North Dakota Department of Corrections 3100 Railroad Avenue Bismarck, North Dakota
University of North Dakota (ITV Location) Abbott Hall Room 119 151 Cornell Street Stop 9024 Grand Forks, North Dakota
Members Present Hon. Donovan Foughty Leann Bertsch Birch Burdick Robin Huseby Hon. Steven McCullough Corey Pedersen Brad Peterson for Jim Fitzsimmons Dean Kathryn Rand Anthony Weiler
Members Absent Scott Davis Prof. James Grijalva Sally Holewa Ulysses Jones Dr. Leander McDonald Bruce Quick
Guests Ross Munns
Staff Andrew Frank
Call to Order: 10:05 a.m.
The Committee discussed the September 25 minutes. Anthony Weiler moved to approve the
minutes without revision. Leann Bertsch seconded and the motion was unanimously approved.
Schedule of Future Meetings Chairman Foughty indicated that future meetings would take place on a quarterly basis. Staff
shared available 2014 dates. Members proposed setting dates for Thursdays in the second weeks
of February, May, August, and November. Staff said that he would request specified dates.
Update on Jury Study Ross Munns presented information on the jury study, and said that moving forward required only
a final Committee sign-off. He explained the hard copy summons and questionnaire with
modified language proposed by the Committee. Online forms were also modified. The goal is to
start as soon as possible. This will require training for clerks or jury managers on data-entry into
the jury management system.
It will be possible to provide periodic data updates at future Committee meetings. Updates will
include county-level data. Larger population centers will likely produce better yields, and an
adequate Unit 1 sample will probably require nine months of data. Court Administrators have
reviewed the jury project. Rod Olson, former chair of the Jury User Group, characterized the
project as similar to what other states have implemented.
Ross Munns asked the Committee for a motion to approve moving forward with the jury data
collection project. Robin Huseby so moved, Judge McCullough seconded and the motion
Update on PASSPORT Staff explained information from South Dakota and the Montana on adoption and use
PASSPORT. Materials included example cover sheets, which were implemented in the last
several years. Cover sheets were similar in format to the NCSC model. Representatives from
both states said that the project has been beneficial. According to the Montana Attorney
General’s Office, out of seven Montana tribes, four consistently use PASSPORT forms and three
use them on a less consistent basis. One of the benefits in Montana was that PASSPORT
increased opportunities for state and tribal cooperation.
Court administration has voiced some objections to PASSPORT. Staff said that he did not have
a complete understanding, but one objection appears to be that adoption of the PASSPORT
format is unnecessary. A second objection relates to the “Access to Weapons” checkbox on the
MJI draft cover sheet. Administrative Council meetings from 2003 to 2007 highlighted issues
between federal firearm laws and state statutes. State and tribal PASSPORT cover sheets
usually include “Access to Weapons” information, but most other states appear to lack similar
statutory issues. Members said the checkbox could be dropped, if necessary, because it was a
revision to the model form.
Staff said that, to his understanding, Montana includes tribal court orders in the state system.
Chairman Foughty recalled previous Committee discussions on the possibility of modifying the
state system to include tribal court orders. He said there will be a meeting with the tribal courts
in January and this discussion would be an appropriate topic. Initial work would be for members
to present general information for tribal court meetings and for each tribal jurisdiction to develop
a draft cover sheet.
Members suggested the Committee schedule PASSPORT discussion for next meeting to allow
for a better discussion of concerns.
Evidence- Based Tools/ Pretrial Services Staff explained materials on evidence-based tools. Materials were provided in response to
inquiries during the 25 September meeting. Documents included information on training
programs for judges that could be examples for the development of similar programs in North
Dakota or general guides on evidence-based tools.
There was substantial research in the late 1990s early 2000s about the most effective
administration of pretrial services. The prevailing view at the time was that best practice would
be providing services at the county level or through independent agencies. More recent work has
shown that many arrangements can be effective. The trend has been to provide pretrial services
under the same administration as probation. This delivery takes advantage of existing expertise
and infrastructure. Staff explained documents covering strategies for implementation and
effective program development.
During the 25 September meeting, members requested information on assessment tools from
Minnesota. Staff did not find a statewide Minnesota tool; county programs in Minnesota appear
to provide services. Leann Bertsch noted that North Dakota offers some pretrial services for
juveniles, but not adults. Chairman Foughty recalled Committee discussions on increasing
consistency in bail bonds. Decisions rely on the discretion of the judge instead of objective
criteria and no bail assessment tool exists. Several states work with an assumption that
individuals should be released on recognizance unless objective tools indicate otherwise. Staff
directed members to materials containing relevant Minnesota and North Dakota statutes
highlighting this assumption.
