NORTH DAKOTA LEGISLATIVE COUNCIL
Minutes of the
CRIMINAL JUSTICE COMMITTEE
Wednesday, July 8, 1998
Room 124, Learning Resource Center, State Hospital
Jamestown, North Dakota
Representative Sally Sandvig, Vice Chairman, called the meeting to order at 9:10 a.m.
Members present: Representatives Merle Boucher, Duane L. DeKrey, G. Jane Gunter, Kim Koppelman, Sally Sandvig, Al Soukup, Laurel Thoreson, John M. Warner; Senators Les J. LaFountain, Wayne Stenehjem, Steven W. Tomac, Darlene Watne
Members absent: Representatives Dale L. Henegar, Paul Murphy, Bill Oban; Senators Marv Mutzenberger, Donna L. Nalewaja
Others present: See attached appendix
It was moved by Senator Stenehjem, seconded by Representative DeKrey, and carried that the minutes of the previous meeting be approved as distributed.
JAMES RIVER CORRECTIONAL CENTER
At the request of Vice Chairman Sandvig, Mr. Tim Schuetzle, Warden, State Penitentiary, presented information on the James River Correctional Center. Mr. Schuetzle said the center opened on June 1, 1998, with the transfer of 48 females to the fourth floor. He said the inmates have complained about the center because of the need for paint and cleanup. He said these activities were purposely saved as vocational activities for the inmates when they arrived at the facility. He said there are 925 inmates in the corrections system. He said two weeks ago there were 907 inmates in the system. He said the center holds 80 females on one floor and 80 men per floor on two floors. He said there are 55 females on the female floor and the male floors are full to capacity. He said there will be approximately 30 inmates who will continue to be housed in county jails.
At the request of Vice Chairman Sandvig, Mr. Don Redmann, Director, James River Correctional Center, presented information to the committee. Mr. Redmann said the center is sharing resources with the State Hospital to save money.
In response to a question from Senator Watne, Mr. Redmann said the corrections budget includes the projected income from 15 boarder inmates. He said there are six inmates from Alaska and five federal inmates who are boarder inmates. He said there is room for female boarder inmates.
In response to a question from Representative Warner, Mr. Redmann said the forensic unit has evaluated six individuals since June. He said the forensic unit is mainly used for the pretrial determination of competency.
In response to a question from Representative Soukup, Mr. Redmann said women are classified differently from men. He said each female is classified as a medium security risk. He said there are 14 minimum security risk females at the Missouri River Correctional Center.
The committee was given a tour of the James River Correctional Center by Mr. Schuetzle and Mr. Redmann, after which the committee returned to Room 124 of the Learning Resource Center.
SEXUAL OFFENDER TREATMENT AT THE STATE HOSPITAL
At the request of Chairman Boucher, Mr. Alex Schweitzer, Superintendent, State Hospital, presented information to the committee. Mr. Schweitzer said the program that treats sexual offenders who are involuntarily committed has three individuals participating in the program. He said two individuals have been committed, and one individual is under evaluation.
In response to a question from Senator Stenehjem, Mr. Schweitzer said the treatment program for sexual offenders consists of 32 hours per week of treatment. He said there has not been any noticeable improvement with the individuals in the program; however, the program is fairly new.
In response to a question from Representative Koppelman, Mr. Schweitzer said the average length of stay in a sexual offender program for those who have been involuntarily committed is 9 to 12 years.
In response to a question from Senator Stenehjem, Mr. Schweitzer said the prison system is evaluating inmates who are about to be released to see if they are candidates for involuntary civil commitment as sexually dangerous individuals.
Senator Tomac said he is concerned with someone who was never in the penal system being involuntarily civilly committed.
In response to a question from Senator Tomac, Mr. Schweitzer said the three individuals in the program all have prior convictions for sexual offenses.
In response to a question from Senator Tomac, Mr. Schweitzer said it would be a rare case for an individual to be involuntarily civilly committed as a sexually dangerous individual and to have never been convicted of a sexual offense.
In response to a question from Representative Boucher, Mr. Schweitzer said the people who will be committed directly upon release from the penal system will most likely be the inmates who have refused treatment in prison.
In response to a question from Representative Koppelman, Mr. Schweitzer said the developmentally disabled do not qualify for the sexual offender program.
In response to a question from Representative Warner, Mr. Schweitzer said the cost of the program is approximately $100,000 per year per patient. He said it would be cheaper to place an individual in the State Penitentiary.
In response to a question from Senator Tomac, Mr. Schweitzer said the State Hospital provides three basic services: adult psychiatric services, adolescent services, and chemical dependency services for adults. He said the adult psychiatric services include services for sexual offenders and a trauma program for borderline personalities. He said the adolescent services include short-term and long-term services.
