By Dave Olson
FARGO — Headlines about fatal drug overdoses are all too common as health professionals and policymakers here and across the country seek ways to quell illegal opioid use.
But drug use can impact a life without ending it, as even low-level possession convictions can make it harder to get a job, an education or a place to live.
North Dakota lawmakers took steps during this year’s legislative session to reduce the criminal penalties for drug possession, but minor offenses still have life-changing consequences.
“Marijuana possession is going to result in them losing their apartment, and they’re going to lose federally funded student loans,” said Mark Friese, a Fargo defense attorney and former police officer. A drug possession conviction may also prevent someone from serving in the military, or harm careers of those already serving, he added.
Many who find themselves in that predicament are not drug dealers, just small-time users, often young people just getting their adult lives started, Friese said.
“There are tons of these stories,” he said.
The felony: a long-lasting stigma
One of those stories belongs to Delana Brunette.
Seven years ago, Brunette was driving someone else’s car when she was pulled over by a Fargo police officer because the registered owner of the vehicle had a suspended license.
Inside the car, police found a small amount of synthetic marijuana that at the time was legal in Moorhead, where it was purchased, but illegal in North Dakota.
Also found was a pipe containing synthetic marijuana residue.
Brunette was convicted of two felonies for possessing the synthetic marijuana and the pipe.
The charges were ultimately reduced to misdemeanors, but the damage was already done, according to Brunette.
“It’s hard because now it’s nearly impossible for me to find a place to live for me and my kids,” said Brunette, who has four children, ages 8, 7, 6 and 2, the youngest of which Brunette said she gave up for adoption because she could not provide for her.
Her three other children live with her in a two-bedroom apartment she said rents for what a three-bedroom would normally cost.
Brunette said in the past she bounced around from homeless shelters to hotels. She said she begged landlords to give her a chance to prove to them she wasn’t a drug addict, that the court case was a mistake that happened years ago.
“But they still look down on me for it,” said Brunette, who added that finding work has been a challenge, too.
For the past nine years, she has worked as a server. And while such jobs help make ends meet, Brunette said she still dreams about working in the nursing field, even though she knows it may never happen because of her record.
Also tough to think about, she said, are recent changes to North Dakota law. Had the change been in place 10 years ago when Brunette was charged, the counts would have been misdemeanors to begin with, not felonies.
Stuck on a ‘merry-go-round’
Jeff Reitz has heard many stories like Brunette’s.
Reitz is an owner and manager of Grand Junction, a local sandwich shop chain that has locations in Fargo and Moorhead as well as Grand Forks, Minot, Bismarck and Sioux Falls.
Reitz says when someone applies for a job at Grand Junction, “We try not to judge a book by its cover,” adding they understand that life can take a bad turn when good people find themselves in the wrong place at the wrong time.
Vu Truong, who helped found Grand Junction about two decades ago, agreed.
“If we don’t give people a second chance, who will?” said Truong, who estimated that hires involving people with court records work out about a third of the time.
Marijuana possession often results in a deferred sentence, which means a case may ultimately be dismissed and sealed. But Friese said until records are sealed people have a public record, so when they apply for a job, there’s a good chance they won’t get hired.
“It really kind of gets them on a merry-go-round,” Friese said. “They don’t meet one of the requirements (of their sentence), and the merry-go-round spins a little faster, and before they can jump off, they’re in jail.”
Friese said he loses sleep over clients who have done well for a long time, only to find themselves back in his office because they’ve had a “slip.”
“There’s a lot of people who have crawled out of that hole, and they’ve repaired and patched up the mistakes they’ve made,” Friese said.
“But our criminal justice system, we trap people in that level. They throw up their arms and say, ‘Well, I might as well go use drugs with my friends because I’m not going to get a decent job, I can’t get back in school,” he said.
Addicts, not zombies
Life becomes even more complicated for people when felony drug possession is involved. Because a felony is a more serious charge, it’s an even greater obstacle for offenders looking for a job or a home.
In March and April, about 40 percent of the people charged with felonies in Cass County District Court faced at least one count related to possessing a controlled substance.
“I don’t think a lot of people understand how much this stuff goes on,” said Charles Sheeley, a Fargo criminal defense attorney who does a large amount of public defender work.
Sheeley estimated that half of his caseload is drug-related, little of it actual dealers.
“There are times when, I think, there are people who deserve to go to prison, and there are times when I think there are other options,” Sheeley said. “I’m no mental health expert, but I don’t think throwing someone in prison — away from their family, friends, job, whatever else — I just don’t see how that helps things.”
The North Dakota Legislature passed a bill in this year’s session that reduces many drug-possession felonies to misdemeanors.
Assistant Cass County State’s Attorney Mark Boening outlined some of the challenges in an email he sent last year to the Legislature’s incarceration issues committee.
Emphasizing that he was sharing personal opinions and not the views of the state’s attorney’s office, Boening, a prosecutor for more than 30 years, noted that some people may assume the stigma of a felony conviction acts as a deterrent.
“But we are not dealing with rational actors. We are dealing with addicts,” Boening said, adding that the threat of jeopardizing an addict’s ability to work is not enough to stop drug use.
“How do you live in our society without a job?” Boening said, adding: “Addicts are not zombies in our society who must be eradicated, but the human beings for whom we fight the war on drugs.
“Like alcoholism,” Boening said, “addiction can be treated, if not cured. We should stop branding a large virtual ‘F’ for felon in the middle of the foreheads of addicts.”
Making possession of a controlled substance a misdemeanor would limit the rising number of people in state prisons — saving money — and it would increase the likelihood an addict can successfully be treated and rehabilitated, Boening argued.
During this past legislative session, steps were taken in that direction, Deputy Fargo Police Chief Joe Anderson said.
Anderson said one change was to make a first offense for possessing a controlled substance other than marijuana a Class A misdemeanor, instead of a Class C felony. Another change means possessing a controlled substance within 1,000 feet of a public school will no longer enhance the level of an offense. For that to happen, the possession must be ‘in” or “on” the public school property.
Another law change made this year makes the possession of any amount of marijuana a Class B misdemeanor. Before the change, the charge level would increase with the amount of marijuana involved. Now, several pounds of marijuana is still a Class B misdemeanor.
“There’s no secret that the jails are overpopulated, there is a push to not criminalize,” Anderson said. Policymakers “are starting to go down that diversion road of trying to get those recreational users — rather than giving them prison time or jail time — getting them other help.”
Friese strongly advocates for diversion programs.
“Rather than placing people into the criminal justice system because of addictions, we should place them into diversionary programs,” Friese said. Instead of spending more on punishing drug users, he said, “We should be paying counselors and treatment providers and others who can address the underlying issues.”
North Dakota Rep. Kim Koppelman, R-West Fargo, is chairman of the House Judiciary Committee, which worked on the bill relaxing the state’s drug laws.
He said the issue had been on the minds of lawmakers for a number of years and particularly since North Dakota began working with the Justice Center, part of the Council of State Governments that assists governments across the country in grappling with public issues.
Koppelman said lawmakers will be watching to see the effects the changes have on the courts and on people’s lives.
“For years, we’ve been getting tough on crime, and I’ve been part of that,” Koppelman said.
He added that when he joined the Legislature more than two decades ago, there was a sense that hardened criminals were getting off with a slap on the wrist. But the legal ramifications for drug use needed to become smarter, he said.
“Hardened criminals need to be in prison, but people we’re just upset with, or mad at or who made a mistake, maybe there are alternatives. That’s really what this is all about,” Koppelman said.