BISMARCK -- The level of North Dakota's incarceration can be understood if the Department of Corrections and Rehabilitation is imagined as a county: Its population would be more than Slope, Burke, Billings, Sheridan, Golden Valley and Oliver counties, according to data provided by the 2010 U.S. Census.
If it were a city, it would be the 10th largest in the state, just behind Jamestown.
North Dakota's incarcerated population is not only large, it's growing.
A 2014 study released by the Pew Charitable Trust found that North Dakota's incarceration rate saw a 175 percent increase from 1994 to 2014, second in the country only to West Virginia.
In a one-day count on Jan. 1, the North Dakota Department of Corrections and Rehabilitation determined that 1,716 inmates were in custody statewide. An additional 6,167 men and women were on parole or probation.
Four years ago, the state inmate population was half what it was in September. And DOCR projects the inmate population to nearly double again in the next 10 years, to around 3,000 inmates by 2025.
A system problem
Leann Bertsch, DOCR director, said she believes the problem with North Dakota's growing incarceration rate goes far beyond what her department can handle.
"This isn't a prison problem. It's a system problem," she said.
A chart that Bertsch recently presented to state legislators and the public revealed several spikes in North Dakota's inmate population from 1992 to 2014. Many of these corresponded with the opening of a new detention facility or the implementation of new or tougher criminal laws. North Dakota is in the middle of its most dramatic spike yet, jumping from 960 inmates in December 2011 to 1,800 inmates in September 2015.
“We’re literally out of space,” said Dave Krabbenhoft, the director of administration at DOCR. “Everybody’s full.”
Numbers alone don't tell the whole story, said Judge Gail Hagerty, the presiding judge of the South Central Judicial District - covering Burleigh, Emmons, Grant, McLean, Mercer, Morton, Oliver, Sheridan and Sioux counties. It's one of the busiest districts in the state, and the caseload has gotten so high that the North Dakota Legislature recently approved funding for a new judge, John Grinsteiner, who was sworn into office in September.
Hagerty said it takes a lot for a judge to send somebody to prison.
"If the public saw, they would be shocked," said Hagerty, explaining that she and most of her colleagues give offenders several chances, often handing out supervised probation in lieu of prison time.
Even when a judge does send somebody to prison, that decision comes at the end of a long string of warnings and sentencing alternatives, said Hagerty, who added that not everybody is cut out for drug court and its stringent requirements.
"We've seen over the years there are many people who think incarceration is preferable over the drug court program," she said.
The inmate population has gotten so high in recent years that DOCR has contracted with for-profit prison operator Corrections Corporation of America to house about 200 inmates at a facility in Colorado.
Krabbenhoft said the move was driven by necessity.
“We need to find places to keep these people. We’re bursting at the seams,” he said.
A review of inmate admission numbers over the past few years revealed that nearly every category of offender has increased, including violent offenders, sex offenders and drug and alcohol offenders.
Alcohol-related offenders, in particular, have increased.
In 2014, the first full year that North Dakota's tougher DUI law went into effect, the number of alcohol offenders in prison more than doubled from the year before - from 32 in 2013 to 73 in 2014.
The tougher DUI laws were overdue, but came with an added cost for North Dakota state taxpayers, Krabbenhoft said.
An obligation to care
Each male inmate costs an average of $17.50 a day, more than $6,300 a year, in health care costs, Krabbenhof said. Add food, lodging, transport and other expenses, and the average amount to house a male inmate for a year is $42,460, with female inmates costing slightly less.
That's just the average: A few have cost more than $100,000, Krabbenhoft said.
All told, DOCR's budget for the 2015-2017 biennium is more than $215 million, and, if inmate rosters continue to trend upward, Krabbenhoft said that amount will only increase.
Many of those offenders suffer from health problems related to their addiction, such as alcoholics with organ failure or methamphetamine addicts with dental problems and upper respiratory problems.
All of which the state is constitutionally bound to treat.
"We don't have a choice. We really don't have a choice," Krabbenhoft said.
Bertsch put it another way.
"The only group of citizens that have a constitutional right to health care are inmates," she said.
In order to meet those needs, DOCR employs a small army of medical staff.
