41-month sentence for Amy Senser. Fair?

Amy Senser sentencing
Amy Senser, right, arrives Monday, July 9, 2012, at the Hennepin County Courthouse for her sentencing on two felony counts stemming from a fatal hit-and-run crash last summer.
MPR Photo/Jennifer Simonson

Twin Cities-based attorneys and legal experts said the 41-month prison term imposed on Amy Senser Monday was a fair sentence, given the facts of the case and state sentencing guidelines.

"I wasn't surprised at all," said criminal defense attorney Joe Tamburino, who has been following the case closely, but was not involved in the legal proceedings.

A jury convicted Senser of criminal vehicular homicide in May after prosecutors argued Senser ran over and killed Anousone Phanthavong last August on an I-94 exit ramp. She began serving her prison sentence yesterday.

Senser's lawyer, Eric Nelson, had asked for probation for his client, citing her community involvement and lack of criminal history. Prosecutors asked for a 57-month prison sentence and emphasized Senser's failure to report the incident for 10 days, even after news reports of Phanthavong's death. Senser maintains that she did not realize she hit a person while driving her Mercedes-Benz SUV that night.

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Hennepin County District Court Judge Dan Mabley's sentence fell within recommendations set by the Minnesota Sentencing Guidelines Commission.

State sentencing guidelines are based on the severity of the crime and the criminal history of the offender. The commission lays out those two intersecting lines on a grid. In Senser's case, her crime scored an eight for severity. She did not have any previous convictions, so she scored a zero for criminal history.

The recommended sentence for someone in that situation is 48 months, assuming it's a typical case with no unusual factors. State law also requires the Commission to set a broader range for each category. In Senser's case, the broader range was 41 to 57 months.

The 41-month prison term was the lightest sentence possible under the guidelines, but Judge Mabley could have given her a lesser sentence. That happens in about one in three felony cases in Minnesota. Plea bargains are one of the most common reasons for a reduced sentence. In the Senser case, she declined a plea bargain and chose to plead not guilty.

A judge can impose a lesser sentence if there are "mitigating factors," but prosecutors have the right to appeal it. A judge can also impose a tougher sentence, but that's only an option if the prosecutor files a motion requesting it.

Judge Mabley explained his sentencing decision in court Monday. He said he believed Senser was genuinely remorseful, but he said Senser and those around her did not take responsibility for what happened. He said there were "too many family secrets and not enough candor."

Tamburino, the defense attorney, said Senser's failure to immediately report the incident likely influenced the judge's decision.

"Say all of a sudden Ms. Senser, right after she hit the victim in this case, only drove two blocks and then called the police," he said. In that case, although Senser still would have left the scene, the judge might be more inclined to impose probation instead of prison, Tamburino said.

University of Minnesota law professor Richard Frase said high-profile cases also offer an opportunity to send a message to the public. Senser's case attracted extensive media attention, in part because she is the wife of former Minnesota Vikings player Joe Senser.

"You don't get as much expressive and deterrent bang for the buck in most cases because nobody hears about them, or very few people hear about them," Frase, who specializes in criminal law and sentencing, said. "This is an occasion to say, 'Okay, we take criminal vehicular homicide, including the leaving the scene version of it, seriously.'"

However, the facts of the case, including Senser's failure to immediately report the incident, made it unlikely Judge Mabley would have opted for a lesser sentence regardless of the amount of publicity the trial received, Frase said.

Legal experts said it's difficult to generalize about the average sentence for people convicted of criminal vehicular homicide because each case is different.

In 2010, 28 people were sentenced for criminal vehicular homicide. About half received a prison sentence with an average length of 71 months - the longest average sentence since the Minnesota Sentencing Guidelines Commission began tracking the data. The year before, the average prison sentence for criminal vehicular homicide was 52 months. The data includes people with previous criminal history and people who tested positive for drugs or alcohol.

Nelson, Senser's attorney, said he plans to file an appeal. Senser began serving her sentence yesterday.