2013 North Dakota Century Code Title 12 Corrections, Parole, and Probation Chapter 12-47 The Penitentiary
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CHAPTER 12-47
THE PENITENTIARY
12-47-01. Penitentiary - Location - Purpose.
The penitentiary located at the city of Bismarck in the county of Burleigh is the general
penitentiary and prison of this state for the punishment and reformation of offenders against the
laws of this state. The director of the department of corrections and rehabilitation may establish
affiliated facilities at other locations throughout the state within the limits of legislative
appropriations. The department shall confine, employ, and govern all offenders committed to the
legal and physical custody of the department in the manner provided by law.
12-47-02. Jurisdiction over penitentiary and affiliated facilities.
The penitentiary and the grounds and premises thereof, for the purpose of all judicial
proceedings, is within and a part of the county of Burleigh, and the courts of that county have
jurisdiction of all crimes or public offenses committed within the penitentiary. The jurisdiction of a
crime or public offense committed within an affiliated facility of the penitentiary is in the county
where the affiliated facility is located.
12-47-03. Who may serve process within penitentiary.
Repealed by S.L. 1999, ch. 114, § 3.
12-47-04. Commitment to the legal and physical custody of the department of
corrections and rehabilitation is at hard labor.
In all cases in which a district court has committed an offender to the legal and physical
custody of the department of corrections and rehabilitation it shall be at hard labor, whether or
not so designated by the district court.
12-47-05. Officers of penitentiary.
The officers of the penitentiary include a warden, who is its general superintendent; at least
one deputy warden; and such other officers, agents, and employees as may be necessary. The
director of the division of adult services, with the concurrence of the director of the department
of corrections and rehabilitation, may appoint a warden for an affiliated facility of the
penitentiary. A warden of an affiliated facility of the penitentiary is under the supervision and
direction of the director of the division of adult services and has those powers and duties
established by the director of the division of adult services which are consistent with this
chapter, chapter 12-48, and chapter 12-48.1.
12-47-06. Appointment of officers.
The director of the department of corrections and rehabilitation shall appoint the warden.
The warden may be removed by the director of the division of adult services with the approval of
the director of the department of corrections and rehabilitation for misconduct, neglect of duty,
incompetency, or other proper cause showing an inability or refusal to properly perform the
duties of the office. All other officers and employees must be appointed by the director of the
department of corrections and rehabilitation.
12-47-07. Qualification of warden, officers, and employees.
Repealed by S.L. 1999, ch. 114, § 3.
12-47-08. Salary of warden and other officers.
The warden shall receive a salary to be fixed by the director of the division of adult services
with the approval of the director of the department of corrections and rehabilitation within the
limits of the legislative appropriation. All other officers and employees of the penitentiary shall
receive salaries as determined by the warden and approved by the director of the division of
adult services.
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12-47-09. Officers to be furnished food supplies.
Repealed by S.L. 1971, ch. 501, § 2.
12-47-10. Officers and employees exempt from jury duty.
Repealed by S.L. 1977, ch. 113, § 1.
12-47-11. Powers and duties of warden.
The warden, under the direction of the director of the department of corrections and
rehabilitation, shall have the charge, custody, and control of the penitentiary and offenders
committed to the legal and physical custody of the department and placed by the department at
the penitentiary, together with all lands, buildings, furniture, tools, implements, stock, provisions,
and every other species of property pertaining to the penitentiary or within the premises of the
penitentiary. The warden shall superintend and be responsible for the policing of the penitentiary
and the discipline of the offenders placed by the department at the penitentiary.
12-47-12. Warden to make rules.
The warden, subject to the approval of the director of the department of corrections and
rehabilitation, shall make rules not in conflict with the laws of this state and shall prescribe
penalties for violation of the rules:
1. For the admission of visitors.
2. For the government of officers and employees of the penitentiary.
3. For the conduct of offenders imprisoned in the penitentiary.
A printed copy of the rules must be furnished to each offender imprisoned in the penitentiary at
the time of admission and to each official or employee of the penitentiary at the time of hire. Two
copies of the rules must be furnished to the state law library for the use of the state officials and
the public. The rules must be explained to an offender who cannot read English.
12-47-13. Warden to keep records.
The warden shall require that a daily record is kept of all transactions of the penitentiary.
The warden shall require that records are kept for inmate discipline, inmate grievances, and
staff discipline. The warden shall provide a report of the penitentiary to the director of the
department of corrections and rehabilitation upon the request of the director.
