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Legislative News and Views - Rep. Jerry Hertaus (R)

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A closer look at Restorative Rights in Felony Convictions

Wednesday, February 13, 2019


By Rep. Jerry Hertaus

Criminal Justice reform has been a topic of discussion for several years at the legislature. Several bi-partisan bills have been introduced again this session. Two topics that I have been involved with for a number of years are the Uniform Collateral Consequences of Conviction Act (UCCCA) and Restorative Rights in Felony Convictions. I would like to offer some comments in this update about the latter.


In Minnesota, we rank 47th nationally with respect to incarcerating offenders. On the other hand, Minnesota ranks 6th among the several states for the number of adults under direct correctional supervision. As of last year, more than 120,000 adults or one (1) in twenty-four (24) adults in Minnesota are under supervision by the Department of Corrections. 80% of felons incarcerated in our state prisons are for crimes related to drug and alcohol convictions. It costs more than $32,000 dollars per year to incarcerate an inmate.

The next time that you may attend a concert, wedding or baseball game look at the people around you and know that statistically speaking one in 24 of the people that surround you are under direct correctional supervision. Perhaps someone in your neighborhood or even the parents of your children’s friends. In many, if not most cases, 87 different county prosecutors and hundreds of municipal prosecutors have broad discretion over charges filed or to offer plea deals which are most often referred to as “stays of adjudication”, where a charged criminal offender is offered reduced time or no time of incarceration in exchange for extended periods of probation. Accepting such an arrangement, is often the result of prosecutors’ desire to dispose of burdensome caseloads without the offender knowing the full collateral consequences of accepting such a plea deal or stay of adjudication. That said, I am by no means advocating that the offender is the victim and justice must be served. However, if we believe in forgiveness and redemption; if we believe that smaller government is a good thing; if we believe that the regulatory state and the over criminalization of behavior has been a growing problem; and, if we believe that re-enfranchising offenders into mainstream society is a just cause, then we should support reforms in the criminal justice system.


On this issue, opponents and certain outside special interest groups have expressed many misleading and untruthful statements about the legislature’s constitutional authority on restorative rights. In addition, inflammatory partisan arguments do not promote good policy decisions that should be applied equally to all citizens. Among them are:

  • Claims that the legislature is acting unconstitutionally

    The state constitution permits the legislature to create felony statutes and leaves discretion to the legislature when civil rights may be restored
  • Claims that the state constitution prohibits restoration of civil rights prior to the expiration of any terms of probation

    Concepts of probation are a contemporary tool that did not exist when the state constitution was adopted. The legislature also decides by Statute, Sec. 242.31 when civil rights are restored concerning the possession of firearms. Further, past court precedent (MVA v. Ritchie 2012) has established that the legislature has authority in determining “restored to civil rights” with respect to “guardianship” and the same principle can be applied to “restored to civil rights” concerning felons.
  • Claims that only the Judicial Branch can restore civil rights

    The Judicial Branch interprets the laws created by the Legislative Branch. The Legislature creates the law and the Judiciary upholds or rules on the law. Separation of Powers prevents the Judicial Branch from writing law.
  • Claims that a state constitutional amendment is required to restore civil rights prior to all probation being served

    The clear language of the state constitution leaves the issue of “unless restored to civil rights” to the discretion of the Legislative Branch. Past court precedent has upheld this position
  • Convicted criminals overwhelmingly register as democrats

    Partisan preference in which individuals who may have their civil rights restored to vote is not relevant to this policy decision. Articles and studies performed in other states such as the east and west coast of the United States are not necessarily indicative of the trends in the Midwest.
  • People who are released from incarceration and serving probation are a dangerous threat to society and are inimical to public safety

    If persons who are deemed safe enough to be mainstreamed into society by being released from incarceration, safe enough to return to the workplace and constructively contribute to society and to be attendant to many of the social activities among their peers they are probably safe enough to be in line with the rest of us at the poll booth.



Sec. 1. Eligibility; place of voting; ineligible persons. Every person 18 years of age or more who has been a citizen of the United States for three months and who has resided in the precinct for 30 days next preceding an election shall be entitled to vote in that precinct. The place of voting by one otherwise qualified who has changed his address within 30 days preceding the election shall be prescribed by law. The following persons shall not be entitled or permitted to vote at any election in this state:  A person not meeting the above requirements; a person who has been convicted of a felony, unless restored to civil rights; a person under guardianship, or a person who is insane or not mentally competent.

Specifically, H.F. 40 would restore voting rights to an individual released from incarceration – or upon sentencing if no incarceration is imposed – instead of continuing to bar felons from voting throughout the duration of probationary periods which can, in some cases, span decades. At last count, there are six members of the House minority who have signed onto this bill, and I am among them.

From my viewpoint, this is a moral issue, not a decision that should be made based on partisan politics. If someone has been released from prison and is working, paying taxes and no longer poses a threat to society, should be permitted to have their civil right to vote restored.

Meanwhile, our state’s felony statutes have continually grown from 68 felony statutes in 1858 to nearly 500 felony statutes today, all created by the legislature. Probation was not an instrument that even existed during the earliest days of statehood. Probation is a contemporary tool.

Over-criminalization of behavior has contributed to increasing numbers of felony convictions by having added more than 400 felony statutes since statehood. Through this bill, polling judges no longer would have to wonder if 1 in 24 voters who come through the voting line are eligible to vote. Also, a bright line could be drawn where, if you are behind bars, you cannot vote. If you have been released, you can vote. If you violate your parole, you may go back to prison and lose your right to vote. This issue is a serious one and we are inviting civil discourse. I am certain some people will agree that reform is just and needed. Others may be less accepting.

To the latter, I urge you to consider this:

We are a society that gives people a second chance. Aside those receiving a life sentence, even the most hardened criminals get an opportunity for redemption after they pay their debt to society. Obviously, the most violent of convicted criminals receive the most severe sentences and the greatest durations of prescribed incarcerations. Inferences of equating the more than 80% of non-violent offenders undeserving of this consideration is misaligned. Even the worst of the worst will eventually be released unless sentenced to life imprisonment. If they may slip into recidivism and violate terms of their probation or parole, they are once again likely to be incarcerated again (and in the case of this bill would again be unable to vote). To reiterate, this is an issue which needs to be viewed from a perspective of morality, shielded from the glare of partisan politics.



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