In response to a question from Representative Koppelman, Mr. Schweitzer said the regional human service centers could follow up on sexual offenders released from the State Hospital. He said these individuals would be under court-ordered conditions upon release. He said there needs to be some followup services for individuals released from the sexual offender program.
In response to a question from Representative Thoreson, Mr. Schweitzer said the individuals in the sexual offender unit are indigent so there is no charge for services. He said individuals in the chemical dependency unit are usually covered by insurance, Medicare, or Medicaid.
In response to a question from Representative Boucher, Mr. Schweitzer said a 25- to 30-day stay in the chemical dependency unit costs approximately $250 per day. He said one individual has been in the chemical dependency unit for 25- to 30-day stays 30 plus times.
In response to a question from Senator Watne, Mr. Schweitzer said the total number of patients in the hospital is approximately 200. He said the average patient population is approximately 210. He said there are approximately 1,650 admissions per year. He said 1,000 of these admissions are for the chemical dependency unit. He said 140 of these admissions are for minors. He said there are approximately 510 patients admitted to the adult psychiatric services unit. He said there are approximately 590 staff members at the State Hospital.
In response to a question from Senator Tomac, Mr. Schweitzer said the ratio of 1 to 3 of patients to staff is an acceptable ratio.
In response to a question from Senator Tomac, Mr. Schweitzer said the State Hospital predicts that it will maintain a population of 180 patients. He said the decrease in admissions is a result of providing mental health services in the community and better medications.
In response to a question from Senator Tomac, Mr. Schweitzer said the employees at the State Hospital have complained little about the correctional center being on the hospital grounds. He said the city of Jamestown supports the placement.
At the request of Chairman Boucher, Dr. Rosalie Etherington, State Hospital, answered questions for the committee.
In response to a question from Representative Soukup, Dr. Etherington said there are vocational services for approximately 80 percent of the adult psychiatric patients. She said vocational services include laundry, paperwork, secretarial services, Progress Enterprises, and work in the cafe. She said there is a toxicology screen of each patient upon arrival at the State Hospital.
In response to a question from Representative Thoreson, Mr. Schweitzer said the population of sexual offenders in the State Hospital will increase. He said there have been three people in the program since August 1, 1997. He said there are presently 11 beds in the program, and he expects there to be a need for an additional 15 beds.
At the request of Chairman Boucher, Dr. Alan Broadhead, State Hospital, answered questions for the committee.
In response to a question from Representative Sandvig, Dr. Broadhead said chemical castration can be relatively effective but should not be a major part of a sexual offender treatment program. He said it is most helpful when the patient has requested the medication. He said in Minnesota only one patient out of 125 patients is being chemically castrated.
The committee toured the sexual offender unit at the State Hospital. The committee returned to Room 124 of the Learning Resource Center.
BILL DRAFT - JUVENILE DATA BASE
At the request of Chairman Boucher, committee counsel presented a bill draft that removes simple assault from the list of offenses for which a juvenile is placed on a centralized data base.
At the request of Chairman Boucher, Mr. Jonathan Byers, Assistant Attorney General, presented information to the committee. Mr. Byers said he is in support of the removal of simple assault from the juvenile data base. He said the data base is being taken up by simple assault crimes. He said the purpose of the data base is to target juveniles who are a concern to the public. He said simple assault does not fit as a crime that is a serious threat to the general public.
In response to a question from Representative Soukup, Mr. Byers said simple assault is a Class B misdemeanor.
In response to a question from Senator Watne, Mr. Byers said all crimes that require placement on the data base are not felonies; for example, assault is a Class A misdemeanor.
In response to a question from Representative Thoreson, Mr. Byers said simple assault is usually two people getting into a fight at a party. He said listing an individual on the data base probably does not have a deterrent effect in this situation.
In response to a question from Representative Koppelman, Mr. Byers said any kind of hitting is a simple assault.
In response to a question from Representative Koppelman, committee counsel said simple assault requires bodily injury, assault requires substantial bodily injury, and aggravated assault requires serious bodily injury. He said negligently causing the injury of another has a low level of culpability. He said negligence is accidental.
In response to a question from Representative Soukup, Mr. Byers said most cases of multiple simple assaults would involve the juvenile court. He said the law does not require out-of-state courts to notify this state of a child's record; however, it may be made a condition of this state accepting a child.
In response to a question from Representative Boucher, Mr. Byers said the largest portion of juveniles on the data base are there for simple assault. He said the estimated portion of juveniles on the data base for simple assault is in excess of 50 percent.
