It’s year four of a criminal justice overhaul in Montana, and the system's revolving door is still in full swing.
Just 30% of the state's incoming inmates were new to the system in the most recent fiscal year, data from the Department of Corrections shows. The rest had been kicked out of treatment or prerelease, or had seen their probation or parole revoked. More than 500 people booked into prison during fiscal year 2020 had been there already.
The strain on the system is nothing new.
Montana used to send inmates out of state as prisons here filled up. Slowly it expanded capacity, contracting with jails in Cascade and Dawson counties to convert to regional prisons in 1995. In 1999, it opened Crossroads Correctional Facility in Shelby, the state’s only private prison. New prerelease and meth treatment centers opened in the 2000s.
But as Montana pivots further away from expanding costly lockups, many say it hasn’t committed to the programs necessary to keep people from coming back.
“That’s the reinvestment part of it, you know. It hasn’t happened. It hasn’t happened at all,” said Marty Lambert, Gallatin County Attorney.
By example, Lambert, along with District Judge Kurt Krueger, of Butte, have highlighted empty beds in prison alternative facilities that the state contracts with. A snapshot of the state's programs in August 2018 showed 95 beds in treatment centers across the state weren't in use.
Under a set of reforms made to the criminal justice system in Montana in 2017, dubbed "Justice Reinvestment," the prison population has grown faster than predicted. Felony filings are up, and probation and parole officers are shouldering an ever-increasing caseload.
By now, Montana was supposed to have avoided $29 million in new spending on prison and supervision costs and reinvested $9 million of that in other areas, like batterers’ intervention programs, mental health services and extra money for crime victims to cover funerals, counseling and other costs, according to a report promoting the reforms to lawmakers in early 2017.
Neither has happened.
Montana’s violent crime rate has gone up for the past decade, FBI data shows, even as the national rate continues its steady decline dating back to the 1990s.
Until April, Montana was outpacing the growth in prison population that was predicted under the reforms. The Council on State Governments calculated the projections. The group has done similar work in 30 other states, including North Dakota and Wyoming.
The model predicted an immediate dip, followed by minimal growth until 2023. At that point, Montana was projected to have just tipped past the state’s capacity. (Jails and prisons are often over capacity, as they were when the reforms were passed.)
In reality, the number of men and women in prison went up, hovering just below the rate predicted for the state had lawmakers not enacted any reforms.
That trend reversed in March, as the COVID-19 pandemic hit. Courts delayed in-person hearings and the usual flow of sentenced jail inmates heading to prison stopped. Jail crowding has since gotten worse.
The Criminal Justice Oversight Council says it needs more data to adequately understand how the reforms are working. The oversight council is a 16-member group tasked with monitoring the changes to the state's corrections and judicial systems. Both Lambert and Krueger are members.
The council has requested information on how often people on supervision are charged with new crimes. It also wants data on arrests, sentence outcomes and risk level of people under Department of Corrections jurisdiction.
Still, some changes are visible.
In fiscal year 2020 the Board of Pardons and Parole heard more than double the cases it heard in the previous fiscal year, and it granted parole more often. An average of 65% of hearings resulted in approval for fiscal years 2018-2020, compared to 53% for the five years prior.
The Legislature scrapped the volunteer board model and hired paid members. That and other changes were pushed because it was taking more than two years to get paroled once an inmate was eligible, according to the report to lawmakers in early 2017.
A pretrial diversion program has touted early successes, including seeing 88% of the people released show up for their court hearings. The program uses a new tool to assess a person’s risk to the community and provides the information to judges for consideration.
And the state in the last fiscal year paid out more than $500,000 in money to help people under Department of Corrections jurisdiction find stable housing — a chronic struggle for people with felony convictions.
But in-prison resources intended to prepare inmates for success on the outside are still inadequate to meet demand. At the men’s prison in Deer Lodge, 98 inmates are currently on a waitlist for classes that are required by the parole board before they can be released. They are otherwise cleared for parole.
And for the more than 10,000 adults on active supervision throughout the state, there are just 149 probation or parole officers to manage their cases. After prison, most people go on to a term of community supervision.
The Department of Corrections is planning to ask the 2021 Legislature for funding to hire another 15 full-time probation and parole officers. Pay is $22.24 an hour, on average, according to the Montana Department of Labor and Industry.
Defenders of the reforms are quick to say that change doesn’t happen overnight, and long-term gains may still be years out.
Department of Corrections Deputy Director Cynthia Wolken noted the years of mounting pressure on the state's corrections system. Before her current job, Wolken was a state legislator in 2017 and carried many of the reform bills, which passed with broad bipartisan support.
"It was either that or do nothing," she said.
Wolken said it was a sign of success that the department is not currently asking for tens of millions of dollars to expand prison capacity. Wolken sits on the oversight council.
But Lambert called the $29 million to date in projected cost aversions “a fiction” and “misleading.” He represents prosecutors on the oversight council and is a vocal critic of the reforms.
“Legislators relied on it and the public relied on it, and these metrics haven’t even come close to being fulfilled,” he said.
Observers from a range of backgrounds have voiced the same concern as Lambert regarding reinvesting resources, including Kelsen Young, director of the Montana Coalition Against Domestic and Sexual Violence.
As an example, Young pointed to changes intended to address the cycle of domestic violence. One of the nine reform bills lawmakers passed required the Board of Crime Control to establish standards for a statewide batterers’ intervention program.
But no statewide program yet exists and the legislation did not provide the money to get one set up. Plus, many parts of the state have no qualified providers, she said.
“Our state has attempted reform without investing,” Young said. “I mean, that’s really what the policymakers need to hear. You can’t look back at really four years and say, ‘Did this work or not?’ when you didn’t do anything to invest in making it work.”