The Rest of the Story

Just when you thought it was safe for the North Dakota State Legislature to go back into its biennial session, comes the annual notice to States Attorneys about what is being proposed, of course outside the public eye, to monkey around with the criminal stuff in the North Dakota Century Code.

Pat MerrimanBy PAT MERRIMAN DUNN CO. ASST. STATE’S ATTORNEY

And, guess what? All is alive and well over at the Dept. of Corrections which is still apparently claiming, “But, there’s no room at the inn.” Readers will recall that we reported, back on July 5th, that DOCR reversed itself on its outrageous policy decision that they would no longer contact States Attorneys and victims to provide pending release information about inmates before they were released. The outcry from victims, States Attorneys and you guys actually stopped that nonsense dead in its tracks and the “policy” was reversed in less than one week.
So, imagine my surprise when I received a congenial “Hello All” telling me that back on November 21st, a legislative planning phone call was being proposed and to feel free to participate. I was being encouraged, as the new States Attorney for Dunn County, to put in my two cents worth and was blissfully ignorant that factions were seeking to gut both the drug code and judicial sentencing in the name of progressive, liberalism to bring North Dakota “more in line” with other, more enlightened jurisdictions. We were being encouraged to coordinate through the North Dakota Association of Counties and present a united front on anything we saw that caused us alarm in the new session. Enter a little memo authored by the Dept. of Corrections entitled, “Bridging the Public Safety Gap-Myths, Facts & What Works”. A warm, fuzzy little agenda which was touted to be found at www.nd.gov/docr/ which is, of course, the home page for the DOCR’s website. And, I will ignore, for purposes of this article, that I couldn’t find this “agenda” posted anywhere on that home page.
What I did find was the noble pronouncement, “Our Mission is to enhance public safety, to reduce the risk of future criminal behavior by holding adult and juvenile offenders accountable, and to provide opportunities for change.” But, in reviewing the legislative proposals “overview”, championed by DOCR and attached to my email, were some curious proposals. First, a change, whereby, “[the] Court authorizes DOCR to terminate probation as soon as 18 months: Must be written into judgment of conviction or disposition; DOCR must notify court and state’s attorney when invoking this authority.” Hmm, that sounded a bit fishy. You mean, if the court sentences the defendant to, oh, let’s say 10 years on any given case (except a sex offense) but leaves in the possibility of probation, the DOCR can just let ’em back out with a simple notice to the States Attorney and the court? You mean…like the notice you tried to stop last July, right? Or, are we talking about some other kind of notice other than, oh, I don’t know, the mope showing back up next door–“Surprise, surprise, surprise!” That kind of notice, right?
And, how long before this morphs into the DOCR just decides, by itself, when to turn these same offenders back loose in our communities out here? Because as we well know, when this type of “progressive” mentality takes root in a bureaucracy, it never takes a bad turn does it? Second, this same DOCR pronouncement also makes the recommendation that “[a] Court has the ‘discretion’ to place a person on supervised probation with the DOCR in felony cases where the court suspends a sentence except: Sex offenses or sexual performance by children, murder, manslaughter, aggravated assault, robbery, kidnapping, burglary with weapon, felony involving the use of a firearm or dangerous weapon, stalking, a second or subsequent of any domestic violence protection order, human trafficking, child abuse, driving under the influence/ actual physical control/failure to consent to chemical testing.” Well, heck, a judge already has that “discretion” now, so, again, I’m not sure why the DOCR has to be touting that they be granted this discretion again? Sort of the cart before the horse since judges don’t work for DOCR but, vice versa?
Third, the proposal touts, “In felony cases, the court has the discretion to place an individual on probation for up to three years except in the following cases where a period of five years will remain available to the court [a list of specific felonies].” To translate into standard American English from liberalese, “We want to cut the term of supervised probation on most felony cases from 5 years to 3 years.” Why? The judge has the discretion to impose any term of probation for up to 5 years now and it’s really his/her job to decide what is fair and just. Does everybody sentenced to probation get 5 years of supervision. No. So, what’s the pressing need to hamstring judges by cutting their options by 20% at the same time that you are wanting sentences, particularly mandatory minimums, cut too? Couldn’t just be to ease your work load and get these guys back on the street could it?
