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ND draft bills aim to ease burden on jails; drug paraphernalia offenses would be reduced

BISMARCK – A group studying ways to take pressure off of North Dakota’s crowded prisons and jails voted Tuesday to advance bills that would give judges more discretion over mandatory minimum sentences and juvenile transfers to adult court, and make it a less severe offense to possess drug paraphernalia in certain cases.

“If you want to see who’s clogging up the jail cells, just look at drug paraphernalia,” said Leann Bertsch, director of the state Department of Corrections and Rehabilitation and a member of the Commission on Alternatives to Incarceration.

Recent population growth stemming in part from North Dakota’s oil boom has been reflected in the state’s prisons and jails. The corrections department’s average daily count of adult inmates climbed 6.4 percent from 2008 to 2013, from 1,437 to 1,529, and all of its 1,576 inmate beds were full at the end of last year.

The 18-member commission was directed by the 2013 Legislature to study sentencing alternatives for first-time, nonviolent felony offenses except for drug distribution. The six lawmakers and 12 representatives from law enforcement, human services, corrections and the courts also were tasked with studying mandatory sentences, treatment options, expanded use of problem-solving courts, home monitoring and other related issues.

Members voted Tuesday to send a bill to Legislative Management for introduction to the 2015 Legislature that would reduce the severity of the charge of possession of drug paraphernalia with intent to inject, ingest, inhale or otherwise induce a controlled substance into the human body.

For all controlled substances other than marijuana, the bill would reduce the offense from a Class C felony punishable by up to five years in prison and a $10,000 fine to a Class A misdemeanor punishable by up to one year in jail and a $3,000 fine. For marijuana-related paraphernalia, the charge would be reduced from a Class A misdemeanor to a Class B misdemeanor, which is the same offense level for marijuana possession and carries a maximum penalty of 30 days in jail and a $1,000 fine.

Minot Police Chief Jason Olson said he opposes converting the paraphernalia charges from a felony to a misdemeanor, saying if methamphetamine possession is a Class C felony, meth paraphernalia possession should be, too.

Bertsch said some drug users trying to go clean may not yet have thrown away their paraphernalia, and while the felony paraphernalia charge is a nice tool for prosecutors to have in their back pockets, she doesn’t believe it necessarily increases public safety.

Commission members stopped short of proposing to lower the severity for manufacturing paraphernalia. They also stripped the draft bill of a provision that would have followed South Dakota’s lead in repealing the law that makes it illegal to ingest a controlled substance.

Bertsch said the ingestion law creates a dilemma for probation officers, isn’t enforced uniformly throughout the state and can clog up jails, prisons and the courts. She also noted that marijuana is now legal to consume in some other states, raising the question of whether people who ingest it legally should be charged in North Dakota.

But Chief Deputy Attorney General Thomas Trenbeath called it a “step in the wrong direction,” and Sen. John Grabinger, D-Jamestown, asked what would happen if someone swallowed dope to avoid arrest. Bismarck Police Chief Dan Donlin replied that it would be “pretty tough to prove possession.”

Rep. Ron Carlisle, R-Bismarck, the committee’s chairman, said the commission recognizes the need for additional drug and alcohol treatment services, especially in western North Dakota, and will pass those recommendations on to lawmakers.

“Right now, they have no place to put them, so they end up in a jail cell,” he said, adding if lawmakers don’t pass bills aimed at reducing inmate populations, they’ll have to “get out the checkbook” to pay for more facilities.