Minnesota judges have been rejecting state's stiff drug penalties for years

Minnesota legislators are scrambling to pass landmark measures that would dramatically overhaul the state's drug laws, lowering sentences for many offenders.

But Minnesota judges already decided long ago those penalties were too harsh.

Across the state, judges consistently reject sentencing recommendations on high-level drug crimes, according to a Star Tribune analysis of 2010-2014 felonies, the most current available data. In 2014, judges strayed from the guidelines in seven out of 10 of the most severe cases, overwhelmingly to give lower penalties. The most common reason cited was faith that the defendant could be rehabilitated.

The statistics for second-degree drug cases were similar, with judges opting to sentence outside the recommendations 58 percent of the time. The review found that judges in Hennepin and Ramsey counties are far more likely to break from the guidelines than judges in rural areas, which means offenders in outstate Minnesota more often receive stiffer penalties.

The findings come as law enforcement officials around the country are rethinking criminal penalties for drug crimes.

Mary Moriarty, chief public defender in Hennepin County, attributes this trend to rising sentiment that addiction should be treated as a public health issue, not a criminal one.

"We thought that arresting and sentencing our way out of this solves the problem, and clearly it hasn't," Moriarty said. "I think what the judges are doing is using their authority to bring us in line with drug reform across the country."

But judges have the right to give harsher or lighter penalties, called a "departure." Hennepin County Judge Jay Quam said judges stray from the guidelines because no two cases are the same and sweeping policies don't always match up with what's best for an individual.

Judges "see that there are as many different criminals as there are crimes, with some having far more problematic backgrounds and dispositions than others," said Quam. "As a result, it can be easy for judges to conclude that many cases don't easily fit within the relatively narrow range recommended by the sentencing guidelines."

Minnesota pioneered the sentencing commission system.

In 1980, legislators created the commission to make sentencing consistent, preventing judges from handing out disproportionate penalties. The board consists of 11 members who run the gamut of criminal justice interests, including judges, prosecutors, corrections officials, defense attorneys and citizens.

The commission gives judges the right to levy harsher or lighter punishments when appropriate. "The guidelines were designed to determine the sentence for a typical case," said Kelly Mitchell, executive director of the University of Minnesota's Robina Institute. "Departures were created to deal with atypical cases."

As of January 2016, about 1,900 state inmates were in prison for drug crimes, slightly higher than Minnesota's entire prison population in 1980.

Legislators have unsuccessfully pushed several measures to lower drug penalties in recent years.

"We've watched while penalties were increasing over the years and having no impact whatsoever on the overall trend of the drug problem in society," said Sen. Ron Latz, DFL-St. Louis Park, and sponsor of the latest drug bill. "Which is to say: The harsher penalties were not working."

Department of Corrections Commissioner Tom Roy said most sentencing departures come by a plea agreement.

"Seldom do judges independently vary too much from the plea negotiation," said Roy, adding that the agreements are worked out by the defender and prosecutor.

Where a person commits a crime often plays a major factor in their punishment, the data shows.

Ramsey and Hennepin County judges departed from the sentencing guidelines on 37 percent of cases over the five-year period starting in 2010, considerably higher than the 23 percent for all other counties combined. Departures on drug cases rose about 10 percent in Ramsey County and about 8 percent in Hennepin.

Of the 16 judges who departed from the guidelines the most in that time period — ranging between 45 and 55 percent of their caseloads — all but one presided over Hennepin County courts.

"We should all be concerned if the guidelines don't reflect practice, and if there's great disparity in districts," said Roy. "It is in many cases a prison sentence versus a no-prison sentence," he said. "And that's a big deal in a person's life."

Part of the disparity can be explained by the fact that metro judges see more cases, and they may have developed different philosophies than rural judges on issues like prison overpopulation, racial disparity and drug use in general, said Sgt. Paul Ford, president of the Minnesota Police and Peace Officers Association.

"If the Legislature is concerned about these regional disparities, one of the things they ought to look at seriously is funding community corrections so people don't get sent to state who don't need to go to state," said Frase.

Minnesota legislators introduced sentencing measures earlier this month and must get them approved by the May 23 adjournment date.

Rep. Tony Cornish, R-Vernon Center, is sponsoring the measure in the House, though admittedly without much enthusiasm. Cornish said the proposal is better than one passed by the guidelines commission last December — which would go into effect Aug. 1 without legislative intervention — but he fears lowering sentences could exacerbate drug problems in Minnesota.

Judges might continue to grant lighter sentences as part of plea deals, and with shorter sentences under the proposed laws, that could mean drug dealers getting off easier, he said. "That's another reason, for me, to keep them higher."

Latz disagrees with Cornish's logic. If the overhauls do pass, he said the law will simply align with the collective judgment of the courts, and therefore departures will level out — at least for now.