How Republican Legislature Adopted Progressive Criminal Justice Reform

The laws pushed some progressive reforms, such as this one: If you get caught for the first time with a marijuana joint, you get no jail time at all anywhere in Montana.

At times, county attorneys pushed back against the big piece of legislation, House Bill 133. Judges and justices of the peace fought it, and retailers opposed it.

Brad Griffin even created a hashtag for it — #theworstbillever — and he vowed to kill it. The lobbyist for the Montana Retail Association said he had seen similar attempts to decriminalize property crimes three other times in the Legislature and helped quash all of them.

“Myself and others were successful in killing the previous attempts,” Griffin said. “And I thought I could kill it again this time.”

He did temporarily, but a Kalispell Republican helped shepherd the monster of 64 pages to adoption anyway. Rep. Randy Brodehl said lawmakers eventually supported reform introduced by Democrats because those working on the legislation told the truth.

Montana was putting guys who did dumb things in jail, he said, and incarceration was costing the people money.

“You take him away from his family, away from his community, away from his job, and away from being a good, solid citizen and taxpayer,” Brodehl said.

“And you put him on the taxpayer dole. That makes absolutely no sense.”

Tuesday, Gov. Steve Bullock is scheduled to hold a signing ceremony for a package of criminal reform legislation that lawmakers and lobbyists characterize as a significant change in direction for the justice system in Montana. The overhaul is estimated to cost $21.5 million from 2018 to 2023, but avert at least $69 million in spending over the same period.

In a tight budget year, a confluence of values, legislative experience from mildly naive to seasoned, and even personalities helped the bills come to fruition.

The public’s outrage at a sentence for a man accused of incest greased the wheels.

***

Many people were skeptical the bills would gain traction at all.

Wolken said the policy proposals were ripe for criticism that backers were “soft on crime.”

But for some 20 years, criminal justice legislation had grown piecemeal, she said. With no comprehensive approach, the accumulation of reactive codes put more people in prison.

Prisons had reached capacity because of an 11 percent increase in the incarcerated population from 2008 to 2015, and the rise was projected to grow, according to the council.

And repeatedly, the Montana Department of Corrections and the Office of the State Public Defender asked the state for extra money after spending more than they were allocated, Brodehl said.

“We saw that over and over and over again,” said Brodehl, chair of the House joint appropriations subcommittee on the judicial branch, law enforcement and justice.

Yet the prison population was growing, and outcomes were getting worse, Wolken said. In 2015, she introduced legislation that created the Montana Commission on Sentencing, a body charged with figuring out the reason the state was spending more money for poor results. The commission would be responsible for proposing fixes.

At the same time, the nonpartisan Council on State Governments came to Montana to help create policies that reduce the prison population and save money. Marc Pelka, deputy director of the council’s Justice Reinvestment program, said the organization has helped 27 other states with legislation.

Across the country, constituents from an ever-broader array of interests are participating in the discussions, he said, from social justice to faith to fiscal conservatism.

“And the confluence of voices in this discussion has enriched the landscape. It’s been very interesting,” Pelka said.

In Montana, Wolken got ready to shoulder a series of bills in the Senate, and she tapped McConnell to carry one in the House. He figured it wouldn’t be too difficult to pass legislation in Montana, still politically agreeable compared to the tenor in Washington, D.C.

McConnell had no clue House Bill 133 would be dubbed “the worst bill ever,” and if Wolken did, she didn’t let on.

“I had no earthly idea of the enormity of this bill,” McConnell said.

***

Yet once the session was underway, Griffin learned he wouldn’t be able to thwart HB-133 because a couple of forces had converged against him.

“The Republican notion was to save money, and the Democrats wanted to implement more progressive ideas on how we treat criminals,” Griffin said. “And those two intersected. So that’s when I understood that this was not a killable bill.”

Instead, he worked with Wolken to amend the bill. Retailers aren’t overly concerned with the person swiping a candy bar, he said, but they needed to ensure the system tracked first-time offenders in order to properly deal with shoplifters trying to make a living off crime. He said the amendment they passed set up that requirement.

While he and some lawmakers believe the high interest in cutting costs and implementing change would have driven most of the legislation through, a sentence for an incest charge in late 2016 bolstered support for reform as well.

Judge John Mckeon drew public outrage and national media attention after he sentenced a man who repeatedly raped his 12-year-old daughter to just 60 days in jail. Gov. Bullock called the sentence “unacceptable,” and Montana Department of Justice spokesman John Barnes described it as “reprehensible.”

