Local prosecutors and judges say legislative changes and discussions intended to lead to the reduction in the number of Minnesotans sentenced to jail and prison is proving effective.
While Steele and Rice County’s lead prosecutors believe the judicial system is working well, State Public Defender Bill Ward, who oversees the Minnesota Board of Public Defense, says the pace of reforms is not coming quickly enough and leaves many who are accused of crimes across the state facing lifelong consequences for relatively minor offenses, pleading guilty to crimes they never committed just to escape harsh prison sentences.
‘We have a long ways to go’
Ward, who oversees a department with 10 offices across the state and nearly 800 lawyers who handle 150,000 cases per year, framed the issue as a problem with the criminal courts system. The approach of the criminal justice system in previous decades has created a generation who have a criminal backgrounds, but who should instead be subject to fee-free diversion programs as a way to deter criminal actions, he said, adding that the only substantial progress in criminal justice reform work has been agreement about the need to sentence fewer people to prison.
“We over criminalize too many issues,” he said.
Ward noted that more than 100,000 people in Minnesota are on probation along with the 8,000 to 10,000 in prisons statewide. According to the nonprofit Prison Policy Initiative, approximately 0.7% of the U.S. population was either in a federal or state prison, or local jail in January 2020 — 698 per 100,000 people. According to the nonprofit, 20% of the world’s incarcerated population resides in the U.S.
Ward said approximately 92% of criminal cases in Minnesota result in a plea agreement, a statistic he said, “in dozens and dozens and dozens” of cases includes innocent people who only plead guilty after having already lost their jobs, facing other adverse conditions and fearing lengthy prison sentences if they go to trial. Anyone who doesn’t see that reality “is fooling themselves,” he said.
“It’s heartbreaking as a person,” he said.
Ward suspects the high number of incarcerated people to have a cultural component, but also due to “knee jerk” societal reactions to rare instances when a particularly egregious crime is committed by someone who has been released from custody.
Ward also views the high prison population as an extension of Jim Crow laws and the war on drugs. Both have had a disproportionate impact on Black Americans. According to the U.S. Bureau of Justice Statistics, Black males accounted for 34% of the total prison population in 2018. In 2000, Black men made up 6.1% of the total U.S. population, according to the U.S. Census Bureau.
To Ward, the significant decrease in the prison population during the pandemic to stop the spread of the virus without a corresponding statewide crime wave have shown that the pre-COVID-19 jail population was too high. In Minnesota, 9,381 people were in prison in January 2020. A year later, that number decreased to 7,255.
“We have a long way to go,” he said.
‘The fines are not unreasonable’
Steele County Attorney Dan McIntosh said the county is focused on finding long-term solutions for defendants in the criminal justice system through probation services, jail programming and other work. A new jail-based workforce development program in Steele County is intended to allow inmates to successfully transition to society once they are released. Also, the Owatonna-based Crisis Resource Center offers community education programs.
Rice County Attorney John Fossum, a former public defender, said one advantage of Minnesota’s judicial system is that it does not rely on fines to raise public defender revenue as states like Missouri and Louisiana do, nor does it send people to prison for not paying off fines. The most common fine Rice County defendants face is one for $50 with a $75 surcharge and a $10 law library fee. The homeless or indigent can have their fees waived. Those who can pay more sometimes do. To Fossum, judges make sure they fairly sentence and levy fines against defendants.
“Our system is the way the system is supposed to work, and the fines are not unreasonable,” he said.
Ward disputed that, adding that bail and court fines have a disproportionate impact on the poor. He said that approach stands in contrast to the original intention of bail, which is not meant to penalize a defendant, but ensure their return to court. He believes court fines and fees create “a vicious cycle.”
In many instances, he said, clients who can’t afford to bail out of jail later plead guilty and are sentenced, lose their license and are unable to pay fines needed to regain driving privileges. Those defendants, often out of necessity, begin driving again and continue being arrested for driving without a license.
Those with a felony conviction face additional hurdles in rejoining the workforce. Many jobs, from nursing assistants to assisted living facility workers and hair dressers aren’t open to anyone with a felony conviction.