Birch Burdick said he attended a National Judicial College (NJC) training program on evidence-based sentencing and assessment tools. The training discussed use of tools early in the court
process to provide a picture of defendant’s situation and facilitate better discussions on case
outcomes. The training highlighted drug or alcohol issues common to many involved with the
Burdick said that there will be a meeting in Cass County to discuss creation of an instrument for
use after bail but prior to a presentence investigation (PSI). This program will use an evidence-based tool on a single judge’s criminal docket and examine results. The main objective is to
complete an assessment prior to a dispositional conference so attorneys can advocate more
effectively for appropriate case outcomes. Chairman Foughty noted that implementing this
project statewide might be problematic because many rural areas have limited social services.
The only option for defendants with significant drug histories is often treatment within the
Leann Bertsch said that the LSI-R, North Dakota’s main risk-assessment tool, is currently built
into the PSI. The intent of the Cass tool appears to be to complete the risk assessment and
provide the offender’s scoring information without providing an explanation of measured
domains or recommendations. This process is not the full evidence-based method. However, it
is a step in the right direction, and increase experience with assessments. The judges will
discuss a pilot and further implementation steps in December.
Leann Bertsch clarified that the use of pretrial evidence-based tools ties in with the subject of
bias because minorities often cannot make bond and are detained. A more objective assessment
could help to address these situations, though use will require judicial-based education.
Implementation of evidence-based practices is usually driven by the court system. For example,
the Virginia Supreme Court required a PSI and evidence-based assessment prior to sentencing
for all felonies. North Dakota could not currently implement requirements, but could begin to
provide education using the six-hour NJC curriculum. The curriculum requires judicial and
probation officers to work together to present hands-on training, example cases, scenarios, and
instruction on objective tools.
Leann Bertsch said the state should create a work group to examine state implementation
requirements, which will likely include resources from the courts, parole, and probation. One
major concern is creating a process with a PSI turn-around time of less than two weeks. Planning
and formation of the work group could be accomplished before next summer. The pilot in Cass
County will increase familiarity with evidence-based tools, but there is also a need to run the
NCJ curriculum for the rest of the judiciary. The best strategy would be to provide the
curriculum and then examine resources. The courts should select two large jurisdictions in the
next biennium, probably Burleigh and Cass, to begin pilot programs. Pilots should ensure that
there are sufficient resources for extra probation officers to prevent delays. This effort would
need support from the Supreme Court and the Governor’s Office. Staff could update the
Alternatives to Incarceration Commission so the legislature knows that there is a fiscal note for
Judge McCullough said the human services centers should be examined to determine the impact
additional PSIs will have on the evaluations that they complete. Additional PSIs could create
bottlenecks. There may be other outside resource issues that should be considered. Leann
Bertsch said that implementation will probably require employees dedicated specifically to
performing drug and alcohol evaluations. Chairman Foughty said that this would probably
involve working with private contractors at some point.
Chairman Foughty said Birch Burdick should be allowed time on the next agenda to report on
the Cass County project. The Committee will need feedback over the next several months. Staff
noted that he has been collecting data on race in jails from counties, which should provide a
rough picture of jail populations.
Leann Bertsch said that PSI programs are good investments because they would lead to reduced
detention in the long-term. Jail administrators and sheriffs have favorably discussed DOCR-funded pretrial services programs in their jurisdictions. Current options are largely “jail or
nothing,” though intermediate options, such as location monitoring (GPS services), are available
in certain locations. Bertsch advised the Committee to support the development of pretrial
services in parole and probation offices. Creation and testing of risk-assessment tools would be
first steps toward program development. Birch Burdick said that some states provide pretrial
services by county, but that method is probably not possible in North Dakota. Placing services
under DOCR would create consistency, increase availability, and benefit from employees with
Judge McCullough asked if pretrial services could take over the current, limited pretrial
monitoring, such as drug testing and 24/7 monitoring. Leann Bertsch said the goal would be for
pretrial programs to take over all monitoring during pretrial release, including 24/7.
Robin Huseby said members should mention that the Committee is working on possible pretrial
changes during December and January Interim Judiciary Committee meetings.
Student Education Program(s) Staff spoke with Professor Grijalva prior to the meeting about developing education programs in
cooperation with the Native American Law Students Association (NALSA). The Race and Bias
report recommends developing public education programs, some of which call for cooperation
with the UND Law School and other groups.
Dean Rand said that she and Professor Grijalva discussed Commission recommendations and
meet with some of the NALSA students. The students are eager to become involved in the
public education efforts and recommended the Committee invite representatives to participate in
upcoming meetings. Students consider this is a great opportunity to share ideas and discuss how
a program would fit into the Commission’s work.
Dean Rand provided general information about the Law School’s diversity recruitment and
retention efforts. Efforts to increase diversity have been largely successful over the last several
years. The proportion of minority law students has been at least 15% of the total class since
2009-2010, up from 3 to 5% in the early 2000s. Currently, there are 35 minority students,
including 15 Native Americans. Students recently organized Black Law School Association.