The North Dakota State Penitentiary, a maximum-security facility for male prisoners, has an infirmary - with 22 hospital beds - and a clinic that sees about 80 inmates a day.
The prison employs two doctors, a physician's assistant, a dentist, two pharmacists and more than a dozen nurses, dental assistants and pharmacy technicians, all on state payroll. The facility also has a psychiatrist on contract and is capable of conducting MRI and CT scans on-site through a local contractor.
The silent R
The average sentence in 2014 was slightly more than eight years, though, with time off for good behavior and early parole, inmates often get out much earlier.
Fewer than two dozen inmates statewide were serving a sentence 20 years or longer in 2014.
Nearly every inmate who walks into a North Dakota prison will one day walk out. That's why Bertsch said she's dedicated to making sure “the ‘R’ in our name (DOCR) isn’t silent.”
When inmates enter the DOCR system, they are evaluated to determine their needs and risks.
Tom Erhardt, DOCR deputy director of transitional planning, called it triage. He said his department has finite resources, so staff need to spend them where they will do the most good.
Erhardt said he and his staff devote their efforts toward addressing inmate associations and substance abuse problems.
He said every member of his department is trained in motivational interview techniques, in which inmates are asked to consider the consequences of their actions.
“Our department is a recidivism-reduction model,” said Erhardt, explaining his department tracks inmates for three years following release.
DOCR divides recidivism into two categories: new crimes and technical violations.
For the past decade, the number of inmates committing new crimes while on parole or probation has trended downward, from 16 percent in 2004 to 12 percent in 2011, the last year in which the full three-year review was available.
When an inmate violates a condition of his or her supervised release, such as failing a drug test or not reporting to a parole officer, that is counted as a technical violation. No new crime was committed, but the inmate can still return to incarceration.
Over the past decade, the number of technical violators has increased, from 23 percent in 2004 to 27 percent in 2011.
From her perspective on the bench, Hagerty said the problem with recidivism lies in the inadequacy of aftercare for inmates.
"It's almost like setting people up for failure," said Hagerty, adding that DOCR needs "a lot more resources to do what they are supposed to do."
"But the plain fact is, it's going to cost a lot," she said.
Time for a conversation
Bertsch, Erhardt and Krabbenhoft are emphatic: It's time for North Dakota to have a serious conversation about its criminal justice model, to look at what works and what doesn't.
"The time is right to take a look at everything," Krabbenhoft said. "What does the research say?"
In that, they aren't alone.
State Sen. Ray Holmberg, R-Grand Forks, who chairs the Senate Appropriations Committee, said the time has come for North Dakota to reconsider how it handles criminal justice.
"We have to take a complete look at our criminal code, so that the Legislature can get its arms around the entire crime-and-punishment situation," he said.
Holmberg added that North Dakota hasn't reviewed its criminal code since 1973, and that it's not unprecedented to review and overhaul state law. The state is in the midst of a four-year rewrite of its agriculture laws, he said.
Hagerty disagrees. She said it's not North Dakota's criminal code that needs to change, it's the level of services the state provides to substance abusers and the mentally ill to prevent them from going to prison in the first place. She said it doesn't help to tell people they need to get treatment, if the options for treatment are limited or do not exist.
For many, Hagerty said, prison is the only means for attaining treatment.
While Erhardt stopped short of endorsing the legalization or decriminalization of drugs such as marijuana, he said all one has to do is look at the steady number of inmates filling state facilities on drug possession charges to realize current laws aren't a deterrent.
From 2009 to 2014, an average of 129 inmates have been in custody solely on drug possession charges, and the number has climbed steadily since 2011. In 2014, 171 inmates were in custody for drug possession.
Likewise, Erhardt questioned the effectiveness of minimum mandatory sentences for drug delivery or manufacturing charges. Like the possession charges, they have remained steady with more than 220 inmates in custody for distribution or manufacture each year for the past six years.
"Building prisons is planning for future failures of social policy," Bertsch said. "We should be doing more on dealing with problems that put people into prison, rather than locking them up."
North Dakota has become a state that is tough on crime but soft on outcomes, Bertsch said.
"We're not getting a safer state by incarcerating more people," Bertsch said.