By Whitney Bermes
In a package of legislation that made wide-ranging reforms to Montana’s criminal justice system, one bill stands out in the scope of the changes it made to Montana law.
House Bill 133.
“It’s such a sweeping change from how things used to be,” said Rep. Nate McConnell, D-Missoula, who sponsored the legislation. “If you’re going to do comprehensive reform…you couldn’t put a Band-Aid on this thing.”
The goal of the bill was to reduce the burden on taxpayers that is caused by “enormous pressure” on detention facilities across the state, McConnell said.
The suite of bills that HB 133 was passed with were the product of a bipartisan legislative interim committee that spent 13 months studying Montana’s sentencing policies and practices, identifying strategies to reduce recidivism and coming up with legislation to help take the burden off the state’s prisons and jails.
That committee, the Commission on Sentencing, was put together after the 2015 Legislature passed a bill creating the interim study.
The 15-person commission worked with the national nonprofit Council of State Governments Justice Center to study Montana’s correctional system and their proposals for this year’s legislative session.
All told, 12 bills were introduced, 10 of which were passed by the Legislature and signed by Gov. Steve Bullock this summer.
The bills ranged from replacing appointed volunteers with full-time hired members on the Board of Pardons and Parole, creating a domestic violence offender intervention program, making available grants to help counties create pre-trial services and prosecution diversion programs, and more.
They are estimated to help Montana avoid spending an additional $69 million over the next six years.
House Bill 133 is the most wide-sweeping change to Montana’s criminal laws that came out of the package, eliminating jail time for certain misdemeanors, reducing maximum sentences for some felonies and much more.
McConnell and fellow legislators as well as the state’s public defenders have praised the changes as needed reform that will save time, space and money.
“We had too many people in prison. We’re spending too much money on it. We have to try to change,” McConnell said. “We can’t just keep going down the same road.”
“Trust me. It was not easy to address all those things in a single bill. And a lot of thought was given to how to do that,” McConnell added.
But Gallatin County Attorney Marty Lambert has blasted the changes. He said fellow prosecutors across the state are concerned about what these changes mean for public safety.
“Generally, on balance, it’s not going to be good at all for law abiding Montanans, for crime victims and for law enforcement,” Lambert said this week. “I think this reform we could have done without.”
In Lambert’s view, HB 133 “made it a lot harder for us to hold defendants accountable.”
“The pubic needs to know the reforms weren’t needed and have endangered the community” in some ways, Lambert said.
“The bi-partisan nature of this bill was unlike anything I’d ever worked on before,” McConnell said. “Rather than simply be tough on crime, we need to be smart on crime.”
One of the largest changes HB 133 made was to eliminate jail time for first-time misdemeanor offenses including disorderly conduct, criminal possession of marijuana, theft, forgery, issuing a bad check, deceptive practices, identity theft, public nuisance, failure of disorderly persons to disperse, driving without a valid license and driving without insurance.
Second and subsequent violations of those crimes still carry potential jail time, but those punishments are tiered depending on exactly how many convictions an offender has.
On the felony side, mandatory minimums were eliminated for felony drug offenses such as criminal possession of dangerous drugs, distribution, possession with intent to distribute and production or manufacture.
Another cornerstone of the bill was reforming Montana’s persistent felony offender status.
Prior to this new law, a judge could designate a defendant as a persistent felony offender if the person had previously been convicted of a felony and was being sentenced for another felony.
A persistent felony offender status means the defendant’s sentence could be up to 100 years in prison.
But the statute was revised to make it so a defendant can only be designated a persistent felony offender if they have at least two prior felony convictions and one of those has to be a violent or sexual offense.
The law also changed mandatory minimums for the felony sex offenses of sexual intercourse without consent, incest and sexual abuse of children. The mandatory minimum for when the victim is less than 12 years old was reduced from 25 to 10 years, but makes the offenders not eligible for parole during those 10 years.
HB 133 drew both vocal opponents and harsh critics.
Lambert said HB 133 was “a bad way to make policy.” The single bill revised too many criminal statutes and should have been split up into different pieces of legislation in order to address each issue individually.
“It changes so many different areas of law. That’s just not good legislative process,” he said.
One of Lambert’s biggest concerns was the change in the persistent felony offender status, noting that now judges can’t use that tool with defendants who have multiple felony drug or DUI convictions.
But McConnell said the changes in the persistent felony offender statute “cuts to the heart of the whole bill.”
“Do we want to put an alcoholic person in jail?” McConnell said. “The idea is prison should be reserved for people who rape kids and who murder people and who commit aggravated assault and who do all those things that pose imminent danger to citizens.”
Bozeman Police Chief Steve Crawford said that law enforcement is concerned with the elimination of jail time for certain first-time misdemeanors, saying that it has created challenges for his officers, particularly for disorderly conduct.
Disorderly conduct is a somewhat broad crime, committed if people are fighting, threatening, creating hazards, or basically exhibiting “unruly or assaultive” behavior, Crawford explained.
And it’s a crime his officers see on a daily basis. “We respond to those types of incidents around the clock,” Crawford said.
Intervening early in disorderly situations, Crawford said, can prevent serious assaults later.
“A disorder arrest early in the evening can prevent an aggravated assault arrest later that night,” Crawford said.
For the state’s public defenders, the changes have been positive and will hopefully provide the agency savings, in both money and time, said Annie DeWolf, regional deputy public defender of Bozeman.
The elimination of jail time helps free up space on their already full plates. “If there’s no jail time on the table, the public defender’s office wouldn’t be appointed,” DeWolf said.
And the new persistent felony offender designation gives defendants more options when it comes to how they defend themselves in court.
Before, DeWolf said it would “pretty much guarantee” a plea deal — if defendants were facing up to 100 years in prison, they wouldn’t risk going to trial on their charge.
“It’s nice that our clients aren’t in that position where they have to be forced to take a plea deal to avoid a harsher penalty,” DeWolf said. “It really changes the game.”
And, like McConnell, DeWolf said it prevents defendants with multiple drug or alcohol related convictions, who are in need of chemical dependency treatment, from sitting in prison where she argues they don’t belong.
“I think it’s a realization that prison is a place for people who have committed serious offenses. And I don’t think multiple drug offenses are the serious offenses we want people in prison for,” DeWolf said.
The changes dictated in HB 133 went into effect July 1 and all agree that it will take time to determine exactly what impact these changes will make on Montana’s criminal justice system.
“It’s going to take some time for us to see how this will work out,” Lambert said.
“I think we’re going to be closely monitoring it to see what savings we’re going to be getting,” DeWolf said.
“I think we’re still adjusting and learning what ramifications will come from the changes…This is one of the broadest and biggest changes I’ve seen in 20 years,” Crawford said. “It just makes it a little more difficult. But we’ll be able to enforce the law and keep people safe, even with these changes.”