BISMARCK — According to state data, North Dakota’s ex-state prisoners are headed back behind bars at about the same rate they were 10 years ago. But during that decade, that number has varied — and the statistics themselves are said to be bound up in questions of prison capacity, criminal law and the opioid crisis.

The state Department of Corrections and Rehabilitation tracks two broad reasons why released state prisoners might find themselves in state prison once again: either they’ve committed a new crime and been sent back to a state facility, or they’ve violated a term of their release, like not reporting to a parole officer — a “technical” reason for their return to custody. Both examples are called “recidivism,” a specialist’s word for the phenomenon, and the state tracks it over a three-year period from when a prisoner gets released.

And for prisoners released in 2005 and 2015, those numbers remain close to the same. Roughly 25% had a technical violation by the end of 2008 or 2018. The same is true of prisoners who had a new conviction, with percentages for both release years in the mid-teens.

Those numbers have shifted in the years in between, though — the combined three-year recidivism rate was down to 35% for those released in 2008, but spiked at nearly 46% for releases in 2014.

And North Dakota officials in criminal justice and the state corrections department point out that there are numerous factors that have influenced those statistics in recent decades. As Wade Enget, Mountrail County state’s attorney point out, the rate is closely linked to North Dakota criminal law, and legal reforms over the last decade aimed at controlling the state’s hefty prison population will affect those figures in the future — if tweaks in the penal code haven’t done so already.

One example is a law passed in 2017 law that makes probation the default sentence for certain first-time, low-level crimes, and which Enget said will result in fewer felonies and more misdemeanors. The corrections department confirmed that the recidivism statistics it provided only cover individuals who are released from DOCR lockup and return there — meaning a sentence to probation wouldn’t register.

Those changes come as North Dakota manages a prison system that has grown precipitously since the 1990s. The state has labored in recent years to decrease pressure on its prisons, marshaling more resources for items like drug treatment and amending criminal law to decrease the flow of new prisoners.

However, significant questions remain as to whether more can be done. Enget said a lot of the recidivism he sees in Mountrail County is driven by drugs, and that treatment centers are often in faraway places like Minot — leaving people without access with a dimmer chance of staying out of a prison cell.

“We place some of these people in almost an untenable position, because they don’t have (driver's) licenses, they’re supposed to get treatment, they live in rural areas, and the state and the region says ‘Come to us. Come to Minot, come to Williston. That’s where you have to come for treatment,’” he said. “Well, there’s not public transportation out here.”

Rozanna Larson, Ward County state’s attorney, said she suspects that high caseloads for parole and probation officers — and a genuine desire to help ex-prisoners — sometimes keeps those officers from revoking criminals’ freedom.

“The other part is, quite honestly, it’s a space issue,“ she said, referring to crowding within the state and local prison system. “Somebody violates probation on a technical matter, they’d be filing petitions all the time. And do what with them — and put them where?”

She also said local parole and probation officers need clearance from supervisors to rescind release.

“I know for a fact, because I hear from (local) probation officers — who are told that they can’t talk to the media — they cannot file a petition to revoke unless it’s been approved by the higher-ups in their department. And the same with parole,” she said. She recalled one instance in which a parole officer told her, after a parolee was charged with a new crime, that he had been “told I cannot revoke parole.”

Pat Bohn, who heads the state corrections department’s parole and probation division, responded to Larson through a department spokesperson. He said his division has had a “team approach” to parole and probation violations for more than a decade.

“Just as with any team, not everyone agrees all the time with the final decision, and debate and honest feedback help set the foundation for system improvement,” he said in a statement provided via email. “Helping people change behavior is also a driver. The U.S. and North Dakota have a long track record of failed efforts to incarcerate and criminalize our way out of systemic problems in society.”

Rising 'technical' rates

One of the most drastic changes in recent decades has been how often prisoners go back to lockup for those “technical” reasons. The 2000 release year saw about 11% of released state prisoners return to prison for just this reason; the 2012 and 2014 release years both saw more than 28%. There’s a corresponding decline in returns for new crimes.

Bohn said that there are more legal conditions for supervised release than there used to be — notably for sex offenders — and also that prisons have “become the de facto provider of substance abuse and mental health services” for many criminals. What’s more, courts are increasingly requiring charges for new crimes to result in a conviction before a criminal’s release will be revoked.

“Courts will revoke on technical violations, though, so that can account for some variance in the data over time,” Bohn said.

He pointed out, too, that there’s a delicate relationship between technical violations and new crimes.

“For instance, if people are returned to prison too quickly for technical violations alone, you can destabilize individuals and grow prison populations with people that may not really need incarceration or longer term incarceration,” he said. “On the other hand, if you are working with someone with a growing list of technical violations — and we are not talking about minor things like not paying court costs/fees or missing an appointment … and intermediate measures continue to not yield a correction in behavior, you’ll see returns for new crimes increase."