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Four ways the Legislature could reform drug sentencing in Minnesota

Four ways the Legislature could reform drug sentencing in Minnesota
MinnPost photo by Briana Bierschbach
In the 2016 session, legislators will have to come to terms with the state’s rising inmate population, which has shot up dramatically since 2000.

Next year could be a turning point for drug reform efforts in Minnesota.

Since the 1990s, the state has been cracking down on drug users and sellers, creating new and stricter penalties for controlled-substance crimes. As a result, Minnesota has relatively harsh drug penalties compared to other Midwestern states. And though attempts to change those measures have all fallen flat in the past, that could soon change. The difference now: Minnesota’s bloated prisons.

In the 2016 session, legislators will have to come to terms with the state’s rising inmate population, which has shot up dramatically since 2000. Currently, the Department of Corrections is about 500 inmates over capacity. Policymakers are considering several proposals to accommodate the overflow, such as reopening a private prison in Appleton or spending $141 million to expand the DOC's Rush City facility.

Lawmakers are also looking at reforming how much time — or if — some lower-level drug offenders should sit in prison.

The state’s drug penalties have been a significant driver to the prison boom, state data show. At a recent legislative task force meeting, Nate Reitz, director of the Minnesota Sentencing Guidelines Commission, illustrated this by comparing penalties in Minnesota to those in other similar states. If a first-time offender gets busted in Minnesota with 19 grams of cocaine, Reitz told legislators, he or she would likely face a prison sentence of 7 years — more than five times longer than states like Oregon and Washington.

Offense MN   KS   WA   OR   US  
Sale of 19 grams of cocaine
No weapon involved
No criminal history
First time drug offense
Prison: 7 yearsPrison: 4 yearsPrison: 1+ yearsPrison: 1+ yearPrison: ~1 year
Possess 49 grams of cocaine
No weapon involved
No criminal history
First time drug offense
Prison: 7 yearsProbation: 1 yearJail: 3 monthsProbation,
3-6 months jail
No prison required
Sale of 9 grams of meth
No weapon involved
Minor criminal history
First time drug offense
Prison: 5 yearsPrison: 9 yearsPrison: 1+ yearProbation,
3-6 months jail
Prison: 1-2 years
Possess 24 grams of meth
No weapon involved
Minor criminal history
First time drug offense
Prison: 5 yearsPrison: 9 yearsJail: 1+ yearProbation,
3-6 months jail
No prison required
Source: Minnesota Sentencing Guidelines Commission

Here are four ways the Legislature could change Minnesota’s drug laws in the coming year and, in turn, free up more prison beds, all of which have already been introduced and are being discussed:

1. Repeal mandatory minimums, dramatically raise weight thresholds

This would be the most significant reform to the state’s drug laws of any proposal in play right now. It would, in effect, repeal '90s-era laws that created hardened penalties for smaller amounts of drugs like heroin and meth. Right now, first-degree drug sale is defined as 10 grams or more these controlled substances. But under a bill that was originally proposed in the 2015 legislative session by Republican Sen. Dan Hall and DFL Sens. Bobby Joe Champion and Barb Goodwin, that threshold would go up to 50 grams before an offender faced a first-degree charge, and would make similar threshold changes to second- and third-degree sales. The proposal would free up about 700 prison beds, according to the sentencing commission.

Other aspects of the bill include:

  • Repealing mandatory-minimum sentences for some drug offenders.
  • Giving suspended sentences to certain low-level drug offenders on their first charge and expanding early-release options to apply to more drug convicts.
  • Taking money saved as a result of this bill and reinvesting it back into substance abuse programs in prisons.
2. Ease some drug penalties, but strengthen others

This proposal, authored by Hall and Sen. Ron Latz, would also raise the threshold for what qualifies as first-degree drug sale for certain drugs. The first-degree sale of heroin and meth, for example, would be defined as 35 grams instead of the current 10 grams. However, the measure would also create stricter laws for marijuana. The bar for a first-degree pot possession would go from 100 kilograms down to 50 kilograms, or 500 or more plants. This bill is projected to free up about 62 beds over time.

