Hennepin County prosecutor won't charge people caught with small amounts of marijuana

Someone caught with a small amount of marijuana in Hennepin County will no longer be prosecuted, County Attorney Mike Freeman said Thursday.

Freeman said he forged the new policy in response to a flaw in Minnesota's marijuana law. Currently, if a person possesses up to 42.5 grams — an amount about the size of a sandwich bag — the crime is punishable only by a fine of up to $300, a petty misdemeanor. But at 45 grams, a person can be charged with a felony.

Because he believes such a penalty is grossly inappropriate and produces racial disparities, Freeman said, his office won't charge anyone who possesses or sells under 100 grams of marijuana. Instead, the defendant will be considered for a diversion program, community service or a sentence that will be dismissed after certain conditions are met.

Hennepin now is the first county in Minnesota to have a low-level marijuana drug policy, which Freeman started to develop more than a year ago. Ramsey County recently implemented a no-charge policy that only deals with amounts under 42.5 grams.

Freeman issued the policy internally in August but has spent several months since revising it.

"I had to do something about it," he said. "My job is to determine if people are charged and how to spend my resources. Spending resources on these cases is just wrong."

Freeman's office didn't have information available about felony cases that were filed last year. But prosecuting low-level drug cases as felonies is costly for the county attorney's staff, the public defender's office and the courts, Freeman said.

Another key component of the policy is reducing racial disparities, especially among black men, he added.

The policy lists several exceptions in which prosecutors would charge low-level cases: If the person had a firearm, possessed a trace amount of another illegal substance (including THC oil and wax) or was in the presence of a child during a marijuana sale. Charges also can be filed because of aggravating factors defined by state law, such as a previous conviction or if the sale benefited a gang or involved a leader in a drug ring.

Chief Hennepin County Public Defender Mary Moriarty, pointing to the possible exceptions, said Freeman wasn't telling the truth when touting the new policy as being the end of low-level prosecutions. If he doesn't want to charge these cases, she asked, why would it matter that a person had a prior conviction?

"Mike has to be about transparency and the understanding of what the policy is," said Moriarty, who attended the hearing. "This is about fundamental fairness issues."

Freeman discussed the policy Thursday during a County Board hearing where he rolled out the county attorney office's new data dashboard. The data, which goes from 2014 to the present and will be updated daily, includes juvenile and adult caseload figures, race of defendants, offense breakdown and crime locations.

According to census numbers on the dashboard, Hennepin County's population is approximately 69 percent white, 13 percent black, 7 percent Hispanic/Latino, 7 percent Asian and 0.7 percent American Indian.

However, felony and gross misdemeanor cases on average are 54 percent black, 33 percent white, 5 percent American Indian and 2 percent Asian. Data on Hispanic/Latino people wasn't consistently available.

Moriarty said she applauded Freeman for catching up to the Minneapolis Police Department, which she said has had a data dashboard for a year.

"But his office has horrific racial disparity in charging cases," she said. "All I heard him do was blame others for this."

Freeman said the dashboard is the most revealing and comprehensive of any prosecutor's office in the United States. Along with his new marijuana policy, he said, he wants to use it to help reduce racial disparities.

Several Hennepin County commissioners questioned how that would happen.

"What work is there left to do?" asked Commissioner Angela Conley. "What are the national models? What are the best practices?"

Commissioner Jan Callison wanted to know how Freeman would measure his success in reducing disparities. When Freeman responded that "it was a hell of a question," Commissioner Mike Opat said sharply, "It is the question."

Commissioners had no public reaction or questions about the marijuana policy during Thursday's hearing.

Freeman's marijuana policy has the support of the Minnesota County Attorneys Association, but he said he had received some pushback from law enforcement officials. Minneapolis police spokesman John Elder said the department will continue to work with the county attorney's office on cases that rise to the threshold of charging.

Freeman has led the charge at the Legislature with a bill to change the felony marijuana law to be more in line with county policy. He acknowledged that it could become moot if the drug is legalized in Minnesota.

Ramsey County Attorney John Choi established his policy two weeks ago, but he said it's been in the works since last summer. That's when 46 black men were arrested by Minneapolis police in a sting and charged with felonies over very small amounts of marijuana. Freeman later dismissed all charges.

Although Ramsey County has very few low-level marijuana cases, Choi said having a policy was important for his staff and law enforcement. The policy doesn't prohibit charging low-level cases, but there would have to be a very compelling public safety reason to file charges.

"I believe Mike Freeman's logic used in his policy is very valid, and I agree we should be looking at ways of recalibrating our laws at the Legislature," he said.