“It’s pretty vicious,” he said of the court system’s impact on the accused.
McIntosh noted that every fine in Steele County can be worked off through community service or credited for attending programming such as treatment, mental health appointments, parenting classes, and other work. Also, people who have lost their driver's licenses based on repeated violations can enter Driver's Diversion to get their license back and consolidate fines. McIntosh said the only people in Steele County held in jail before trial are those deemed to pose a direct public safety concern through assault, DWI, criminal sexual conduct and other charges.
"Each defendant has a choice on how they address any fine," he said. "Some people have more time than money and they are able to satisfy fines with their time instead of money and can do so in a way that benefits themselves in the process."
Throughout his six years as county attorney, Fossum said there’s been “a slight decrease” in the number of cases he’s seen and the state’s prison population, attributing those drops to recent major revisions to drug statutes that reduce severity levels and sentences for certain offenses, and place a greater reliance on specialty courts focusing on addicts and veterans facing legal problems. Even with that, Fossum said defendants must obtain a GED, remain off controlled substances and have a job to complete those programs.
Though Minnesota has been cited as a state with one of the lowest incarceration rates with a relatively high number of probationary sentences, McIntosh noted there are still racial disparities in sentencing and in the general prison population.
‘We are moving in a better direction’
During the 2019-20 Minnesota Legislative session, a bill loosening restrictions and giving judges greater latitude in reducing bond, was proposed but has not been implemented. In those cases, the court would have been required to “impose the least restrictive release conditions possible,” according to the American Civil Liberties Union. The bill also requires a review if a defendant is in jail for more than 48 hours after the court imposes a financial condition.
District 20B Rep. Todd Lippert, DFL-Northfield, said he doesn’t support mandatory minimum sentences. Currently, assault against a peace officer carries a mandatory minimum 10-year sentence. Other mandatory minimum sentences are triggered by first-degree burglary when a home is occupied, some drug, DWI and firearm offenses, and convictions relating to sex offenses.
“No one should be defined by the worst mistake of their lives,” Lippert said. Instead, he called on options such as Veterans Court or treatment courts to be utilized for certain offenses.
“We deserve second chances, and our societies and communities are going to be better off,” Lippert added.
Fossum noted that Minnesota’s mandatory minimum sentences are not as stringent as in the federal system, where such penalties can range from 10-30 years. However, even those standards have decreased since the 1990s due to pushback from lawyers, defendants and judges.
Third District Court Judge Joseph Bueltel, who’s based in Owatonna, noted that judges still have leeway to depart from mandatory minimums but can only do so when the defendant is deemed “particularly amenable” to probation.
Speaking as a former pastor and current legislator, Lippert said conversations with judges and correctional leaders have proven fruitful in moving changes to the judicial system forward. However, he said inmates need more help in re-entering society or when they are in jail while undergoing mental health challenges.
“We are moving in a better direction on how we are thinking about this,” he said.
‘We’re concerned about it’
Bueltel noted the pandemic is worsening delays victims and the accused already faced. Once the pandemic hit, those associated with the justice system had no platform to work off. In the months following its onset, Zoom hearings have taken a prominent role in ensuring due process and fair proceedings, but that hasn’t eliminated the case backlog.
Until May 1, jury trials can take place only if the defendant demands a speedy trial or if it’s a felony. Even then, officials say social distancing guidelines will continue to limit the spread of COVID-19. All that makes Bueltel hyperaware of how difficult it is to balance the need to hear cases promptly with public safety interests.
“We’re concerned about it,” he said. “We obviously want to handle those cases that have not been heard as of yet.”
Minnesota judges like Bueltel rely on sentencing guidelines that take the defendant’s criminal history and the severity level of the offense, a statewide system he said is intended to ensure equity in sentencing. Sentences of probation and no jail time typically include defendants attend chemical dependency and/or mental health treatment, regular meetings with probation officers, and other requirements.
Even with that, Bueltel said he sees successes and failures.
“It ultimately comes down to the individual defendant,” he said. “Totally predicting how someone is going to respond in a probationary program is difficult.”
