MINNEAPOLIS CRIMINAL & VETERANS DEFENSE

Advocates Hopeful About Drug-Sentence Reform

In the view of many advocates for criminal justice reform, the 2016 legislative session marks the best opportunity in a generation to overhaul Minnesota’s drug-sentencing laws.

Maybe ever.

Yes, they acknowledge, some factors auger against success.

A similar push last session went nowhere, the partisan squabbling at the Legislature has hardly diminished since then, and this is an election year. Then there’s the historical reality that Minnesota lawmakers have been unable to pass any drug-related legislation that doesn’t ratchet up penalties.

On top of that, the wide-ranging package of reforms that is now making its way through the DFL-controlled Senate does not yet have companion legislation in the GOP-controlled House.

Yet none of this has squelched the hopes of advocates, who point out that the proposed overhaul has already gotten the stamp of approval from two traditional adversaries, the Minnesota Association of Criminal Defense Lawyers and the Minnesota County Attorneys Association.

“I think this has a significant chance of going forward. I’m very optimistic, actually,” said Sarah Walker, a lobbyist for the U.S. Action Network, a national coalition of strange bedfellow groups that is pushing the reform package.

Attorney Brockton Hunter, who represented the MACDL in the negotiations, agreed with that assessment.

“I think the planets seem to be aligning in a way that I haven’t seen in working on this issue for a decade,” said Hunter. “What’s different this year is there has been a historic meeting of the minds between the defense side of the aisle and the county attorneys.”

Among other things, the bill — Senate File 3481 — would eliminate mandatory minimum sentences for third-, fourth- and fifth-degree drug convictions, mandate stays of adjudication for low-level, first-time offenders, and, most notably, increase the weight thresholds for most sale and possession narcotics offenses.

The latter change has long been a goal for many in the defense bar, who complain that Minnesota’s existing weight thresholds — 10 grams for first-degree sale, 25 for first-degree possession — are far lower than those in neighboring states and even the federal government.

As a practical matter, they say, that’s meant that some users and small-time dealers who are better suited to treatment wind up serving the same long prison sentences as major dealers for whom the tough penalties were intended.

In the view of Dakota County Attorney James Backstrom, changing the dynamic is long overdue.

“The philosophy is let’s be tough on the real serious people and let’s treat the nonviolent, chemically addicted offenders in a way that we can address through intensive, focused treatment,” said Backstrom.

Backstrom also pointed out that prosecutors will get some new “tools” under the proposed reforms, including new first- and second-degree marijuana laws, 11 new aggravating factors designed to target so-called kingpins and more money for drug courts.

But while the lawyers on both sides of the issue might have come to Jesus, one powerful institutional player — the police lobby — is not on board.

Testifying at a recent Senate hearing, Hennepin County Sheriff Rich Stanek and Dennis Flaherty, the executive director of the Minnesota Police & Peace Officers Association, were both particularly emphatic in their opposition to higher weight thresholds.

“It’s hard for me to believe that you know what’s in this bill and support all of its provisions,” Stanek told lawmakers. “There’s no good reason to tie this reform to a drug dealer relief plan.”

Echoing that theme, Flaherty trotted out some similarly barbed drug war rhetoric. “We don’t think seven years in prison is long time for anyone who is peddling dope in our state,” he said.

The two lawmen made some of those same objections in the fizzled push for sentencing reform last session. Will the year be different?

Lobbyist Walker believes so.

“I think we’ll see some evolving positions,” Walker ventured. If the legislation stalls, she noted, a drug-sentencing overhaul from the Minnesota Sentencing Guidelines Commission — some features of which are vehemently opposed by police but modified under the proposed legislation — will almost certainly go into effect come summer.

“The reality is, without this compromise, the sentencing guidelines go into effect, which is exactly what the law enforcement community says they didn’t want — a discount on prison sentences for the more serious dealers,” said Walker.

Attorney Hunter agrees that the looming changes to the guidelines has given reformers “unprecedented leverage.”

“It’s far from a done deal. I’ve done this long enough and had my hopes dashed enough times to be a bit cautious,” Hunter added. “But because of those guidelines changes, I really think there’s room to get something done.”

Hunter said some lawmakers might feel compelled to act, if only to address a worsening shortage of prison beds that is quickly becoming a crisis. Although Minnesota remains a low-incarceration state, it now has the fastest-growing prison population in the country, and about 600 inmates are now housed in county jails.

“The bottom line, the pressure is building and something’s got to give,” Hunter said.
As with most legislative compromises, no one is getting everything they hoped for under the legislation.

The chair of the Senate Judiciary Committee and chief author of the bill, Sen. Ron Latz, DFL-St. Louis Park, said was particularly disappointed that he was unable to include a retroactivity provision to shorten sentences for some people convicted under existing law.

“I’m swallowing hard to accept some of what’s in here, too,” Latz said.

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