Cannabis, harm reduction & beyond: Notes on Minnesota's trailblazing drug law reform

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Cannabis, harm reduction & beyond: Notes on Minnesota's trailblazing drug law reform

27 September 2023
Christopher Winter-Goodwin

By Christopher Winter-Goodwin, IDPC Volunteer

Back in May 2023, Minnesota underwent significant developments in its drug policy. With the Cannabis Finance and Policy Bill, the state became the 23rd State, and 3rd State this year, to legally regulate cannabis for adult use.

Minnesota also became the first US state to decriminalise 'drug paraphernalia' (drug use equipment) and drug residue in the Omnibus Judiciary and Public Safety Bill. Both of these laws took effect on 1st August 2023 and contain significant moves to a more rational, evidence-based approach to drugs within the state. For a broader look at jurisdictions around the world introducing decriminalisation, take a look at the interactive Drug Decriminalisation Across the World map.

In the sections below, we explore the impacts on people who use drugs, particularly cannabis, and harm reduction policies and practices.

What’s happening with cannabis?

Cannabis possession will be legal with thresholds set at 2 ounces (56.7g) in public and 2 pounds (0.9kg) in private. Home cultivation will be allowed with 8 plants total, but only 4 flowering at any one time. Possession and cultivation above these levels will still carry penalties.

Cannabis retail stores will also be allowed to open. Licence applications are set to open in 2024, with the first licenced stores expected in 2025. Measures designed to redress the harms of prohibition mean that ‘social equity applicants’ (people and communities disproportionately affected by cannabis policing) will be given priority access to licences. In 2020, minority groups accounted for 64% of those incarcerated for cannabis offences in Minnesota, and the Red Lake Nation, which shares geography with Minnesota, seems set to become the first Native nation to establish a legal retail dispensary.

Also in the name of social equity, an estimated 60,000 misdemeanour cannabis possession charges are to be automatically expunged, including those of non-citizens. Criminal records are known to have deleterious, long-lasting impacts on people's life chances. Expungement goes some way to repairing these harms. In the case of Minnesota, the person's record will be sealed, meaning the related information will not be made publicly available. This type of automatic expungement is preferable as it places the burden on state authorities to identify eligible individuals, meaning everyone benefits equally and no one is excluded through an inability to afford associated legal costs.

The Bill doesn’t stop there. A raft of other features includes removing the US$200 fee to enrol in the State’s medical cannabis programme, expanding access to those who wish to use it.

Over US$3 million is being allocated to the University of Minnesota to establish a Centre for Cannabis Research within the School of Public Health, studying the effects of social equity, education and decriminalisation, as well as the effects of cannabis use on public health. In apparent lesson-learning from other legalising States such as California, taxes will be capped at 10% to remain competitive with the illicit market.

While these are all positive steps, the Minnesota legalisation isn’t perfect. The automatic criminal record expungement only covers misdemeanour or petty misdemeanour possession offences. This is because in the state's legal system felony offences cannot be easily sorted by the type of drug involved, and so felony cannabis offences will have to be assessed on an individual basis before a decision is made whether to expunge or resentence the offence. Opening the possibility for some to remain burdened by criminal records.

Positive steps in 'drug paraphernalia' laws and harm reduction policy

Drug policy reform in Minnesota also made significant strides regarding tools for drug use and measures to tackle the ongoing overdose crisis. Previously, possession of drug-use tools meant a petty misdemeanour charge while those containing drug residue could lead to a gross misdemeanour or felony charge. As of August 1st, the Omnibus Judiciary and Public Safety Bill decriminalised these actions, making it the first state in the US to introduce such changes. The drawback to this legislation is that, unlike with cannabis, these changes are not retroactive. Those with existing charges and convictions will continue to be punished for actions that are no longer crimes, perpetuating the injustices of the drug war.

Like much of the US, drug poisoning and opioid overdose in Minnesota continue to rise. From 2020 to 2021, opioid-involved overdose deaths increased 43%. In response, the State has significantly reformed its harm reduction policy, legislating for the provision of needle-and-syringe programmes and safe injection equipment; greater distribution of harm reduction information on safe injection practices and overdose prevention; links to mental health and social services; treatment referrals; blood-borne virus testing; and the establishment of safe consumption sites, making Minnesota the second State to provide these life-saving services.

The Minnesota legislature has also taken further steps to tackle overdose rates by mandating that schools must carry at least 2 doses of naloxone and the requirement that every on-duty police officer carries the overdose reversal medication. Funding will also be given to developing an overdose surge alert system intended to warn drug users through text messages of spikes in overdose rates.

The downsides

Not all changes are positive, however. A key drawback to the Judiciary and Public Safety Bill is the increase in criminal penalties for fentanyl possession and sale. Senate File 2659 ups the penalties for first and second degree fentanyl possession and sale, bringing them in line with the penalties for heroin.

The 2016 Drug Sentencing Reform Act established new thresholds for drug possession and sale offences, giving heroin the strictest thresholds. It seems that lawmakers did not anticipate the arrival of fentanyl as there is no mention of it within the Act, and as such it has been subjected to greater threshold amounts.

The new legislation equalises the sentencing thresholds for heroin and fentanyl possession and sale in the first and second degree; creating a potential net widening effect and bringing more people under the remit of the criminal legal system.

These changes have been pushed for by the Minnesota County Attorneys Association and law enforcement, as well as families that have lost someone to fentanyl overdose. Ostensibly this is to protect users and those with substance use disorders and enable police to ‘adequately’ punish sellers.

From an emotional standpoint, the desire to feel retribution may be understandable. Fentanyl contamination has resulted in a massive increase in overdose deaths across the US. But, increasing criminal penalties will not fix this. Such reactionary responses have been tried many times over, consistently failing in their objectives. Increased incarceration has been found to have little impact on drug use, and in some cases has increased crime.

In conclusion

While many of these measures are a step in the right direction, in many ways they fall short of what is needed to fully address the harms incurred by Minnesotans as a result of the ‘war on drugs’. The decriminalisation measures are far from the gold standard advocated for by IDPC. Drug use remains criminalised, allowing for the continued encroachment of police in the private lives of drug users and the perpetuation of stigma.

Despite improvements to harm reduction policy, drug users are still subject to an unregulated and adulterated drug supply. There is enough evidence to pilot safe supply programmes, highlighting their efficacy in reducing overdoses and hospitalisations and increasing drug users' social well-being and stability. Such programmes could be vital in responding to the ongoing public health emergency across North America. However, the conversation about safe supply in Minnesota did not make it to the legislature.

Similarly, while cannabis reform in Minnesota meets some of them, it by no means meets all of IDPC’s Principles for the responsible legal regulation of cannabis. While some action is taken to address social equity, little mention is given to gender and discrimination against women in cannabis cultivation. And, although priority licence applications are to be awarded to certain groups, it appears that no effort is made to seek the input of people currently involved in the illegal market and to aid them in transitioning to the new legal market. And while in drug policy reform you have to hold on to the wins, it’s clear that Minnesota has more work to do.