Sen. Kelly Armstrong

Sen. Kelly Armstrong, R-Dickinson, is the chairman of the Senate Judiciary Committee. 

One of the proposals researchers say has the most potential to reduce the growing prison population is finding some opposition in the Senate.

Sen. Kelly Armstrong, R-Dickinson, said he is concerned about a provision in a criminal justice reform bill that would make probation the presumptive sentence for Class A misdemeanors and nonviolent Class C felonies unless "aggravating factors" apply.

The idea is that people accused of low-level felonies would generally get probation and not be sentenced to prison except in special cases. Marc Pelka, deputy director for the Council of State Governments Justice Reinvestment Initiative, who has advised the state on reform, argued that the policy is key to slowing prison growth, because low-level felons make up 62 percent of prison admissions each year.

"From your perspective, this is what moves the needle," Armstrong told Pelka during a Senate Judiciary Committee hearing on House Bill 1041 on Wednesday morning. "People who practice in North Dakota are very skeptical of this section."

Armstrong, committee chairman and a criminal defense attorney, said his lawyer colleagues worry that without a specific definition of "aggravating factor," there will be appeals and variation across the state. 

"This seems like a broad policy statement that will be determined differently by every single prosecutor and every single person wearing a black robe," Armstrong said.

Pelka said South Dakota has a similar policy and few appellate issues. He said aggravating factors there have included prior failures on probation and safety of the community.

"Aggravating factors was meant to be a general category, so you can reserve that individual discretion. Implementation you define through the courts," Pelka said. 

Aaron Birst, executive director of the state's attorney's association, said prosecutors aren't sure about how the aggravating factors would work and whether a prison sentence could still apply if someone pleaded from a higher class felony.

He also said he didn't expect presumptive probation to have such a big effect.

"We understand what the concept is. But in our experience, the people we see (sentenced to prison) are clearly going to fall into the aggravating factor category," Birst said. 

Armstrong said he expects some version of presumptive probation to make it into a bill draft, which is likely to be debated in conference committee. The proposal is one of 19 in a bill put forward by the interim incarceration issues committee, which worked with the justice center to study the system and develop recommendations over the past year. The bill passed the House by a 86-4 vote.

Also included in the bill are provisions to reduce penalties for drug possession and ingestion, increasing the felony theft amount to $2,500 and add intermediate sanctions for people who violate their probation. 

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