In response to a question from Representative Soukup, Mr. Byers said the juveniles on the data base for simple assault will be removed from the data base if this bill draft were to become law.
In response to a question from Senator Stenehjem, Mr. Byers said simple assaults were included in the data base because of the want to include juveniles who, for example, are 15 years old and commit a simple assault against a three-year-old child. He said the simple assaults on the data base are for assaulting children of the same age. He said the data base is included within existing staff and resources. He said the removal of simple assaults would allow staff to spend time on more important crimes.
Mr. Byers said on May 1, 1998, there were 41 juveniles on the data base. He said he expects 50 to 60 juveniles to be placed on the list each year.
In response to a question from Representative Soukup, Mr. Byers said individuals employed in the juvenile justice system had concerns with the notification provisions. He said some considered notifying schools contrary to the rehabilitative purpose of the juvenile justice system.
In response to a question from Representative Koppelman, Mr. Byers said the reason for the removal of simple assaults from the juvenile data base is based on the principle that it is unfair, not solely because of the number of simple assaults impeding administration of the data base. Representative Koppelman said if teachers are informed of the simple assault, they can deal with the situation. He said not notifying teachers may minimize the seriousness of a simple assault.
Representative Thoreson said simple assaults may be a prelude to more serious assaults. He said in his experience, certain students escalate in their violence. He said he has reservations about removing simple assaults because the notification of schools is a useful tool in dealing with students. He said removing simple assault would minimize the seriousness of the offense.
Senator Stenehjem said in his experience, simple assaults are minor playground fights. He said a juvenile would be placed on the list for the crime of assault or any other escalated violence beyond simple assault.
In response to a question from Representative Warner, Mr. Byers said there is the possibility that there would be a higher number of filings of simple assault in juvenile court if simple assaults were removed from the data base. He said some may see the 10-year reporting requirement as too severe for a simple assault and therefore not ask for a formal adjudication.
In response to a question from Representative Thoreson, Mr. Byers said if simple assault were removed, there would still be a county record that schools could access.
In response to a question from Representative Koppelman, Mr. Byers said any increase in filings for simple assault would be to previous levels before August 1, 1997, if this bill draft were to become law.
It was moved by Senator Stenehjem, seconded by Senator Watne, and carried that the Legislative Council staff be requested to redraft the bill draft to except first-time simple assaults from the data base.
BILL DRAFT - MARKED DRIVER'S LICENSE FOR FELONIOUS SEXUAL OFFENDERS AND OFFENDERS AGAINST MINORS
At the request of Chairman Boucher, committee counsel presented a bill draft that requires a special mark on the motor vehicle operator's license of certain sexual offenders and individuals who have committed a crime against a child. He provided a handout of House Bill No. 341 from Delaware, which requires a "Y" on the driver's license of a sexual offender. A copy of the handout is on file in the Legislative Council office.
In response to a question from Representative Warner, committee counsel said the choice of the letter "Y" as the special mark was made by copying Delaware law. He said Delaware is the only state he knows of that has a special mark on the driver's license for sexual offenders. He said the "Y" would most likely be placed in the restriction area of the driver's license.
In response to a question from Representative Soukup, committee counsel said notice mailed to offenders that was returned by the post office would be effective notice. He said the mailing is a courtesy, and the language in the bill draft deems the mailing effective notice.
In response to a question from Senator Tomac, Mr. Byers said patrol officers wanted this bill draft so they could instantly tell if a crying child in an automobile was with a sexual offender. He said the mark also aids in the notification of other states when the person exchanges this state's license for a new license in another state.
In response to a question from Representative Koppelman, Mr. Byers said electronic means are becoming more available for law enforcement to check the criminal record of a driver when the driver is pulled over for a traffic stop. He said a mark on the license would provide a more thorough check.
At the request of Chairman Boucher, committee counsel distributed written testimony provided by Mr. Keith Magnusson, Director, Driver/Vehicle Services Division, Department of Transportation. His testimony recommended the term "invalid" be replaced with "canceled" and $3 be charged for issuing an unmarked license at the end of the registration requirement. A copy of his testimony is on file in the Legislative Council office.
It was moved by Senator Watne, seconded by Senator Stenehjem, and carried that the issues addressed in Mr. Magnusson's testimony be included in a redraft of the bill draft.
BILL DRAFT - RELEASE OF INFORMATION BY SCHOOLS TO THE CHILD FATALITY REVIEW PANEL
At the request of Chairman Boucher, committee counsel presented a bill draft that requires elementary and secondary schools to provide information to a coroner or the child fatality review panel.