State law had called for a mandatory minimum 25-year sentence for incest if the victim was age 12 or younger, but McKeon suspended the man’s sentence under an exception. The exception allowed for a lesser sentence if a psychosexual evaluation determined treatment “affords a better opportunity for rehabilitation … and the ultimate protection of the victim and society.”

HB-133 covered sentencing — including in incest cases — and addressed that exception. It included a provision that revised mandatory minimums to 10 years imprisonment when the victim was 12 years or younger and disallowed the exemption based on a psychosexual evaluation, restricting judges’ discretion in such cases, but assuaging the public outcry.

“I think it would have passed anyway, and I think [without the incest provision] it would have been a harder sell, certainly,” McConnell said.

Some consider the case emblematic of the failures of the criminal code at large. Wolken said the public doesn’t want to read that someone who has an addiction problem spends more time in jail than a person who raped a child.

“That is outrageous, and people expect better and should expect better,” she said. “This whole package was meant to realign what people think is reasonable and expect out of our criminal justice system.”

***

The bill also passed because some legislators were willing to play hardball — and some stayed mum on potentially controversial provisions, such as the elimination of jail time for people caught with a small amount of pot for the first time.

The public hearings were “brutal,” McConnell said.

He repeatedly sought help from Brodehl when the bill seemed stuck, and he said Brodehl had solutions necessary as well as the political courage to help a legislator from Missoula. When the county attorneys battled the policies, the Republican with four sessions under his belt drew up an amendment that would ax their budgets.

It read as follows: “If House Bill No. 133 is not passed and approved, the general fund appropriation for __ is reduced by the amount of the state share for county attorneys” — with the dollar amount to be determined.

The amendment would have required a change in statute in a companion bill, but Brodehl said it wasn’t a trick or an idle threat. The funding had gotten out of hand, and he said Democrats Wolken and Rep. Kim Dudik of Missoula and Butte’s Rep. Ryan Lynch were pushing as well.

“The counties needed to be team players in this,” he said. “When they opted to tell the state they were not going to be team players, we opted to not fund them.

“They changed their mind.”

Mcconnell said the county attorneys weren’t ever thrilled with the changes and continued to voice concerns, but the maneuver bought time and kept the bill moving.

***

Former Sen. Kris Hansen sat on the sentencing commission with Wolken, who chaired it, and the two hammered mutual interests into passable legislation. The Havre Republican joked that her personality helped sell the reform.

“Other than my charm and personal charisma, I don’t know what to tell you,” Hansen said.

But others involved point to personality and reputation as critical as well. Griffin said the personalities of the leaders played a key role, and Missoula’s McConnell, Wolken and Dudik are smart and likeable.

“You guys have some great Democratic legislators up there,” said Griffin, based in Billings.

After a flood of opposition at one hearing, McConnell said Sen. Nels Swandal spoke out in support, and the words of the former judge and Wilsall Republican carried weight.

“Nels said, ‘This is a good bill. We should pass it.’ And his political heft and political reputation is very much respected on both sides of the aisle,” McConnell said.

Sometimes, Swandal said, the pendulum swings too far in one direction, and in this case, legislators needed to bring common sense to criminal justice.

He said he wouldn’t classify the legislation as progressive, but as fair and financially responsible. The law now helps people who need it, he said, and it means people like rapists and murderers can stay in prison longer.

“Society at some point has to make a decision about what they can afford and what’s fair and what’s best,” Swandal said.

***

Montanans also value freedom, and the bills help preserve it, said former Sen. Hansen.

“We’re kind of a freedom-minded state, and folks want safe communities, but there’s also a heavy cost to over incarceration in terms of actual dollars, but also in human cost in terms of breaking up families,” Hansen said.

All told, Wolken sponsored eight successful bills in the senate, though she said a few bills died in the process. McConnell’s HB-133 passed as well.

“We haven’t had this kind of reform in 50 years,” Wolken said.

Implementation is already underway, and time and data will tell if the bills have intended results. McConnell said legislators had an obligation to taxpayers and to people involved in crimes to make change, but he’s open to fixes if necessary.

“If this doesn’t work, I’ll be the first in line to say, ‘This part of the bill or the law doesn’t work, and we need to change it,’” he said.

The real world implications are starting to become apparent, and Griffin said he believes tweaks will be needed in 2019. Griffin has lobbied for 24 years and said he’s never worked longer on a bill than on HB-133.

He said he believes lawmakers will be amenable to updates in the future, but the process this year still leaves him in awe.

“It was so fascinating, and even to this day, I just shake my head and go, wow, I’ve never spent so much time on a bill. Ever,” Griffin said.

“We still joke about it, the worst bill ever.”