Published January 29 2012
Pot dealers more likely to get clean recordsFARGO – The 20-year-old woman with long blond hair and black-rimmed glasses was a college student when she got pinched with a pound of marijuana and more than $5,700 cash in her apartment.
In Cass County District Court, prosecutors recommended 15 days in jail and two years of probation for the Class B felony.
Her attorney highlighted her otherwise clean record and asked the judge to give her a “light at the end of the tunnel.”
The judge landed in the middle: He ordered her to serve 15 days, but in two years, if she successfully completes her probation, the felony will be wiped from her public record.
And she’s not alone.
A Forum review of court records found that during the first eight months of last year, almost half of the people convicted in Cass County of delivering marijuana, or possessing marijuana with intent to deliver, received a deferred imposition of sentence that will allow the crime to disappear from their public record after probation.
Prosecutors and defense attorneys say a quirk in state law is partly to blame, leaving judges with only two options: give defendants a deferred sentence or saddle them with a felony record that can haunt them for life, affecting everything from student loan eligibility and job prospects to the ability to rent an apartment and possess firearms.
“We’re stuck with what the Legislature does,” said Monty Mertz, supervising attorney at the Fargo Public Defender’s Office. “Sometimes I think there are unintended consequences.”
Assistant Cass County State’s Attorney Tracy Peters, who leads the team that handles drug cases, said the trend is frustrating for prosecutors, who see how selling pot can lead to dealing more serious drugs.
“To say that marijuana dealers are somebody we want to give just a slap on the wrist to is sending the wrong message, in my opinion,” she said.
At the same time, some cases are more serious than others, she said, and prosecutors understand that young people sometimes make poor decisions.
“Do you want to make them a permanent felon for the rest of their life because of it? I don’t know,” she said.
Law has exception
In most felony cases, judges have three choices in the sentencing phase:
- A felony disposition includes more than one year of imprisonment, whether suspended or not. It remains on the person’s permanent public record.
- With a deferred imposition, the conviction may be removed from their record if they successfully complete probation, which may include jail time.
- If someone is convicted of a felony and sentenced to one year or less behind bars, and successfully serves the term and probation, the conviction goes on their record as a misdemeanor by disposition.
However, an amendment to state law in 1993 took away that last option in drug delivery cases, and attorneys say that’s one factor driving the number of deferred impositions.
Among cases filed in 2010, Cass County judges deferred sentences in 28 of 77 cases in which Class B felony marijuana delivery was the most serious charge, a review of online court records found. That’s a little more than one-third of the cases.
Through August of 2011, deferred sentences were given in 18 of 37 cases, or almost half the time. (Many cases filed after August were still pending.)
The Forum found only one deferred sentence in similar felony cases filed in 2008 and 2009, but it’s difficult to draw comparisons to those years because the commonly applied two-year probationary period may have expired by now and the convictions may no longer be public record.
Peters said while she has noticed judges granting more deferred sentences in the past couple years, prosecutors haven’t changed their standard sentencing recommendation. They push for at least some jail time – typically 30 days, though it depends on age and criminal history – followed by supervised probation, she said.
Judge Frank Racek, presiding judge in the East Central Judicial District that includes Cass County, declined to comment on the rising number of deferrals.
Prosecutors don’t recommend a deferred imposition unless the case is heard in Cass County’s drug court, which requires intensive monitoring during probation, Peters said.
Created in 2003, the drug court initially didn’t accept drug delivery cases, but the court changed its stance in 2010 because many low-level cases were young users selling pot to support their own marijuana habits, Peters said.
A lot of Class B felony marijuana delivery cases involve 18- to 23-year-olds – often college students – caught selling small amounts of marijuana for $100 or less, Peters said. Judges may view such defendants with little or no criminal history as undeserving of a lifelong felony record, she said.
Mertz also said the vast majority of his clients charged with drug delivery are addicts who sell to support their own habits.
“If you sell an eighth of an ounce (of pot) for $50, I think everybody would agree that it shouldn’t ruin your life,” he said.
But prosecutors feel the deferred imposition goes too far, because the defendant often serves no jail time and there’s no public record of the crime.
“It would be nice to have that misdemeanor-by-disposition option, but we don’t,” Peters said.
Mertz said he believes most deferred impositions would be handled as misdemeanors by disposition if the option were available – although he said that isn’t necessarily a rosy road for defendants, either. Oftentimes, people doing background checks only see that the charge was filed as a felony and don’t dig deep enough into court records to find that it was disposed as a misdemeanor, he said.
Defense attorney Ross Brandborg said he’d like to see delivery of a small amount of pot become a straight misdemeanor.
“I’m not sold that a misdemeanor by disposition is the answer to anything, much less this,” he said.
Why the increase?
Brandborg and Mertz said they believe a dip in methamphetamine cases has freed up drug investigators to pay more attention to marijuana over the past couple years, leading to more of the types of cases that have received deferred impositions.
“I think the judges realize that we’re dealing with, fair or not, a lesser drug, and we’re not dealing with career criminals here,” Brandborg said.
Sgt. Mat Sanders, who heads the Fargo Police Department’s narcotics unit, said the drop in meth cases may have allowed for more legwork on pursuing marijuana tips. But he said pot’s prevalence in the area remained steady even during the meth boom.
“We enforce them when they come in,” he said. “I don’t remember a time of ever pushing aside a marijuana case when a meth case was on the table.”
The total number of marijuana cases – possession and delivery – has remained relatively steady in Cass County District Court, numbering 662 in 2009, 704 in 2010 and 618 in 2011, Peters said.
Society’s rising tolerance for marijuana, including efforts to legalize it, also may be playing a role in lighter sentences, she said.
“I think there is a shift in the public perception of how dangerous marijuana is, and that’s reflected, I think, in how the criminal justice system is handling these cases,” she said.
Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528