Other aspects of the proposal include:

  • Making similar changes for second- and third-degree drug sale.
  • Dropping mandatory minimums for some lower-level offenders.
  • Creating new first- and second-degree aggravated drug offenses for repeat, high-level offenders, which require harsher sentences and add “aggravating factors” to charges that could also lead to harsher sentences.
  • Reinvesting money saved from the bill into the DOC.
3. Ease certain penalties, crack down on gun charges

This proposal, backed by GOP Rep. Tony Cornish and DFL Rep. Debra Hilstrom, is very similar to Latz's bill, but it doesn’t go quite as far in terms of raising weight thresholds. First-degree heroin and meth possession would be defined as 25 grams instead of the current 10. First-degree marijuana possession would also go from the present 100 kilograms down to 50 kilograms, or 500 or more plants. 

The proposal, which would free up about 25 prison beds, would also create mandatory-minimum penalties for drug charges that also involve weapons violations. 

Other aspects of the bill include: 

  • Making similar threshold changes for second- and third-degree charges.
  • Dropping mandatory minimums for some lower-level offenders.
  • Creating new first- and second-degree aggravated drug offenses for repeat, high-level convicts, which require harsher sentences and add “aggravating factors” to charges that could also lead to harsher sentences.
  • Reinvesting money saved from the bill back into the DOC.

4. Do nothing

One of the most significant ways the Legislature could change sentencing for drug laws in Minnesota may be to do nothing at all.

Last month, the sentencing commission voted in favor of reducing penalty recommendations for some drug offenders. The proposal will go to public comment on Dec. 23, after which the commission will take another vote on whether to pass it. If the changes stick, legislators could still introduce a bill to block or amend them. But if lawmakers do nothing, the changes will go into effect August 2016.

The new guidelines would change recommendations for prison sentences for first-degree drug sale. Right now, guidelines stipulate a 7- to 13-year sentence for this crime. Depending on criminal history, the proposed changes would lower that to about 5 to 10 years.

This would free up several hundred prison beds. The sentencing commission is still running the numbers to calculate a more precise estimate, but the longer-term savings would be significant.

Other aspects of the penalty reduction recommendations include:

  • Reducing the severity of recommended punishment for first- and second-degree possession.
  • Giving judges more leeway to consider individual factors, such as whether the person is chemically dependent and in need of treatment or a drug “kingpin.”

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Comments (20)

Penalties

I think you'll find it's an uphill battle to reduce penalties for drug offenses as it should be. Penalties should be as stiff as possible. Just because we have a high amount of inmates should have no bearing on the length of sentences.

More is not Better

The United States already incarcerates a higher proportion of its citizens than any other developed country in the world. Prisons-for-profit has only added to this execrable trend. How about if we take a reasoned look at what we're incarcerating people FOR? Marijuana is legal in several states, and they're showing decreased money wasted on prosecutions and big tax revenue coming in. We (Minnesota), by contrast, go on wasting money on prosecutions and ignoring the tax potential of letting ADULTS DO WHAT THEY WANT WITH THEIR OWN BODIES. At what point does it become Society's business?

Re: If the past is any indicator...

...look for the Minnesota Legislature to *do nothing*. Not only the most politically expedient, but continues the long history of two houses doing nothing constructive and collecting paychecks and per diems until they can retire to a platinum pension. God love 'em.

Details, Please

Why is the legislators' pension so generous? Help me out, because I'm nearly completely ignorant of the terms. How many years is it to vest? What age can they start to draw benefits? Are they allowed to draw benefits before age 65, and if so are they allowed to draw benefits at a permanently reduced rate? Do they contribute a set percentage of their salary, as do other state employees?

For all I know their pension benefits may be lavish, but if you can't provide any of these details, you words are worthless.

I can say that while taking time away from his day job to serve at the capitol, my legislator did not accrue pension benefits from his private employer. (He is now retired from his private sector job.) Should legislators take a permanent hit to their retirement income for serving the public?

