State county attorneys' drug reform hits dead end

For the first time in years, it seemed to some that this legislative session would be the year Minnesota reformed its drugs laws, updating decades-old standards many on the state and federal level openly admit miss the mark.

A bi-partisan bill, Senate File 1382, was crafted by consensus of the Minnesota County Attorneys Association and introduced in early March by Sen. Ron Latz, DFL-St. Louis Park. (It was co-authored by Sen. Dan Hall, R-Burnsville.) A competing bill authored by Hall that went even further in revising the state's drug laws had already been in the hopper since mid-February, Senate File 773. It was crafted by the Minnesota Association of Criminal Defense Lawyers.

But the deadline for a first hearing arrived Friday with neither bill seeing daylight.

What killed Minnesota's drug reform? Miscommunication? The looming 2016 elections? It's difficult to say, but it's clear that the interested parties -- prosecutors, defense attorneys, police -- can't agree beyond one thing: something has to change, sometime.

"I think it's very unfortunate that the stars couldn't align, because I thought they were in the midst of aligning," said Ramsey County Attorney John Choi, who was involved with the legislation. "I think it's really important for the public that all of us stay with this conversation, because it will not and it cannot die on the vine."

Both bills change the weight threshold for filing charges on some drug possession and sales crimes, proposing that a suspect would have to possess more drugs than required under current Minnesota law.

In essence, had either bill passed, they would have penalized fewer people with serious criminal counts than current drug statutes, which haven't seen meaningful change since the 1990s. The intent is to incarcerate bigtime traffickers while finding better ways to deal with low-level addicts -- shorter sentences, probation, treatment.

Holder has advocated against long sentences for non-violent drug offenses. Last year, Minnesota U.S. Attorney Andy Luger answered Holder's call, instructing his attorneys to examine all incoming drug cases. The expectation is that fewer defendants would face long "mandatory minimum" sentences.

"If we want to solve the problem of narcotics availability, then locking up people who are feeding their own addiction by dealing drugs isn't going very far," said former federal prosecutor Mark Osler, a professor at the University of St. Thomas School of Law who specializes in the subject. "We had a war on drugs, and the drugs won. It's probably time to think about doing things differently."

Choi and Hennepin County Attorney Mike Freeman agree that Minnesota should follow the federal lead, but with concrete changes in state law. They came together with the state's county attorneys last year, and hammered out a bill in six months that would also funnel savings into rehabilitation and treatment for non-violent, low-level offenders, a key focus for Choi.

"I think everyone agrees that people who possess drugs or sell small amounts of drugs because they are an addict deserve treatment," Freeman said. "Those people who possess large amounts for sale suffer from the disease of greed, and the answer to their problem isn't treatment, but the big house.

"And the question is always where to draw the line."

"It really does not represent law enforcement's best interest, and it doesn't take into account today's drug culture," said Dennis Flaherty, executive director of the Minnesota Police and Peace Officers Association. "We just can't go as far as some want it to go."

Latz's bill increased the weight threshold for first-degree sale of "a narcotic other than heroin" from the current 10 grams to a proposed 35 grams. For first-degree possession, he proposed increasing the weight from 25 to 50 grams.

It also added provisions that would allow a judge to hand down stiffer sentences in cases with aggravating factors -- the possession of a gun, prior convictions for a violent crime and if the offense was committed for a gang, among others.

Flaherty said that tripling the weight threshold went too far. A better compromise is 25 grams, he said.

"Drug sales typically do not involve that much, that large a volume of drugs," Flaherty said. "So in order to put someone away for trafficking in drugs, its going to require far more times the buys necessary to get to that increased weight, and each time, an officer is exposing themselves to a substantial risk."

"Latz has not engaged law enforcement, at least the sheriffs in this association," said Hennepin County Sheriff Rich Stanek. "There hasn't been any one proposal that has reached that so-called sweet spot.

"We would be leery of shifting this too far."

For Osler and Minnesota's Association of Criminal Defense Lawyers, Latz's bill didn't go far enough. Thirty-five grams is far from a sign that someone is a major drug trafficker, said Osler and the organization.

"The defense attorneys' position on this is that Minnesota's drug sentencing laws are out of whack," said Brock Hunter, a Minneapolis defense attorney active with the association. "It's a difficult problem to reverse, because it's very politically easy to lower the weight thresholds -- very, very difficult to raise them back up in any meaningful way."

When Minnesota created its drug laws in the late 1980s, it set the bar for first-degree sale at 50 grams and first-degree possession at 500 grams, or about a pound.

The bill crafted by the defense lawyers would return to the 50 and 500 gram bar.

"Our feeling is if we're going to address this issue and have some meaningful change... and have a real impact on this... the increases in threshold need to be higher," Hunter said. "The changes in the law need to be bigger."

Osler, an advocate for even deeper, more sweeping drug reform, said he believes the climate locally and nationally across all political parties is ripe for change. (He said weight is a terrible gauge of culpability, and that 10 grams for first-degree sale is "a ceiling that's pretty close to the floor.")