Democrats Won Power in Four States. Will They Use It to Pass Bold Justice Reforms?
In Minnesota, Democrats used a newly won legislative trifecta to legalize marijuana, overhaul the pardons process, and limit no-knock warrants. But they also funneled hundreds of millions in new funding toward prisons and policing.
Cinnamon Janzer May 25, 2023
If all goes according to plan, Jason Sole will be one of the lucky ones. Come December, Sole should get an opportunity to plead his case in front of the governor, state attorney general, and chief justice of the Minnesota Supreme Court in hopes of securing a pardon for crimes he committed and served prison time for in his teens and twenties.
Securing this meeting was no easy feat. Under Minnesota law, pardon seekers must first meet in person with the Board of Pardons—composed of three of the state’s busiest officials—during one of two mandated annual convenings. The board must then reach a unanimous agreement to approve a pardon.
But with the state legislature’s passage of a sweeping public safety omnibus bill that Democratic Gov. Tim Walz recently signed into law, Minnesota’s pardons process is set to become more accessible. The legislation establishes a nine-person Clemency Review Commission charged with reviewing petitions and making recommendations to the board, which will now award pardons on a majority basis.
The omnibus bill contains a variety of other reform measures. It limits no-knock warrants and bans state contracts with private prisons (but not privately owned residential facilities like halfway houses), earmarks grant funding for restorative justice programs, enacts previously stalled gun safety reforms, and prevents “major participants” in felony murder cases from being charged with murder itself. The legislature also restored voting rights for people with felony convictions post-release, banned juvenile life without parole, and boosted pay for public defenders.
At the same time, however, the omnibus bill provides hundreds of millions of dollars of additional state funding for police and prisons.
Democrats have celebrated the passing of the bill as “transformative.” But others see it as a reflection of a broader hesitation among Democratic lawmakers to use their power to aggressively pursue progressive justice reform priorities.
Minnesota is one of four states with a newly elected Democratic trifecta this year, meaning Democrats control both chambers of the legislature and the governor’s office. Maryland, Massachusetts, and Michigan have also joined a group of 17 states that now have Democratic trifectas. In Republican-led states, GOP lawmakers have recently used their trifectas to ram through party agenda items, passing extreme attacks on reproductive rights and the LGBTQ+ community and making it even easier to purchase guns. The brutal efficiency of this legislative push has left some to wonder if Democrats will be similarly willing to take advantage of their new trifectas to pass bold reforms.
Viewing the legislative session as a whole, Minnesota Democrats—aligned under the Democratic-Farmer-Labor Party (DFL) banner, more precisely—notched a string of major victories this year. But on areas of justice specifically, they left plenty to be desired, according to Sole, former president of the Minneapolis NAACP and current adjunct criminal justice professor at St. Paul’s Hamline University.
“From what I see, they’re moving the needle. I don’t want to diminish what’s being done,” Sole told The Appeal. “But at the same time, if we don’t really look at cops, courts, and corrections differently, you can try and reform this part of it and try to fix that part of it, but this institution is the actual problem.”
‘We Continue to Lag Behind Other States’
In some new trifecta states, it remains an open question as to how Democrats will use their newly consolidated power. Legislative sessions in Massachusetts and Michigan won’t adjourn until November and December, respectively, and many key progressive priorities are still under consideration.
Massachusetts lawmakers are weighing legislation to restructure the juvenile justice system to include people up to age 20 and restructure school-based discipline. Other bills are seeking to diminish the harms of the criminal justice system by reducing incarceration for technical parole violations and ending life without parole, as well as immigration detention agreements.
In Michigan, state legislators are still working their way through a broad swath of progressive proposals that could involve reforming the youth justice system, expanding off-ramps to avoid incarceration, ending juvenile life without parole, increasing opportunities for resentencing, and strengthening oversight of the state’s Department of Corrections, among other measures.
Maryland’s legislature adjourned on April 10 after passing a suite of justice-oriented bills, including measures to expedite the expungements of certain criminal records and expand the state attorney general’s power to prosecute police for using deadly force.
Lawmakers also eliminated the use of cannabis odor as a sole cause for contraband searches and removed the use of cannabis from definitions of child neglect. But they came up short on a proposal to reduce penalties related to higher-volume cannabis distribution.
In Minnesota, where the legislative session wrapped up on Monday, the more progressive elements of the public safety omnibus bill came about through a concerted effort to take advantage of the Democrats’ current hold on state government. In April, a group of progressive organizations, community leaders, and law professors came together to form the Justice for All Coalition, which presented lawmakers with a list of progressive agenda items.
“When the Senate flipped this year… there was a real opportunity to get work done. Because we worried that everybody would be fighting to get through the same open door, we created the coalition,” Mark Olser, a University of St. Thomas’s School of Law professor and member of the Justice for All Coalition, told The Appeal in an interview.
Many advocates who spoke to The Appeal said they were most interested in the bill’s overhaul of the state pardon, sentencing review, and expungement processes.
