North Dakota bill requiring inmates to serve 85% of prison time draws heated, lengthy debate

BISMARCK — A North Dakota bill that would ensure defendants serve at least 85% of their sentences drew hours of impassioned testimony and debate over whether it would deter crime and promote public safety or simply crowd prisons at a high cost.

Over the course of several hours, the North Dakota Senate Judiciary Committee heard testimony Tuesday, Jan. 21, and Wednesday for and against

Senate Bill 2128.

Attorney General Drew Wrigley

proposed the legislation,

which would require offenders to serve 85% of their sentence before they qualify for release, also known as “truth in sentencing.”

It also would ensure sentences for resisting arrest, simple assault on a peace officer and fleeing are served on top of other crimes. The minimum sentence for resisting arrest would be 14 days in jail, while assault and fleeing would get at least 30 days.

The bill is Wrigley’s

second attempt in as many legislative sessions

to set minimum sentences. Language has been cut back from the bill in 2023, which went through a whirlwind of changes before its ultimate defeat.

The main difference is the 85% rule, which Wrigley said would create across-the-board reform.

“Senate Bill 2128 offers you the opportunity to right this wrong, which has evolved over years, and to bring truth to sentencing transparency,” he said.

Testimony got lengthy and heated, mostly on Wednesday when opponents of the bill spoke. Studies suggest minimum and truth in sentencing laws do little to reduce crime.

“It’s just a failed policy,” said Travis Finck, executive director for the North Dakota Commission on Legal Counsel for Indigents.

It’s unclear how much the bill will cost, as amendments are expected to reduce initial estimates.

The bill would eliminate parole eligibility for every North Dakota prisoner, said North Dakota Department of Corrections and Rehabilitation Director Colby Braun. Only those who do not get early release for good behavior and exceed 85% would qualify, he said.

“It ignores research and places the fiscal burden on taxpayers by focusing solely on prison capacity while eliminating reentry opportunities for most adults in custody,” Braun said.

Crime has increased over the years, Wrigley said in arguing that his bill would hold those who confront law enforcement accountable. Fleeing, resisting and assault on officers often is served concurrently with other offenses, he said.

“It is a freebie, and it is a slap in the face to every man and woman who wears a uniform in this state that has watched misconduct toward them increase over the last decade or more,” Wrigley said. “All our legislation asks is for that to not be a freebie.”

The North Dakota Chiefs of Police Association and North Dakota Peace Officers Association supported the bill.

Bismarck Police Deputy Chief Jason Stugelmeyer said he has noticed a dramatic increase in officer assaults since 2020. He said the streets are more violent than when he started policing 24 years ago because people are not afraid to confront officers.

“Thank God, it’s not serious most of the time, but it’s crazy,” he said. “I sometimes hear we can’t arrest our way out of it, and maybe some of that is true, but we need a deterrent.”

Fleeing law enforcement also has increased significantly, Stugelmeyer said.

Finck noted Bismarck has a limited chase policy. Defendants know if they flee at a high rate of speed, police will terminate the chase in some instances, he said.

That suggests suspects flee because they think they will not get caught, not because they know they will not be punished.

The public thinks there is “truth in sentencing,” but defendants are serving a fraction of their punishments behind bars, Wrigley said.

“There is precious little predictability,” he said. “Forget about truth in sentencing.”

Truth in sentencing is needed to ensure punishments are being served, Assistant Burleigh County State’s Attorney Dennis Ingold said. Among several examples, he noted that a defendant he prosecuted got a two-year sentence for bringing drugs from Michigan to North Dakota.

The defendant only served 55 days behind bars, Ingold said. That included 20 days in jail the defendant served while awaiting sentencing, the prosecutor said. The defendant spent 35 days in prison before being moved to a halfway house, Ingold noted.

“If you look at true days served, that’s 7.5%,” Ingold said.

The DOCR would count the amount of time served as 50%, since he served six months in the halfway house plus early release time for good behavior, Ingold said.

“I know the argument is going to be that these are outliers, but these are real cases,” he said.

Data from the DOCR suggests the average time an inmate serves at one of its facilities is 50%, but that includes prison and transitional centers.

Early releases happen because North Dakota does not have a minimum standard for how much time must be spent behind bars, Ingold said.

“From a prosecutor’s perspective, we are using up a lot of resources prosecuting people who are still subject to DOCR sentences at the time that we encounter them,” he said.

Transitional facilities are used to integrate inmates back into society before fully being released from custody. People can leave for several hours, but they have to come back to custody, Finck said.

Inmates at the Bismarck Transition Center have to have a job, Administrator Kevin Arthaud said. About 100 people at the facility are inmates, while roughly 20 are on parole, he said.

“We are trying to make people ready for release,” he said.

There is structure at the facility with few walk-aways, or escapes, Arthaud said. SB 2128 would eliminate opportunities for inmates to use the center to prepare for society, he said. That means the facility likely would shut down, and local businesses who employ center inmates would lose those workers, he said.

Minimum mandatory sentencing laws do not reduce crime or recidivism, said Andrew Myer, a criminal justice professor at the University of Cincinnati Corrections Institute.

“For deterrence to work, we need three things to happen,” he said. “We need certainty, which means that the person will be arrested or caught for their crimes, we need celerity, that the punishment will happen quickly, and we need severity, that the punishment is at an appropriate level.”

He said minimum sentencing laws are costly and impact prison safety. Studies show that individuals serving time with minimum mandatory punishments have more disciplinary infractions in prisons, Myer said.

Minimum sentencing laws also can lead to overcrowding, which can put inmates and correctional workers in danger, he said. State prisons and local jails have been

pushed to their capacity limits,

and opponents of SB 2128 said the proposed legislation would create more inmates, as well as force them to stay longer.

Multiple groups, including out-of-state organizations, testified against the bill. That included the North Dakota Association of Criminal Defense Lawyers, Prison Fellowship from Lansdowne, Virginia, and the Due Process Institute of Washington, D.C. Several cited increased costs to both the prison and judicial systems.

“What about the cost to the public?” said Sen. Janne Myrdal, R-Edinburg, adding she is concerned about the safety of her constituents.

Transitional and treatment centers have helped give felons second chances and opportunities to reinvent themselves, F5 Project CEO and founder Adam Martin said. He himself benefited from such programs when he was convicted of crimes.

“Based on the philosophy of truth in sentencing, I should have never gotten it,” he said, adding he would have served lengthy prison sentences.

Instead, he has never been to prison. He started an organization that helps people who struggle with incarceration, and Martin ultimately

was pardoned of his crimes in North Dakota.

The F5 Project has helped more than 40,000 people, he said.

Had he gone to prison, he believes he would not have gotten those opportunities, Martin said. Blanketing sentences will not benefit anyone, he said.

“I do believe what the speaker earlier said about mercy and grace. It works,” Martin said.