25.8109.01000
Sixty-ninth
Legislative Assembly
of North Dakota
Introduced by
Judiciary Committee
(At the request of the Attorney General)
A BILL for an Act to amend and reenact sections 12-44.1-01, 12-48.1-01, 12-48.1-02,
12-54.1-01, 12-54.1-03, 12.1-08-02, 12.1-17-01, 12.1-32-02.1, 12.1-32-09.1, and 39-10-71 of
the North Dakota Century Code, relating to transparent sentencing of criminal offenders, work
release eligibility and conditions for criminal offenders, sentences for assaulting and fleeing from
law enforcement officers, and sentences for preventing arrest; to provide a legislative
management report; and to provide a penalty.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 12-44.1-01 of the North Dakota Century Code is
amended and reenacted as follows:
12-44.1-01. Definitions.
As used in this chapter:
1."Administrator" means the sheriff, chief of police, administrator, superintendent,
director, or other individual serving as the chief executive officer of a correctional
facility.
2."Adult lockup" means a secure temporary-hold nonresidential facility that does not
hold individuals overnight and includes a facility with cuffing rails or cuffing benches.
3."Correctional facility" means a city or county jail or detention center, regional
corrections center, or juvenile detention center for the detention or confinement of
persons in accordance with law. The use of the term does not imply and may not be
used to require the provision of services including treatment, counseling, career and
technical education, or other educational services, except as may otherwise be
required or provided for under this chapter. The term does not include transitional
facilities.
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SENATE BILL NO. 2128
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4."Correctional facility staff" means correctional personnel with titles such as jailer,
deputy, counselor, correctional officer, or any other title, whose duties include the
ongoing supervision of inmates in a correctional facility.
5."Court holding facility" means a secure facility, other than an adult correctional facility
or adult lockup, used to temporarily detain individuals before or after a detention
hearing or other court proceedings, and is not used to detain individuals overnight.
6."Individual justice planning" means a process to identify, accommodate, and develop
appropriate consequences for behaviors caused by or related to an individual's mental
or cognitive impairment.
7."Inmate" means any individual, whether sentenced or unsentenced, who is detained or
confined in a correctional facility. The term does not include an individual who is under
the supervision of the correctional facility and is supervised under home detention,
electronic monitoring, or a similar program that does not involve physical detention or
confinement in the facility.
8."Jail" means a correctional facility, including a county or city jail or a regional
corrections center.
9."Juvenile detention center" means a publicly maintained correctional facility for the
detention of juveniles. The term does not include the North Dakota youth correctional
center.
10."Regional corrections center" means a correctional facility established and maintained
by more than one county or city, or a combination of counties and cities, for the
confinement of inmates.
11."Trained correctional facility staff" means correctional personnel who have completed
a course of training approved by the peace officer standards and training board.
12."Transitional facility" means an organization or facility, operating under contract, in
partnership with, or under the direction of the department of corrections and
rehabilitation or a correctional facility, which offers education, counseling, or other
programs, with minimum security housing, for offenders.
SECTION 2. AMENDMENT. Section 12-48.1-01 of the North Dakota Century Code is
amended and reenacted as follows:
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12-48.1-01. Director may provide certainWork release and education or rehabilitation
services for offenders.
1.The director of the department of corrections and rehabilitation may participate in
programs in which eligible offenders committed to the legal and physical custody of
the department may be gainfully employed or participate in an educational or other
rehabilitation program either in or outside facilities under the control of the department.
TheFor eligible offenders, the director may obtain or contract with separate facilities
with minimum security for housing offenders granted release privileges. In areas
where facilities are not within reasonable proximity of the place of employment or
training of an offender so released, the director may arrange for the housing of the
offender in local confinement facilities.