However, resources are stretched because of the end of the federal earmarks for the “Native
Americans Into the Law” program. The earmarks supported programs that hosted tribal courts,
sent students to federal bar meetings, and sent teams to the National NALSA Moot Court
Competition. Federal funding for scholarships was also significant, and the immediate priority
has been finding financial support for students. One solution has been university-provided
Cultural Diversity Tuition Waivers (CDTWs) to attract and retain minority students.
Administration has been adopting best practices including: building cohorts with students,
sending students to minority bar meetings closer to home than federal bar meetings, and
expanding externship opportunities providing services to the state. Students have been
successfully placed at Standing Rock through the US Attorney’s office. Administration hopes to
increase placements in Indian Country through other agencies.
Dean Rand clarified that the current 15 to 20% minority student population is a record.
However, she acknowledged that attracting and retaining Native American students from North
Dakota has been a challenge. The overall number of statewide LSAT takers has dropped
significantly. Residents are not pursuing the Bar or graduate school in significant numbers,
probably because of opportunities in western North Dakota. One potential remedy would be
using CDTWs to increase the attractiveness of law school. Chairman Foughty asked about
tuition reimbursement for recent graduates working in rural areas. Members indicated such
reimbursement programs are federal. However, Dean Rand described a successful 2013 South
Dakota program providing graduates with modest funding to take positions in rural counties. A
modest stipend might help current rural practitioners to take on recent law graduates. North
Dakota courts and SBAND recently initiated a pilot program to place students with rural judges.
Judge McCullough moved to invite the NALSA students to the February meeting of the MJI
Committee to discuss education programs. Birch Burdick seconded the motion, which passed
unanimously. Chairman Foughty directed Staff to draft a letter of invitation. The Committee
instructed Dean Rand to notify Professor Grijalva and the NALSA members that an invitation is
Chairman Foughty asked if the law school provides central legal research for Tribal Courts.
Dean Rand said it does not, but will soon experiment with expanding services in a way that
meets state needs. Services are currently under-utilized while courts and public agencies are
overburdened. Solutions will require alignment of services to meet needs. Chairman Foughty
suggested meeting with Chief Judge Diane Johnson at Three Affiliated Tribes to discuss
providing central legal research services to help alleviate staff shortages. He noted that the MJI
Committee is to report on new and continuing efforts related to minority justice in North Dakota,
which would include these kinds of efforts.
Juvenile Detention Tool Staff said that the relevant recommendation for the juvenile detention tool covers a broad series
of tasks. One of these tasks is expanding the tool, but, given the language in the
recommendation, validation would be a necessary prior step. Corey Pedersen provided an
update on the detention screening tool, explaining that directors reviewed and scored statewide
screening tools for youth in 2012. They scored 609 tools and found that 220 of detained youth,
or 36%, were minorities.
There are two options for expansion: prior or subsequent to detention. The Bismarck/Mandan
program completes the tool prior to detention, but relies on the Police Youth Bureau, unique to
the community. Pedersen asked for Committee support of the second option: statewide
expansion completing the assessment tool one working day after detention. This expansion
would not alter the Bismarck/Mandan program, but would allow data collection for further
decisions. He advised the Committee to contact Lisa Jahner, with the Association of Counties,
about OJJDP technical assistance for validation and updated information on the juvenile system.
Staff said Sally Holewa had indicated that the courts could request funding. A budget request
would have to be for the next biennium. Courts could contract with the groups that validated
LSI-R or the Montana pre-adjudicatory detention tool. Corey Pedersen advised that the OJJDP
option should probably be pursued first.
Unbundling/Self-Representation Staff explained meeting materials on unbundled services and self-representation. Materials
included checklists, model forms, and a description of best practices. Race and Bias
Commission recommendations direct courts to support unbundling throughout the state.
Materials could provide examples or resources to assist North Dakota attorneys wishing to
provide services. Courts have reviewed rules to facilitate unbundling, but there are few available
resources for education and support. Broad research indicates that unbundling is an important
complement to programs serving self-represented litigants. Staff said there is no information on
current levels of interest or use in North Dakota.
Anthony Weiler confirmed that there is no information on how many N.D. attorneys are offering
limited-scope services. Member experiences suggested that there few attorneys providing such
services. Anthony Weiler said that SBAND could develop a CLE, online seminar, or invite a
speaker such as Stephanie Kimbro to provide education. Lawyers may not know that they can
offer unbundled services and help pro-se litigants who cannot afford full representation.
Chairman Foughty noted that Legal Services statistics indicate disproportionate reliance of
minorities on no-cost or low-cost services because of over-representation at poverty level.
Anthony Weiler said unbundling could be added to the SBAND Pro-bono Task Force agenda.
SBAND should be able to provide information either as an access to justice or pro-bono program
Judge McCullough said to make unbundling work, the courts have to let the “consumers” know
that it is available. Many lower-income people, unaware of limited-scope services, may
automatically rule out attorney representation based on cost.
Chairman Foughty directed members to continue to examine recommendations.