By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
In the most prominent test case to reach federal courts so far, undercover agents urged a coke dealer to cook his drugs into crack, which carries a higher penalty. The dealer obliged because he could make more money that way. (In 1992, Minnesota courts outlawed sentencing discrepancies between crack and cocaine. The Legislature reacted by raising sentences for cocaine to the level set for crack. President Clinton recently proposed narrowing the crack-cocaine gap in federal sentences in much the same way.)
"Drug cops know what the sentences are. They're taught that in school. It's not unusual that they get a guy buried and then arrest him," says St. Paul criminal defense attorney Earl Gray. "What you have, basically, is police officers getting their dream 'cause they can decide what crime to arrest him for, how long he's going to get.
"It's not unusual, it's a whole new world. And it doesn't even seem to offend jurors anymore."
Locally, defense attorneys say police regularly set quotas for their informants. They offer to let someone off or reduce their charges based on the quantity of drugs possessed by the people the informants help them nail. "If you can get three felonies that stick, we'll drop the charges or help you out," is how Swanson describes a typical deal.
In order to prove that he's the victim of sentencing entrapment, a defendant must prove that police conduct in his case was clearly out of line. But it's virtually impossible to think up an undercover narcotics investigation in which it isn't possible for prosecutors to argue, as they did in Gould's case, that they were after the next guy in the food chain.
"No defense lawyer is going to put police on the stand and say, 'Why did you do this this way?'" explains state public defender Charlann Winking, who handled the appeal in a case similar to Gould's that was also recently upheld by the state Supreme Court. "It's virtually impossible for a defendant to get his clients to come in and testify that he's a small-time dealer or only deals marijuana. How would you prove that?"
Ramsey County charged Winking's client, Anthony Soto, with one count of cocaine dealing and asked him to help them nail his supplier, she says. When Soto refused to cooperate, prosecutors added on three more charges based on additional sales Soto made to an undercover cop.
"Everybody knows about it, and everybody says, 'We don't use it to get bigger sentences,'" says Swanson. "The attorney general always charges these things as separate offenses. In Hennepin County, they don't. Ramsey County just charges one, but [adds the others back on] if you go to trial instead of accepting a plea."
"It's an orchestrated effort by law enforcement to raise the ante as much as possible," agrees Minneapolis criminal attorney Frederick Goetz. "If they can turn a small-ante dealer into a large dealer, they will."
Gould's case encapsulates several of the problems with Minnesota's drug laws, which were overhauled in 1989 in an effort to make it easier for police and prosecutors to put more big-time dealers behind bars. Under the old drug laws, there were just two kinds of drug crimes, possession and possession with intent to sell. In order for prosecutors to win long sentences, they had to prove a defendant planned to sell the drugs he was caught with. Judges were responsible for adjusting sentences up or down depending on how much each defendant was caught with.
The new laws include five different categories based on the weight of the drugs a defendant is caught with, as well as his intentions. The end result has been to clog courts and prisons with hundreds of people like Gould, referred to by law enforcement as the user-sellers, the guys who buy and sell just enough to support their own habits.
According to the Minnesota Sentencing Guidelines Commission, the number of people sentenced yearly across the state for felony drug offenses rose 164 percent between 1985 and 1995, to 1,719. During the same decade, the number of arrests rose 155 percent. Drug offenders are more likely than other criminals to have prior felony convictions. Drug offenders convicted of the least serious crimes are most likely to reoffend.
The statistics are most staggering when it comes to the racial makeup of the drug offenders in prison: During that same decade, the number of whites sentenced for drug offenses increased by 56 percent, while the number of African Americans rose 1,023 percent. In 1995, half of all of those sentenced for drug offenses were minorities. Forty percent were African American, as opposed to 24 percent of convicts sentenced for all crimes.
The most obvious reason why the number of minorities doing time has shot up is that drug crimes are so-called victimless crimes. Unlike other offenses, where police are called to the scene of a crime and then investigate, in drug cases police frequently pick a particular community where they will concentrate their efforts and then go out and dig up crimes. The predictable result of the higher number of undercover operations and the tough, new thresholds is that currently there aren't enough prison beds in the state for violent offenders.