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Legal Learning: Defelonization of drugs and legal marijuana are trending

Almost 30 years ago I was part of an effort to make the law in Minnesota less harsh toward those who used marijuana. We got a law passed and signed by Gov. Rudy Perpich (1989 Chapter 290, Article 3, Section 14) that made possession or a gift of a small amount of marijuana (a lid — 42.5 grams — or less) a petty misdemeanor. That means it's not classified as a crime, but is more like a parking ticket — it was "decriminalized." If convicted, however, you are required to participate in a drug education program unless the judge finds it inappropriate.

Minnesota was way ahead of the other states in enacting this sensible reform. But now Oregon is taking the lead. Under a new law just enacted and signed by Gov. Kate Brown (D), people arrested with small amounts of illegal drugs will no longer be subject to felony charges. These drugs have been "defelonized" by making possession of a small amount a misdemeanor. The new law applies to cocaine or methamphetamine under 2 grams, heroin under 1 gram, oxycodone under 40 pills, ecstasy under 1 gram or under five pills, and LSD under 40 units.

The Oregon legislation does not change penalties for possession of larger amounts of illegal drugs, considered a commercial drug offense. Felony charges will still be applicable for those with prior felony convictions or with two or more prior convictions for unlawful drug possession.

State Senator Jackie Winters, a Republican who is the longest-serving African-American woman in Oregon Senate history, sponsored the bill. She told Huffington Post "We're spending an awful lot of resources... when sending drug users to treatment is probably a better utilization of dollars rather than giving them a felony rap and sending them to prison."

Perhaps surprisingly, the Oregon State Sheriffs' Association and the Oregon Association of Chiefs of Police were some of the bill's strongest backers. Kevin Campbell, executive director of the chiefs of police, said that "too often, individuals with addiction issues find their way to the doorstep of the criminal justice system... Unfortunately, felony convictions in these cases also include unintended and collateral consequences including barriers to housing and employment and a disparate impact on minority communities." The ACLU of Oregon noted that "the War on Drugs has cost billions of taxpayer dollars. Arresting and prosecuting people for small-scale drug cases as felonies is the wrong priority."

Meanwhile, back in Minnesota the attitudes toward marijuana are quickly evolving. The Minneapolis Star Tribune just reported that five of the six DFL candidates for governor have announced that they support legalizing marijuana for recreational and not just medical use. Those five are St. Paul Mayor Chris Coleman, U.S. Rep. Tim Walz, and state Reps. Tina Liebling, Erin Murphy, and Paul Thissen. Only State Auditor Rebecca Otto has declined to do so. The four republican candidates for governor are all opposed to marijuana legalization.

This year a group of DFLers in the Minnesota House introduced HF 926, a proposed constitutional amendment that would decriminalize personal use of marijuana by those 21 years of age and older. Sponsors included Jason Metsa of Virginia, Jennifer Schultz of Duluth, and our own representative Rob Ecklund of International Falls. Our state senator, Tom Bakk, told me he does not support recreational use, but that "going to the next level is worthy of very thoughtful consideration."

Mayor Coleman said last week that Minnesota should prepare for the inevitable and be ready to capture the benefits of legalization like tax revenue and new jobs, while mitigating the costs, including addiction and traffic safety. "To me it's not a question of if, it's a question of when," he said, "and I think the time is now." In a 2016 Gallup poll, 60 percent of Americans said they favor legalization of recreational marijuana, the highest support in the poll's half century of asking about the issue.

If the DFL regains control of the Legislature and keeps control of the governor's mansion next year, you can expect Minnesota to follow the example of Colorado, Washington, Oregon, California, Alaska, Nevada, Maine, Massachusetts, and the District of Columbia in legalizing recreational use of marijuana. We might even follow Oregon's example and defelonize other drugs as well.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer.

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