Excessive Sentencing Project - North Dakota

Policies and rulings on lengthy imprisonment terms in North Dakota.

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  • North Dakota has a three-strikes law that allows courts to impose life sentences when an offender with two prior felony convictions is subsequently convicted of a Class A felony.
  • The state allows courts to enhance sentences for dangerous, “mentally abnormal” offenders.
State Constitution

Art. 1, §11. Section 11: All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishments be inflicted. Witnesses shall not be unreasonably detained, nor be confined in any room where criminals are actually imprisoned.

Sentencing Statutes

Habitual Offender statute: North Dakota allows for the enhancement of an offender’s sentence if he is found to have been previously convicted as an adult of two felonies punishable by a maximum term of five years or more. NDCC §12.1-32-09(1)(c). If the offense for which the defendant is convicted is a Class A felony, the court may impose a sentence of life imprisonment. NDCC §12.1-32-09(2).

Dangerous Special Offenders: A court may enhance a sentence if it finds that an offender “is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior and the behavior makes the offender a serious danger” to others or the convicted offender is a “professional criminal who has substantial income or resources derived from criminal activity.” NDCC §§12.1-32-09(1)(a)-12.1-32-09(1)(b). A finding that an offender was convicted of an offense that seriously endangered the life or another, when that offender has previously been convicted of another offense that put a life in danger, is grounds for enhancement. NDCC §12.1-32-09(1)(d). So is the use of a firearm, dangerous weapon, or destructive device during the course of the offense. NDCC §12.1-32-09(1)(e). 

The statute defines “professional criminal” as one with “control of income or property not explained as derived from a source other than criminal activity;” a “substantial source of income” is defined as a “source of income which for any period of one year or more exceeds the minimum wage, determined on the basis of a forty-hour week and a fifty-week year, without reference to exceptions, under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, for an employee engaged in commerce or in the production of goods for commerce, and which for the same period exceeds fifty percent of the offender's declared adjusted gross income under chapter 57-38.” NDCC §12.1-32-09(1)(e).

Case Law

General 

State courts have wide discretion in sentencing, and the appellate courts will not vacate a lower court’s sentence unless (1) acted outside the limits prescribed by statute or (2) “substantially relied” upon an impermissible factor in determining the sentence. State v. Haynes, 763 N.W.2d 502, 504 (N.D. 2009).

Prosecutors must provide reasonable notice before trial if they intend to seek sentencing enhancement under the state’s habitual offender statute; failure to do so is prejudicial error and grounds for reversal of the imposed sentence. State v. Carpenter, 793 N.W.2d 765, 772-73 (N.D. 2011) (reversing and remanding for resentencing when prosecutor notified the defendant and trial court that he intended to seek an enhancement the day before trial).

The term “mentally abnormal” in the dangerous special offenders statute must be considered in conjunction with the term “dangerous,” and those terms are defined as “a defendant whose conduct has been characterized by persistent aggressive behavior” that poses a danger to others. State v. Wells, 276 N.W.2d 679, 693 (N.D. 1979) (holding, inter alia, that the statute was not constitutionally vague). A court cannot find that a defendant is a “dangerous, mentally abnormal” person unless a presentence report and psychiatric examination finds the same. State v. Wells, 265 N.W.2d 239, 244 (N.D. 1978).

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Once the state shows a defendant had counsel for previous convictions, it becomes the defendant’s burden to show that prior convictions were deficient for the purposes of avoiding sentence enhancements. State v. Berger, 590 N.W.2d 884, 887 (N.D. 1999).

Proportionality 

To evaluate whether a punishment is grossly disproportionate, the court compares the gravity of the offense to the harshness of the penalty; if the court finds gross disproportionality, then it should compare the defendant’s sentence with sentences received by other offenders in the same jurisdiction and those convicted of the same crime in other jurisdiction. State v. Gomez, 793 N.W.2d 451, 459 (N.D. 2011). To evaluate the gravity of the offense, courts should consider the actual or threatened harm to the victim and society, as well as the defendant’s culpability and degree of involvement. Gomez, 793 N.W.2d at 459, citing U.S. v. Barraza, 576 F.3d 798, 808 (8th Cir. 2009).

Severe Sentences 

Court upheld life without parole sentence for 16-year-old convicted of murder; the defense presented no mitigating evidence during its sentencing hearing. State v. Garcia, 561 N.W.2d 599, 611 (N.D. 1997).