Dave Krabbenhoft, the interim director of North Dakota’s corrections department, says he’s leading the state prison system as it hits a fork in the proverbial road.
Right now, Krabbenhoft says, his department is on a war footing with COVID. In an effort to keep the virus from tearing through the inmate population, prisoners have been granted parole, placed in community programs, held longer at local jails — and capacity caps at the state’s biggest institutions are way, way down. At the state penitentiary, whose tall fences and guard towers sit just outside Bismarck, a spokesperson says capacity has been slashed by nearly 17%.
It’s a sudden shift, implemented over the past year, that Krabbenhoft says is a public policy preview: an early blueprint for a different way to run the system.
“COVID has demonstrated that we can reduce prison and jail capacities. We can do it,” Krabbenhoft said in a phone interview this week with the Herald. “...I think it can be done without a negative impact to public safety. Granted, I don’t think it happened without stress and without issues when those numbers went down. But I would hope that we could learn some lessons.”
North Dakota’s prison system has been headed toward change ever since Leann Bertsch, the former director of the department, visited Norway in 2015. What she saw — low security, private rooms, little to no violence — convinced her there was another, more humane, and ultimately more effective way to run North Dakota’s prisons. All the state had to do was rebuild its prison system around rehabilitating prisoners.
It’s the visit that helped reshape the state prison system. North Dakota has begun turning away from a war on drugs and alcohol and the crowded, expensive prison system it helped create. Since then, a favorite sentiment around the state prison system has been that these prisoners will someday be your neighbor. Wouldn’t you like them to be a good one?
RELATED: Read the Herald’s award-winning 2019 coverage of North Dakota’s prisons
The idea is to pivot from the tough-on-crime days of the 1980s and 1990s, when leaders took a harder, more punitive line on crime. But if that’s not enough to convince, Krabbenhoft supplies the numbers: it cost roughly $48,400 in the 2020 fiscal year to house an inmate in North Dakota, versus $1,800 to put them on parole. That latter number doesn’t count anti-drug programming and the like, Krabbenhoft concedes, but even that addition wouldn’t make the numbers close, he said.
But while most state leaders like the idea of a more humane, more effective prison system, getting there is proving a difficult public policy dance, with prosecutors and law enforcement raising serious concerns about the unintended consequences of moving too quickly or too far. That’s the case with multiple bills now before the state Legislature — setting parole mandates and changing bail rules and more.
“I think COVID has changed some things for the criminal justice system,” Grand Forks County State’s Attorney Haley Wamstad said. “But it’s also highlighted how strained our criminal justice system is.”
One law, passed as North Dakota sought federal funding in the 1990s, is commonly referred to as the “Rule of 85.” It’s a law that mandates the state’s worst of the worst — convicted for murder, kidnapping, violent sexual assault and the like — must serve 85% of a sentence before winning parole.
HB 1104, before the Legislature now, would add certain sex crimes against children to the list. But it would also slash that critical release number to 65%. Advocates say it’s an important way to make sure that the rehabilitation system works better.
“(It’s) not so much that we want to let our worst offenders out of prison early,” said Rep. Shannon Roers Jones, R-Fargo and a co-sponsor of the bill. Instead, one important issue is that prisoners receive time off their sentence for good behavior, knocking time off the full length of their sentence.
Suddenly, when they arrive at 85% of their original sentence, they become eligible for parole — but they’ve earned enough time off for good behavior that there’s little to no time left to transition them back into society. Advocates also say that it gives the Parole Board plenty of discretion to keep the worst offenders where they belong.
“This just allows a transition out of incarceration back into the community,” Roers Jones said.
Another bill before the Legislature, HB 1123, would be less directly relevant for state prisons and parole, but hugely consequential for misdemeanor defendants at local jails. The bill would end bail for those misdemeanor offenses — allowing them to go free on just a promise to appear before the court at a later date (There are exceptions for domestic violence and defendants who appear to pose a no-show risk).
By a similar token, the bill would also require that for a range of lower-level offenses, defendants are served a court summons, and not hit with an arrest warrant and bail.
Roers Jones, a primary sponsor of the bill, points out that this is a two-pronged step to protect people who haven’t yet been convicted of a crime — especially those who would struggle to post bail. Oftentimes, poor defendants can find themselves stuck in jail for lengthy periods of time, wreaking havoc on their lives, before a court appearance.
“Something needs to happen,” Jackson Lofgren, a defense attorney and member of the state Parole Board, said this week. “Nationwide, more inmates are in our county jails waiting their day in court than there are serving a sentence."
But the devil is in the proverbial details. In written testimony to the House Judiciary Committee, Stephanie Dassinger — appearing on behalf of the Chiefs of Police Association of North Dakota – said that if habitual criminals can’t be locked up, it immediately creates problems.
“One such example occurred over the weekend in Jamestown,” she wrote. “Law enforcement received two separate calls in an eight-hour period regarding an individual breaking into numerous cars and garages. Law enforcement was able to identify the subject of the calls. Upon identification, police realized this individual had been cited twice for shoplifting and had an active county warrant.”
But because of COVID-19 restrictions that mirror the proposed bill, the jail wouldn’t admit the offender.
“That left the police and the public without a remedy to stop or slow down this person from continuing to commit crimes,” Dassinger wrote. “This is just one story. Every police chief in the state could tell you multiple similar stories.”
Wamstad, the Grand Forks County State’s Attorney, added her own range of concerns in a phone interview. For the “Rule of 85” change, she said she worries that dangerous criminals could be released too early in their sentences if the threshold is lowered.
"With all due respect for the Parole Board, they don't do as in-depth of an analysis as the sentencing judge does. Oftentimes, the sentencing judge has sat through the entire trial," she said. “...I think on the most serious, dangerous offenses that we see coming through on our criminal justice system, we need to rely on folks that are digging deepest into the defendants' background."
And while she can’t speak for the statewide state of affairs, Wamstad she said that parole and probation officers in Grand Forks County are worn thin — a point that raises questions about how prepared the supervised release system is to handle additional serious cases.
There are plenty of other bills this session that stand to change the criminal justice system even further. One would keep booking photos confidential, with narrow exceptions, until conviction. Another appears poised to give more inmates access to outside programming earlier in their sentences. They’re all part of an effort to change things within North Dakota’s justice system.
Lofgren, the defense attorney and Parole Board member, stays realistic about these things.
"I think there's a lot of recognition that we have things that are nationwide problems in our criminal justice system, but they exist very much in North Dakota,” Lofgren said. “I think there are a number of people in our legislature that realize that. And they're willing to take the time to advocate for those changes.”
“Unfortunately,” he added, “change comes slow."