I am all for reducing prison

I am all for reducing prison time for 1st or 2nd time violators and raising weight limits. The problem you have is career drug dealers plea-bargaining down more severe charges to get a possession charge that throws off all the data that is being used to justify this case for more lenient sentencing. Career drug dealers need to be off the streets. Period!! They are ruining lives daily and usually if you've been caught multiple times selling drugs you are not afraid of the judicial system. I saw an ex gang member, drug dealer saying he wasn't afraid of anything but losing his freedom. No plea-bargaining gun, assault or other charges down to possession and then we can be more lenient on certain charges. I understand why prosecutors plea-bargain down more severe charges to possession charges because you get guys off the streets (7 years) and there is no trial. This practice throws shade on what is considered 1st degree drug sale though.

reducing time

I think most any police dept. or govt. agency could provide data that shows 1st and 2nd time violators becoming career criminals when they don't receive harsh sentences.

If It's That SImple

Let's hear it, chapter and verse.

go ask

Go ask them. I don't work for the police. I'm sure it isn't hard to find. It's also pretty common sense that when criminals are not punished adequately they stay criminals.

Your move

Randy, you're the one who came up with this "data" -- it's on you to back it up. "I saw it somewhere on the internet" is not a reputable citation, any more than "Well someone told me that..."

Hard To Believe

But the discredited "lock 'em up & throw away the key" school of thought is alive and well. When the only tool you have is a hammer, every problem looks like a nail.

Believe it.....

...with so many jobs dependent on branding and incarcerating non-violent offenders, any reduction in attention sends insiders scurrying.

I believe Mr. Phelan may have "nailed" it

I should state at the outset that I have never sold, purchased or used any substance labeled as illegal. I quit smoking tobacco 25 years ago, and have had no relapses. I’ve never been a consumer of alcohol. I’m as much a teetotaler as anyone reading this is likely to find in real life. I also taught history for 30 years, and what history shows us – incontrovertibly and without question – is that prohibition does not work. We’ve had the same success, and created much the same class of criminals (and codependent law enforcement agencies and personnel) in the realm of “illegal drugs” as we did in the 1920’s with “illegal alcohol.” The rationales, results and skyrocketing prison populations follow basically the same trends in both cases.

If ever there was a class of behavior currently classified as “criminal” that ought to be decriminalized, it ought to be drug use and possession. not just marijuana, but virtually all substances now classified illegal drugs. Crimes committed to acquire drugs or sell them could still be classified as “crimes,” but use and possession ought not to be something that goes on someone’s record for some indeterminate (even life-long) period, and it should absolutely NOT result in criminal charges or jail time in and of itself. Crimes committed while “under the influence” of currently illegal drugs would still be prosecuted under current statutes for those particular crimes, but penalties should not be increased, and perhaps ought to be decreased, because of that influence.

Among the many things I find hard to believe in what we’re calling “civilized” society is the notion that if I bring a .357 magnum to a public place and shoot some people, my behavior might well be regarded as a “mental health” problem by many who like to call themselves “conservative,” but if I like using marijuana, which – according to every account I’ve read over the past several decades – will make me lethargic, and not much more, it’s treated by “conservative” legislators and the state’s legal system as a crime, and often a felony-level crime.

In the meantime, binge-drinking by underage teens and drunken driving by people of every age group – both patently illegal activities, and both involving what is, by a wide statistical margin, the most widely-abused drug in the state and country, year in and year out – are shrugged off as relatively minor problems for parents and the local police to deal with when they’re not involved with more substantive matters. In terms of the effect(s) on the user, the only major difference between alcohol and other substances that are regularly abused is that the former is commercially available, and has been deemed “legal” because time and history showed us that banning it was impossible, while the latter is available only in the shadows of illegality.

