North Dakota: After prison, roadblocks to reentry

[Phil in Paris]

ADOPTIVE AND FOSTER PARENTING

1. Does the state consider other criminal history records beyond the federal list of convictions barring people from becoming foster and/or adoptive parents?

Yes, for both foster care and adoption, applicants must be barred for conviction of attempt, facilitation, solicitation, or conspiracy to commit specific violent and sexual felony offenses listed in the federal law and may also be excluded based upon misdemeanor convictions involving violence against children. N.D. Cent. Code § 50-11.3-02(2)(c), (4).

2. Does the state restrict people from becoming foster and/or adoptive parents for longer than required by federal law?

The statute is silent on the length of the bar for foster care and adoption for misdemeanor convictions involving violence against children so it may operate as a lifetime bar unless the state exercises its discretion. N.D. Cent. Code § 50-11.3-02(4).

3. May applicants be barred by the convictions of other household members?

No.

4. Does the state make individual determinations about an applicant’s eligibility based on the criminal record?

Yes, for both foster care and adoption, evidence of rehabilitation may lift the bars for the attempt, facilitation, solicitation, or conspiracy to commit specific violent and sexual felony offenses listed in the federal law and for misdemeanor convictions involving violence against children. N.D. Cent. Code § 50-11.3-02(3) and (4).


ACCESS TO CRIMINAL RECORDS

1. Is there a time limit after which criminal history information is not reported to non-law enforcement entities for employment purposes?

Arrests without a court disposition preceding the request by more than one year will not reported. N.D. Cent. Code § 12-60-16.6(2).

2. Other than the subject and criminal justice agencies, who can obtain records?

The public upon written request including at least two items of identifying information, for example, the subject’s fingerprints, state identification number, social security number, date of birth, or the date of a specific reportable event. N.D. Cent. Code § 12-60-16.6.

3. What types of records can be disclosed to non-criminal justice agencies?

Arrests without a court disposition less than one year old and convictions. N.D. Cent. Code § 12-60-16.6(2).

4. Are there penalties for violating limitations on dissemination?

Yes, criminal penalties. N.D. Cent. Code § 12-60-16.10.

5. Are state criminal records available on the internet?

No.

6. Can state criminal records of arrests not leading to conviction be sealed (including expunged, erased, or purged)?

There is no statutory mechanism for sealing arrest records. The North Dakota Supreme Court held that courts may expunge unconstitutional arrests if the arrestee has not been subsequently convicted. State v. Howe, 308 N.W.2d 743,749 (N.D. Sup. Ct. 1981).

7. If so, what is the effect of having an arrest sealed?

There is no standard for the effect of expungement.

8. Can criminal conviction records be sealed (including expunged, erased, or purged)?

Adult convictions may not be sealed.

Because juvenile delinquency adjudications are not considered a crime, the records are not reported to the central repository. The court records are closed to the public and destroyed according to North Dakota Supreme Court rules, thus sealing is unnecessary. N.D. Cent. Code §§ 27-20-33, -51, -54 and 12-60-16.2, -16.4. Records of juvenile delinquency adjudications will be destroyed after 10 years. If the petition is dismissed or the child is adjudicated unruly, the records will be destroyed 1 year after the child turns 18 or is released from supervision, whichever occurs later. N.D. Sup. Ct. Admin. R. 19, Records Retention Schedule–courts: Juvenile Case Files.

9. If so, what is the effect of having a conviction sealed?

Once a juvenile record is destroyed, the proceeding is treated as if it never occurred. N.D. Cent. Code § 27-20-54(2).


DRIVERS' LICENSE PRIVILEGES

1. Does the state revoke or suspend the drivers’ licenses of people convicted of drug-related offenses?

North Dakota passed a resolution on 10/17/00 in opposition to enacting a law called for by the federal statute in order to receive certain federal highway funds. However, the state does revoke drivers’ licenses for drug-related offenses. N.D. Cent. Code § 39-08-01(3) and North Dakota Department of Transportation, Rules of the Road (2001-2003), available at http://www.dot.nd.gov/docs/rulesroad.pdf.

2. If so, what crime(s) result in suspension or revocation?

Driving while under the influence of alcohol and/or drugs. N.D. Cent. Code § 39-08-01(3) and North Dakota Department of Transportation, Rules of the Road (2001-2003), available at http://www.dot.nd.gov/docs/rulesroad.pdf.

3. If so, what is the length of the suspension or revocation?

Ninety-one days for the first offense; 365 days for the second offense; and two years for the third or subsequent offense. N.D. Cent. Code § 39-08-01(3) and North Dakota Department of Transportation, Rules of the Road (2001-2003), available at http://www.dot.nd.gov/docs/rulesroad.pdf.

4. Does the state offer restricted drivers’ licenses for purposes of employment, education, and/or medical care?

No.


EMPLOYMENT

1. Can employers ask job applicants about arrests not leading to conviction?

Yes.

2. Can employers consider arrests not leading to conviction?

Yes.

3. Does the state have standards prohibiting employment discrimination by public employers and occupational licensing agencies based on a conviction record?

Yes. Although a person may not be denied a license solely based upon a criminal conviction, a denial may be based upon a conviction if it is determined that the individual is not sufficiently rehabilitated or the offense has a direct bearing upon the individual’s ability to serve the public in the particular position sought. The occupational licensing authority will consider the following factors in determining whether an individual is rehabilitated: the nature of the offense and its relationship to the position in question; degree of rehabilitation; and time elapsed since conviction or release (five years after final discharge or release from incarceration, probation or parole without subsequent conviction is prima facie evidence of rehabilitation). Applicants are entitled to a written explanation of the reasons for denial if based in whole or in part on a criminal conviction and may appeal a final agency decision. N.D. Cent. Code § 12.1-33-02.1. There are no standards for public employers.

4. Does the state have standards prohibiting employment discrimination by private employers based on a conviction record?

No.

5. Does the state restrict people with criminal records from employment in the field of home health care?

No.

6. After an individual has been convicted, does the state offer any mechanism to demonstrate that an individual has been rehabilitated?

Only pardons. N.D. Cent. Code § 12-55.1-04. Pardons do not serve as evidence of rehabilitation or lift occupational bars. Telephone Interview with Janice Young, Business Officer, Division of Field Services, North Dakota Department of Corrections and Rehabilitation (August 14, 2002).


PUBLIC ASSISTANCE AND FOOD STAMPS

1. Are people with drug-felony convictions dated after 1996 eligible to receive TANF benefits and food stamps?

No, North Dakota has adopted the federal drug felon ban. N.D. Cent. Code § 50-09-02(10) and N.D. Admin. Code § 75-02-11-02.


PUBLIC HOUSING


1. Does the Housing Authority consider arrests that did not lead to conviction in its admission criteria?

Grand Forks does not have public housing per se, but follows HUD regulations for its Section 8 housing programs. Yes, the Grand Forks Housing Authority considers arrests.

2. Does the Housing Authority make individual determinations about an applicant's eligibility based upon the relevance of the criminal record?

Yes.

3. How long is the conviction bar(s)?

Three years for drug-related evictions from public housing.


VOTING

1. Does the state grant people with criminal records the right to vote?

Yes, only individuals incarcerated for felony convictions may not vote. N.D. Cent. Code § 12.1-33-01(1)(a).