12-47-14. Deputy warden - Duties.
Whenever there is a vacancy in the office of warden or the warden is absent, all the duties
of the warden shall devolve upon and be performed by the deputy wardens until the vacancy is
filled or the warden returns.
12-47-15. Absence of warden and deputy wardens.
When the warden and the deputy wardens are absent, the warden must designate a staff
member to act as warden and must inform the director of the division of adult services, prior to
each absence, who will act as warden.
12-47-16. Duties of employees - May not engage in procuring pardon.
All officers and persons employed in and about the penitentiary shall perform such duties in
the oversight and charge of the penitentiary, the use and care of the property belonging thereto,
and the custody, discipline, government, and employment of the inmates as shall be required of
them by the warden, in conformity to law and the rules and regulations of the penitentiary. No
officer or employee shall be engaged directly or indirectly in procuring a pardon for any person
confined therein. Any officer or employee violating the provisions of this section shall be
removed immediately.
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12-47-17. Offenders committed to department of corrections and rehabilitation Records to be kept.
The department of corrections and rehabilitation shall receive any offender who has been
convicted and committed to the legal and physical custody of the department when the offender
has been delivered to the department together with a copy of the judgment and sentence of the
court ordering the commitment to the custody of the department. The warden, immediately upon
the receipt of an offender assigned by the department to the penitentiary, shall enter in the
record of the penitentiary, the name, age, sex, color, height, nationality, and every other fact,
characteristic, and condition, natural or artificial, that in any way may tend to aid in the
identification of the offender. After an intake, evaluation, and classification process, the
department shall assign the offender to the penitentiary, another correctional facility, or other
placement.
12-47-18. Director has custody of inmates pursuant to terms of sentence.
The director of the department of corrections and rehabilitation shall be responsible for
offenders committed to the legal and physical custody of the department. The director shall
retain, confine, and imprison each offender committed to the department until the expiration of
the offender's sentence or until the offender is lawfully entitled to release. The director shall care
for, govern, and make an effort to employ all offenders in conformity with their sentences and in
the manner prescribed by law and the rules and regulations lawfully adopted for the conduct of
the penitentiary and the department.
12-47-18.1. Transfer of persons between correctional facilities.
The director of the department of corrections and rehabilitation may transfer an offender to
any facility under the department's control or contract to transfer an offender to another
correctional facility for purposes of safety, security, discipline, medical care, or when the director
determines it may be in the best interests of the public, the offender, or the department.
12-47-19. Food of inmates.
Repealed by S.L. 1999, ch. 114, § 3.
12-47-20. Beds and clothing of inmates.
Repealed by S.L. 1999, ch. 114, § 3.
12-47-21. Alcoholic beverages and controlled substances prohibited - Physician's
orders - Use of tobacco - Weapons and firearms - Penalty.
1. It is unlawful for any person to willfully:
a. Manufacture or possess with intent to manufacture or deliver, a controlled
substance, on or within any premises under the control of the department of
corrections and rehabilitation or any of its divisions.
b. Deliver a controlled substance to any inmate of the penitentiary, or to any other
person for redelivery to an inmate of the penitentiary. This subsection does not
apply to the possession, delivery, or administration of controlled substances by
the penitentiary pharmacy or agent of the penitentiary pharmacy or in accordance
with the orders or prescription of a licensed physician and the approval, except in
emergency circumstances, of the warden. Any person who violates this
subsection is guilty of a class A felony.
2. It is unlawful for a penitentiary inmate to possess any controlled substance except in
accordance with the prescription or orders of a licensed physician. It is unlawful for a
penitentiary inmate to possess alcohol or alcoholic beverages. It is unlawful for a
penitentiary inmate to possess any tobacco except when the warden has authorized
possession of tobacco for religious purposes or when on authorized release from the
penitentiary. Any penitentiary inmate who violates this subsection with respect to:
a. Possession of a controlled substance is guilty of a class B felony.
b. Possession of alcohol or alcoholic beverages is guilty of a class A misdemeanor.
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c. Possession of tobacco is guilty of a class B misdemeanor.
It is unlawful for any person to willfully deliver alcohol or alcoholic beverages to a
penitentiary inmate. It is unlawful for any person to willfully deliver tobacco to an
inmate except when the warden has authorized delivery of tobacco for religious
purposes or when the inmate is on an authorized release from the penitentiary. Any
person who violates this subsection by:
a. Delivery of alcohol or alcoholic beverages to a penitentiary inmate is guilty of a
class A misdemeanor.
b. Delivery of tobacco to a penitentiary inmate is guilty of a class B misdemeanor.