The emerald ash borer is ravaging Faribault and as many as one in three trees in city parks could be at risk, according to a report from Faribault Parks and Recreation Director Paul Peanasky.
An invasive species native to Asia, the ash borer first arrived in the U.S. about 20 years ago in Michigan, most likely through wooden packing material. Barely a half-inch long, the pest is small but devastating and is now ravaging ash trees in more than 30 states. Identified by its metallic green color along with its “D” shaped emergence holes, the borer traditionally invades a tree by constructing chambers under its bark. They then plant their larvae inside the tree, and those larvae feed under the bark, disrupting the tree until it dies.
The pest first came to Minnesota more than a decade ago, and Peanasky wanted to get ahead of it. At the time, he asked the council if it wanted to cut ash trees down or try to save them with injections, a potentially costly but sometimes successful alternative.
The stakes were high because with approximately 1 billion ash trees, Minnesota has more than any state in the country. Approximately 15% of Minnesota trees are ash, but in Faribault that figure is more than double at 31%.
Despite the incredible value of Faribault’s ash trees, the council at that time decided that it would likely cost too much to save them. Ash trees on private property will be the responsibility of their owner to deal with, though the city will help to identify them.
The decision to remove the ash trees instead of trying to save them was supported by the council again on Tuesday evening. As Peanasky noted, the treatment, pricey injections, must be done yearly to ensure continued survival of the tree, with cost determined by the tree’s size.
In addition, injections must start before the tree is irreversibly damaged. University of Minnesota Agricultural Extension Educator Claire LaCanne said that by the time a tree has lost or is losing more than 50% of its canopy, it’s essentially too late.
The ash borer was first discovered in town by city staff more than a year ago, but investigation was limited by the COVID-19 pandemic. In January, a study done by Peanasky and Department of Agriculture staff identified more than 50 city trees infested with the ash borer.
Found in both Faribault and Medford, the infested trees pose a risk to ash trees within 1 mile. LaCanne said that over the summer, ash borers are expected to fly within roughly that radius in search of new trees to devour.
Faribault hasn’t planted any new ash trees since 2009, but the city will now need to start taking down dying trees in a hurry to avoid any safety and legal risks. Peanasky noted that dying ash trees are known to be brittle and heavy, posing a danger to those under them.
Those concerned that their tree may be infested have the choice of contacting the city, the Department of Agriculture or a tree care professional. Online, information is available at the MDA’s website — mda.state.mn.us/eab — to help homeowners identify the telltale signs of infection.
While the ash borer’s metallic green color may be eye catching, there’s several other beetles that have similar characteristics. More telling may be a propensity of woodpecker damage, as woodpeckers are known to crave ash borer larvae.
Owatonna and Northfield are not yet part of the infected area, but the Faribault/Medford infestation has triggered quarantine restrictions under state law, which bar transporting untreated firewood out of both Rice and Steele counties.
Jacob Froyum, a local forester with the Minnesota Department of Natural Resources, said that the unfortunate turn of events is something he’s anticipated for years. However, he says it will be particularly devastating for Minnesotans.
“We’ve seen it coming for a number of years, it’s a big problem because ash is one of the most common boulevard trees in our area,” he said. “Property owners and municipalities will be deeply affected by it.”
In a potential blow to Rice County’s efforts to maximize development along its I-35 corridor, Faribault’s City Council has indicated it’s not interested in expanding its city limits or extending city sewer and water north of County Road 9.
At a Tuesday evening work session, councilors instructed city staff to write a formal letter to the county clarifying that while Bridgewater and Forest townships are free to pursue development in areas along the I-35 corridor, it isn’t in the city’s plans.
The county has made significant investments in infrastructure along the corridor with the aim of making it more attractive to business and industry. That includes a recently completed reconstruction of a 2.8-mile stretch of County Road 46, the interstate’s western frontage road. After delays, County Road 76/Baseline Road, which serves as the eastern frontage road is expected to begin a two-year reconstruction project this spring. The county is also backing a revamp of the interchange at County Road 19 and a new interchange at County Road 9.
