North Dakota Lawmakers Poised to Waste $750K on Pretrial Services Project

North Dakota Poised to Waste $750,000 on Pretrial Services Pilot Projects, only to Waste More Dollars Long-Term, Thereby Rejecting Much More Cost-Beneficial Spending on Criminal Justice Reforms and Crime Prevention

The opioid crisis is alive and well in the United States, and also in North Dakota.  CHI St. Alexius Emergency and Trauma Center Director Dr. Jon Solberg stated: "The US uses 80 percent of the world's opiates and we only have five percent of the population, so this has become a huge problem in the last 10 years."  North Dakota, like all other states, has not been immune from the uptick in problems related to this crisis.

Mental health, substance use disorders, and co-occurring disorders are quite common among those involved in the criminal justice system and make up the vast majority of those involved.  Yet, the resources to treat them and stop the cycle are sorely lacking.

Speaking of lacking resources, crime prevention policies, such as early education in pre-k and all-day kindergarten, can pay as high as 6:1 in crime preventative benefits to states who implement them.  After all, preventing crime has always been the best medicine for criminal justice reform—breaking the cycle of addiction, poverty and lack of opportunity.

Enter North Dakota House Bill 1258.  It is proposed by legislators that the North Dakota spend $750,000 to engage in a pretrial services pilot project.  We know where these studies go—of course, they recommend more government spending.

But, let’s examine what is specifically being proposed in H.B. 1258.

At the heart of H.B. 1258 is a bunch of government employees running a computer algorithm to tell judges how to do their jobs in making bail determinations.  Second, we are going to attempt to supervise people with undoubtedly onerous conditions who have not yet been convicted of anything.  This is a complete waste of tax dollars for something that can be handled privately—by either individuals or surety bail bondsmen.  There is no need to expand these programs.

Plus, the pretrial programs are based on algorithmic risk assessments that don’t work.  In a landmark study, Professor Meghan Stevenson found that Kentucky’s use of a pretrial algorithm did nothing to reduce the jail population and the negative impact of slightly increasing new crimes while on bail.  Kentucky got the pleasure of paying hundreds of workers at a cost of more than $15 million annually to achieve this less than impressive result.  Sometimes, these programs can actually increase pretrial incarceration.  At the end of the day, these are crucial resources that could be used for other purposes.

Perhaps North Dakota lawmakers should also first examine states like Iowa, Washington State and others before pouring taxpayers money down the Cannonball River.

In Iowa, Governor Reynolds put the brakes on pretrial risk assessment tools by halting Iowa’s pilot project, stating that “implementation of these tools has not curtailed the continued over-incarceration of people of color pretrial – people who should otherwise be legally entitled to due process of law before being torn away from their families, homes, and careers.”

In Spokane, Washington, it’s back to the drawing board this year after spending $1.75 Million in grant funding only to increase incarceration in Spokane by 10.3% under an “evidence-based” program using algorithms.

National bail reform activists, who unreasonably call for an end to “cash bail,” are realizing now that the system of algorithm-based justice is worse than the evil they are purporting to end.  That is why 110 national civil rights organizations that are members of the Leadership Conference on Civil Rights have called for an end to pretrial risk assessments in the United States of America due largely to concerns of racial bias, transparency and validity.

“People need to stop and ask, ’risk of what?’ These tools use data about things like failed drug tests and missed court dates, and tempt judges to imagine that they predict a person’s chance of hurting someone else, or fleeing the jurisdiction. The data we have cannot answer the questions that truly matter at a bail hearing.” – David Robinson, managing director for Upturn

Other algorithms used in the bail setting process (such as COMPAS, used by Los Angeles and San Diego counties) have been shown to be biased against African-American defendants.  These are the algorithms this legislation would first pilot and eventually deploy in North Dakota at the expense of the State.

If there is anything contained in H.B. 1258 for which anyone should advocate, it would be for more accurate and complete criminal history information for judges.  Judges don’t need a non-judicial officer to weight and score the information—they already do that well.  What judges often lack is simply the information needed to make an informed decision.  We have seen serious gaps in information like in Texas, where Governor Abbott is moving to close the information gap in bail setting after a Texas State Trooper was killed in the line of duty on Thanksgiving, 2017 during a routine traffic stop.  The suspect had recently been released after being charged with evading arrest and aggravated assault on a public servant simply because the judge who released him was unaware of his prior conviction of assaulting a sheriff’s deputy.

Spending $750,000 now, plus millions and millions of dollars in the future on these programs is simply not worth it.  There are many other programs that are more cost-effective uses of the dollars, and to the extent there can be improvements in North Dakota’s bail system, there is no need to create a massive, permanent state bureaucracy.


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