North Dakota's court system would collect race data on criminal defendants under a rule proposed to the state Supreme Court.

Judges and other officials say race data would drive statistical analysis for potential policy solutions to any real or perceived biases in North Dakota's criminal justice system.

"Race data is critical to criminal justice policy making decisions and will be used solely for this purpose," the rule's purpose states.

The court on Feb. 19 referred the proposal back to its Minority Justice Implementation Committee, the group of court, legal and corrections officials that put the proposal forth in December. The committee will now consider public comments submitted on the rule.

First steps

State Court Administrator Sally Holewa said the court has never specifically collected race data.

That's mostly because the court has no research analysts on staff to evaluate such data and also because of a concern that race data might be viewed "in a vacuum" without other elements such as a person's criminal history or full circumstances of a case, she said.

"But on the flip side, without that race data, we also don't have any response when people come back and say, well, there seems to be some sort of systemic prejudice going on here," Holewa said.

The two-page proposal outlines six race categories, how prosecutors and clerks of court would collect race data and how that data would be accessed. Race data wouldn't be accessible to the public unless compiled in a final report, or for research upon request and payment of a fee.

"It's basically just to try to get a handle on this type of information, the races we're dealing with and numbers and all that," said Bottineau-based Northeast District Judge Anthony Swain Benson, who chairs the committee.

"That's the purpose of the rule, is to see if there's a disproportionate handling of one race or one group of individuals ... so we can make changes or policy changes or shift things if needed, but the first step is getting that information, finding out if that's the case," he added.

Native Americans are North Dakota's largest minority group, making up 5.1% of the state's population in 2018, according to state Census Office Manager Kevin Iverson. Non-Hispanic whites made up 84% of the state.

Years of work

Roots of the proposed rule reach back more than a decade, to a 25-member group of court, corrections, legal and tribal officials formed in 2009 to study racial and ethnic bias in North Dakota's courts. The group issued a final report in 2012, which bore the Minority Justice Implementation Committee in 2013 to oversee the report's recommendations.

The committee began discussing race data collection in 2016 and formed a related data collection subcommittee in 2018.

Devils Lake-based Northeast District Judge Donovan Foughty co-chaired the North Dakota Commission to Study Racial and Ethnic Bias in the Courts. Criminal penalties have consequences that aren't equal for everyone, he said.

"If your circumstances in life are significantly different, the laws and the punishments that we often impose are significant also," Foughty said. "Because you don't have the resources to pay the fines and fees, you may end up in jail because you're noncompliant with an order.

"And how does that impact minorities? How does that impact the individual that doesn't have the resources that I have?" he said. "So those are things that we should be looking at, and how does the system work as it relates to different groups?"

Other areas

Race data is collected in other arenas, including juvenile cases, which are confidential, and also in traffic tickets, jury management and North Dakota's corrections system, such as parole and probation outcomes.

Native Americans and African Americans are overrepresented in the state's prisons, according to Department of Corrections and Rehabilitation Director Leann Bertsch.

Native Americans made up about 22% of the 1,778 inmates in the department's custody on Friday, according to a report of race by facility. African Americans made up about 11%. Whites made up about 61%.

Native Americans made up about 35% of women in the department's custody, according to the report.

The answer to why minorities are overrepresented in the prison system is "very complex and multifaceted," Bertsch said. Some of it's tied to poverty and other socioeconomic factors, she said.

North Dakota's top corrections official sees the proposed rule as "a great first step" that she supports. But Bertsch noted the perceived concern of collecting race data from people who might question if providing that information would lead to them being treated less favorably.

"I think the concern is how you do it and how you do it in a very sensitive manner," she said.

The Supreme Court received three public comments on the proposed rule, all generally in support, but two expressing concerns for the proposed race categories as too limiting and not allowing respondents to self-identify their race or ethnicity, such as Hispanic.

The rule's race categories are white, black or African American, American Indian or Alaska Native, Asian, Native Hawaiian or Other Pacific Islander, and multiracial.

The North Dakota Commission on Legal Counsel for Indigents, which provides legal representation to needy defendants, implemented a new case management system last fall. Deputy Director Travis Finck said the system has the capability to track race if clients opt to provide that information, but the commission has no specific policy for race data and doesn't report it.

The Minority Justice Implementation Committee will review the proposed rule's public comments at its May 21 meeting, after its data collection subcommittee discusses the comments at its March 16 meeting. North Dakota's Supreme Court eventually will consider adopting the rule.

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