Wide acclaim met Minnesota’s decrim law in 1976. It “decriminalized” possession of a small amount of marijuana, by making it a petty misdemeanor, so it would no longer be a criminal offense. Or did it?
Not really. And that’s the bad news. But the good news is that we can clean up the law with a housekeeping amendment. Of course, we should decriminalize and legalize marijuana. But until then, Minnesota should at least enact a clean small amount decrim law.
The Decrim Law now
So, let’s take a look at the current statute, Minnesota Statutes §152.027, Subd. 4.
“Possession or sale of small amounts of marijuana. (a) A person who unlawfully sells a small amount of marijuana for no remuneration, or who unlawfully possesses a small amount of marijuana is guilty of a petty misdemeanor and shall be required to participate in a drug education program unless the court enters a written finding that a drug education program is inappropriate. The program must be approved by an area mental health board with a curriculum approved by the state alcohol and drug abuse authority.
(b) A person convicted of an unlawful sale under paragraph (a) who is subsequently convicted of an unlawful sale under paragraph (a) within two years is guilty of a misdemeanor and shall be required to participate in a chemical dependency evaluation and treatment if so indicated by the evaluation.
(c) A person who is convicted of a petty misdemeanor under paragraph (a) who willfully and intentionally fails to comply with the sentence imposed, is guilty of a misdemeanor. Compliance with the terms of the sentence imposed before conviction under this paragraph is an absolute defense.
Overly complicated? Of course. That 1976 attempt at a decrim law, is not a clean, petty misdemeanor statute.
So what is a “petty misdemeanor?”
Subd. 4a. “’Petty misdemeanor’ means a petty offense which is prohibited by statute, which does not constitute a crime and for which a sentence of a fine of not more than $300 may be imposed.”Minnesota Statutes §609.02, Subd. 4a.
Not really a petty misdemeanor
The legislature should pass a housekeeping amendment to at last make the decrim law work; an actual petty misdemeanor. Here is what that amendment would look like:
“Effective August 1, 2021, Minnesota Statutes §152.027, Subd. 4 is amended to say:”
“Possession or sale of small amounts of marijuana. (a) A person who unlawfully sells a small amount of marijuana for no remuneration, or who unlawfully possesses a small amount of marijuana is guilty of a petty misdemeanor[.]
and shall be required to participate in a drug education program ... authority. (b) A person convicted ... evaluation. (c) A person who is convicted of ... defense.”
That simple amendment to the decrim law, clears away the garbage, and makes it an unequivocal “petty misdemeanor.”
Does it matter though?
Federal courts treat a Minnesota conviction for a “petty misdemeanor” possession of a small amount of marijuana, as a drug conviction, triggering prison time under federal law. And that conflicts with legislative intent to make small amount possession “not a crime.”
So, yes, if you want a decrim law that does what it claims – it matters.
US v. Foote
Consider the case of US v. Foote, 705 F. 3d 305 (U.S. 8th Circuit Court of Appeals 2013). In that case, the court sent the defendant to prison based on counting the Minnesota “petty misdemeanor” in his criminal history score:
“The main issue here is whether Foote has a second point of criminal history that would disqualify him from the safety valve. He argues that his petty misdemeanor conviction for possession of marijuana does not count as a point. True, a petty misdemeanor is not a crime in Minnesota, Minn. Stat. § 609.02, subd. 4a, but “how a state views an offense does not determine how the United States Sentencing Guidelines view that offense.” ... The Sentencing Guidelines make clear that in a federal case, all prior sentences are points of criminal history unless specifically exempted. U.S.S.G. §§ 4A1.1, 4A1.2. A prior sentence is any punishment imposed upon the adjudication of guilt. § 4A1.2(a)(1). The Guidelines are “explicitly designed to apply to prior sentences in which only a fine was ordered.” ... .US v. Foote, 705 F. 3d 305 (U.S. 8th Circuit Court of Appeals 2013)
The punishments as well as the perceived seriousness of minor traffic infractions are similar to those for possession of small amounts of marijuana. Both are petty misdemeanors under Minnesota law. … . Both have a maximum fine of $300. §169.89, subd. 2 …; §609.02, subd. 4a … . However, a conviction for marijuana possession is more serious than a minor traffic infraction because the statute requires the defendant to attend a drug-education program … § 152.027, subd. 4.”
Solution: Make the Decrim Law a True Petty
So, amending the decrim law to make it a clean petty misdemeanor may influence the federal court’s to stop counting such convictions as criminal history to send people to prison.
And see our article: Minnesota’s Incomplete Marijuana Decriminalization – Resinous Form Exception
The author Thomas Gallagher is a Minneapolis Criminal Defense Attorney, and a marijuana legalization activist with Minnesota NORML.