Legislature continues prison reform push
Fiscal concerns bring different perspectives together
North Dakota had a prison puzzle.
“We couldn’t build jails fast enough and our jail population was increasing at a really rapid rate,” Rep. Karla Rose Hanson, D-Fargo, said. “We couldn’t arrest our way out of the problem.”
Two legislative sessions later, the judicial reinvestment movement, which focuses on a more holistic approach to rehabilitating prisoners, has had many victories. The first bill signed by Gov. Doug Burgum this biennium, HB 1183, eliminated minimum sentencing laws for second offenses for manufacturing and delivering controlled substances, and on April 1, Burgum attended a State Leaders Roundtable with President Trump to discuss prison reform.
From 2005 to 2014, North Dakota’s population increased by 14 percent, according to data from the U.S. Census Bureau. However, in the same time frame, data from the Department of Corrections shows the state’s prison population increased by 32 percent, with the county prison population increasing by 84 percent.
In 2015, the problem had become too wide-sweeping and costly to ignore. Representatives from multiple branches of state government joined to request support from the U.S. Department of Justice’s Bureau of Justice Assistance (BJA) and The Pew Charitable Trusts to help develop a justice reinvestment approach. The resulting efforts have been largely bipartisan.
Hanson, who serves on the House Judiciary Committee with Rep. Shannon Roers-Jones, R-Fargo, called Jones a “real champion” of reinvestment. Both lawmakers agree that members of the committee and the legislature at large have been able to find much common ground on reinvestment issues.
“Generally, cost is on our side,” Roers-Jones said. “The more that we can do to keep people out of incarceration — when it’s appropriate, obviously — and keep people involved in society, the lower not only the cost to the state for incarceration but also the cost to society.”
Housing a prisoner is an obvious direct cost of incarceration, Roers-Jones said, but there also are ripple effects, such as support the state might provide for a family that has lost its breadwinner or children who are more likely to struggle with mental health or addiction issues growing up with the absence of an incarcerated parent. “I don’t know if I would say the word ‘progressive’ as much as I would say, we’re looking more at the science of incarceration,” Roers-Jones said.
Hanson said she has been impressed with the amount of reform the legislature has been open to. “It was probably prompted by fiscal reasons two years ago, but it’s also the right thing to do for the people,” Hanson said. “There’s something for everyone to like.”
Mark Friese, a Fargo-based attorney at Vogel Law who practices in North Dakota and Minnesota as well as in federal courts, said states have increasingly pursued justice reinvestment in various forms since the late 1990s. Though “the federal justice system is slow to catch up,” he said there has been much progress in recent years on the federal level.
Justice reinvestment encompasses a wide range of reforms, but most focus on finding alternatives to traditional prison time, particularly for incarcerated people with underlying mental health and addiction issues.
“Historically we kind of had to put people in prison to get them access to mental health services,” Friese said.
Last session’s reforms were focused mostly on post-incarceration treatment and monitoring, but in this session, lawmakers were looking to alter the system at different entry points. HB 1258 (eventually rolled into HB 1051) establishes a pre-trial pilot program in three jurisdictions.
This program would change the cash bail system, “putting more weight on risk to public safety and risk of fleeing the jurisdiction and less on this financial factor,” according to Hanson. Hanson said more than 62 percent of North Dakota’s jail population is pre-trial detainees, and this is a valuable time to be offering behavioral health services. HB 1051 was signed by the governor in March.
Roers-Jones said that opposition to bills such as HB 1051, which made it possible for prisoners with violent records to be eligible for parole sooner, do not tend to fall along party lines.
“When there are objections to this type of legislation, it’s a concern that maybe you’re being too lenient or that the pendulum will swing too far to the other direction – that we still have to punish people for doing things that are wrong, and so is this enough punishment?” Roers-Jones said.
Rep. Karen Karls, R-Bismarck, also a member of the Judiciary Committee, did not support HB 1051, and said she stands by her impression of that bill. Karls said she has opposed legislation this session that she saw as decreasing penalties for violent crimes in particular.
Roers-Jones said one large disappointment this session was the failure of HB 1155, which would decriminalize marijuana. After the bill lost in the House 47-43, Roers-Jones said she and other lawmakers have continued to “get some elements of that decriminalization integrated into something so we can start that process.”
On April 5, a floor amendment to HB 1050 in the Senate that decriminalized possessing less than a half-ounce of marijuana or paraphernalia or ingestion of marijuana passed the Senate 37-10. The final version of HB 1050 passed 39-8.
While Roers-Jones said judicial reinvestment should continue to be a goal of the legislature, she’s not sure what the future will look like.
“We have two years to evaluate what we’ve done and how it’s working,” she said. “So I don’t have any specific plans for what I’m going to do next.”