Probationers and parolees may be the first to see improvements in mental health and substance abuse treatment after this legislative session.
The state Department of Corrections and Rehabilitation is requesting to cut its own costs by prioritizing who goes to prison, in order to provide services to people who may do better on the outside.
Tucked into the corrections budget bill is a $7 million transfer to the North Dakota Department of Human Services to offer treatment to up to 2,059 people on supervision with the idea that services will turn them away from further crime. The funding hinges on authority given to the prisons and county jails to treat bed space as a commodity instead of an expandable resource.
The bill, SB2015, is the result of a tight budget, ever-increasing prison population and a growing awareness of the tight link between mental health, addiction and incarceration.
“I think we’re coming around to the point of rethinking with some of the lower level offenses,” said Sen. Terry Wanzek, R-Jamestown, who carried the bill in the Senate Appropriations Committee. “Maybe we are better off trying to refocus some of those dollars on getting them some help.”
Building a behavioral health system
The idea of the bill is to develop tiered services statewide for people on probation and parole. The services are meant to tie in with other criminal justice reform bills that would divert more people from prison. Most notably, supporters say it goes “hand in hand” with HB1041, which makes probation the presumed sentence for nonviolent low-level felonies.
“Without this behavioral health piece, none of this will work,” said Rep. Jon Nelson, R-Rugby, who serves on the House Appropriations and Interim Incarceration Issues Committees. “We have to have services and supervision in the communities for nonviolent accused inmates to get the help to make our outcomes better.”
The plan relies on a public-private partnership model, in which DHS would pay private providers for services and pay them based on non-traditional performance metrics, such as whether clients stayed off drugs, in housing and out of jail.
It’s envisioned that services would be most robust in the biggest cities, with doctors, psychologists, addiction counselors and peer support specialists. But they would also be available in smaller ones, where people could get at least peer support from others recovering from their own addictions and mental health issues in addition to guidance from a probation officer.
These services would be overseen by six new employees at DHS. Also included in the bill is half a million dollars for developing a strategic plan and reporting on program outcomes.
Many areas, especially rural ones, have few providers currently, and this system is meant to incentivize growth there and start developing a workforce though paraprofessionals. Pam Sagness, director of the behavioral health division at DHS, said she plans to reach out to faith communities and other unexpected experts.
“In a small community, if you have someone with lived experience, they can be a support,” Sagness said.
She also expects the program will help grow services for people in the general public.
“Even though this is a targeted group, these are the same providers that will be serving children and moms and dads,” she said. “As they work to provide models of producing outcomes that will affect the whole system.”
The model came out of research and recommendations from the Council of State Governments Justice Center, which worked with the state over the past year to examine the reasons behind prison growth and how to stop it.
Senior Policy Adviser Steve Allen said the model of providing services to correctional populations is widespread, but the performance-based model developed here is unique.
“We think other states will be very interested in observing the North Dakota project as it moves forward,” he said.
Where the money comes from
Money for the new services won’t come directly from the general fund. Rather, it’s money the corrections department thinks it can save by capping the number of prisoners at current capacity and avoiding new prison contracts.
In order to do that, the bill lays out a “prioritization plan” that permits the corrections department to say “wait” to prisoners if there isn’t space. They would be held in county jails or continued on bond until beds opened up. Decisions will be made based on how serious the offense is.
DOCR Director Leann Bertsch said she expects about five people monthly might be temporarily turned away.
The bill gives similar authority to counties and instructs them to develop plans to manage their jail numbers through alternatives, such as home detention, electronic monitoring and drug treatment.
"The realization is that jail and prison are commodities. They are not free," Bertsch said.
Wanzek said he anticipates the law will force DOCR, DHS, counties and judges to take a hard look at who is getting locked up and how that can be minimized.
“It’s asking them to work together in a sense,” he said.
This bill derives from research over the past several years into severely lacking mental and behavioral health services throughout the state and projections of rapid and expensive prison growth.
North Dakota is sixth in the nation for drug and alcohol abuse, but 43rd in behavioral health workforce availability, according to Mental Health America. In a CSG survey, only 12 percent of probation officers said substance abuse treatment was available and accessible for their clients, and about 70 percent of judges indicated they had sentenced people to prison, just to get them some treatment.
There are about 1,800 people incarcerated in state prisons, a 250 percent increase since 1992, according to DOCR. State population has only grown 18.6 percent in that time. There are also 1,700 in county jails and 7,300 on parole or probation.
Overcrowding has led DOCR to tack on impromptu housing, including beds in a basketball gym at the women's prison and a man camp hauled in from Tioga at the Missouri River Correctional Center.
The corrections department was funded at $215 million from the general fund for the 2015-2017 biennium, which is $70 million more than 2009-2011. The current budget allocates the same $215 million plus about $38 million in other income.
Prioritization vs. allocation
Bertsch originally proposed a plan, similar to a controversial one from last legislative session, which would have allocated prison beds by county population. If a county used more beds than allowed, there would be an upcharge. But this plan drew considerable opposition from the counties, who contend it doesn’t allow for the unexpected nature of crime.
“We don’t know when a crime spree would happen,” said Burleigh County Sheriff and Republican Rep. Pat Heinert. “There’s no way for law enforcement to identify specifically how many people we’re going to arrest."
The change to a “prioritization” plan has made some county officials, including Heinert, breathe a little easier.
“It gets some of our people uncomfortable, but what are you going to do?” asked Aaron Birst, executive director of the North Dakota State’s Attorneys' Association. “If they don’t have space and they don’t have money, then something has got to give.”
But Gail Hagerty, presiding judge for the South Central Judicial District, said it still concerns her.
“I understand the desire to have control over the DOCR budget, but that's a luxury no one else has. Law enforcement agencies can't decline to do their job when they've responded to the calls for which they've budgeted. Courts can't quit filing cases when they've filed as many as were anticipated,” Hagerty wrote in an email. “The real effect of the DOCR proposal is to push costs off on local government and to put the DOCR in the position of re-sentencing offenders.”
The bill passed the Senate last month with a 42-4 vote. It is now being considered in the House Appropriations Committee.
Nelson, who sits on that committee, indicated the bill has a shot this year, given that there was little opposition testimony offered at the overview hearing. He said he’s looking for more explanation from DOCR about the full nature of the prioritization plan.
“We do start from a better place this time than last time,” he said.
As this bill gets considered, some programs targeted at helping the general population get mental health and substance abuse treatment may not get funding.
Support for substance use disorder vouchers, which help subsidize treatment, was lessened by the House from $1.5 million requested to $375,000, according to Sagness, who said this funding level would only support the program for four months. Also, $1.9 million in requested funding for a program to train peer support specialists was reduced by the House. Both may be reconsidered in the Senate, but with budgets tight, it's unclear how far they'll get.
“I hope we can be cautious in how far we go with making any cuts,” Wanzek said.