Update: On August 30, the Montana Criminal Justice Oversight Council voted to advance all draft bill proposals mentioned in the story below. MTIP will continue to follow the progress of these bills.
The Montana Criminal Justice Oversight Council is currently considering six draft bills with important implications for criminal legal reform. Some of the bills would effectively repeal parts of Montana’s 2017 Justice Reinvestment Legislation, while others would impact issues like plea bargaining and diversion. Below we discuss the pertinent aspects of each bill, showing the pros and cons from interviews with Yellowstone County Attorney Scott Twito and Missoula Municipal Judges Jennifer Streano and Jake Coolidge.
Background
In 2015, Montana leaders and stakeholders explored a justice reinvestment approach to “reduce corrections spending and reinvest savings in strategies that can reduce recidivism and improve public safety.” Two years later, the Montana Commission on Sentencing released a report outlining key findings and policy recommendations. Nine bills based on the findings of the report advanced through the legislature in 2017, including House Bill 133, which reduced multiple sentencing laws, and Senate Bill 59, which required the creation of a pretrial program and the use of pre-trial assessment tools, among other things.
“They [the sentencing commission] had done a ton of work to figure out what the issues were in the criminal legal system, especially when it came to jail and prison overcrowding, and figure out solutions to those issues,” said SK Rossi, founder of Central House Strategies and the former Director of Advocacy and Policy at the ACLU of Montana. “The nine [bills] that came out were very good bills. Nothing ever goes far enough, especially when it comes to criminal legal reform. But they were a good set in terms of limiting sentences and kind of moving towards decarceration for non-violent crimes.”
SB 59 also created the Criminal Justice Oversight Council and provided it the authority to monitor and report on the effects of the Justice Reinvestment Legislation. For the first time, the Council is drafting its own legislation: CJOC Draft Bills 1-6.
CJOC Draft Bill 1
CJOC Draft Bill 1 would revert back to pre-2017 language for the sentencing of theft and thematically related crimes. Notably, it would increase sentencing for first-time offenses of theft of property valued under $1,500, issuing a bad check, deceptive practices, and forgery from a fine up to $500 to a fine up to $1,500 and up to six months in jail.
Yellowstone County Attorney Scott Twito, who serves on the Council, said the purpose of this draft bill is to restore discretion to judges. Currently, first-offense thefts carry no incarceration sentence. Twito argues judges need the discretion to choose incarceration.
“What if the guy has nine forgeries, and then he gets a theft,” Twito said. “Should I be treating that person the same as an 18-year-old who just grabbed a six-pack? What’s the difference? Well, there is a huge difference in my mind, but the [current] statute doesn’t have any difference. It would still be his first offense of theft.”
Missoula Municipal Court Judge Jennifer Streano said this law would restrict a judge’s discretion because it includes a mandatory minimum. It proposes that for third-offense thefts, judges must fine defendants $500 and sentence them to 30 days in jail.
“When you start taking the actual person out of that system, then you lose all of the things that matter,” Judge Streano said. “… Does this person need to go to jail? Does he have medical concerns? What’s his family life? So the fact that they take that out for sentencing someone to jail, I think, is incredibly detrimental.”
Further, Judge Streano discusses economic concerns with mandatory incarceration for theft. She said the vast majority of misdemeanor theft cases are from stores like Walmart for items less than $20. Incarcerating one person in Missoula County Jail for 30 days would average $4,500 in costs paid by taxpayers.
“We would be charging our taxpayers to enforce loss margins from Walmart between $10 and $20,” Judge Streano said. “And the third theft can be $2. That can be someone stealing one White Claw. You get three, you’re doing 30 days.”
Conversely, Twito believes that incarceration is necessary in some cases and that judges should be able to choose jail sentences, even on first offenses.
“You’ve got to have some incarceration,” Twito said. “If we’re just simply taking it away with the idea that we don’t need it or everybody should get a free pass, I don’t necessarily agree with that. I think some people should be treated differently because they worked really hard in their life, or maybe they have a mental health disorder. Whatever it is. But you have to have some discretion with everybody in the criminal justice system.”
CJOC Draft Bill 2
CJOC Draft Bill 2 would provide new requirements and prohibited practices for recovery residents (sober living homes). Importantly, this draft bill would require recovery residents to register with the Department of Health and Human Services and seek certification from a nationally recognized recovery residence standards organization for a resident to receive transitional funds from the Department of Corrections. It would also mandate the DOC to establish a preference for placing people in certified recovery residences.
CJOC Draft Bill 3
CJOC Draft Bill 3 would create a separate definition for Persistent Felony Offender Under Supervision. A PFO is someone who commits three felonies–at least one has to be a sexual or violent offense. On their third felony, PFOs are subject to a $50,000 fine and a mandatory minimum sentence of 5 years and up to 100 years. This is Montana’s three-strikes law.
The draft bill would designate a separate definition for PFOs under supervision, meaning that they committed the third offense while on felony probation or parole. The designation leaves out the requirement that one of the felonies be sexual or violent. The only restriction is that the third felony may not include criminal possession of dangerous drugs or failure to register, and the council is considering restricting DUI offenses as well.
Twito was largely involved in the creation and drafting of CJOC 3. He said it was inspired by an increase in felony cases committed by people on community supervision (parole or probation) and long case duration times. He hopes the designation will be an effective bargaining chip to expedite plea bargaining for people who have committed a third felony under supervision.
“I looked at what was the problematic population,” Twito said. “The problematic population is the serial burglar, the serial thief, the person who continues to commit these felony crimes regardless of community supervision.”
If passed, this bill would subject someone who commits, for example, three felony burglaries to spending a mandatory five years in prison and up to the rest of their life in prison. Practically, the PFO designation, and what Twito’s hope is for the PFO under supervision designation, is that it will incentivize defendants to plead guilty. Put simply, this would provide prosecutors with an additional punishment to leverage in their negotiations.