It is unlawful for any person other than a penitentiary inmate to willfully possess a
controlled substance on or within any property under the control of the department of
corrections and rehabilitation or any of its divisions except when the person is an
authorized agent of the penitentiary pharmacy or except in accordance with the orders
or prescription of a licensed physician. Any person who violates this subsection is
guilty of a class B felony.
It is unlawful for a penitentiary inmate to willfully procure, make, or possess any object,
including a shard made of any material or any weapon, firearm, ammunition, or
explosive material, intended to be used for an assault on another person or to damage
property. Any penitentiary inmate who violates this subsection with respect to:
a. A shard or weapon that is not a dangerous weapon or firearm as defined in
section 62.1-01-01 is guilty of a class B felony.
b. Ammunition, a knife of any length, a weapon that is a dangerous weapon or
firearm as defined in section 62.1-01-01, or explosive material is guilty of a
class A felony.
It is unlawful for any person to deliver or provide to a penitentiary inmate any object
intended to be used for an assault on another person or to damage penitentiary
property. Any person who violates this subsection with respect to:
a. A shard or weapon that is not a dangerous weapon or firearm as defined in
section 62.1-01-01 is guilty of a class B felony.
b. Ammunition, a knife of any length, a weapon that is a dangerous weapon or
firearm as defined in section 62.1-01-01 or is an explosive or destructive device is
guilty of a class A felony.
As used in this section, "controlled substance" is as defined in section 19-03.1-01 and
includes counterfeit substances as defined in section 19-03.1-01. As used in this
section, "willfully" is as defined in section 12.1-02-02. As used in this section, "alcohol"
and "alcoholic beverage" are as defined in section 5-01-01. As used in this section,
"tobacco" means any form of tobacco, including cigarettes, cigars, snuff, or tobacco in
any form in which it may be used for smoking or chewing. As used in this section, a
wireless electronic communications device includes a cellular telephone, personal
digital assistant, pager, mobile broadband card, internet router, digital camera,
two-way radio, modem, or any other electronic device capable of wireless
transmission, reception, interception, or storage of oral communications, text,
electronic mail, video or photograph images, data signals, or radio communications,
and also includes a component of a wireless electronic device, regardless whether the
component itself is able to transmit, store, or receive oral communications, text,
electronic mail, video or photograph images, data signals, or radio communications. A
wireless electronic communications device does not include a medically prescribed
device or any other device approved by the department.
a. It is unlawful for a penitentiary inmate to willfully manufacture, possess, or use a
wireless electronic communications device on or within any premises under the
control of the department of corrections and rehabilitation or any of its divisions
except for law enforcement purposes.
b. It is unlawful for any person to willfully deliver, or possess with intent to deliver, a
wireless electronic communications device to a penitentiary inmate or to any
person for redelivery to a penitentiary inmate, or to allow a penitentiary inmate to
possess or use a wireless electronic communications device, on or within any
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premises under the control of the department of corrections and rehabilitation or
any of its divisions except for law enforcement purposes.
A violation of this subsection is a class C felony.
12-47-22. Discipline of inmates - Confinement in cells - Communication.
Inmates of the penitentiary shall be confined in separate cells at night whenever there are
sufficient cells. No communication shall be allowed between inmates of the penitentiary and
persons without the penitentiary except under the supervision prescribed by the rules and
regulations of the penitentiary. No person, without the consent of the warden, shall bring into or
carry out of the penitentiary any writing or information to or from an inmate.
12-47-23. Warden to maintain discipline.
All necessary means shall be used, under the direction of the warden, to maintain order in
the penitentiary, enforce obedience, suppress insurrections, and prevent escapes.
12-47-24. Penitentiary inmates may be restrained.
Whenever any inmate of the penitentiary offers or attempts to do any injury to any other
person or property, either within the grounds or premises of the penitentiary or at any other
place where said inmate may be, or whenever any inmate disobeys or resists any reasonable
command of any officer or guard, any officer or guard may use reasonable means to defend
himself or another or to enforce the observance of discipline.
12-47-25. Punishment for infraction may be alleviated.
Whenever any inmate who is being punished for any infraction of the rules and regulations
of the penitentiary by being deprived of any of the ordinary privileges enjoyed by the other
inmates, periodically or otherwise, conducts himself in a peaceful, obedient, and industrious
manner, the warden may suspend the further infliction of such punishment during his good
behavior.
