Any Montanan comparing crime and the budget could have seen it coming as far back as last spring. The state prisons were full and the state checkbook was empty.
In Deer Lodge, a prison built for 1,300 inmates was 60 men over capacity and the warden installed triple bunks in rooms designed for single occupancy. In Helena, state officials called a special session of the legislature to deal with a $250 million deficit.
Because Gov. Judy Martz was caught between the deficit and her twin commitments to balance the budget and not raise taxes, state officials were told to start looking for programs to cut. On May 31, Bill Slaughter, director of the Department of Corrections, delivered the first public notice that he’d found what she wanted.
In a press release, Slaughter blamed overcrowded conditions in the system on an aggressive campaign against the methamphetamine trade, an increase in the number of offenders sent back to prison on parole and probation violations, and a state law that solved one problem nearly 10 years ago only to set the stage for another one now.
That law, enacted in 1993, allowed judges to sentence offenders to the Department of Corrections at large. Previously, judges had only two choices: sentence a convict to a specific facility such as the state penitentiary, or sentence him to probation.
Under the first option, wardens inherited responsibility for whatever personal problems convicts might bring in with them. Under the second option, judges could supervise a convict’s progress through community-based drug and alcohol counseling, mental health treatment, or vocational training.
The new law created a third choice: sentence a convict to the DOC and let the department—not a judge—decide whether that convict belongs in prison, or under alternative supervision like that provided by boot camp, halfway houses, or electronic monitoring.
These alternatives vary in their level of security and emphasis on rehabilitation, and convicts might graduate from one to another.
On the surface, each of the factors upon which Slaughter blamed prison overcrowding appeared to be a good thing. Sheriffs were busting meth rings at record pace. Probation and parole officers kept their charges on short leashes. Judges liked the progressive new sentencing options.
The only problem was that Montana’s prison population grew by about four percent annually during the past decade. And so last spring the state prison in Deer Lodge, three regional prisons in Missoula, Great Falls and Glendive, and a private prison in Shelby filled up just as the budget crunch hit.
Slaughter’s solution came in the last two sentences of the press release, titled “DOC and sheriffs seek solutions for full jails and prisons.” It read almost as an afterthought, and Slaughter’s idea didn’t attract much attention until it was formally announced two months later under the name of “Conditional Release.”
“The DOC…is considering a plan to move the DOC [commitments] more quickly through the corrections system,” the release stated. “Some may be considered for an early discharge to complete their sentences under community supervision.”
The DOC calculated that it could cover its $9 million portion of the state deficit by putting 400 to 450 prisoners on Conditional Release. Some of Slaughter’s inmates were behind bars, after all, not because they had committed violent crimes, but simply because the alternatives were full.
“The DOC commitment system was working real well when we had room in programs,” Slaughter says now. “When the programs filled up, the DOC said fine, we’ll put them in prison. But we didn’t expand the community corrections side to accommodate the increased numbers of DOC commitments. We didn’t because the numbers fluctuated quite a bit. It was hard to go to the legislature and ask for lots of money when there wasn’t a clear trend. But it’s clear now.”
The trend is towards more pris- oners, and not enough money to deal with them.
Unfortunately, two additional trends have emerged. The state saves money by transferring some expenses, such as room and board, to homeless shelters, and by making convicts compete with everyone else for support from publicly funded substance abuse treatment and mental health services.
Also, the state changed the way convicts get out of prison. Previously, convicts had to either finish their sentences or receive parole from the Board of Pardons before hitting the streets.
“[Conditional Release] is not a great correctional practice, I won’t kid you,” Slaughter says. “We were focusing on how we were going to get through that period of time. The legislature only meets every two years.”
As of mid-November, 271 people have been approved for Conditional Release. Of those, only 157 have been actually released. Statewide, 16 are back in prison for violating the conditions of their release. Of the 21 men and one woman who were released to Missoula, none has been sent back.
As yet there is no Willie Horton in Montana—the convicted murderer who raped a woman and assaulted her husband in Massachusetts, derailing the presidential aspirations of that state’s then-Governor Michael Dukakis by turning a weekend furlough from prison into a year-long run from the law—and there may never be.
But Conditional Release does short-circuit the criminal justice system by empowering Martz administration-appointed officials to release prisoners to the street, without the buffer of social services, before their sentences are served.
And perhaps Conditional Release turns the criminal justice system into a revolving door of recidivism with no exit through treatment or counseling.
Joe Bischof, director of the Poverello Center, learned about Conditional Release this fall when local probation and parole officers warned him that convicts on their way out of prison were listing the address of his homeless shelter as their residence on the outside.
The convicts were still inmates, the officers told Bischof, except they would be supervised as parolees or proba- tioners. And instead of sleeping in prison cells, they would sleep in bunk beds in a big blue house in downtown Missoula.
“It seems kind of strange that an emergency shelter with a 30-day stay policy can be on the form,” Bischof says. “We are being listed as a residence, but we do not fit that description.”
Bischof may not have liked it that his shelter qualified as a residence for convicts who were out of prison only because the state could no longer afford to keep them, but since then he’s accepted seven or eight men.