“We’re very supportive of the changes to the pardon process,” ThaoMee Xiong, executive director of St. Paul’s Coalition of Asian American Leaders, told The Appeal. Many of Minnesota’s nearly 300,000 Asian Americans are refugees and immigrants who can be targeted for deportation should they be convicted of a crime. Xiong sees the reforms as a potential game changer for the Asian American community, which could protect some people from the immigration consequences of a conviction.
The sentencing review portion of the omnibus bill is also significant, said Kate Kruse, a professor at St. Paul’s Mitchell Hamline School of Law who has been operating legal assistance clinics for the last 30 years. She noted that Minnesota state law had previously lacked a “procedural mechanism” allowing “prosecutors to go back into court and ask for sentences to be reduced.” The new legislation puts that process in place.
“They could do it on their own motion, in response to someone asking them to do it… [but] it doesn’t obligate them to do it,” Kruse told The Appeal.
Separate legislation on expungements for marijuana-related offenses also marks a critical step in the right direction, according to Jon Geffen, an adjunct professor at Mitchell Hamline and director of The Legal Revolution, a Twin Cities-based effort to enable people to earn paralegal and law degrees from prison.
He explained that as many as 60,000 cases will likely go through an automatic expungement process, while felony-level cases will go to a review board to determine if they can be expunged or converted to a lesser sentence.
“You’re going to see a bunch of cases automatically just go away, which is flippin’ fantastic,” Geffen told The Appeal. He added that the new bill is a substantial improvement from the current process, which is “laborious and technical” and can often force people to pay hefty filing fees to clear up even misdemeanor possession tickets.
Advocates are also excited about the Clean Slate Act within the omnibus bill, which established a more streamlined automatic expungement process for certain nonviolent offenses.
However, some feel Democrats didn’t go far enough on pretrial reform. The Minnesota Freedom Fund’s political advocacy arm supported bills that would have eliminated cash bail for certain low-level charges and required counties to report pretrial data annually. Neither of those proposals received hearings.
“This session, the DLF-led legislature has been a nationwide leader in progressive legislation. But on the issue of pretrial justice, we continue to lag behind other states,” Elizer Darris and Mirella Ceja-Orozco, co-executive directors of the Minnesota Freedom Fund, said in a statement to The Appeal. “Now we’ll have to wait another year to close the gap.”
Devil in the Details
Despite the general optimism among advocates about the omnibus bill, some criminal legal reform efforts in Minnesota also raised controversy. Geffen says he spent time working on “problematic” elements within the Senate cannabis bill that would have limited the extent to which expunged criminal histories would actually remain inaccessible.
Under the final omnibus bill and the cannabis bill, the state Bureau of Criminal Apprehension is still charged with maintaining a non-public database of records related to expungements. While these records are not readily available to the public, Geffen expressed concerns that potential employers or landlords could access them if job or housing applicants were to sign a release. That means criminal records could still be uncovered and used against people who’d completed the expungement process.
“Our concern, of course, is that we don’t want any shadow remnants,” Geffen said. “Signing a release for the BCA to turn everything they have over to employers and landlords, even with private databases, that’s just what we’re trying to avoid.”
Geffen says the BCA has assured him that, when it comes to the cannabis law, “the data, once expunged, will be essentially not available to the public,” ultimately rendering it inaccessible to landlords and employers. “Let’s hope that’s true,” he said.
Potential shortcomings in the legislation speak to Sole’s broader concern that Minnesota Democrats have made hollow promises with the omnibus bill. He sees much of what the legislation contained as incremental reforms that do not match the scale of the problem.
“Why would I have faith in this new [parole] committee?” Sole said. “We see this happen all the time.”
Sole noted that former Gov. Mark Dayton, also a Democrat, formed a law enforcement council after the high-profile police killing of Philando Castile, a Black motorist, in 2016. The council was focused on training officers to work with diverse communities. But years later, a Minneapolis police officer murdered George Floyd, sparking state and national calls for more transformative policy change on racial justice.
“What the fuck did we get with that?” Sole wondered.
Ultimately, Sole says many of these reforms are little more than changes at the margins, pushed by politicians who are giving lip service to progressive priorities to help them climb the political ladder, while the real work of transforming the criminal legal system rests on communities.
“Instead of giving [people] services while they’re in jail, how about not having any jails?” said Sole, who describes himself as a prison abolitionist. “I think we could close three in 10 years.”
In the end, Minnesotan Democrats were also willing to bend to the tough-on-crime demands of their Republican colleagues.
The recently passed budget provides sizable funding increases for local governments to spend on hiring police officers and buying new equipment, as well as collaborating with community groups to tackle “rising crime.” The spending boost to policing came even as violent crime has begun to drop in Minneapolis, the state’s largest city.
While some activists say decisions like these are disappointing, they also see them as par for the course.
“I wish I could say I was surprised that the largest line item in the omnibus bill was for the carceral system,” Alvin Akibar, director of the Urban League Twin Cities’ Center for Social Justice, Research, Policy, and Advocacy initiative, told The Appeal.
“But I’ve read U.S. history and I’ve read Minnesota history,” he added. “This is not news.”
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