Four, these guys are proposing that “In misdemeanor cases, the court has the discretion to place an individual on probation for up to 360 days…to avoid complications with the Interstate Compact on the exchange of people on probation or parole.” The court can currently impose up to 2 years. So? Do we really want to align our local punishment with Colorado, Minnesota, or other more liberal jurisdictions? Again, why reduce the judges’ current discretion to control an offender’s behavior, albeit, short of actual incarceration? All of the foregoing nonsense about reducing periods of probation, ostensibly, solely to relieve the burden on DOCR (whose job it is to perform this function, i.e., supervise non-confined offenders) ignores one glaring fact. This is essentially giving a second bite at the apple for an offender to re-litigate his/her sentence. And, totally ignores the fact that, particularly in felony cases, [11], NDCC, allows the court to review a pre-sentence investigation (prepared by DOCR) BEFORE the offender was sentenced in the first place. If the Defendant has done outstanding on probation, he can file his own motion to be released from further supervision, so, why do this automatically (up front) unless it is to lessen the judge’s sentencing options.
The other little dirty, practical secret is that DOCR and defense attorneys are pushing more “house arrest” in lieu of actual incarceration, particularly on “non-violent” drug offenses too. So, you can rest assured that the thief, junkie or drug dealer who used to live next door to you will be wearing his/her ankle bracelet and be back at home ASAP once this process gets rolling. At least that’s my experience over the last 35 years but, heck, I could be wrong up here!
Fifth, the part of the DOCR recommendation that really chapped my backside was my own pet peeve–narcotics enforcement. Under their proposal, DOCR wants to make the following changes to Title 19, NDCC, by “realigning” drug offenses as follows:
•Reduces C Felony possession of non-marijuana drug paraphernalia to an A Misdemeanor (lowers the range of punishment by 80%);
•Reduces the class A Misdemeanor possession of marijuana paraphernalia from an A Misdemeanor to a B Misdemeanor (lowers the range of punishment by 92%); and
•Eliminate minimum mandatory sentencing for drug manufacture or delivery.
Sixth, DOCR is recommending the “Jail Recidivism Reduction Programming” which would “provide funding for the DOCR to collaborate with selected county jails to implement and operate assessment and correctional treatment programs on the county level in an effort to attack recidivism on the front-line (county level)”. In other words, shift the burden of treating these poor offenders from the state back to the local counties where jails and infrastructure, particularly, out here in the oil patch are strained or non-existent. Or, am I missing something here?
Seventh, the most peculiar recommendation of all is the DOCR’s “Correctional Resources Allocation and Reinvestment Plan” which proposes, an “Allocation formula for use of high-end state prison resources. Counties that go over their allocation will be assessed costs by DOCR. Counties that are under their allocation will receive reinvestment dollars from the state to be used on the local level to implement or enhance local correctional treatment resources.” What does that exactly mean? Sounds like the DOCR is arbitrarily going to set a quota for each county, such that, if you send more addicts for treatment than your “fair share”, your county gets to pick up the tab. Again, an apparent attempt to shift supervision responsibility from DOCR back to the local level where, again, there are no rooms at the inn.
So what does all this mean? Well, I had a whiff of the bovine in the warm, smarmy language used by DOCR. There is no such thing as an ‘alternative’ to punishment–the sentence either is, or is not, punishment. Alternatives are merely an ‘inconvenience’. Most of this nonsense is geared up as part of the Barrack Obama/Eric Holder de-criminalization of “non-violent offenders” (read–drug offenders). Liberals just want to smoke, snort or inject their dope in peace and let the rest of us just like it or lump it. Even if Holder is correct that 1% of our population incarcerated and the rates for young black men is disproportionately higher. So what? Folks, I represent Dunn County and, I really don’t care how the Eastern half of North Dakota wants to coddle their criminals. Just stop screwing up our problem out here with your stupid, ill-thought-out solutions which you want to impose on all the rest of us.
Readers–if you don’t want this nonsense to become law for the entire state of North Dakota–I could sure use your help. If you want to express your questions, comments or just want to let the state back east know what you think, the North Dakota DOCR has suggested that we contact Director Leann Bertsch: 701-328-6616 or email at ebertscnd.gov; or Parole Board contact Pat Bohn: 701-328-6664 or email at bohnnd.gov. Other relevant contact information for Dunn County State legislators who will ultimately decide this issue for us in Dunn County in this legislative session: District 5–Sen. Randall A. Burkhard, 701-838-9870, raburckhard@nd.gov, Rep. Roger Brabandt, rbrabandt@nd.gov and, Rep. Scott Louser, 701-852-8151, sclouser@nd.gov; or District 39– Sen. Ben L. Bowman, bbowman@nd.gov, Rep. Keith Kempenich, 701-523-3858, kkempenich@nd.gov, and Rep. Denton Zubke, 701-842-3081. Step up and let your voices get heard!


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