Port: This is not the way to make criminal justice policy

MINOT — In recent legislative cycles, North Dakota's leaders have made great strides toward a more enlightened approach to criminal justice. One that eschewed the jail-filling, throw-the-book-at-em approach in favor of one focused on treatment and rehabilitation.

People who do bad things still need incarceration, but that reality must be tempered by another, which is that prisons cost a lot of money. So, too, do the life-long ramifications of putting someone in jail. They lose their jobs. Their families use that income. It puts upward pressure on the number of people needing public assistance programs.

Contributed

Policies aimed at giving judges and prosecutors flexibility so that punishments match crimes have been crafted by state leaders through a thoughtful and collaborative process.

This legislative cycle, however, our new Attorney General Drew Wrigley, convinced that our state is in the midst of a crime wave and perhaps eager to make a mark during his first legislative session, has been furiously lobbying for a tough-on-crime bill that, as originally written, would have instituted mandatory minimum sentences for certain crimes related to drugs and violence, when the offender has a gun, and for fleeing police.

But in the House Judiciary Committee, state Rep. Bernie Satrom, a Jamestown Republican, offered an amendment backed by the North Dakota State’s Attorneys’ Association, which tossed the mandatory minimums from the bill.

“Criminal justice policy should be based on facts and evidence, not rhetoric and emotion,” Satrom told our April Baumgarten of the amendment. “And we should be laser focused on strategies that make the most effective use of our limited resources.”

Wrigley responded to this turn of events with a media campaign, wrapping himself in the "back the blue" cause, surrounding himself with cops, and using talk radio interviews to accuse the opponents of his cause in the Legislature of being anti-law enforcement.

But here's where things get a little icky.

Wrigley hasn't given up the fight, and his allies in the Legislature have resorted to some pretty underhanded tactics to get the mandatory minimums back in the bill.

The chairman of the House Judiciary Committee, state Rep. Lawrence Klemin, a Republican from Bismarck, tried to undermine his own committee's amendments, despite their having passed on a 9-3 vote (one member of the committee was absent or didn't vote).

Klemin went before the House Appropriations Committee with an amendment aimed at getting the mandatory minimums back in the bill (watch video), a highly unusual maneuver because appropriations committees deal with the fiscal implications with bills, not policy. The committee demurred, as was appropriate, and offered to send the bill back to Klemin's committee, which he didn't want, as a strong majority on his committee, the very majority he was trying to kneecap in the appropriations committee, had already voted to remove the mandatory minimums.

The bill eventually went to a floor vote in the House, where Rep. Pat Heinert, a former sheriff, accused his fellow lawmakers of not doing enough to "back the blue," but urged that the bill be passed so that "missing pieces" could be added back in during a conference committee with conferees from the Senate.

And there was Klemin again, before the committee offering an amendment and undermining his Judiciary Committee, and this time he got his way. The committee approved the amendment, adding the mandatory minimums to the bill.

Friday, the Senate passed the amended bill 36 - 11. It will now go back before the House next week, perhaps as early as Wednesday.

There are two things to consider about this.

First, is whether or not mandatory minimums are good policy. I'm not convinced they are. The let's-get-tough-with-criminals stuff may be good for Twitter posts and political speeches, but it doesn't make for good public policy. Besides, if we have judges who aren't doing a good job, why not replace them? They're elected officials. They can even be recalled to the ballot through a petition, if the voters wish.

Second is that this approach to the criminal justice issue is a stark departure from years past when collaboration and thoughtful debate, not finger-pointing and "us versus them" rhetoric, were the hallmarks of the process.

Criminal justice law isn't a binary choice between tough or soft on crime. It's a balancing act. We must protect the public from criminals, sure, but we must also protect the public from the soaring costs of incarceration, and the ancillary costs of public assistance for people whose lives are impacted, directly or indirectly, by incarceration.

Striking that balance takes careful work, and I'm not sure that's what has been happening in the Legislature.