Drug sentences in state vary by where you live, what judge you face

Convicted of first-degree drug possession and sales, Earnest Earl Boyd faced more than 10 years in prison when he walked into a Hennepin County courtroom. He got less than a year in the workhouse.

That same day — Jan. 5, 2012 — judges elsewhere in the state did not show the same leniency to 13 other people convicted of lesser drug crimes. One of them, Christina Wevley, was sentenced in Olmsted County to nearly three years in prison for possessing about $260 worth of cocaine.

State judges are routinely rejecting guidelines that are supposed to make drug sentencing uniform and equitable statewide, according to a Star Tribune analysis of more than 21,000 drug convictions in Minnesota from 2007 to 2012. The difference between getting prison or probation for the same drug crime often comes down to which county offenders live in, or which judge does the sentencing.

In the 8th Judicial District in western Minnesota, offenders convicted of the most serious drug crimes face a 77 percent chance of getting the full prison sentence. In Hennepin County, only 27 percent get the toughest penalty, according to the Star Tribune analysis.

Judges who frequently depart from the recommended prison sentences say those guidelines often punish low-level drug offenders too severely, filling up state prisons with addicts who would be better off receiving treatment.

"The guidelines were often disproportionate to the harm being caused to the community by the offense," said Judge H. Peter Albrecht, who retired from the Hennepin district in 2009 but still presides over cases statewide. Albrecht has one of the highest "departure" rates in the state. "To strictly follow the guidelines without considering other factors is to put our humanity aside."

Albrecht and others advocate for changes in the recommended drug sentences, which they say are among some of the toughest in the nation and make no distinction between high-level dealers and addicts. The lowest state sentence for being caught selling 10 grams of cocaine — about three sugar packets — is the same as for selling an unlimited amount.

Some judges have never gone below the state's recommended sentences, while others have done it in at least half their cases, the Star Tribune analysis shows. Judge Robert Tiffany, who serves in Hubbard County in northern Minnesota, deviated only twice from the recommended sentence in the 64 drug cases he has handled from 2007 through 2012, and that was to give stiffer punishments.

Many state law enforcement groups and county attorneys have long lobbied to keep the guidelines as they are. Dakota County Chief Deputy Attorney Phil Prokopowicz said the recommended sentences protect the public and give the authority to judges to distinguish which drug offenders should go to prison and which ones need treatment.

Prokopowicz said the variation in departures among judges is likely due to workload, the nature of the cases in one district vs. another and the personal views of some judges.

"Is it fair? Is it a perfect system? No," Prokopowicz said. "It's a good system though. You find that the vast majority of our judges are seriously conscientious."

Tipped off by an informant, police were watching Boyd in July 2009 when he took an orange-colored object from an overgrown lot in north Minneapolis, according to the criminal complaint. When police moved in, he threw an orange bag that contained more than 55 grams of cocaine.

Boyd, who could not be reached for comment for this story, had previously been charged or convicted of six drug crimes as well as evading police and trespassing, records show. His criminal record and the first-degree drug crimes meant a presumed sentence of 122 months. But Judge Marilyn J. Kaman gave Boyd 275 days in the county workhouse, with credit for 213 days served, and five years probation, because Boyd "had the potential for becoming rehabilitated," records show.

Wevley, the woman sentenced on the same day as Boyd, had two prior convictions in 2008 for selling marijuana in a public housing zone and endangering her children with pot sales. In 2009, a man broke into her apartment and raped her, threatening to kill her and her children if she screamed. Her attacker was sentenced to four years in prison in May 2010.

In September 2010, Wevley was under surveillance when she sold about 6 grams of cocaine in Rochester to her ex-boyfriend, who also had a history of drug crimes and served time in prison for an assault conviction.

At sentencing, Wevley asked for leniency after telling the court she sold the drugs because she was worried about what the ex-boyfriend might do to her if she didn't. Judge Jodi Williamson gave her the recommended time, 34 months, for a third-degree drug crime. In an interview, Wevley pointed out that it was only a year less than the sentence for the man who raped her.

Now on probation, Wevley acknowledged that she should have been punished for the crime, but that prison was too severe.

"I wasn't even able to say goodbye to my kids," she said. "Knowing I was the only provider for my children, I don't think they should have been taken away from me."

When the guidelines were created first in 1978, the Sentencing Guidelines Commission's charge was to create sentences that were uniform, reasonable given the severity of the crime and equitable so that felons convicted of the same crimes would be given the same sentences. It still allowed judges the discretion to give less severe sentences than called for in the guidelines.

Sentences for drug sales were less severe than most violent crimes and didn't require prison for first-time convictions. The punishment for possessing cocaine or marijuana was put at the same level as failing to pay child support.

Then, following the cocaine and crack epidemics of the 1980s, the state enacted much stiffer prison sentences for nearly all drug crimes. In 2004 and 2007, the commission released reports recognizing the variation in how judges followed the guidelines. In the 2007 report, the commission found that Minnesota's drug laws were harsher than federal sentences, neighboring states, states with comparable populations as well as two of the most populous states, New York and Texas.

The commission suggested downgrading the penalties for serious drug crimes if approved by the Legislature. But after lobbying by state law enforcement groups, Gov. Tim Pawlenty sent a letter to the commission opposing the change.

"Minnesota should not reduce sentences for drug offenders and send the message that these crimes are not seriously harmful to our citizens," Pawlenty wrote.

Minnesota has not made any significant changes to its drug sentencing laws since then. Now the presumed prison sentence for an addict caught with 25 grams of meth is the same as someone convicted of first-degree manslaughter or assault and many types of rape.

To Holly Evans-Wardlaw, the drug sentences are not tough enough. Open-air drug dealing in her neighborhood, Dayton's Bluff in St. Paul, is common, she said, and she has seen street dealers arrested only to be back on the street in a couple of weeks. The constant presence of dealers thwarts the community's effort to revitalize the area.

What's happening in Evans-Wardlaw's neighborhood is one reason St. Paul Police Sgt. Paul Ford, who is also on the Guidelines Commission, said he opposes any efforts to reduce the recommended sentences for drug criminals. Lengthy prison sentences allow law enforcement to put leverage on offenders to plea bargain and have them turn in higher-up dealers, he said.

Other states have moved to ease their war on drugs. Twenty-four states have made changes to drug laws since 2009, including 15 that relaxed sentences, according to a 2013 report by the National Conference of State Legislatures.

Minnesota's prison population, while still one of the lowest in the country, now exceeds capacity, with drug offenders accounting for the largest percent of those incarcerated. The Department of Corrections said 300 to 310 jail beds at a cost of $55 per day are being rented to house prisoners. Minorities make up half of the drug offenders in prison, despite accounting for less than 20 percent of the state's population.

In October, the commission held a roundtable meeting to discuss whether changes were needed to the drug guidelines. Many in attendance who worked in addiction treatment, probation, and corrections favored less punitive policies. Representatives of law enforcement said the guidelines worked.

The next month, a split commission voted against recommending any changes to the Legislature, likely scuttling any chance the issue would be taken up this year, said Sen. Ron Latz, DFL-St. Louis Park, whose committee would oversee any legislation.

The commission chair, Isanti County Attorney Jeff Edblad, who voted against the changes, said more study was needed before the group could recommend lowering sentences for drug crimes.

Edblad acknowledged the high departure rate suggests there is room for improvement, such as a possibility of creating a sentence level for drug kingpins.

But he said the current guidelines are effective in dealing with drug crimes. "Minnesota has been a model for other states to follow," he said.

Data Editor Glenn Howatt contributed to this report. Brandon Stahl • 612-673-4626