In early April, 27 Democrats and one lone Republican signed a letter to President Joe Biden. Their cause was simple: keep a group of federal prisoners — sent home to wait out COVID — from going back to prison.
Those thousands of prisoners were released on home confinement last year, when leaders worried crowded prisons could create a health disaster. Since then, most of them have led productive lives, the letter said. But a January memo issued in the waning days of Donald Trump’s presidency was set to send many of them back behind bars as soon as the pandemic ends.
“The vast majority of those people on home confinement today have reunited with their families and are working and contributing to society,” the letter read. “They were not told they would have to return to prison and forcing them to do so would be cruel and devastating.”
Among the more than two dozen politicians who wrote to Biden are some notable Democratic Party names: Alexandria Ocasio-Cortez and Ilhan Omar, for example. And tucked into the list was a single, solitary Republican: Rep. Kelly Armstrong of North Dakota.
Armstrong explains it like this: his grandmother was a leading mental health advocate in North Dakota for decades, and he was a criminal defense attorney. He knows plenty about disparities in the system, and why they ought to be fixed.
“If I would have a client who could pay fees or whatever, they get out on a drug charge, the first thing we do is send them to inpatient treatment and say, ‘Listen, you need to get your life together,’” Armstrong said. He believes that if a defendant got connected to the resources they needed — and kept their job and kept out of trouble — they’d fare better in the courtroom.
But that wasn’t always an option.
“On the public defense side, a lot of our clients couldn’t pay for those types of things. And trying to get inpatient, state-sponsored — all of those things — became significantly more frustrating,” he said.
It’s been Armstrong’s approach for years. In 2015, he pushed for revisions to North Dakota’s criminal law, ironing out a technicality in assault sentencing to take pressure off crowded jails and swelling budgets. Since then, he’s been up to much of the same — signing that April letter, civil asset forfeiture reform and more.
"We don't have to be soft on crime,” Armstrong said in March, in a public discussion on drug sentencing disparities. “We just have to be smarter about how we deal with this, particularly with young adults, usually young men, oftentimes disproportionately minorities. There's a way to do this better."
The Minot Daily News, catching Armstrong’s 2019 remarks to a local service club, recalls him summing things up nicely:
“My biggest issues are criminal justice reform and addiction,” he said.
In North Dakota, that attitude fits the moment. Prisoners are winning parole earlier in their sentences; drugs draw lighter punishments, with policies built toward rehabilitation. Today’s criminals are going to be North Dakotans’ neighbors, the thinking goes. Shouldn’t they be good ones? For years, North Dakota’s criminal justice system has been rebuilding itself around the idea.
But that thinking only goes so far. One big reform in the state Legislature this year would have ended bail for misdemeanor charges. That change, advocates said, would have ended a practice that keeps less-wealthy defendants locked up on unproven charges.
“Something needs to happen,” Jackson Lofgren, a defense attorney and member of the state Parole Board, said in January. “Nationwide, more inmates are in our county jails waiting their day in court than there are serving a sentence."
That measure failed as state leaders worried it could mean leaving criminals out of jail and committing more crimes.
“Let’s do bail reform, not bail elimination,” said state Rep. Steve Vetter, R-Grand Forks.
Armstrong has his limits, too. Pressed on whether criminal justice reforms ought to extend to the police, it’s clear there’s a limit to how far he’ll walk with Democrats. Armstrong said he’d like to reform qualified immunity — the legal principle that helps shield police from civil suits — but he also said it can’t be thrown out completely.
And he hardly seems ready to call for the same kinds of big, structural changes to police that Ocasio-Cortez or Omar have called for.
“I think we need to do a much better job of holding bad cops accountable … but at the same time, making sure good cops don’t stay in the car,” Armstrong said.
Next, Armstrong said, he’d like to focus on reforming federal mandatory minimum sentences for first-time offenders. It’s the kind of change that can make the difference, Armstrong said, for a young person with a drug charge from turning their life around or spending the rest of it as a felon.
And he's happy to defend his request that Biden keep those federal inmates released during COVID out of prison.
“Not only is it compassionate, not only does it save money … but it just seems like an appropriate way and almost like a test that we can continue to do these things this way in the future,” Armstrong said.