Senator Stenehjem said Ms. Gladys Cairns, Administrator, Child Protection Services, Department of Human Services, suggested this bill draft. He said Ms. Cairns said the reason for the bill draft was to give schools the authority to provide information for the investigations of deaths.
Representative Soukup said this bill draft would not cost schools any money.
In response to a question from Representative Koppelman, committee counsel said school records may be useful in determining the death of a child by suicide.
Senator Stenehjem said the records of the child fatality review panel are confidential.
It was moved by Senator Stenehjem, seconded by Representative Soukup, and carried that the bill draft relating to the provision of information to a coroner or the child fatality review panel by a school be approved and recommended to the Legislative Council. Representatives Boucher, Gunter, Koppelman, Sandvig, Soukup, Thoreson, and Warner and Senators LaFountain, Stenehjem, Tomac, and Watne voted "aye." No negative votes were cast.
BILL DRAFT - EDUCATION FOR SUSPENDED AND EXPELLED STUDENTS
At the request of Chairman Boucher, Ms. Mary Rose, Regional Coordinator for Special Education Services, Office of Special Education, Department of Public Instruction, presented information in favor of a bill draft that requires the provision of educational services for suspended and expelled students. Ms. Rose said suspension and expulsion are punitive and can alienate a child from school. She said it is unfair to expel students with behavioral problems from school. A copy of her testimony is on file in the Legislative Council office.
Ms. Rose provided two handouts on the provision of educational services to individuals with disabilities and the limitations on their suspension and expulsion. A copy of these handouts is on file in the Legislative Council office.
In response to a question from Representative Gunter, Ms. Rose said large schools have alternative schools that would be able to offer an education to suspended or expelled students. She said small schools could offer independent study that could be offered over the Internet, adult education, or as one rural school district offered to a disabled student, an aide at $6.50 per hour to teach the student. She said before class or after class access to school with a tutor would provide an alternative education. She said vocational programs are also an option.
At the request of Chairman Boucher, Dr. Gary Gronberg, Assistant Superintendent, Department of Public Instruction, answered questions for the committee.
In response to a question from Senator Tomac, Dr. Gronberg said a student needs to have four credits for a school to receive full foundation aid. He said foundation aid ceases if a student is expelled from school. He said the bill draft provides money even if a student is expelled from school. He defined suspension as a maximum of 10 days out of school without school board action. He said expulsion requires school board action.
Dr. Gronberg provided a copy of an Attorney General's letter that says there is no responsibility for a school district to educate an expelled student. A copy of this letter is on file in the Legislative Council office.
In response to a question from Representative Thoreson, Dr. Gronberg said an alternative school could be used as an option for education in the same district as the expulsion because the school board defines what the alternative education can be for the student.
Senator Tomac said he had a concern with the bill draft because it required an individual education plan for a student expelled for a day for smoking. He said this is too much work for this situation.
In response to a question from Representative Boucher, Dr. Gronberg said the suspension and expulsion should not be used as punishment without an educational component. He said a student should be able to keep up with the student's classwork while suspended or expelled. He said something else should be used as punishment.
In response to a question from Representative Boucher, Dr. Gronberg said the bill draft is trying to address the cessation of educational services. He said the bill draft does limit a school's options by limiting instruction to regular school hours.
In response to a question from Representative Thoreson, Dr. Gronberg said behavior should be dealt with without removing education. He said if the pattern of suspension and expulsion increases, then the pattern of dropouts increases, and then greater societal problems begin.
Senator Tomac said the bill draft bans expulsion. He said the bill draft does not address parental responsibility.
In response to a question from Senator Watne, Dr. Gronberg said the dropout rate has doubled over a six-year period. He said a high school education is needed to be successful in today's world.
In response to a question from Representative Koppelman, Dr. Gronberg said the constitution guarantees education to all of the population. He said the bill draft would allow local discretion in allowing which way the local school district is to provide an alternative education.
In response to a question from Representative Soukup, Dr. Gronberg said the school district that is the residence of the suspended or expelled student would pay for the alternative education and would receive the foundation aid money.
Representative Thoreson said students make a choice to engage in bad behavior and there should be consequences.
In response to a question from Representative Thoreson, Dr. Gronberg said there should be an alternative so there is a choice for education.
In response to a question from Representative Thoreson, Dr. Gronberg said there were 34 expulsions and 2,471 out-of-school suspensions in 1997.
In response to a question from Senator Stenehjem, Dr. Gronberg said the same students may be taken into account more than once in these statistics.
Senator LaFountain said the intent of this bill draft is to eliminate the long-term costs of crime in terms of money spent and wasted lives.
In response to a question from Senator LaFountain, Dr. Gronberg said small schools account for most of these suspensions.
