A district judge in southwest Montana wants the Department of Corrections to explain why it doesn’t always follow court recommendations in sentencing.
In Montana, judges can commit someone to the Department of Corrections for placement. From there, the department can send that person anywhere from prison to community supervision.
Judges aren't able to sentence someone to a departmental treatment or prerelease facility specifically. Anything short of prison but more secure than probation is the purview of the department. Judges can only sentence someone as a DOC commit and recommend they be placed in treatment or prerelease, but the decision is the department's to make.
District Judge Kurt Krueger, of Butte, said he wants more information about why the department isn’t always following those court recommendations.
From 2018 through May 20 of this year in the state’s Second Judicial District, the department followed the court’s specific recommendation in a DOC commit sentence in 25% of the cases, out of a sample size of 126. The Second Judicial District covers Silver Bow County. In 21% of the cases, the department declined to follow a specific recommendation. The rest of the cases involved a more general recommendation.
The DOC commit sentence was a popular tool in Krueger’s district: judges there sentenced offenders as a DOC commit 45% of the time during the time frame studied.
Krueger is chairman of the Criminal Justice Oversight Council, a group of stakeholders studying the implementation of criminal justice reforms in Montana.
On Tuesday, the council approved a resolution supporting legislation that would require new reporting from the department. Specifically, the group endorsed seeking a bill during the upcoming Montana Legislature that would make the department explain within 40 days of placement why it deviated from a court recommendation.
“It’s a necessary piece of legislation so that judges can find out whether their recommendations are followed,” Krueger said.
The resolution also called for the department to produce data on how often people on probation or parole were committing new crimes. The data would cover both before and after the criminal justice reforms were passed, which was in 2017.
One thing Krueger worried about was beds in treatment and prerelease centers being left empty. He said it’s a problem he’s kept an eye on since before the pandemic hit and movement among facilities was restricted.
As of Wednesday, the state had 506 empty beds in total for men and women at treatment centers, prerelease facilities and assessment and sanction centers, according to the department’s daily population website.
The council passed the resolution supporting more department data on a 12-4 vote. Department of Corrections Director Reginald Michael voted against the resolution but declined to explain his vote in a follow-up question after the meeting, according to spokeswoman Carolynn Bright.
Deputy Director Cynthia Wolken has noted at council meetings that some of the empty beds are due to expanded options for treatment in the community, as more drug courts start operating across the state, and as Medicaid Expansion covers the cost of treatment that Medicaid alone did not cover. Medicaid Expansion was passed in 2015.
Bright also said there are various reasons why the department deviates from a specific recommendation by a judge.
The department contracts with private companies for many of the prerelease and treatment services it provides, and those companies sometimes decline to accept certain people.
State law also requires the department to place someone in the least restrictive setting, Bright noted, which can mean community supervision instead of prerelease or residential treatment.
The Tuesday meeting was the last of the year for the oversight council. It won't meet again until after the 2021 Legislature finishes.