2.For purposes of this chapter, an "eligible offender" means an offender who:
a.In accordance with section 12.1 - 32 - 09.1, has served eighty-five percent of the
offender's sentence of imprisonment or had the offender's sentences commuted;
or
b.Is serving a sentence only for one or more violations of section 12.1 - 06.1 - 08,
12.1 - 11 - 01, 12.1 - 11 - 07, 12.1 - 15 - 02, or 12.1 - 15 - 03; subdivision c of subsection 1
of section 12.1-21 - 02; section 12.1 - 21 - 03.1; subdivision b of subsection 1 of
section 12.1 - 21 - 05; section 12.1 - 21 - 06.1, 12.1 - 22 - 05, 12.1 - 23 - 02, 12.1 - 23 - 04,
12.1 - 23 - 07, 12.1 - 23 - 08, or 12.1 - 24 - 01; subsection 7 of section 19 - 03.1 - 23; or
section 19 - 03.4 - 03 or 39 - 08 - 01.
3.The department of corrections and rehabilitation shall provide to the attorney general
and the legislative management each quarter a report, including the names, locations,
and sentences of each individual who meets the criteria in subdivision b of
subsection 2.
SECTION 3. AMENDMENT. Section 12-48.1-02 of the North Dakota Century Code is
amended and reenacted as follows:
12-48.1-02. Conditions of eligibility forparticipation in release programs.
1.An eligible offender, except an offender sentenced to a penalty of life imprisonment
without the opportunity for parole as the result of conviction of a class AA felony under
section 12.1-20-03 or of murder under section 12.1-16-01, may be eligible for
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programsparticipate in a program outside facilitiesa facility under the control of the
department of corrections and rehabilitation when the department determines, with a
high degree of reliability, the eligible offender is not a high security risk, not likely to
commit a crime of violence, not likely to escape, and is likely to be rehabilitated by
such program. An eligible offender may apply to the director of the department for
permission to participate in such programs.
2.The director of the department may authorize participation in outside programs for an
eligible offender who has ten years or less remaining on a sentence and has been
committed to the legal and physical custody of the department. The parole board, with
the approval of the director of the department, may authorize participation in outside
programs for eligible offenders who have more than ten years remaining on a
sentence and have been committed to the legal and physical custody of the
department.
3.The offender shall submit a signed application which must include a statement that the
eligible offender agrees to abide by all terms and conditions of the particular plan
adopted for the eligible offender, and must include such other information as the
parole board or the director of the department may require.
4.The parole board may approve, disapprove, or defer action on an application
approved by the director of the department. The director of the department or the
parole board may revoke approval of the application at any time after granting the
application. The department shall prescribe rules of conduct and treatment for all
eligible offenders on release programs and shall prescribe objective and subjective
criteria for which revocation of approval to participate in release programs is
mandatory. A rule violation indicating the eligible offender likely will commit a crime of
violence or is likely to attempt to escape must result in revocation of approval to
participate in release programs. The department shall document all violations of the
rules of conduct and treatment.
5.The director of the department may grant short leaves, not to exceed seventy-two
hours, to eligible offenders who have been committed to the legal and physical
custody of the department for ten years or less. The parole board, upon the approval
of the director of the department, may grant short leaves, not to exceed seventy-two
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hours, to offenders committed to the legal and physical custody of the department for
more than ten years. Short leaves granted under this subsection may not be granted
consecutively to the same individual.
6.All rules adopted by the parole board and the director of the department relating to
release programs and short leaves must conform, to the extent allowable by law, with
executive order no. 11755 issued by the President of the United States.
SECTION 4. AMENDMENT. Section 12-54.1-01 of the North Dakota Century Code is
amended and reenacted as follows:
12-54.1-01. Sentence reduction for good time.
Except as provided underSubject to the requirements of section 12.1-32-09.1, an offender
committed to the legal and physical custody of the department of corrections and rehabilitation
is eligible to earn sentence reductions based upon satisfactory fulfillment of performance criteria
established through department and penitentiary rules. Performance criteria includesmust
include participation in court-ordered or staff-recommended treatment and education programs
and good work performance. The department may credit an offender committed to the legal and
physical custody of the department who is eligible for sentence reduction up to five days good
time per month for each month of the sentence imposedserved, up to a maximum of fifteen
percent of the offender's sentence. Sentence reductions may not be awarded before they are
earned. The department may credit an offender with sentence reduction for time spent in
custody before sentencing and commitment to the legal and physical custody of the
department. The department may not credit an offender with any sentence reduction for time
spent on probation under the supervision and management of the department.
