Legislature reduces misdemeanor sentence by 1 day, with big ramifications for some immigrants

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This article originally appeared on the Minnesota Reformer website on July 3, 2023. You can find the original here.

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The Minnesota Legislature passed a new law that reduces the maximum sentence for a gross misdemeanor from one year to 364 days in prison — a change that seems tiny but will greatly impact the lives of some immigrants.

The one-day change could be the difference between an immigrant in Minnesota paying a fine and serving a short jail sentence — or getting deported.

If an immigrant is sentenced to one year of incarceration for a gross misdemeanor like theft, counterfeiting, obstruction of justice or some violent crimes, they can then be charged federally with an “aggravated felony” — which is grounds for virtually automatic deportation. 

Minnesota law, until Saturday, had a maximum sentence of 365 days for a gross misdemeanor. By reducing the maximum sentence by one day, the DFL-controlled Legislature eliminated an avenue in which federal prosecutors could charge an immigrant with an aggravated felony and raise the risk of deportation.

Amid cannabis legalization, codifying abortion rights and universal meals for K-12 students, the change in Minnesota’s gross misdemeanor sentence largely evaded public attention, but will make a big difference to immigrants in the criminal justice system. 

“It was an issue that was creating really disproportionate consequences for these gross misdemeanor convictions and caused a lot of hardship,” said Rep. Sandra Feist, DFL-New Brighton, an immigration attorney and chief author of the legislation. “It’s one day, but it can make an entire lifetime of difference in these immigration cases.”

The one-day change is another example of the Legislature making Minnesota’s criminal justice system less punitive. Lawmakers passed laws allowing people out of prison sooner if they complete mental health and substance abuse and other programming; capping probationary periods; and easier expungement of certain nonviolent crimes, among other criminal justice reforms.

Some Minnesota prosecutors testified in favor of the one-day gross misdemeanor sentence reduction, including Nobles County Attorney Joseph Sanow. Nobles County is in southwestern Minnesota and encompasses Worthington, which has a large immigrant population thanks to the city’s meatpacking plant. 

Sanow wrote in a letter to lawmakers that deportation for a gross misdemeanor is often a disproportionate punishment. The county attorney said he often sees this problem in third-degree DWI cases.

He gave a hypothetical example: Two Latino men with no prior convictions are arrested for a DWI with the same blood alcohol level that triggers a gross demeanor. Both men get charged. One of the men is from Guatemala on a work visa, and the other is a U.S. citizen.

“The citizen need not worry about being removed from the country, while the worker from Guatemala faces that possibility,” Sanow wrote. “This disparity of outcomes for the same offense is fundamentally unfair.”

Sanow said his office created a policy of capping gross misdemeanor sentences to 360 days, regardless of citizenship, to avoid potential immigration consequences.

In February, the House voted on the bill to reduce the maximum gross misdemeanor sentence by one day. It passed by a 125-0 vote after no debate. The Senate never took it up as a standalone bill because the body didn’t have the time to hear it on the floor, a DFL Senate caucus spokesperson said. It was ultimately in the final judiciary conference committee report Gov. Tim Walz signed into law.

Bruce Nestor, a Minneapolis immigration and criminal defense attorney, said the one-day change will have a dramatic impact on Minnesota’s noncitizens. Nestor said he has represented or provided counsel for a few dozen people who have faced an aggravated felony under immigration law simply because they were sentenced to one year for a misdemeanor.

Even immigrants who have their sentence stayed or don’t serve jail time may be deported. Nestor has had multiple clients with a green card who received a 365-day suspended sentence for theft or assault, and then years later faced deportation when they applied for naturalized citizenship.

“Communities are going to be harmed much more by their deportation than by keeping them here because of the effects it has on their family, school — everything,” Nestor said. “There’s nothing you can do for them other than to tell them, ‘I’m sorry. You were convicted of this offense that had the potential sentence of 365 days, therefore you’re deportable.’”

Although the House passed the bill with zero “nay” votes, Sen. Warren Limmer, R-Maple Grove, called the one-day sentence reduction another example of a “get out of jail free card.”

“Once again Democrats are decriminalizing serious and sometimes violent crimes,” Limmer said in a statement. “This is just more proof Governor Walz and Democrat(ic) legislators simply do not understand the criminal threats in our state.”

Julia Decker, policy director at the Immigrant Law Center of Minnesota, has been advocating for this change for years. She said the change attracted bipartisan support because it leaves decisions about criminal justice in the state’s hands, rather than handing them off to the feds.

“We the state get to decide and not the federal government, and so I think that’s a principle that people on both sides of the aisle were able to understand and agree with,” Decker said.

Decker noted that immigrants could still face other immigration consequences, but being charged with an aggravated felony because of a gross misdemeanor is no longer in play.

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