12-47-26. Uniform kindly treatment of inmates.
The warden and all officers of the penitentiary uniformly shall treat the inmates thereof with
kindness, and the warden shall require of the officers and guards that, in the execution of their
respective duties, they in all cases shall refrain from boisterous and unbecoming language in
giving their orders and commands. No corporal or other painful or unusual punishment shall be
inflicted upon the inmates of the penitentiary for violation of the rules and regulations thereof.
12-47-27. Transfer of penitentiary inmate to state hospital or other treatment facility Evaluation procedure - Right to administrative hearing - Written order by warden.
Repealed by S.L. 2003, ch. 97, § 1.
12-47-28. Copy of written order by warden delivered to superintendent of state
hospital or other facility - Superintendent to receive inmate - Filing of receipt.
Repealed by S.L. 2003, ch. 97, § 1.
12-47-29. Recovery of person transferred - Duty of superintendent or officer - Return
or release - Allowance on discharge.
Repealed by S.L. 2003, ch. 97, § 1.
12-47-30. Expense of transferring inmates to and from state hospital.
Repealed by S.L. 1975, ch. 111, § 6.
12-47-31. Discharge of offenders - Clothing - Transportation.
The department of corrections and rehabilitation shall provide an offender released from the
department appropriate clothing and transportation to a point within the state, based upon need.
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12-47-32. Cash payments - Office of management and budget may issue warrant.
Repealed by S.L. 1999, ch. 114, § 3.
12-47-33. Warden may issue warrants of penitentiary.
Repealed by S.L. 1989, ch. 156, § 54.
12-47-34. Escapes from director's custody - Director may offer reward for recapture Payment of reward - Use of firearms.
1. The director of the department of corrections and rehabilitation shall adopt measures
necessary for the detection and capture of offenders escaping from the custody of the
department. If an offender in the custody of the department escapes, the director shall
use all lawful means for the apprehension of the offender. The director may offer a
reward not to exceed one thousand dollars and not less than one hundred dollars for
information leading to apprehension of an offender who has escaped from the custody
of the department.
2. The director may authorize correctional officers trained in the use of firearms:
a. To carry firearms when in the course of their duties on penitentiary premises.
b. To carry firearms, including keeping and carrying loaded firearms in motor
vehicles, when transporting offenders in the custody of the department.
c. To carry firearms, including keeping and carrying loaded firearms in motor
vehicles, for the prevention of escapes or for the apprehension of offenders who
have escaped from the custody of the department.
3. Sections 62.1-02-05, 62.1-02-10, and 62.1-03-01 do not apply to the possession and
use of firearms by authorized and trained correctional officers acting in the course of
their employment under this section.
12-47-35. Governor may contract for transfer to federal institution.
Repealed by S.L. 1987, ch. 634, § 2.
12-47-36. Records exempt - Confidential - Exceptions.
1. The case history records of the department of corrections and rehabilitation or its
divisions or departments relating to persons in the custody or under the supervision
and management of the division of adult services of the department of corrections and
rehabilitation are exempt records as defined in section 44-04-17.1. Upon application to
the district court, with service of the application on the department of corrections and
rehabilitation and opportunity for the department to submit a written response, the
court may order the inspection of a case history record unless there is a showing by
the department of corrections and rehabilitation that a proper and legitimate reason
exists for denying inspection of the case history record. If the court issues an order
allowing inspection, the court shall allow the department of corrections and
rehabilitation to remove all identifying information that may create a risk of harm to
property or to any person. As used in this section, "case history record" means any
record of a person in the custody or under the supervision and management of the
division of adult services of the department of corrections and rehabilitation except for
medical, psychological, and treatment records and legal files. The term includes
inmate disciplinary proceedings, administrative and disciplinary segregation
placements, institutional and criminal investigation reports, supervision histories, job
placements, education programs, inmate financial accounts under section 12-48-15,
and protective management cases.
2. The medical, psychological, and treatment records of the department of corrections
and rehabilitation or its divisions or departments relating to persons in the custody or
under the supervision and management of the division of adult services of the
department of corrections and rehabilitation are confidential, and may not be disclosed
directly or indirectly to any person, organization, or agency, except as otherwise
provided in this section. A district court may order the inspection of medical,
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psychological, and treatment records, or parts of those records, upon application to the
court and a showing that there is a proper and legitimate purpose for the inspection of
the records, with service of the application on the department of corrections and
rehabilitation and opportunity for the department of corrections and rehabilitation to
submit a written response.
