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Officials confront ‘amelioration’ fallout

Sentencing Guidelines Commission Chair Christopher Dietzen will help commission staff craft a response to the Supreme Court’s State v. Kirby ruling. The decision requires drug offenders to be resentenced if their appeals were not exhausted when new sentencing guidelines went into effect. (Staff photo: Kevin Featherly)

Sentencing Guidelines Commission Chair Christopher Dietzen will help commission staff craft a response to the Supreme Court’s State v. Kirby ruling. The decision requires drug offenders to be resentenced if their appeals were not exhausted when new sentencing guidelines went into effect. (Staff photo: Kevin Featherly)

Members of the state’s Sentencing Guidelines Commission and legislators are scrambling to respond to a July 26 Supreme Court ruling that insists the “amelioration doctrine” applies to Minnesota’s 2016 Drug Sentencing Reform Act.

The 4-3 ruling means that one particular defendant — and potentially hundreds of others as a direct consequence — must be resentenced to reflect the 2016 reforms that lowered presumptive sentences for some drug offenses.

The reforms increased presumptive sentences for “kingpin” drug dealers while eliminating mandatory minimum sentences for small-time drug offenders and steering them toward treatment. But it also reduced some presumptive sentences. The recommended prison term for first-degree methamphetamine possession, for example, was reduced from a presumptive seven years to just over five years.

In its decision last week, the court ruled that defendant Michael William Kirby had not exhausted appeals of his 2014 Steele County conviction for first-degree methamphetamine possession when the reforms went into effect on May 23, 2016, so he must be resentenced.

That means his 161-month sentence figures to be reduced to somewhere between 110 and 153 months, according to the court’s decision.

Chief Justice Lorie Gildea joined Justices G. Barry Anderson and David R. Stras in the opinion’s dissent.

The majority ruled that because the Legislature was silent about ameliorating non-final convictions in 2016, and because the drug reforms are meant to mitigate punishments, the amelioration doctrine clearly applies.

“Had the Legislature given us a clear signal that the [reforms] did not apply to defendants with non-final convictions, we would have followed that signal,” Associate Justice David Lillehaug wrote for the majority. “Because it did not, we apply our long-established rule of law.”

The court vacated Kirby’s sentence and remanded his case back to District Court for resentencing.

Practically speaking

Lillehaug went out of his way to point out that the Kirby ruling is not about retroactively reducing sentences, a concept he said applies only to cases where final judgment has been rendered.

“Instead,” he wrote, “this case is about amelioration. The amelioration doctrine applies to cases that are not yet final when the change in law takes effect.”

Nonetheless, when it met the next day, the state’s Sentencing Guidelines Commission signaled that the decision could have retroactive impact — in a generic if not strictly legalistic sense.

Up to now, the commission’s executive director, Nathaniel Reitz, told commissioners, the newly reduced drug-sentencing guidelines have been interpreted to affect defendants whose offenses occurred on or after Aug. 1, 2016, as stipulated in statute.

“Prior to Kirby,” he said, “we would have said to use the guidelines in effect at the time of the offense.”

Kirby could cause a commotion, he suggested.

“Staff anticipates that we will be getting calls from probation officers preparing worksheets for first- and second-degree drug offenses that are being sentenced now, even though those offenses were committed before Aug. 1, 2016,” Reitz said.

Chief Appellate Public Defender Cathryn Middlebrook told fellow members of the Sentencing Guidelines Commission that a recent Supreme Court decision could force resentencing of drug offenders convicted as far back as Jan. 24, 2016. (Staff photo: Kevin Featherly)

Chief Appellate Public Defender Cathryn Middlebrook told fellow members of the Sentencing Guidelines Commission that a recent Supreme Court decision could force resentencing of drug offenders convicted as far back as Jan. 24, 2016. (Staff photo: Kevin Featherly)

Cathryn Middlebrook, a guidelines commissioner and the state’s chief appellate public defender, said her office already was besieged with calls and emails from both defendants and public defenders.

Reitz said that until the commission has time to craft its formal guidance, his staff likely will instruct probation officers to consult with the attorneys and judges involved in their clients’ particular cases to find out whether Kirby applies.

Christopher Dietzen, a retired Supreme Court justice and the commission’s chair, said he interpreted the ruling to say that defendants who had not exhausted their appeals on May 23, 2016, could benefit from the decision.

However, the window may be open wider than that. Middlebrook said she thinks offenders with non-finalized convictions dating back as far as Jan. 24, 2016, might have to be resentenced.

“That is because there is a 90-day appeal period, plus a 30-day grace period,” she said. “Anything from that date on would now, under Kirby, need to be resentenced under the new drug offender grid.”

Bob Small is the Minnesota County Attorneys Association’s executive director, and his group opposed the majority’s position in the Kirby case. He said that Middlebrook’s comments at the meeting came as a surprise but that she has a point.

“On reflection of what she says, I think she is right,” he said, “because you have a period of time in which to appeal. It can go a long time.”

Sen. Ron Latz, DFL-St. Louis Park, the Senate author of the 2016 reform bill, said he agrees with the majority in the Kirby case. But he also agreed with Middlebrook.

“As a practical matter, every one of those convictions could theoretically file an appeal,” Latz said. “Then clearly they would qualify [for amelioration] under the language of the court’s decision.”

In an interview, Dietzen said he plans to work with Reitz to craft a “short little blurb” to send out quickly to probation officers, to alert them to the ruling and how it may apply to the affected first- and second-degree drug convictions.

After that, a formal statement outlining the commission’s position will be crafted and presented to members for review at their next meeting in September, he said.

Dietzen was not sure how many convictions might get caught up in the Kirby dragnet. “It is probably going to be in the hundreds, not the thousands,” he said.

Political fallout

He had not yet read the ruling when approached for comment Monday, but Rep. Tony Cornish, R-Vernon Center, did not like the sounds of it.

“I just feel that the mood of the Legislature, between the House and the Senate in general, is not to ease up on sentencing in any way,” Cornish said.

“If there is a way that we can get out of retroactivity or easing up on the sentences,” he added, “that is what we will probably look for.”

He said he and his GOP peers need to parse the decision to learn what it means and what they can do about it. He said they likely would view the ruling “very skeptically.”

What might manifest from that skepticism is not clear. Latz thinks House Republicans might seize on Kirby as a 2018 election issue, and try next year to re-legislate the reforms. They could, for instance, try placing all pre-reform drug convictions, regardless of appeals status, under the older and stricter sentencing grid.

Latz said he does not know whether such a bill would pass constitutional muster. But it wouldn’t surprise him if House Republicans were to try to press on regardless.

“It is going to be a great political issue that they can use,” he said.

“The leadership over there hates the idea of any kind of reform in our criminal sentencing area,” Latz said. “To them reform only goes one way — toughen the penalties. That’s politics as usual.”

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