“We haven’t denied anyone because we have an open-arms policy,” Bischof says. “I’m personally against any form of discrimination because it’s a slippery slope on deciding who’s appropriate and who is not. I’m not the person to be deciding who comes in these doors.”
In fact probationers, parolees and recently released prisoners come through the doors of the Poverello Center regularly. Bischof does not have a problem with convicts. He has a problem with the system that dumps them in towns like Missoula with no long-term housing, no jobs to earn rent money, and poor prospects of finding either.
“Because of the status of these individuals, the slightest infraction and they go back to prison,” Bischof says. “So I have to question their employability. What disturbs us is that our plan is to help people to be independent and self-sufficient, but because of the services that are being denied them, that makes our job almost impossible.”
By services, Bischof means alcohol and drug counseling, mental health treatment, and vocational training. Without them, he says, Conditional Release is a recipe for failure. Peg Shey, director of Turning Point, a federally funded outpatient treatment program in Missoula, agrees, saying that 60 to 80 percent of inmates have addiction problems, and counseling plays a large role in bolstering an offender’s chances of acclimating to the world outside of prison.
“Staying clean and sober in prison is one thing,” Shey says. “Staying clean and sober in the community is another. There are old habits and old friends. The reality is that if they don’t have some help making changes, they are not going to make changes. It’s too easy to go to the bar. It’s too easy to start selling drugs again. It’s too easy to find a woman to prey on and move into her house.”
But Turning Point is full, and people coming out of prison have no priority status in the three-to-four month wait for services. If Conditional Release were coupled with an increase in spending on community programs, it just might save money by moving convicts out of prison, helping them adapt to life on the outside, and keeping them out of courtrooms once and for all.
“The concept of Conditional Release is good,” Shey says. “We only want those who can’t make it in the community being in prison, and it makes sense to motivate them from prison with conditions like treatment. We’re not going to see a big spike in crime here. All we’re going to see is a recycling process.”
A funding increase for community-based programs would be nice, but Gene Durand, director of the Western Montana Mental Health Center, is facing a decrease in funding for his fee-for-service program, which receives 60 percent of its revenue from Medicaid, and is targeted for large cuts in the proposed state budget.
“It’s cost shifting in every sense of the word,” Durand says. “All human services exist in the same ecosystem, and it’s sheer folly to cut something from one and not look at the impact down the line. The prison system says it can live within its budget [by using Conditional Release]. Yeah, but at the expense of community resources and other programs that are being dismantled.”
Making the transition from prison to the open community is not easy, and mental illness makes it harder. But the absence of mental health treatment can make it nearly impossible. As of December, for example, the maximum allowable Medicaid claim for pharmaceuticals will be $250 a month.
Durand says the new generation of anti-psychotic drugs like Zyprexa and Ceroquel—which patients take more faithfully than older, cheaper drugs with more side effects—can cost $1000 a month. But faced with the $250 limit, patients are more likely to purchase the old drugs, and more likely to quit taking them.
“There’s a shortsightedness here,” Durand says. “Because of the elimination of those funds, people will end up needing higher levels of care, like incarceration or hospitalization or death. Well, death is not really a higher level of care, but it’s a negative outcome. It’s not like the problem goes away because the money goes away.”
So far, Slaughter has made half of his problem disappear. He estimates that Conditional Release, an idea proposed to him by the DOC staff, has already saved the department about $4 million.
Slaughter credits a “scientific” process of evaluating inmates at state expense for the low rate of recidivism claimed by the DOC. The process evaluates criminal history, addiction or mental health problems, and the feasibility of the release plan. The process ends with the signatures of Slaughter and the warden.
“It looks like this conditional release from prison process will end maybe at the end of the fiscal year,” Slaughter says. “We’ve looked at some of these people three times before we let them go. The pool of people that are appropriate for release from prison is getting smaller and smaller.”
When—and if—the prison system reaches equilibrium, Slaughter says he expects to shift resources to community corrections.
Meantime, DOC emphasis will be on supervision, not rehabilitation. Slaughter also plans to direct new DOC commitments to Missoula’s regional prison for evaluation before sending them to prison, boot camp, pre-release centers or intensive supervision. That might help the alternatives to prison from suffering the correctional version of a traffic jam.
“People coming out of prison made up only about 50 percent of the people in pre-release or intensive supervision,” Slaughter says. “The other half came from the bottom where judges sentenced them to intensive supervision and pre-release. Judges like those programs and they don’t want to put a guy in the deep end of the pool unnecessarily.”
As the supervisor of 10 probation and parole officers assigned to Missoula County, Sam Lemaich is in charge of 21 convicts let out as of the beginning of November. And as a 20-year DOC veteran with 12 years prior experience in California, Lemaich is philosophical about Conditional Release.
During his career, Lemaich has seen the pendulum of criminal justice swing from no-frills incarceration to kinder-gentler rehabilitation and back several times, each reversal propelled by changes in public sentiment about crime and taxes.