During public hearings on the county’s Comprehensive Plan, City Planner Dave Wanberg submitted comments to the county expressing concerns about potential development in the area given the difficulty of delivering water and sewer. In general, Wanberg noted that only properties within city limits have enjoyed access to city water and sewer. The council has discussed deviating from that informal rule on a number of occasions, but about 100 households on Roberds Lake’s sewer system remains the only complete example.
The council expressed a willingness to provide water and sewer for the now-stalled Wolf Creek Autobahn project in the proposed development area. Murray cited that as another outlier, a “once in a lifetime project” too large to accommodate within city limits.
In more normal circumstances, city staff would strongly prefer that growth take place in a planned manner within city limits. Still, it’s difficult for the city to say no to expansion, particularly when it’s a big project like the $40 million investment made by Daikin Applied.
While south of County Road 9, Daikin’s new facility sat outside of existing city limits at the time. Though the location may have provided benefits to Daikin such as lower land costs, Murray noted that led to an arduous annexation process.
“It would have been a lot easier if it had been in city limits,” Murray said. “Trying to have orderly development and growth creates a lot less headaches for the city.”
While the Daikin project was eventually made to work, Murray said that the city might need to say “no” at some point if a developer’s demands are simply excessive. However, annexation is likely to continue to be needed due to a shortage of industrial land in city limits.
In its own Comprehensive Plan, the city designated land for future industrial development, which was incorporated into the county’s plan. The southwest part of the city near the I-35/Hwy. 60 interchange is currently its primary focus.
Despite that, much recent development has taken place in the northern part of the city. For shipping purposes, companies like Daikin, SageGlass and Trystar could benefit from a long-proposed I-35/Hwy. 9 interchange, which is backed by state Sen. John Jasinski and seems to be gaining momentum at the capitol.
As Murray has noted, the potential interchange would also ease traffic issues significantly at the city’s busiest intersection. In 2018, the intersection of I-35 and Hwy. 21 was traveled by 14,000 vehicles per day, and that number has continued to rise.
City staff have shifted its development focus away from north Faribault in part due to its wetlands, steep hills, utilities and other “encumbrances.” However, the interchange along with a proposed revamp of the I-35/Highway 19 interchange near Northfield could boost businesses along the county’s development corridor.
Community and Economic Development Director Deanna Kuennen worried that unless the city were to provide clarity, some businesses could make plans to build in the county’s development area contingent on access to city water and sewer.
“A prospect doesn’t pay much attention to incorporated boundaries,” she said. “They see our map, but then they see the other map with the entire corridor… and then the city gets pulled into a discussion where the company will walk (away) if you don’t extend (water and sewer).”
Faribault isn’t the only local government entity which has raised concerns about the county’s proposed development corridor. Wanberg noted that Forest Township also submitted several comments raising concerns about the potential for rapid industrial growth on its land. The Northfield City Council has also come out against development in that area.
On the other hand, Bridgewater Township has embraced potential development, highlighting land in its southwest corner that would be in close proximity to a future I-35/Hwy. 9 interchange for potential development.
Glen Castore, chair of the Township’s Board of Supervisors, has long said that the area is ideal for industrial development not only due to its proximity to I-35, but because it contains a railroad and gravel pit — not territory suitable for farming. While a specific area has not yet been identified for the development, area landowners have been approached by several interested developers, and recent talks with one in particular suggest that if the area is rezoned, potential development could move along quickly.
Castore isn’t surprised by the city’s position, and sees it as wise. He said Bridgewater’s board has always been clear that city water and sewer are not likely to be available for a developer, even turning away a potential developer that would have needed the services.
County Board of Commissioners Chair Jeff Docken also wasn’t surprised by the city’s position. Though the decision to market the I-35 corridor for development was made before his time on the board, Docken said that as far as he knows the expectation has typically been that potential developments would need to have on-site water and sewer.
“It’s certainly understandable that they don’t want to extend services beyond their city limits,” he said. “They have properties that are developable even within annexed city limits, so it’s logical to ask why they would extend services if they’re not going to get the tax base.”