Let me suggest that the same time and history have shown any thoughtful person that banning currently-illegal drugs has had the same level of failure as Prohibition. One widely-used definition of insanity is to do the same thing over and over, while expecting different results. It’s insane – or plain stupid – to pretend that harsher penalties for possession and use will somehow make people stop trying to get high, just as it was insane – or plain stupid – to pretend that Elliott Ness and his “G-Men,” in whatever numbers, could somehow make people who wanted a glass of wine with dinner, or to render themselves numb while watching an interminable football game, stop doing so. It’s irrational – stupidly so – to treat alcoholism as a disease, while treating heroin addiction as a crime. It’s equally irrational to treat me as a criminal if I sell you ‘x’ grams of cocaine, but consider my behavior perfectly legal – if not ethical – if I serve you that 5th martini before you stumble out to your car to drive home.

The entire “War on Drugs” is an egregious moral and intellectual failure. We (and by “We” I mean the legislature and other political leaders – but perhaps our society, as well) should admit that failure and start over by treating drug use the same way we treat alcohol use. License, regulate, tax, prohibit advertising, at least in some circumstances, treat abuse as a mental health issue.

Well said

I agree with you, there is an utter lack of consistency when it comes to drug law and sentencing. The stigma placed on certain behaviors, and the consequences applied in the name of justice are way behind the science on addiction and human behavior.

Certainly making something "legal" does not make it "good for you". I would support a comprehensive reform of these guidelines, and also for using the money saved towards better mental health treatment and public education.

Great analysis...

...unfortunately, expect nothing to change,

Prescription Drugs

Stop demonizing the prescription pain meds that people with chronic pain need. I have had doctors and my dentist tell me they are afraid to write pain med prescriptions because of the DEA. Many clinics (including my own in Golden Valley- part of a large Minneapolis hospital/clinic system) will no longer write them period. Those that request pain medication are immediately sent to a pain clinic like a dope fiend.

We have gone from giving everyone opioids to making them rarely available to those that need them.

Politicians need to stop wasting their time inventing tracking systems (both state and national) that follow innocent people with very real pain.Let's not threaten our doctors and clinics with jail on the whim of the DEA and state legal system if they should prescribe pain medications.

Two Choices--A Modest Proposal

It is obvious that the War on Drugs (or, as it is put by some, the War on Some People Who Use Some Drugs) has been an abysmal failure. Prosecutions and strict sentences tend to fall most heavily on poor people and people of color. This has the effect of creating a permanent underclass of people with felony records, which limits their future prospects, which helps ease their ways into recidivism, and lets the whole cycle be perpetuated (not to mention the effects on the rest of society of a large population used to the customs of prison life). The only ones who are benefiting are the members of the burgeoning "corrections" industry. It seems to me that there are only two possible choices going forward.

The first is to make a decision that society really wants to eradicate drug abuse, and is willing to take drastic measures to do so. By "drastic measures," I mean increase sentences and make them mandatory for all defendants. Not just dealers--users and possessors, too. In fact, emphasize the possessors. Chasing dealers is a challenge, at best, and once one is sent to prison someone else will step in to take his place. The key is not reducing supply, it's reducing demand. Capitalism has shown us that, whenever there is sufficient demand, someone will step in to meet it. Cut off the demand and the supply will dwindle.

The penalties would have to be mandatory for all defendants. It's been easy to justify sending away the ghetto dweller with a few rocks of crack, or the small-town man who has been cooking meth in his trailer. I mean send all drug defendants away. If a kid at Cul-de-Sac High School is found with a couple of joints in his backpack, he's going to the workhouse for ninety days. No classes on making better choices, no picking up litter for a couple of Saturdays--send him away, and let him have a record. How many teenagers will be deterred if they see one of their own hauled off like that?

I doubt we have the stomach for that, and rightly so. The better alternative is to start legalizing and regulating drugs, especially marijuana. Let private industry take over from criminal gangs, and see a drop in collateral crimes as well. We need to stop making felons of so many people.

You know, I can't get over

You know, I can't get over the ridiculous need that some people have to criminalize other people's private behavior. Yes, that behavior sometimes crosses a line where it impacts the public wellbeing; however, criminalization costs so much more in so many ways. We should be either maintaining addicts, so that they can live as normal lives as possible, or be treating them as suffering from a disease that we can attempt to cure. And pot, come on, just legalize it and get it over with. There are so many other pressing issues that need addressing. This politicization of social ills is so tiresome and unnecessary.

