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Pilot program in Cass County aims to cut down on injustices for ND minorities behind bars

FARGO - Cass County court officials have launched a pilot program designed to improve the legal process for defendants who haven't yet gone to trial.

FARGO – Cass County court officials have launched a pilot program designed to improve the legal process for defendants who haven't yet gone to trial.

The action was taken after a state minority justice commission found that minorities arrested in North Dakota may spend more time behind bars than their white counterparts, based on national numbers showing that's the case nationally.

North Dakota courts now have a system that evaluates whether convicts are likely to reoffend or whether they need mental health or other services while behind bars.

But there's nothing in place to objectively evaluate defendants before they go to trial, said Judge Donovan Foughty, a Northeast District Court judge in Devils Lake who heads the state Commission to Study Racial and Ethnic Bias in the Courts.

For now, a judge trying to decide on a defendant's bail makes an educated guess based on whether the defendant has ties to the region such as a family or a job, which makes him or her more likely to show up again for court, he said. It means judges are unlikely to release someone on their own recognizance if they live in poverty, are transient or have few family support resources – conditions that disproportionately affect minorities.


"You've got people sitting in jail because they can't make bail," Foughty said.

East Central District Court Judge Steven McCullough said many defendants who can't make bail are in court on Class B misdemeanors, the lowest charge for arrestable offenses.

"They're the ones that sit in jail until the next bail review," he said, even if the bail is as low as $100. For them, "you might as well set it at a million."

It's difficult to track how many of the inmates who can't make bail are minorities because jails in North Dakota don't have a standardized system to track inmates, said Andrew Frank, a North Dakota Supreme Court staffer who works with the state commission.

The commission report couldn't pinpoint the percentage of African-Americans and Hispanics in jail, but a report issued by the commission in 2012, based on the most recent numbers, shows that the ratio of incarcerated African-Americans to whites in North Dakota is 10-to-1, with a Hispanic to white ratio of 3.2-to-1.97.

Numbers for Native Americans, the biggest minority group in the state, weren't specifically studied, but the commission estimated they would represent 20 to 25 percent of all individuals in the state prison system-like the other minority groups, a far higher representation than their percentage of the state's total population. Census figures for 2013 show that Native Americans comprise 5.4 percent of the state's population, African-Americans 1.8 percent and Hispanic/Latino 2.9 percent.

The commission's report also showed that Native Americans perceive the legal system as a tougher place for them than for their white counterparts, from arrest to sentencing.

Native Americans who spoke with the commission reported more suspicion or even harassment from some police in jurisdictions outside the reservations.


Foughty said Native Americans in his court sometimes plead guilty, even when the state doesn't have a strong case. Sometimes they don't appear to know what they were alleged to have done when it comes time to plead guilty, he said.

"I've asked [the defendant] what are the facts – and there's no facts to support the allegation," he said.

Foughty isn't sure why some Native American defendants decide to prematurely give up on their defense.

"It may be culture, it may be a respect for authority," he said. " I don't know."

The pilot program launched in East Central District Judge Frank Racek's court about a year and a half ago is similar to a federal marshal screening program already in existence for pre-trial defendants.

Dan Seymour, the Fargo district supervisor for the North Dakota Probation and Parole office, said a probation officer interviews defendants about their family, friends, hobbies, job, education and finances, and probes attitudes about their situation.

Probation officers investigate whether the defendant's story matches up with the facts of their criminal background, and enter it into a grid that shows what services-such as mental health or chemical dependency-they need, and how great their risk is to reoffend.

Seymour said the program gives the court a chance to intervene earlier with programs that help defendants through the court process.


"Our population is for the most part anti-social – they commit crimes," he said. "This program looks at their thinking process."

Seymour said the measurements don't give 100 percent predictability, but they're a good tool that helps judges decide on bail and sentences.

Other states have launched similar programs.

"The goal is to get a person out, or get the case resolved, more quickly," McCullough said.

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