Lemaich and his officers currently track about 1,000 convicts, a supervision ratio he considers luxurious compared to that of other states. Lemaich says he is ready and willing to absorb the two percent increase, but he’s frank about what Conditional Release means.
“This release is being driven by economics,” Lemaich says. “I don’t think anyone considers this the best idea, but we have to do something. The most expensive part of corrections for us is the secure beds in prison. Prior to this most recent deficit we did not make release decisions based on the budget.”
Nonetheless Lemaich is optimistic that the program can identify convicts likely to succeed on the outside, and put them there safely. In turn, that will make room in boot camp, pre-release centers or intensive supervision programs for convicts with more serious criminal histories.
“We want to give serious offenders the opportunity to go through transition,” Lemaich says. “And we want to take the ones we think we can take a chance on and put them in the community.”
Bischof, Shey and Durand—who provide social services based on need instead of criminal history—are not alone in their criticism of Conditional Release.
As executive director of Missoula Correctional Services, Sue Wilkins doesn’t like the strategy of moving less serious offenders through the system more quickly in an effort to concentrate resources on more serious offenders.
Wilkins works on the other side of Mullan Road from Lemaich at the pre-release center, one of four non-profit facilities in Montana that accept inmates on contract with the DOC and prepares them for life after incarceration. On average, 80 men and 20 women live at the center while completing their sentences. During their stay, they find jobs, pay for their room and board, overcome alcohol and drug addictions, and receive help ranging from anger management therapy to treatment for mental illness.
“We are determined to live by our principles and accept only the prisoners we want,” Wilkins says. “If someone has been in prison for 25 years, they may need two years to prepare for life. We’ve had people come in who didn’t know what size pants they wear because the prison always bought it.”
Craig Thomas, director of the Board of Pardons, is another critic of Conditional Release. Prior to the new program, convicts exited the prison system either via the Board of Pardons or by completing their sentence. Thomas says this new application of the 1993 law undermines his agency’s authority.
“The parole board was set up as an independent and autonomous citizen board because then you have checks and balances in the system,” Thomas says. “It is our philosophy that it is not the best situation to have the prison people in charge of the key. In this situation you have offenders that appear before the parole board and are denied parole but then released under this program.”
In fact, 80 of the convicts released as of the last week of October had appeared before the Board of Pardons and been turned down. Another 30 were not eligible for parole because they had not yet served a quarter of their sentence, and 31 more had a history of probation violations.
“The legislature probably did not anticipate this situation where one en- tity says ‘this person is not an acceptable risk’ and another entity says ‘yes this person is an acceptable risk,’” Thomas says. “The problem with the whole situation is there is dual jurisdiction, and now it’s come to light because of the crisis with the budget. This is not in the best interest of the public.”
Judges and county attorneys didn’t anticipate the situation either. They were used to a DOC sentence meaning flexibility in punishment and rehabilitation, not early release. But Missoula County District Judge John Larson isn’t writing off Conditional Release just yet.
Judges have been cut out of the process, but beyond that, Larson says the relationship between courts and the DOC is too complicated to predict how Conditional Release will impact sentencing.
As for recidivism, which Larson estimates at 75 percent, it will take years to determine if convicts let out early on Conditional Release are more or less likely than anyone else to commit new crimes. Besides, Larson says, prison may not be the correct place for many offenders in the first place.
“If there’s a low risk to the community, [Conditional Release] may in fact make sense,” Larson says. “A violent case, no. Bad check-writing or minor drug offense, yes. History has shown generally that when you closely supervise people you get better results.”
However, because of Conditional Release, Missoula County prosecutor Karen Thompson says her office won’t look as favorably upon plea bargains that include DOC sentences. Instead, the attorneys will advocate for straight prison terms or sentences that include programs like pre-release specifically.
“We will be less likely to be offering DOC commitment because there’s no way to ensure they are going to get into those programs,” Thompson says.
Last week in Helena, Gov. Martz unveiled a budget for the next two years that would preserve some social services as long as the DOC and other departments continue to cut costs, and as long as the legislature allows her to borrow $93 million from the Coal Tax Trust Fund.
That the DOC will keep its expenses down is a sure thing. Slaughter can only spend as much money as Martz and the legislature give him. But it’s unlikely in any case that Martz will get permission to use the coal fund as a one-time bailout. State law requires that a three-quarters majority of legislators approve any such move, and the Democrats, although a minority party in both the House and the Senate, have enough votes to prevent it. Nonetheless, Martz reiterated her no-new-taxes philosophy while presenting her proposed budget.
“I don’t believe we should raise taxes on Montana families in a recession and my budget reflects that belief,” Martz said in a speech. “I believe that when times are tough, we all have to tighten our belts.” Thus Martz plans to balance the budget on the backs of non-profits like the Poverello Center, Turning Point, and the Western Montana Mental Health Center. By doing so, she risks undermining the criminal justice system, from county attorneys and district judges to the Board of Pardons and the DOC itself.
But ultimately, the repercussions of releasing prisoners to save money will hit closest to home for convicts ill-equipped for life on the outside, and for communities ill-equipped to accommodate them.