At the request of Chairman Boucher, Mr. Larry Klundt, Executive Director, North Dakota Council of Educational Leaders, presented information to the committee. Mr. Klundt said he is against the bill draft. He said although he does not disagree with the concept behind the bill draft, it seems to be an unfunded mandate. He said the concepts of suspension and expulsion should be dealt with separately. He said an individual education plan cannot be made practically for a short-term suspension. He said it would be difficult to provide an alternative education in a small school. He said there would need to be funding for the alternative education.
In response to a question from Representative Soukup, Mr. Klundt said if changes are made to the bill draft, the "shall" in line 14 should be changed to "may" and the bill draft should only relate to expulsion.
At the request of Chairman Boucher, Mr. David Haney, Superintendent of Schools, Jamestown, presented testimony to the committee. Mr. Haney said he is against the bill draft. A copy of his testimony is on file in the Legislative Council office.
Representative Boucher said Jamestown can be considered a model for providing alternative education. He said alternative education can be cost-effective in the long term. He said this bill draft was in response to an escalating corrections budget. He said some districts are not doing as well as Jamestown. He said some schools get rid of students who are problems with suspension and expulsion.
In response to a question from Representative Thoreson, Mr. Haney said an expelled student placed in an alternative school might not be a good option. He said the student may disrupt that school, and alternative schools have standards an expelled student with behavioral problems may not meet.
At the request of Chairman Boucher, Mr. Charles DeRemer, Assistant Superintendent, Fargo Public Schools, presented information to the committee. Mr. DeRemer said the intent of the bill draft has merit; however, suspension should not be included in the bill draft. He said expulsion addresses a small number of students. He said a larger problem is dropouts. He said there would need to be funding if this bill draft were to become law.
At the request of Chairman Boucher, Mr. Joseph A. Westby, Executive Director, North Dakota Education Association, presented testimony to the committee. Mr. Westby said he had concerns with the proposal, including whether schools would have to write individual education plans for all suspended students and whether additional costs to school districts might result from the proposal's mandates. A copy of his testimony is on file in the Legislative Council office.
At the request of Chairman Boucher, Ms. Bev Nielson, Assistant Executive Director, North Dakota School Boards Association, presented information to the committee. Ms. Nielson said the bill draft asks teachers to take care of a problem that parents and the community have not been able to solve. She said the bill draft would use classroom dollars to solve a social problem. She said she is against the bill draft because it is against local control. She said the bill draft would result in many Department of Public Instruction rules.
In response to a question from Representative Boucher, Mr. Klundt said the local community would react if a school district was abusing suspension or expulsion.
In response to a question from Representative Sandvig, Ms. Nielson said the framework of the schoolday and the facilities offered by schools are not an improper forum for addressing societal problems. She said schools have the facilities, staff, and room needed to address societal problems. She said there needs to be funding so that the money to address these problems does not have to come from education.
At the request of Chairman Boucher, Mr. G. David Massey, Adult Education Services, Department of Public Instruction, presented information to the committee. Mr. Massey said he concurs with the concept that society is responsible for the education of all people. He said people between 16 and 21 years of age need to be included within this idea. He said the state provides $300 per year per student for adult learning.
Representative Soukup said he cannot support this bill draft as written.
Representative Warner moved that suspensions be removed from the bill draft and that "may" be substituted for "shall" in line 14 and that all of Section 3 be deleted. There was no second.
Representative Boucher said this idea may be good for a study resolution.
Representative Thoreson said this idea needs a lot of work.
Senator Watne said the issues contained within the bill draft are local issues and should not be addressed by this committee.
It was moved by Representative Soukup, seconded by Senator Watne, and carried that the bill draft to require the provision of educational services for suspended and expelled students not be recommended to the Legislative Council.
CRIME LAB
Committee counsel distributed a bill draft requested by Senator Nalewaja for the transfer of the crime lab from the Department of Health to the Bureau of Criminal Investigation. In addition, committee counsel distributed letters of support from the Resource Advisory Council of Crime Investigation and the International Association of Arson Investigators. Copies of the bill draft and the letters are on file in the Legislative Council office.
JUVENILE DELINQUENCY PREVENTION AND TREATMENT
Committee counsel distributed a copy of the plan for the review of the effectiveness of juvenile court services programs so that the juvenile court may recommend program elimination, modification, or expansion. This review is being conducted by Mr. Kevin Thompson, Associate Professor, North Dakota State University. A copy of the plan is on file in the Legislative Council office.
Chairman Boucher adjourned the meeting at 4:30 p.m.
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Timothy J. Dawson
Committee Counsel