Wrecking Lives

This does not deal with drug related prison sentences but deals with felony plea bargains resulting in long term probation (25 years!), even for 1st time offenders, with a result that is worse than going to prison. That result is a wrecked life for a person, usually a young adult, often single, often with an infant or small child -- and the wreck is the felony guilty plea and probation: barred from public supported low income housing, barred many public assistance programs, barred from a great many jobs that could enable the person to gain a productive life and support him/her self. In short, a 25 year sentence to poverty, desperation, and lack of hope.

The goal should not be to saddle the person with burdens that will never let life again become normal, but instead to quickly give the person the opportunity to gain a useful and productive life.

Drug sentencing is an absolute failure foisted on a public by fear politics. The entire system should be abolished and all but the worst, violent drug related offenses decriminalized.

Prior to 1990, prosecution

Prior to 1990, prosecution and law enforcement had the option to prosecute for possession, possesssion with intent to sell or sale. Once a conviction was gained, the judiciary determined the sentence. If it was a small amount of drug or a street dealer, the judge would likely sentence accordint to the guidelines, If it was a larger amount and showed a high level of sophistication, the judge would often depart from the guidelines and aggravate the sentence up to, and including, the statutory maximum. In the 1989 session the legislature changed the structure and recodified drug crimes. It basically allowed the prosecution to "imply" a level of sophistication based upon how they structured their charges. A person who possessed 25 grams of a particular drug was "assumed toto " be a seller, and a high level of seller, as was a person who sold 10 grams, roughly 10 days of use for an addict. This essentially put judiciary responsibilty in the hands of the executive branch. This was further compromised by allowing law enforcement to aggregate, over a 90 day period, to reach certain amount thresholds. Law enforecment could essentially buy an fourth of a gram (one dosage) from a street level addict, each day over a 90 day period and charge them as though they were Pablo Escobar. This structure had the effect of quadruplling our prison population and dramatically impacting in communities of color. It is not the amount where thresholds are set that is the problem. It is the fact that thresholds are used at all. Thresholds give law enforcement and the prosecution a target and a duty that rightly belongs with the judiciary, who are finders of fact. The structure is broken, and should be examined for it's constitutionality (seperation of powers). Changing the thresholds simply creates a new target and kicks the can down the road.

Our drug policy

I was a psychiatrist in a prison hospital for 15 years. 90% of my patients were drug or alcohol dependent as well as severely mentally ill. I am no fan of drugs, including alcohol and nicotine. I see what drug use does to individuals and society, and I worry about their availability to children and teens. I do not use drugs or even drink alcohol. I do, however, favor the decriminalization of drugs. Unfortunately, the damage to individuals, families and communities by illegal drug use is much LESS than the damage done by our drug laws. Tobacco and alcohol abuse is an enormous burden on our society that we don't even think of as "drug" use. We do not impose penalties and deny treatment for cardiac disease or cancers from tobacco because it is a "choice." Alcohol is a leading cause of harm to innocent "others" through traffic fatalities and interpersonal violence. Prescription opiate abuse (and resultant deaths) is the heroin epidemic of the middle class, but rarely is it looked at criminally. The argument that we should not add more "legal" drugs to the problems we already have is hollow, since the mass incarceration and destruction of lives due to our drug policies is an even bigger social problem and waste of human potential. The inconsistencies in our policy are glaring and not scientific. Prohibition did not work for alcohol. Our polices on other drugs are equally wrong minded and unsuccessful. They are also destroying other countries who have become lawless because of the profit to be made by the US's illegal drug consumption. It is the "illegal" aspect of drugs that is causing this destruction.
With regard to the prison situation, the first option proposed above would be a good start. If we are truly interested in stemming the harm due to drugs, the financial savings should be funneled into drug treatment programs and jobs. It really is our choice how to spend the money and where to grow the jobs — for the good of society or the good of the prison industry. Prison is a necessary form of protection in a complex society, but it has gone way beyond its necessary function of dealing with otherwise intractably violent individuals.