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Gov. Burgum pardons weigh role of addiction, 'legal discrimination'

BISMARCK — In his first two years as governor, Doug Burgum has pardoned more people than his predecessor did in six years in office.

Burgum has pardoned 18 people and commuted sentences for two, according to data from the North Dakota Pardon Advisory Board, a five-member board that reviews pardon applications and makes recommendations to the governor.

Former governor and North Dakota Republican Sen. John Hoeven granted 18 pardons and 19 commutations from 2000 to 2010. And former Gov. Jack Dalrymple granted 13 pardons and three commutations from 2011 to 2016.

Burgum has assumed a progressive approach to criminal justice reform, signaling early on his support for a set of bills dubbed "justice reinvestment." He has since advocated for additional state funding for the community-based behavioral health program, Free Through Recovery.

In an interview with the Tribune, Burgum said he believes attitudes have shifted on alcohol and substance use disorders and he doesn't think a person should be "trailed around" by a conviction that may involve their addiction.

'Very practical problems'

The Pardon Advisory Board is composed of two people appointed by the governor, two members of the state Parole Board and Attorney General Wayne Stenehjem. The board meets twice a year to consider applications for executive clemency, which includes a pardon and a commutation of sentence.

Applications are reviewed by state Department of Corrections and Rehabilitation staff, as well as a representative from the governor's office or board chair. Those that make the cut are sent to the full board, which may conduct an interview with the applicant.

The board makes its recommendation but it's the governor who has the final say.

H. Patrick Weir, who chairs both the Pardon Advisory Board and the Parole Board, says the DOCR, the Pardon Advisory Board and Burgum have shifted, recognizing the role addiction plays in criminal activity. Recently, the board broadened the types of pardon applications it considers to include the effects of alcohol or substance use disorders.

"I think that the whole philosophy of criminal justice is moving towards recognizing that addiction is one of the primary, at least contributing cause of people getting into trouble with the law in the first place," said Weir, who previously served as a judge in North Dakota's Southwest District Court.

The board made the policy change last month. Leslie Bakken Oliver, general counsel for Burgum, said the revisions, which she and the governor reviewed, were "changes that were minor but had significant impact." They consider whether treatment was utilized and if the applicant is "contributing to society," she said. They also review cases in which a person has had difficulties obtaining a license, getting a job or promotion, are precluded from educational opportunities and internships or present "a compelling need for relief."

"We have seen individuals, oh gosh, 50 years later seeking a pardon so that they can meet their maker with a clean conscious," Bakken Oliver said. "But more often than not, it's someone that can't get into nursing school because of the conviction, or they can't get licensed — very practical problems."

An open records request of the pardon applications Burgum has granted since taking office show cases that span decades, including some from people who don't live in North Dakota.

Burgum pardoned a 65-year-old Grand Forks man for a 1972 arson conviction. A 69-year-old woman who lives in Canada was pardoned for methamphetamine possession in 1999. Some of the applicants wrote in their applications about how mistakes they made when they were teenagers were adversely impacting them today.

"I was young and hanging out with the wrong crowd," said a 33-year-old Minot man who was pardoned for a number of charges including burglary and drug possession.

Weir said applicants are required to show how they've turned their lives around.

"To the extent that they can show us that they recognize they have this problem and they've corrected it and they've really led exemplary lives, contributed to their community and they have a reason why they think the governor ought to (approve the pardon), those are the people that we want to apply," he said.

A 'scarlet letter'

Since taking office, Burgum said he's observed a reframing of the criminal justice system in North Dakota and in the country as a whole.

In conjunction with work that the state is doing related to criminal justice reform, Burgum said it’s also important to look at how a felony can impact someone years later.

"We legally discriminate against people who have felonies all the time,” Burgum said. "This is like the scarlet letter that just follows them around and causes this legal discrimination."

This type of discrimination occurs in employment applications, housing and in other forms, he said.

"I think if you randomly picked five citizens every month and held a pardon board meeting every month, they would (say), 'This person can't do what because of what they did 25 years ago?' I mean, some of it is just complete common sense," Burgum said.

The governor said he carefully reviews the pardon applications to keep in mind public safety and victim's rights.

"I want to be thoughtful that we're solving a problem for an individual, not creating one for society," he said.

Hoeven, who served as governor from 2000 to 2010, said he, too, made decisions on whether to grant a pardon on a "case-by-case basis," considering public safety, efforts to rehabilitate and the effects of a pardon.

In response to Burgum's focus on addiction, Hoeven said when he was governor "there wasn't as much focus on drugs and drug addiction as there is now."

"Yes, (addiction) is a factor. We look at it becoming even more a factor and clearly the governor and first lady are putting a real focus on it and rightly so," he said.

Dalrymple, who was governor from 2010 to 2016, said he also carefully reviewed pardon applications, which "quite often" involved a special circumstance, such as hindering employment or involving the possibility of deportation.

"Gov. Burgum, I think, certainly is right to communicate to his advisory board what his expectations are as they screen these applications, and if he wants to pay more attention to certain kinds of situations where somebody has been rehabilitated from drugs or alcohol, that is certainly his privilege to do that," Dalrymple said.

'Why wait?'

In response to his granting more pardons, Burgum said he believes that there has been a "change in the science and the understanding of the disease of addiction."

"I think it's also an understanding of what works and what doesn't work relative to a decades long approach to this idea that we're going to apply punishment towards a disease, which is not a model that works," he said.

Burgum applauded the criminal justice reform bill, the First Step Act, which President Donald Trump signed into law on Friday, Dec. 21. The act aims to reduce recidivism among federal prisoners.

Burgum also said he has learned from other governors to use pardons as "a tool." At a conference meeting with the Western Governors' Association, which includes governors from 19 western states and three U.S. territories, Burgum said governors advised him to not wait until his last day in office to do pardons.

"This is a tool you can use right now to both help your economy, your society, families," he said. "Why would you wait until the end of a term to do something like this? If you can make a difference now ... why wait?"