary of inviting public outrage and unrest by approving a punishment less severe than many people thought was appropriate.

Even if Chauvin is convicted of second-degree murder, the most serious charge he faces in a state trial that is scheduled to begin on March 8, his sentence is likely to be only a bit longer than the one he reportedly was prepared to accept last May. If the jury rejects that charge but convicts him of manslaughter, his sentence probably will be much shorter than the one Barr thought would be perceived as too lenient. Without the plea deal that Barr rejected, Chauvin also could face a federal charge under 18 USC 242 for killing Floyd while violating his constitutional rights under color of law, which carries a maximum penalty of life in prison. But meeting the intent requirement for that charge could prove challenging.

Chauvin is charged with violating Subdivision 2 of Minnesota's second-degree murder statute, which applies to someone who "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." While that crime carries a maximum penalty of 40 years in prison, the presumptive penalty under Minnesota's sentencing guidelines is 150 months, or 12.5 years.

That charge is possible only because Minnesota, unlike the vast majority of jurisdictions that authorize murder charges against people involved in felonies that turn deadly, does not require an independent crime, such as burglary or robbery, to convict someone. In Chauvin's case, the underlying felony, third-degree assault, is the same act that caused Floyd's death.

As Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, observed in June, that is a "particularly weird" version of felony murder, a doctrine that criminal justice reformers commonly criticize because it can result in severe punishment for people peripherally involved in crimes that result in someone's death, regardless of their intent or knowledge. "Nearly all" jurisdictions that allow felony murder charges, Sampsell-Jones noted, follow the "independent felony" rule, which says "the underlying felony—known as the predicate felony—must be separate from the act causing death." That "generally means that assault and battery cannot serve as the predicate felonies for felony murder."

Since that rule does not apply in Minnesota, an assault that unintentionally kills someone, which ordinarily would be treated as manslaughter, can instead be charged as murder, dramatically increasing the potential penalty. Chauvin is also charged with the lesser offense of second-degree manslaughter, which seems to easily fit the facts of the case but carries a much less severe penalty.

The manslaughter charge alleges that Chauvin, who knelt on Floyd's neck for more than eight minutes while arresting him for buying cigarettes with a counterfeit $20 bill, caused his death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another." That offense carries a maximum penalty of 10 years in prison, but the presumptive sentence is four years, less than one-third the presumptive sentence for felony murder.

Chauvin originally was charged with third-degree murder, which carries the same presumptive sentence as felony murder, although the maximum (25 years) is shorter. The charge alleged that Chauvin caused Floyd's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." That charge, which was eventually dropped, was controversial because some case law suggests it does not apply to conduct that targets a particular person. But Sampsell-Jones notes that former Minneapolis police officer Mohamed Noor, who received a 150-month sentence in 2019 for killing Justine Damond after she called 911 to report a possible assault in the alley behind her house, was convicted of third-degree murder, "even though he pointed a gun at someone's chest and pulled the trigger."

If Chauvin is convicted of second-degree murder, he is apt to face a sentence similar to Noor's, which is in turn similar to the sentence contemplated in the plea deal that Barr rejected, although perhaps somewhat longer. If the jury instead convicts Chauvin of manslaughter, his sentence would be less than half as long as the one he reportedly was willing to accept last May.

A successful federal prosecution could extend Chauvin's imprisonment, but only by punishing him again for the same conduct. According to the Supreme Court's controversial "dual sovereignty" doctrine, that would not count as double jeopardy. But convicting Chauvin under 18 USC 242 would require proving that he "willfully" violated Floyd's rights, which is not easy. The Supreme Court has said that willfulness in this context requires that the defendant violated someone's rights "in open defiance or in reckless disregard of a constitutional requirement."