SECTION 5. AMENDMENT. Section 12-54.1-03 of the North Dakota Century Code is
amended and reenacted as follows:
12-54.1-03. Meritorious conduct sentence reduction.
Except as provided under section 12.1-32-09.1, offendersOffenders committed to the legal
and physical custody of the department of corrections and rehabilitation may receive a lump
sum or a monthly rate of meritorious conduct sentence reduction for outstanding performance
or heroic acts or as a special control and security measure, as provided by penitentiary and
department rules and upon written recommendation of a department multidisciplinary team.
Meritorious sentence reductions are in addition to sentence reductions under section
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12-54.1-01 and may be made only after a written recommendation is made by the warden and
approved by the director of the department. Any sentence reduction for special control or
security measuresunder this section may not exceed two daysone day good time per month per
offender.
SECTION 6. AMENDMENT. Section 12.1-08-02 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-08-02. Preventing arrest or discharge of other duties.
1.A person is guilty of a class A misdemeanor if, with intent to prevent a public servant
from effecting an arrest of himself or another for a misdemeanor or infraction, or from
discharging any other official duty, he creates a substantial risk of bodily injury to the public
servant or to anyone except himself, or employs means justifying or requiring substantial force
to overcome resistance to effecting the arrest or the discharge of the duty. A person is guilty of a
class C felony if, with intent to prevent a public servant from effecting an arrest of himself or
another for a class A, B, or C felony, he creates a substantial risk of bodily injury to the public
servant or to anyone except himself, or employs means justifying or requiring substantial force
to overcome resistance to effecting such an arrest.
2.1.It is a defense to a prosecution under this section that the public servant was not
acting lawfully, but it is no defense that the defendant mistakenly believed that the
public servant was not acting lawfully. A public servant executing a warrant or other
process in good faith and under color of law shall be deemed to be acting lawfully.
2.A conviction under this section carries a penalty of at least fourteen days'
imprisonment and, if there is an underlying conviction, the imprisonment must be
consecutive to any sentence of imprisonment for the underlying conviction.
SECTION 7. AMENDMENT. Section 12.1-17-01 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-17-01. Simple assault.
1.A person is guilty of an offense if that person:
a.Willfully causes bodily injury to another human being; or
b.Negligently causes bodily injury to another human being by means of a firearm,
destructive device, or other weapon, the use of which against a human being is
likely to cause death or serious bodily injury.
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2.The offense is:
a.A class C felony when the victim is a peace officer or correctional institution
employee acting in an official capacity, which the actor knows to be a fact; an
employee of the state hospital acting in the course and scope of employment,
which the actor knows to be a fact, and the actor is an individual committed to or
detained at the state hospital pursuant to chapter 25-03.3; a person engaged in a
judicial proceeding; or a member of a municipal or volunteer fire department or
emergency medical services personnel unit or emergency department worker in
the performance of the member's duties.
b.A class B misdemeanor except as provided in subdivision a.
c.A conviction under subdivision a carries a penalty of at least thirty days'
imprisonment and, if there is an underlying conviction, the imprisonment must be
consecutive to any sentence of imprisonment for the underlying conviction.
SECTION 8. AMENDMENT. Section 12.1-32-02.1 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-32-02.1. Mandatory prison terms for armed offenders.
1.Notwithstanding any other provision of this title, a term of imprisonment must be
imposed upon an offender and served without benefit of parole when:
a.In the course of committing an offense, the offender inflicts or attempts to inflict
bodily injury upon another, threatens or menaces another with imminent bodily
injury with a dangerous weapon, explosive, destructive device, or firearm; or
b.An offender prohibited from possessing a firearm under section 62.1-02-01
possesses a firearm while in the course of committing any felony offense under
subsection 1, or 3, or 7 of section 19-03.1-23.
