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Fargo judge calls for overhaul of system meant to rehabilitate probationers

Judge Frank Racek is the presiding judge in the East Central Judicial District, which covers Cass, Traill and Steele counties. He says he wants agencies to find better ways to rehabilitate probationers so they don't reoffend. Dave Wallis / The Forum

FARGO — After 28 years as a judge, Frank Racek knows what's wrong with the criminal justice system. He also has an idea of how to improve it.

Racek and his law clerk, Matthew Dearth, have penned a five-page paper hoping to inspire a discussion among local officials about how to reform the system so it does a better job of rehabilitating people sentenced to probation in eastern North Dakota.

"Some of these individuals, when their needs are unmet, they're the most vulnerable to committing more crimes," said Racek, the presiding judge in the East Central Judicial District, which covers Cass, Steele and Traill counties.

Racek envisions a system in which a vast patchwork of state, county, city and private agencies work together to meet the specific needs of every probationer. Depending on the probationer, this could include helping the person find mental health services, addiction treatment, child care, employment, transportation or housing.

"Both the needs and responses may vary in degree. For example, housing may range from a night in a shelter to long-term residential placement," Racek and Dearth wrote in their paper titled "Justice Reinvestment: Foundational Requirements for Effective Community-Centered Offender Rehabilitation."

To succeed, the system would need to become more flexible when probationers don't meet expectations, and agencies would then have to figure out how to better help them. "Both positive and negative reinforcement options are needed to incentivize the individual to work toward progress and provide accountability," the paper states.

The system would also have to emphasize speed. Currently, it can take weeks for a probationer to be accepted to a program and receive help, Racek said. During those weeks of waiting, probationers often suffer setbacks or commit more crimes.

"A successful system needs to quickly assess individuals, make decisions, and respond to needs, while maintaining close contact with the offender," the paper states.

Racek said another flaw is that probationers are sometimes placed into programs that don't suit their needs, and some programs don't put a priority on admitting probationers with the greatest needs or the highest risk of reoffending.

Racek said the system has to be vigilant in helping probationers until they're able to make good choices on their own. He gave the example of how some people, when released from the Cass County Jail, are told to report to the probation office across the street. But for whatever reason, there are those who don't make it there.

Such a gap would have to be closed under a reformed system, Racek said. "The system (at least initially) cannot rely on the personal initiative of offenders for success," the paper states.

Steering probationers away from new crimes would improve public safety, while also keeping more of them in the community because they would not violate the terms of probation and end up behind bars, according to the paper.

Racek believes that overhauling the system is an urgent matter, given that the North Dakota State Penitentiary and Cass County Jail are at full capacity. "The alternative is you just keep turning more and more people loose into the community," he said.

The North Dakota Legislature passed a set of bills this year aimed at reducing the number of people sent to prison. Within that legislation is $7 million for community-based behavioral health programs where probationers are to receive addiction and mental health treatment, services meant to help them avoid more crime.

While Racek acknowledged the steps lawmakers have taken, the judge said Fargo can't wait for the state to fix the system of rehabilitating probationers.

He recognizes that revamping the system would require an enormous effort, though he's hopeful it can be done by reorganizing the area's existing resources. "It would be a big task, but I think the pieces are here," he said.

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