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Dale Wetzel, Associated Press Writer, Published September 30 2010

Changing crime penalties proving difficult

BISMARCK – Since the early 1980s, it’s been a felony in North Dakota to steal something worth more than $500, even though the money buys a lot less than it did 30 years ago.

Some prosecutors have been pushing to raise the threshold, arguing that it has given some North Dakotans felony records for relatively minor crimes and needlessly increased the workloads of public defenders and the state corrections agency.

Felons often go to state prison or require supervised probation. Many cannot afford attorneys, so one is provided at taxpayer expense. State law also requires anyone arrested for a felony to provide a DNA sample to the state crime laboratory.

A legislative committee assigned to study the issue has declined to recommend any bill for the 2011 Legislature, but Ladd Erickson, the McLean County state’s attorney and an advocate for raising the felony thresholds, said a proposal may be introduced anyway. The 2011 session begins in January.

“It’s not like we’ve kept up with inflation,” Erickson said. “These amounts haven’t changed for years.”

North Dakota has a number of crimes, from bad checks to theft, forgery and counterfeiting, that carry punishments that depend on the amount of money involved.

Writing a rubber check for more than $500 is a felony that carries a penalty of up to five years in prison and a $5,000 fine. So is any theft charge when the value of the stolen goods is greater than $500.

Five hundred dollars in 1981 is worth about $1,200 today, according to a U.S. Bureau of Labor Statistics inflation calculator.

Erickson is supporting a proposal to double the money thresholds for crimes whose severity depend on the amount of money involved. Under its terms, a bad check writer, for example, would not risk a felony conviction for anything less than $1,000, and more than $1,000 in goods would have to be stolen.

Some lawmakers were critical of the idea, saying most North Dakota county prosecutors have not been clamoring to raise the thresholds.

“I personally don’t think that we need to increase the incentives for crime in North Dakota,” said Rep. Lawrence Klemin, R-Bismarck. “The biggest group that would benefit by this are the people committing the crimes.”

Aaron Birst, an attorney for the North Dakota Association of Counties, said only four of 103 county prosecutors responded to a recent survey he sent them on the issue. Three said the changes were not needed, Birst said.

Sen. David Nething, R-Jamestown, said the lack of response shows prosecutors are “pretty content with the system as it is.”

Rep. Chris Griffin, D-Larimore, the chairman of the legislative committee that reviewed the proposal, said first-time theft offenders who are convicted of felonies almost never get a harsher punishment than would be available if they were convicted of a misdemeanor.

Under the current system, for example, a first offender who writes a $600 bad check “is never going to get a sentence of more than a year” for the felony, Griffin said.

If the felony bad-check threshold were raised to $1,000, the same person would be guilty of a Class A misdemeanor, which carries a maximum penalty of a year in jail, “which is completely sufficient under almost any imaginable circumstance,” he said.

In the past decade, at least 19 states have reviewed their money thresholds at which various crimes should be considered felonies, according to the National Conference of State Legislatures. In Delaware, the threshold for the lowest-level felonies was increased from $1,000 to $1,500, while Maryland doubled its threshold from $500 to $1,000 for the lowest felony classifications, the organization said Wednesday.

Robin Huseby, director of the state Commission on Legal Counsel for Indigents, said Wednesday the commission had not taken a position on the issue. The agency provides attorneys for criminal defendants who can’t afford to hire their own lawyers.

Huseby, who is a former prosecutor, said she personally believed the money thresholds at which criminal defendants may be charged with a crime need to be reviewed.

“With all these felonies comes a price to the court system,” Huseby said. “It’s always a trade-off.”

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