McFeely blog: Bishop's 10-year sentence for murder of Fergus Falls boy was maximum allowed under state law
The news story and column I wrote this week about the sentencing of Bobbie Bishop for the second-degree murder of 6-year-old Justis Burland in April 2018 have generated a lot of interest online, as would be expected in such a tragic case. Burland died after months of ongoing abuse at the hands of Bishop and her then-boyfriend Walter Wynhoff, both of Fergus Falls, Minn. Justis and his twin brother Xavier were staying with Bishop after being dropped off by the children's grandmother, who said she could no longer care for them. The boys were born to a homeless mother who later did prison time and they were shuttled from person-to-person for the entirety of their lives.
The articles also generated disgust bordering on outrage among people who participate in social media and many who sent me emails. Bishop was given 10 years in prison with five years of supervised release by Minnesota District Court Judge Barbara Hanson, a sentence that had many saying justice wasn't served in Burland's death. Wynhoff pled guilty to second-degree manslaughter last year and is serving a four-year prison sentence. I wrote when he was sentenced how that didn't feel like justice .
The trouble with that argument, like it or not, is that Bishop's sentence followed Minnesota sentencing guidelines and was the maximum allowable time she could've received under the law.
Justice was served under state statute. Whether it was served under your definition, which might align with the Biblical idea of "an eye for an eye," is up to you.
"In this case, there was no leniency in her sentence," said Otter Tail County Attorney Michelle Eldien, who acted as the state's prosecutor in the case.
The case, which seems cut-and-dried to laymen, was actually complicated by the manner in which Justis died. More on that later.
Let's first address Bishop's sentence.
Bishop pleaded guilty to second-degree unintentional murder. Eldien agreed only to argue for the presumptive sentence of 150 months under Minnesota's sentencing guidelines. Because it was a straight-up plea to the range of guidelines, Hanson had the discretion to sentence Bishop along the full range of guidelines (128 months to 180 months).
Minnesota's sentencing guidelines, set by the Legislature in statute, are clear. They are laid out in a grid to which judges and lawyers refer. Judges take into account the severity grade of the offense and the criminal history of the defendant and are given a presumptive sentence and a range of sentences based on the table.
In Bishop's case, the severity level of the conviction was 10 (of 11) and her criminal history score was 0 since she didn't have any prior convictions. Following the table, that made her presumptive sentence 150 months (which Eldien asked for). The minimum sentence was 128 months (the sentence for which Bishop's defense attorney Brian Geis asked) and the maximum was 180 months.
2017 Standard Grid by inforumdocs on Scribd
No prior criminal history, extremely rare in this type of case, limited how much prison time Bishop was going to face.
"The lack of any past history makes it difficult to argue for other sentencing provisions that are separate from the guideline sentencing structure," Eldien said.
Hanson, dismissing the excuses Bishop made in her pre-sentencing statement, gave Bishop the maximum 180 months (15 years). It was split into 10 years in prison and five years of supervised release. If Bishop is released and breaks her probation rules, she can be sent back to prison.
Why didn't the judge give Bishop the full 15 years in prison? That, too, is set by state law.
At the time of sentencing, the judge pronounces the sentence to be served. By law 2/3 of that sentence will be served in prison and 1/3 is mandated supervised release. While in prison, an offender can only lose the 1/3 portion for bad behavior. In other words, the five years of supervised release is Bishop's automatic "time off for good behavior," to use a term we hear in movies and TV. If she behaves badly in prison, that time can be revoked by the state department of corrections. If she behaves well in prison, she will serve 10 years and then have to remain on good behavior for the five years of supervised release to avoid going back to prison.
So that explains Bishop's sentencing. As for the charges she faced, that's where it gets more complex. It's not as simple as saying, "She killed Justis. She should go to prison for the rest of her life." Yes, maybe she should. But legally, in this nation of laws, it doesn't work that way.
McFeely: At sentencing for Justis Burland's killer, reality hits hard
'Please make Bobbie not hurt me': Fergus Falls woman sentenced for death of long-abused 6-year-old
Exam finds Fergus Falls woman charged in boy's death mentally fit for trial
McFeely: Is four years in prison justice when a child dies?
Bishop originally faced six charges related to Burland's death. The most serious was unintentional second-degree murder. When she pleaded guilty to that, the other charges were dropped as part of the plea agreement.
The death was deemed unintentional because Bishop beat, tortured and neglected Justis without the intent of killing him.
But even that was complicated by the fact that no single act or injury appeared to cause Justis' death, according to the medical examiner's autopsy. His death, Eldien said, was deemed to have been caused by an ulcer or infection.
"This case was different from the intentional act of abuse we see too often with shaken baby or other traumatic injuries that cause the death," Eldien said.
That would've made any attempt to charge Bishop with intentional second-degree murder impossible. Intentional second-degree murder with no criminal history (back to the sentencing table) carries a maximum sentence of 30 years (20 years prison, 10 years supervised release).
Again, like it or not, Minnesota charged and sentenced Bishop to the maximum allowed under state law.
Other states, of course, have different laws and penalties. Some would allow a more severe punishment. But the complicating factor in Bishop's case always would've been the manner in which Justis died. He didn't die from a single act, which would be easier to prosecute.
In North Dakota, it's likely Bishop would've been charged with manslaughter (defined by the state as "recklessly causing the death of another human being"), which is listed as a Class B felony in the state's Century Code. State law says a Class B felony carries with it a maximum penalty of 10 years in prison, a $20,000 fine or both. Bishop has no money, so her sentence would've been 10 years in prison.
Worthy of outrage? Sure. But it's the law. Justice lies at the hands of state legislatures, not judges, in these cases.