Commission to Study Racial and Ethnic Bias in the Courts
July 22, 2011
Bismarck, North Dakota
10:00 a.m. Call to Order
Hon Donovan Foughty, co-chair
Justice Carol Ronning Kapsner, co-chair
Hon. Sonna Anderson
Griselt Coral Andrade Leann Bertsch
Robin Huseby Ulysses Jones
Hon. Mary Marring
Hon. William McLees Sinisa Milovanovic
Chris Iverson for Rodney Olson
Tom Trenbeath Members Absent
El Marie Conklin
Hon. Wickham Corwin Scott Davis Tom Disselhorst
Professor Jim Grijalva Lisa Jahner Ulysses Jones Dr. Erich Longie
Mike Nason William A. Neumann
Hon. Michael T. Swallow
Co-chair Foughty called the meeting to order at 10:05 a.m.
Approval of May 20, 2011 Minutes Justice Maring provided a correction for one of her statements related in the minutes draft,
changing an attribution of activities from “Juvenile Services” to “Department of Human
Services.” Tom Trenbeath made a motion to approve the May 20, 2011 minutes as
amended. Judge McLees seconded and the motion passed unanimously.
Surveys Update and Focus Groups Staff provided an update on surveys. He said research committee members reviewed the
employee survey found it adequate and that he would send out a reminder email to the Bar
before closing the attorney survey. The Commission confirmed that the intended recipients of
the employee survey included county and contract employees.
Samantha Miller said she spoke to an African American former classmate who moved out of
state after law school and indicated his reasons for not practicing within the state included
certain characteristics of the North Dakota system. Samantha Miller suggested contacting
minorities who made similar decisions to find out reasons they did not in North Dakota.
Meredith Vukelec said that the Law School often sends out mass emails to alumni classes by
year, and that Staff should contact Patricia Hodney with inquiries. Judge Foughty asked for a
motion to contact the law school to that end. Judge Anderson made a motion to allow
staff or Judge Foughty to contact the law school to discuss collecting
information on minority alumni who left the state. Justice Maring seconded
and the motion carried unanimously.
Staff provided an update on focus group work. Members Jim Fitzsimmons and Tom Disselhorst
provided the names of attorneys in the Bismarck area, including prosecutors and public
defenders likely to have insight into potential bias because of their work experience. Staff sent
emails to each attorney with a short description of the Commission’s study and inquiries about
their interest in participating. Staff said that a general timeframe existed for the meetings, but
the exact date of the group would depend on respondent availability. Jim Fitzsimmons
suggested that Justice Kapsner and Judge Foughty sign off on a letter to those who had not yet
responded. Staff said he could draft such a letter and the Co-Chairs agreed to sign it. Jim
Fitzsimmons, Tom Disselhorst and Staff planned to run the meeting in mid-August.
Justice Kapsner said at least a few focus groups should try to capture information from tribal and
other community leaders in addition to attorneys. She said Judge Swallow could provide
information on who to contact in the tribes. Sinisa Milovanovic said it would be best to get
certain community leaders in Fargo to come in and provide additional information besides what
the Commission received in the public meetings. Judge Anderson suggested that the
Commission should provide lunch for all focus groups, and the Commission agreed. Sinisa
Milovanovic suggested that the Commission should run two meetings in Fargo, one modeled
after the first Bismarck attorneys group, the other involving New Americans. Staff noted that
Judge Corwin had already gathered useful information from attorneys at meetings in Fargo, and
a future attorney group would concentrate on filling more specific information gaps in the report.
Judge Anderson made a motion to allow Members and Staff to go forward with
focus groups in Fargo depending on the results from the initial Bismarck group.
Jim Fitzsimmons seconded and the motion carried unanimously.
Members directed Staff to contact Robin Huseby and Chris Iverson for a potential list of
attorneys for the Fargo group and work with Sinisa Milovanovic for community leaders and New
Report Drafts Staff presented initial rough drafts for the “Introduction” and “Criminal Justice” sections of the
report, and the revised drafts for the “Juries” and “Interpreters” sections. Members characterized
the new drafts as too complex and disorganized to offer critiques at this point. Judge Foughty
noted that the end date for the Commission would probably occur in March or February of 2012.
Staff said that the “Juvenile,” “Civil,” and “Attorneys/Court Employees” sections of the report
required initial drafting, but that he could attempt to provide drafts for all remaining sections by
the time of the September meeting in addition to revising the existing sections. Members said
that the reading level required for the existing drafts was too high, the language was too
complex, and that it should be lowered to an 8th grade level.
The Commission discussed definitions included in the initial drafts, which had been based on the
Nebraska report and providing a basis for modification. Tom Trenbeath questioned whether the
definitions, as worded, involved the presumption of bias or actual bias. He pointed to absence of
data, and that many areas contained data that the Commission was simply unable to access.
Judge Foughty summarized the Commission’s working definition of bias as: “Racial and ethnic bias is couscous or unconscious discriminatory behavior toward an individual
on the basis of the individual’s race or ethnic characteristics. Such behavior may be conscious or
Judge Foughty said that the National Consortium on Racial and EthnicFairness in theCourts
would appreciate references to previous work within the report. Staff said that the Commission
could lay out its own definitions for the purposes of the final report. Justice Maring voiced a
concern about the relationship between “bias” and “discrimination.” She added that the
Commission should consider the fact that a wide variety of people will read the report, and that
definitions should consider that audience. Judge McLees suggested creating a Committee to
examine the issue. Justice Kapsner volunteered to chair the committee and Justice Maring,
Judge McLees, and Ulysses Jones volunteered to serve.
