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PRESUMED PROBATION New law reduces penalties for first-time drug offenders

Changes in law approved by the 2017 North Dakota Legislature could reduce the number of people facing felony charges and help eliminate prison crowding, according to Sen. John Grabinger, D-Jamestown.

Grabinger was a member of the Incarceration Issues Committee that introduced House Bill 1041 which changed the penalties for some offenses including drug-related crimes. The bill passed with bipartisan support and was signed into law by Gov. Doug Burgum.

“We need to look at these things,” he said, referring to criminal penalties. “The best way is to rehab these prisoners, but it is also the best thing for North Dakota because it costs money to put someone in prison.”

Many of the changes in law involved drug crimes, Grabinger said.

Possessing a controlled substance other than marijuana has been changed from a Class C felony to a Class A misdemeanor for the first offense. Subsequent offenses remain a Class C felony.

Possessing marijuana, even in quantities of more than an ounce, is a Class B misdemeanor.

The law also specifies that standard punishment for Class C felonies and Class A misdemeanors should be probation, unless certain guidelines are met. The section requiring probation in some cases goes into effect Jan. 1.

Exceptions to presumed probation include charges of domestic violence, failing to register as a sex offender, using a firearm or weapon in the crime, charges that have a mandatory minimum sentence, defendants who have previous convictions, crimes where the age or vulnerability of the victim is a factor, cases where the person arrested was in a position of authority or trust and crimes where threats or coercion was used.

We’re moving away from the mandatory minimum sentences. We’re starting to recognize that doesn’t work. We need to make these people assets to the community rather than lock them up.


“There is no way we wanted to take away that ability (from the judge) to make that call,” Grabinger said.

The fiscal note attached to the bill estimated the presumption of probation for first offenders convicted of Class A misdemeanors or Class C felonies would reduce the prison population by an average of 22 people for the current biennium and 25 people from 2019 through 2021. The fiscal note estimates the cost savings to the North Dakota Department of Corrections and Rehabilitation at $1.1 million during the current biennium and $1.4 million for 2019 through 2021.

The Department of Corrections and Rehabilitation had a population of 1,791 as of Dec. 31, 2016. Of those, 565 inmates were in prison on drug or alcohol-related charges including 210 in prison for drug possession.

The number of people in the North Dakota prison system is up 250 since 2011. About 80 percent of the additional prisoners since 2011 are held on drug or alcohol-related charges, according to statistics listed on the Department of Corrections website.

Law enforcement agencies testified against the bill during the legislative session, said Chad Kaiser, Stutsman County sheriff.

“Law enforcement doesn’t like it,” he said. “I feel the more we reduce penalties the more problems we’ll have. The penalty isn’t there anymore to deter subsequent crimes.”

Scott Edinger, Jamestown chief of police, said jail time is rare for people convicted of a first-offense felony and people sentenced to the maximum penalty for an offense is virtually unheard of.

“Beyond killing someone,” he said, “most people don’t get the maximum sentence and most first-time offenders are sentenced to probation already.”

Larry Kropp, a Jamestown defense attorney, said the changes won’t impact most cases.

“The courts have been ordering unsupervised probation for most misdemeanors,” he said. “The majority of Class C felonies received probation also.”

Edinger said the changes could increase the caseload for the probation department and community service. Those departments commonly deal with people during their probation. He also hoped that additional treatment would be available for people charged with drug crimes.

“If there is some treatment it might even drop our calls down,” Edinger said, referring to the number of times officers are dispatched to incidents. “That would be a good thing.”

Treatment is part of the intent of the legislation along with electronic home monitoring and other forms of punishment, Grabinger said.

Rural areas currently don’t have treatment programs, Grabinger said. Ideally, he would like to see the costs of running the prison system reduced with the savings used for addiction treatment.

Grabinger said he recognized that the changes in law represent a change in philosophy when it comes to dealing with the drug problem.

“We’re moving away from the mandatory minimum sentences,” he said. “We’re starting to recognize that doesn’t work. We need to make these people assets to the community rather than lock them up.”

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