Notwithstanding any other provisions of law relating to privilege or confidentiality,
except for the confidentiality requirements of federal drug and alcohol treatment and
rehabilitation laws, the following persons, organizations, or agencies without prior
application to the court may inspect case history, medical, psychological, or treatment
records:
a. The governor;
b. The pardon advisory board, if the governor has appointed a pardon advisory
board;
c. The parole board;
d. Any division, department, official, or employee of the department of corrections
and rehabilitation;
e. Another state receiving a parolee or probationer under the provisions of chapter
12-65;
f. A federal, state, regional, or county correctional facility receiving physical custody
of a person under the legal custody of the department of corrections and
rehabilitation;
g. The employees in the office of the attorney general and investigators,
consultants, or experts retained by the state;
h. The risk management division of the office of management and budget for the
purpose of investigating and defending actions or claims under chapter 32-12.2;
i. The district court of the county where the judgment of conviction was entered;
j. A state or federal court where a person in the custody or under the supervision
and management of the adult services division of the department of corrections
and rehabilitation has commenced litigation and the records are relevant to the
litigation;
k. A criminal justice agency as defined in section 44-04-18.7; or
l. The United States social security administration and veterans administration.
Records with respect to the person's identity, location, legal files except records under
court seal, criminal convictions, or projected date of release, except for the records of
a person who is under protective management, are open records.
Medical, psychological, or treatment records may be disclosed without prior application
to the court to a public hospital or treatment facility, the department of human services,
or to a licensed private medical or treatment facility, when necessary for the
evaluation, treatment, or care of a person who is or who has been in the custody of, or
is or who has been under the supervision and management of, the adult services
division of the department of corrections and rehabilitation.
A criminal defendant's presentence investigation report, together with any attachment
or addendum, is subject to rule 32 of the North Dakota Rules of Criminal Procedure
and any amendments made thereto.
The parole board may permit the inspection of a person's preparole report, or parts of
the report, prepared for the parole board.
Any person, organization, or agency receiving exempt or confidential records under
this section shall maintain the closed or confidential nature of the records and may not
redisclose the records.
The department of corrections and rehabilitation shall maintain the confidentiality of
witness protection program records and legal files under seal.
The medical, psychological, and treatment records of the department relating to
persons in the custody or under the supervision and management of the division of
adult services of the department of corrections and rehabilitation may be disclosed for
the purpose of conducting research and educational activities. A person conducting
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research or educational activities may not redisclose identifying information received
under this subsection.
12-47-37. Transporting of prisoners.
A prisoner who has been charged with, pled guilty to, or been convicted of a class A or
class AA felony in this state may not be transported except by employees of the department of
corrections and rehabilitation or by law enforcement officers or correctional officers employed by
a governmental agency. For purposes of this section, "governmental agency" means an agency
or department of this state or of any political subdivision of this state, of another state or of a
political subdivision of another state, or of the United States.
12-47-38. Director to contract for housing female inmates.
Repealed by S.L. 2009, ch. 118, § 4.
12-47-39. Definitions - Health care for chronically or terminally ill offenders - Notice to
health care facility.
1. As used in this section:
a. "Chronically ill" has the same meaning as in section 26.1-33.2-01.
b. "Department" means the department of corrections and rehabilitation.
c. "Health care facility" means an assisted living facility as defined in section
23-09-01, a basic care facility as defined in section 23-09.3-01, or a nursing home
as defined in section 23-30-01, except that transitional care units and other
long-term care beds owned or operated on the premises of acute care hospitals
or critical care hospitals are not health care facilities for the purpose of this
section.
d. "Terminally ill" has the same meaning as in section 26.1-33.2-01.
2. If an offender is to be given an early release, pardon, or parole due to a chronic or
terminal illness for admission as a resident of a health care facility due to the chronic
or terminal illness, the department shall provide prior written notice to the administrator
of the facility, stating:
a. The offense for which the offender was convicted and a description of the actual
offense;
b. The offender's status with the department;
c. That the information provided by the department regarding the offender may be
provided to residents and employees of the facility by the administrator of the
facility;
d. The offender's health status and type of health care the offender requires;
e. Any available risk assessment information regarding the offender's likelihood of
reoffending; and
f. The name of the party responsible for the payment for the services provided by
the health care facility to the offender.
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