The Commission discussed methods for offering comments and corrections. Members said that
email responses would work best because of difficulties in coordinating in-person meetings with
everyone scattered across the state. Troy Morley suggested that the Commission hold a meeting
of a few days to review the individual chapter drafts, and Members agreed. Justice Kapsner
suggested establishing a drafting Committee and volunteered to sit on it. She added that the
extensive use of secondary sources would be necessary to sell the subject, but that the report
should concentrate less on generalized and national statistics than in the initial drafts, unless
those statistics allowed comparison with North Dakota.
Justice Kapsner said that she had received some general comments on the Interim Report,
including one from Judge Mattson who, after reading the Commission’s minutes about possible
under representation in adult Drug Courts, sent a letter with some information on current drug
court participants in Ward County. The letter stated that that 4 of 12 current participants were
Native American and another 3 Native American participants the previous year. Of the three,
one completed the program and one did not show up for scheduled programming. Those not
accepted into the program included an applicant who decided he could not meet program
requirements, one application rejected by the State’s Attorney, and three applicants who were
found to be not chemically dependent.
Leann Bertsch said that this data would have been encompassed in drug court statistics provided
to the Commission in previous meetings, and Minot numbers, taken alone, may not be as
disparate, especially with the small number of participants. She added that part of the problem
with under representation of Native Americans in drug courts lies with Native Americans not
making applications. Justice Maring said efforts and education should be directed toward
attorneys to encourage more individuals to go into drug courts, generally, and Judge Foughty
emphasized that such a recommendation could come out of the final report.
Justice Kapsner added that comparisons between participation statistics for drug courts must
occur against number of arrested or incarcerated populations rather than state totals. Member
noted that juvenile drug courts appear to be meeting with great success throughout the state,
though the number of participants remains small.
Judge Foughty shared a criticism he had heard state that adult drug courts often provided
intensive services for people who do not require them. Leann Bertsch replied that the
Department of Corrections could compare the LSIR risk assessment tool averages to outcomes
for services provided in order to begin understanding how many hours of service individuals
might need, and has been working on a process of evaluating programs to give judges and
attorneys some idea of effectiveness. She noted a 75% success rate for some of the drug
programs that deal specifically with high risk individuals. Discussing use of LSIR, she said
Bismarck and Grand Forks use pre-sentence investigations heavily where Cass uses the same
only if mandated. Corrections attempts to give basic risk assessment information for cases in
Cass, relying on a probation officer to work with attorneys. She suggested that pre-sentence
investigations might help the defense bar if available even before plea agreement. Though this
places an extra burden on probation, the Commission should consider including it as a
Members agreed that some content in the criminal report should deal with treatment programs,
discussing effectiveness and recommending more education for all attorneys and judges to allow
them to make more informed decisions about courses of action that could be taken. Judge
Foughty directed Members to a relevant U.S. Attorneys report at www.crimesolutions.gov
providing discussions of evidence-based treatment programs. Justice Maring indicated said that
most of the drug court models used in the state are evidence-based and have been appropriately
Judge McLees said the parole board has implied that many individuals receive sentences that are
too long, and actual time served ends up drastically shorter. Judge Anderson said that giving
extra time provides sufficient opportunities to get the individual into treatment. Members
recognized that low-risk offenders tend to get worse with incarceration, so the goal should be to
try to keep them out or keep sentences as short as possible. Judge Anderson also recognized
difficulties in making defendants aware of available services as they often lack the time,
inclination, or opportunity to consider drug court and attorneys often enter into the process too
late to lead them in that direction; while some defendants just plead guilty right away and then
leave the system.
Judge Foughty added that some discussion criminal jurisdiction in Indian Country should appear
in the report, since the jurisdiction issues in North Dakota are unique compared with many other
Bonds Discussion Jim Fitzsimmons said that districts sometimes treat Native Americans residing on reservations
differently that others with regard to bonds, and the Commission should recommend North
Dakota establish a consistent bond standard to address this. He said that some regions treat
Native Americans as out of state residents, others as in-state residents. He recognized
complications exist because each reservation has a different set of laws, Fort Berthold, for
instance, extradites for felonies but not misdemeanors, but, said that state courts should provide
uniformity at some level, since otherwise perceptions of fairness suffer. He added that the
Commission heard some relevant information on this perception in Grand Forks, and the
difference in treatment can be perceived as discrimination, creating a perception of unfairness
toward Native Americans.
Judge Foughty said some possibility of a broad bond schedule exists, though it would require a
review of the Rules of Criminal Procedure. Judge McLees noted that some current bond
schedules already apply uniform standards that do not distinguish between reservation residents
and others, adding that, even with this kind of uniformity, judges can still make effective
individual determinations. The Commission agreed that bonds should have more uniformity.
Judge Foughty said that the possible recommendation for the bail bond issues would be to
review the bond schedules to make them as uniform as possible across the state or at least over
Staff said that he had invited Judith Roberts, who participated in South Dakota’s bias project, to
the meeting, but she could not attend. He said he had intended the inclusion of the South Dakota
report on the agenda to provide the basis for a discussion of the efforts, difficulties, and other
issues that South Dakota encountered during their process. Jim Fitzsimmons suggested inviting
Judith Roberts to a future meeting, since she could share useful insights and experiences. Justice
Kapsner said the South Dakota recommendations appeared clear and straightforward, and that
some could constitute starting points for North Dakota recommendations.
Staff added that the inclusion of a South Dakota document regarding the use of tribal
identification cards had also been included on the agenda, since Scott Davis had some discussion
about it. Unfortunately, he, too, could not make the meeting. Justice Kapsner recalled that
previous discussion suggested using tribal identification cards for jury sources. Troy Morley
noted that the North Dakota tribal cards provide no addresses, county information, no date of
birth, or other necessary information that the state would require from a jury source.
Having no further business, the meeting closed at 1:20 p.m.