“I think what it does is not necessarily deter in terms of committing the crime, but I’m talking about negotiation,” Twito said. “So if the person knows they can take this risk off the table, most defense attorneys will tell you that will move the meter. … It’s more of a, ‘Oh my gosh, I can get this off of the table if I just get this thing resolved more rapidly.’”
Judge Streano said judges already have enough tools to deliver lengthy sentences without the PFO under supervision designation.
“Do you really need something where you can sentence someone up to 100 years? Even if it’s their fifth theft,” Streano said. “So really, it does just become a way of pressuring people in a coercive way to plead. … If someone already has two prior felonies, they’re probably already on probation. They could run this sentence consecutively, so it doesn’t even start until the end of their other sentences. And if it’s theft or something, that’s another 10, 20 years they can give them.”
While this type of plea bargaining would likely decrease case duration times by expediting the plea bargaining process, it would also enhance the coercive nature of plea bargaining. Coercive plea bargaining is a concern for the Montana Innocence Project as it is a driver of wrongful convictions. Many innocent people plead guilty to crimes they did not commit out of fear that they will lose their trial and receive a harsher penalty than what the plea bargain offers.
“But if they didn’t do it, go to trial,” Twito said.
Twito is not alone in making this assertion. In fact, many in the criminal legal system believe that there are readily available protections to remedy wrongful convictions or unjustly long sentences. In our experience, these injustices are difficult and, in some cases, impossible to fix, which is why pleading guilty to a crime you did not commit is not illogical.
One of our current clients faced this decision. Katie Garding was wrongfully convicted of vehicular homicide. This crime carries a 40-year sentence, and she was offered five suspended if she pleaded guilty. Katie maintained her innocence, refusing to accept a plea deal for a crime she did not commit. She took her case to trial, lost, and was sentenced to a maximum of 40 years. Katie served 10 years before being paroled.
“All plea bargaining is coercive,” Twito said. “The reality is our system is absolutely far from perfect. The proposal of the PFO is far from perfect. I wish we could say we have these guarantees where an innocent person would never be convicted. It’s my worse nightmare.”
CJOC Draft Bill 4
CJOC Draft Bill 4 would revise sentencing laws for disorderly conduct, making first-time offenses jailable for 10 days, where it is currently only punishable by a $100 fine.
Similarly to CJOC Draft Bill 1, Twito said the point of this bill is to provide more discretion for law enforcement to respond to disorderly conduct calls. This would allow them to arrest regardless of how many disorderly conducts are on their record. Disorderly conduct includes behaviors like “making loud or unusual noises” and “quarreling, challenging to fight, or fighting.”
“One of the better lines that I like from the committee hearings in 2017, I don’t remember who said it was ‘disorderly conduct at 7 p.m. beats an aggravated assault at 11 p.m.,’” Twito said. “If you have two people who are engaged in conduct that’s pretty bad, you can take one of them, remove them from the scene, put one of them down in the jail.”
Judge Streano said law enforcement often misuses disorderly conduct to arrest people. The 2017 reform made first offenses non-jailable unless someone was “creating a hazardous or physically offensive condition by any act that serves no legitimate purpose.”
“But the workaround now…what law enforcement is doing and what prosecutors are charging…is everything now becomes this hazardous condition, physically offensive,” Judge Streano said. “Someone is yelling at another person, and they’ll write it in a way that they’re creating a hazardous condition or physically offensive.”
Making the first offense jailable again would undoubtedly increase arrests. Missoula Municipal Judge Jake Coolidge, who has similarly observed the misuse of the reformed disorderly conduct law, fears this bill would lead to fuller jails for crimes that are not deterred by incarceration.
“There’s no statistic that says a harsher jail sentence is a deterrent in any way, especially municipal criminality,” Judge Coolidge said.” It’s just old-school rhetoric that always is flashy but is not supported by actual data.”
CJOC Draft Bill 5
CJOC Draft Bill 5 would make theft of a motor vehicle assessed at any value a felony, carrying a sentence of prison time. The council has not specified what the length of the sentence would be.
CJOC Draft Bill 6
Twito is also spearheading the efforts behind the coming CJOC Draft Bill 6 that will create a diversion agreement program for certain drug offenses. He hopes the program will run similar to a program he formerly ran where defendants accused of substance use crimes are assessed for whether they need to continue through the criminal legal system or be diverted into treatment.
“Their addiction doesn’t stop because the court says don’t use drugs,” Twito said. “They keep using drugs and complicate their lives because now they have this criminal justice thing hanging over their head, and they can’t stop using. It’s a disaster.”
Action Steps
The CJOC draft bills will be presented to the Law and Justice Interim Committee on Monday, August 29 at 1 p.m. in Room 137 of the Capitol and on Zoom. This committee can select any of the bills to move into the upcoming legislative session as a committee-sponsored bill. You can submit written public comment or request to provide live public comment at the meeting. Click here for more information.
If you wish to make a public comment at Law and Justice, you must sign up by 5 p.m. today. Sign up here.
If Law and Justice does not sponsor the bills, individual representatives may still pick them up and sponsor them on their own.
The next CJOC meeting in which the bills will be further discussed is Tuesday, August 30 at 8 a.m. at the State Capital and on Zoom. You can submit written public comment or request to provide live public comment. Click here for more information.
Judge Streano encourages people who oppose these bills to make their opinions known and notes that criminal justice is a bi-partisan issue.
“I think you just need to be vocal,” Judge Streano said. “The same old rhetoric of tough on crime and lock them up doesn’t resonate with people because we’ve done that since the 70s, and it didn’t get us anywhere. I think people are starting to realize that we need to do something different.”