2.This requirement applies only when possession of a dangerous weapon, explosive,
destructive device, or firearm has been charged and admitted or found to be true in
the manner provided by law, and must be imposed as follows:
a.If the offense for which the offender is convicted is a class AA, class A, or class B
felony, the court shall impose a minimum sentence of four years' imprisonment.
b.If the offense for which the offender is convicted is a class C felony, the court
shall impose a minimum sentence of two years' imprisonment.
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3.This section applies even when being armed is an element of the offense for which the
offender is convicted.
4.This section applies even if the offender is prosecuted for a violation of section
62.1-02-01 for the same conduct.
5.An offender serving a sentence subject to this section may be eligible to participate in
a release program under section 12-48.1-02 during the last six months of the
offender's sentenceis not an eligible offender under subdivision b of subsection 2 of
section 12 - 48.1 - 01 .
SECTION 9. AMENDMENT. Section 12.1-32-09.1 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-32-09.1. Sentencing of violent offendersTruth in sentencing.
1.Except as provided under section 12-48.1-02 and pursuant to rules adopted by the
department of corrections and rehabilitation12 - 54.1 - 03 , an offender who is convicted
of a crime in violation of section 12.1-16-01, 12.1-16-02, subsection 2 of section
12.1-17-02, section 12.1-18-01, subdivision a of subsection 1 or subdivision b of
subsection 2 of section 12.1-20-03, section 12.1-22-01, subdivision b of subsection 2
of section 12.1-22-02, or an attempt to commit the offenses, and who receives a
sentence of imprisonment is not eligible for release from confinement on any basis
until eighty-five percent of the sentence imposed by the court has been served or the
sentence is commuted.
2.In the case of an offender who is sentenced to a term of life imprisonment with
opportunity for parole under subsection 1 of section 12.1-32-01, the term "sentence
imposed" means the remaining life expectancy of the offender on the date of
sentencing. The remaining life expectancy of the offender must be calculated on the
date of sentencing, computed by reference to a recognized mortality table as
established by rule by the supreme court.
3.Notwithstanding this section, an offender sentenced under subsection 1 of section
12.1-32-01 may not be eligible for parole until the requirements of that subsection
have been met.
4.An offender who is convicted of a class C felony in violation of section 12.1-17-02, or
an attempt to commit the offense, and who has received a sentence of imprisonment
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or a sentence of imprisonment upon revocation of probation before August 1, 2015, is
eligible to have the offender's sentence considered by the parole board.
5.Notwithstanding subsection 4, this section does not apply to a sentence imposed upon
revocation of probation.
SECTION 10. AMENDMENT. Section 39-10-71 of the North Dakota Century Code is
amended and reenacted as follows:
39-10-71. Fleeing or attempting to elude a peace officer - Penalty.
1.A driver of a motor vehicle who willfully fails or refuses to bring the vehicle to a stop, or
who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or
peace officer, when given a visual or audible signal to bring the vehicle to a stop, is
guilty of a:
a.Class A misdemeanor for a first offense and a class C felony for a subsequent
offense within three years;
b.Class C felony if the driver violates this section while willfully fleeing during or
after the commission of a felony; or
c.Class C felony if, at any time during the flight or pursuit, the driver willfully
operates the vehicle in a manner constituting an inherent risk of death or serious
bodily injury to a third person.
2.A signal complies with this section if the signal is perceptible to the driver and:
a.If given from a vehicle, the signal is given by hand, voice, emergency light, or
siren, and the stopping vehicle is appropriately marked showing it to be an official
police vehicle; or
b.If not given from a vehicle, the signal is given by hand, voice, emergency light, or
siren, and the officer is in uniform or prominently displays the officer's badge of
office.
3.A conviction under this section carries a penalty of at least thirty days' imprisonment
and, if there is an underlying conviction, the imprisonment must be consecutive to any
sentence of imprisonment for the underlying conviction.
4.Upon a motion by a state's attorney, a court may order that a motor vehicle used in the
commission of a violation of this section be impounded by a peace officer for up to six
months.
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