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Early results mixed for criminal justice reform effort

GRAND FORKS — Changes made to North Dakota law this year to reduce incarceration rates and penalties for drug users have resulted in a sharp decline in felony drug possession charges in Grand Forks, but have yet to have a definitive impact on the overall number of felony charges filed.

When House Bill 1041 was signed by Gov. Doug Burgum, laws regarding drug possession became less severe. Possession of any non-marijuana drug went from being a Class C felony to a Class A misdemeanor for first-time offenders. The bill also moved toward sentence reduction and substituting probation for incarceration for low-level offenders without criminal history.

So far, Grand Forks defense attorneys say not much has changed.

"I've seen, at this point, no difference," defense attorney Ted Sandberg said of the new law's impact on the northeast central district court.

The Grand Forks State's Attorney's Office did not file a single Class C felony of a controlled substance charge from August through October this year, according to legal services coordinator Darlene Jensen. The office filed 48 such charges in the same period in 2016.

But overall, felonies in Grand Forks during those three months are up over the same period last year. The State's Attorney's Office filed 142 total felony charges from August through October 2017, up from 117 during that period in 2016.

The Burleigh County State's Attorney's Office filed 50 Class C felony possession of a controlled substance charges from August through October this year. Burleigh prosecutors filed 97 of those charges in the same period of 2016.

That reduction did not, however, lead to a reduction in overall felonies charged. From August through October, Burleigh County filed 303 felonies this year. In 2016, they filed 278 felonies during that three-month period.

Through October, the Burleigh County State's Attorney's Office has filed 1,765 felony charges, putting it on pace to surpass next year.

The Cass County State's Attorney's Office said it could not fulfill an information request, but said its numbers resemble figures seen in Burleigh County in terms of reductions in felony drug possession charges.

Out west, one county is seeing a sharp drop in felonies charged since the new law went into effect.

Ward County filed 80 felony controlled substance possession charges between August and October 2016. This year, under the new law, they've filed just 18. Ward County has seen a large drop in overall felonies since the law changed. From April through October 2017, Ward prosecutors have filed 612 felonies, 180 fewer than the 792 felonies filed during that time in 2016.

Sandberg said reducing first-time drug possession from a felony to misdemeanor is essentially just reducing the charge before a sentence deferment, which is a common outcome in felony possession charges, and that it doesn't affect the most serious drug users.

"Where it is going to make a profound impact, ultimately, is in the lives of the college students," Sandberg said. "Those are the ones who just get hammered, because they make a mistake and get hooked on some kind of pill or drug and it becomes a C felony."

One group who might be feeling the effect is police trying to get information on dealers from drug users.

"I think it's going to have an impact maybe more on law enforcement, and I think they're a bit edgy about it," Sandberg said. "Because when somebody has a felony over their head we can always reduce it down to a misdemeanor in some way shape or form."

Sentencing changes

House Bill 1041 mandated probation over incarceration for Class C felony and Class A misdemeanor charges in cases without aggravating factors and defendants with low criminal history.

But Sandberg said nonviolent felons have not been pushed toward the state prison system in Grand Forks for a long time, and despite some excitement from defense attorneys, the law was largely addressing a problem that didn't exist.

"In North Dakota, I personally thought they were already pushing people toward the probationary route," Sandberg said.

Peter Welte, a lawyer at Vogel Law Firm and former Grand Forks County State's Attorney, said the new law's outcomes will often depend on individual prosecutors.

"The law is a blunt instrument and the prosecutor holds that charging decision in their hands, and it's something that should be considered in a very circumspect way before it's used," Welte said.

Welte said his former office has always been judicious when charging out cases. He thinks some prosecutors may glance at the law when deciding what to charge.

"When something's charged out you try not to be outcome-oriented, but I think what happens with a bill like this is when you're making the charging decision, you can't help but taking a look at 'where is this going to end up, based on the new law?' " he said.

Sandberg said Grand Forks has long been considered a reasonable district by defense attorneys.

"In Grand Forks, the prosecutors, the court and defense attorneys are all independent," Sandberg said.

As far as caseload goes, defense attorneys say they've seen few changes.

"I think we're busier here than we've ever been," Welte said.

A potential tradeoff in the new law's emphasis on sentence reduction is law enforcement seeking new venues to prosecute bigger cases, according to Sandberg.

"I have seen an uptick in people being brought in on federal charges under the idea that 'Maybe we're not going to get as harsh a sentence under state court or we're not going to be able to continue our drug investigation in the state court,' but if there's a federal connection and they can make that connection than they're going to go into the federal system," said Sandberg, who handles cases as a public defender in U.S. District Court.

He thinks the Legislature may end up back at the drawing board next biennium, finding the law hasn't really changed the way justice is administered in North Dakota.

"I don't know that it's anything more than an attempt to reduce costs at the department of corrections," Sandberg said.