Despite Overcrowded Jails, North Dakota Judges Have Deviated From Mandatory Minimum Sentences Just Once in Last Year


Inmates fill plastic trays with food for about 250 in jail at an assembly line in the Cass County Jail in Fargo. Dave Wallis / The Forum

Prison overcrowding is a big issue in North Dakota. “Overcrowded jails are having to find space in other counties and neighboring states for their own inmates,” WDAY reported back in January. That report found that more jail capacity is coming online – 10 counties are set to complete jail construction projects that will increase the state’s inmate capacity by 48 percent – but all that construction costs taxpayers. A lot.

And there’s no sign that the steady rise in incarceration in our state will slow any time soon, even with the fade of the oil boom. I interviewed Leeann Bertsch last year – she’s the director of the North Dakota Department of Corrections – and she shared some depressing data with me.

From 1992 to 2014 North Dakota’s statewide population increased 16 percent, but the prison population increased 234 percent. Corrections officials are projecting a 63 percent increase in the prison population by 2025. The count for citizens on parole and/or probation also increased 217 percent during that same period.

As you can see from this trend line (chart taken from a report Bertsch made to the Legislature), this isn’t an oil boom issue. This is a multi-decade upward trend in statewide incarceration at a rate much faster than the state’s population growth:

It’s such an issue that erstwhile gubernatorial candidate, Attorney General Wayne Stenehjem, made prison reform a plank in his campaign platform. “We’re going to have to rethink the way we look at corrections,” he said.

So it’s in this context that the state’s courts make their annual report about deviations from mandatory minimum sentences as required by state law, and the brief report gives me the impression that these mandatory minimums are a big part of our problem.

“For the time period of July 1, 2015 to June 30, 2016, the state court administrator received one report of a departure from the mandatory minimum sentence,” the courts reported yesterday. “The case number and details of the departure were not included in the report.”

Here’s the bit of the century code which governs when judges can deviate from mandatory minimum sentencing. You’ll note that it’s a pretty high bar, requiring that the judge see “manifest injustice” in the minimum sentence:


In a state where prison overcrowding is an issue, do we really need to tie the hands of judges on sentencing? Might it not make more sense to give them some latitude on sentencing so that they can apply some common sense to a truly troubling over incarceration problem?

Even though Stenehjem lost the gubernatorial primary to his opponent Doug Burgum he is still our Attorney General. It is my hope that he will bring to the Legislature some big reforms to address this problem, including the rejection of mandatory minimum sentencing. Previous efforts to reform mandatory minimums have been largely unsuccessful, but maybe in 2017 lawmakers will have a better handle on the scope of this problem.

I realize that prison populations aren’t the only factor to consider. At the end of the day the top priority is public safety. That said, I think we can probably maintain a reasonable level of public safety while simultaneously putting fewer people in prison.