Policy Recommendations

The results of this analysis give the Montana judiciary more information than they have ever had on American Indian-White racial disparities in the state’s criminal justice system, particularly for people convicted of felony offenses. Informed by these results, the judiciary can understand where it should begin to target efforts to address racial disparities at critical decision-making points. 

However, there are limitations in this analysis for pinpointing causes of these racial disparities. To effect change, the judiciary needs to take additional steps to understand why disparities are occurring at particular decision-making points. This includes conducting qualitative research and outreach to crucial stakeholders such as judges, prosecutors, defense attorneys, law enforcement officers, supervision officers, and Tribal members. The following recommendations point out where the state should begin investing time and resources that will have a significant impact on racial disparities for felony convictions. 

1. To address disparities in the decision to incarcerate American Indian people for criminal endangerment and other person offenses, the judiciary should educate judges about racial disparities driven by use of the criminal endangerment offense and explore the role of plea agreements in enabling these disparities. 

2. To address disparities in the decision to incarcerate American Indian people for public order offenses, the judiciary should coordinate with judges, law enforcement, MT DOC, and Tribal Nations to investigate and address challenges specific to the inequitable treatment of people failing to comply with pretrial and post-conviction legal requirements, like bail jumping and failure to register. 

3. To address longer lengths of stay for American Indian people, the judiciary, MT DOC, and Board of Pardons and Parole should continue their efforts to address the factors contributing to this disparity. 

4. To reduce unequal revocations for supervision violations, MT DOC should continue to investigate and analyze how supervision revocation recommendations and decisions are made through a racial equity lens. 

5. To impact racial disparities within the criminal justice system, the judiciary should build upon existing efforts to understand, track, and reduce bias. This includes coordinating ongoing racial equity initiatives in the state, implementing judicial education on equity and bias, and improving the collection of race data by courts. 

Recommendation 1

To address disparities in the decision to incarcerate American Indian people for criminal endangerment and other person offenses, the judiciary should educate judges about racial disparities driven by use of the criminal endangerment offense and explore the role of plea agreements in enabling these disparities. 

This analysis identified statistically significant disparities in how American Indian people convicted of felony criminal endangerment and other person offenses are sentenced relative to comparable White people. These disparities were consistent whether the decision to incarcerate was made by a sentencing judge or via an MT DOC placement decision after a DOC commit sentence. The analysis revealed that for American Indian people, criminal endangerment is by far the most frequent offense in the cases in this category that leads to incarceration; a criminal endangerment conviction is present in more than 75 percent of such cases. 

Previous analysis by CSG Justice Center staff found that criminal endangerment³² is used far more widely in Montana than other states³³ and carries a much higher penalty than in other states. Montana statute creates a felony punishable by up to 10 years in prison, as compared to a misdemeanor punishable up to 12 to 18 months in other states.³⁴ 

Montana also defines criminal endangerment in an unusual manner, enabling a 10-year felony conviction for conduct that would constitute a misdemeanor offense elsewhere. Montana did not adopt and does not use the concept of “recklessness” in its penal law, unlike the Model Penal Code and most states.³⁷ Anecdotally, CSG Justice Center staff heard from stakeholders that criminal endangerment is a common charge used in plea deals due to its lack of a statutory mandatory minimum sentence. 

An initial way in which the judiciary can leverage CSG Justice Center staff’s analysis is to educate judges and DOC staff who make placement decisions for DOC commit sentences on the differing outcomes seen through use of the criminal endangerment offense. This education effort should promote careful review of how the offense is being used, particularly in plea agreements, and encourage judges to work with prosecutors and defense attorneys to promote equitable outcomes for people who plead to this offense. 

Recommendation 2

To address disparities in the decision to incarcerate American Indian people for public order offenses, the judiciary should coordinate with judges, law enforcement, MT DOC, and Tribal Nations to investigate and address challenges specific to the inequitable treatment of people failing to comply with pretrial and post-conviction legal requirements, like bail jumping and failure to register. 

Results of this analysis indicated that there are American Indian-White disparities in the likelihood of facing incarceration for a public order offense. 

Two of the four most common public order felonies that result in incarceration for both American Indian and White people are violations of legal processes, including bail jumping (failure to appear) and failure to register as someone convicted of a sex or violent offense. 

In previous work conducted as part of JRI in 2015 and 2016, CSG Justice Center staff found that American Indian people on community supervision who live on reservations or in rural areas face challenges in accessing programs and services or meeting with supervision officers, in part due to the vast geographic distance between where they live and where services and supervision offices are located. Many justice-involved American Indian people in Montana lived on or near a reservation; for instance, about 50 percent of American Indian people on state supervision lived on or near a reservation.³⁸ 

Though research on supervision and reentry needs in non-urban settings is limited, studies demonstrate that living in rural or reservation settings can exacerbate barriers to services or communication. For example, public transportation may be very limited.³⁹ Further, about 15 percent of American Indian people living on or near a reservation have no internet at home,⁴⁰ and some residents of reservations do not have a mailing address that is recognized by state government.⁴¹ Such limitations are especially important when considering how to reduce nonviolent offenses that fall into the category of violations of legal processes, like failure to appear in court. Research has indicated that simple communication tools, such as text reminders, can reduce failures to appear.⁴² The use of text reminders may be especially helpful for people without other reliable means of communication, like state-recognized mailing addresses, to alert them to upcoming court appearances, but such tools may need to be modified to fit the needs of American Indian people in Montana’s legal system. 

Additionally, as part of this investigation, Montanans should consider whether certain legal processes, such as a registry for people convicted of sex or violent offenses that may be overly burdensome for American Indian people and lead to a disparate racial impact, are achieving their stated policy goals. In particular, research is mixed on whether registries for people convicted of sex offenses achieve reductions in recidivism, and studies have shown adverse consequences associated with registration and notification laws, such as housing problems and employment instability.⁴³ The Montana judiciary should begin work in this area by developing strategies to educate judges on this disparity and the collateral consequences of convictions that require registration. With greater education on this issue, Montanans, including judges, prosecutors, defense attorneys, Tribal leaders, and supervision staff, could collaborate on targeted efforts to improve compliance with these legal requirements and strategies to manage registration challenges more effectively. 

For this all to work, it is important to hear from Tribal members to understand barriers that might be related to or exacerbated by living far from urban centers and hear from judges to understand the reasoning for their decision-making in sentencing for these types of offenses. With this additional understanding, the state can identify specific solutions to reduce these types of public order offenses and address unequal punishment. Along with soliciting information from Tribes on these challenges, the state should view Tribes as partners to address how barriers could be mitigated through potential community outreach and education. One initiative on which MT DOC is collaborating with some Tribes is to develop memoranda of understanding that permit supervision officers to go onto Tribal land under very specific circumstances. This could allow officers to develop stronger relationships with people on supervision and potentially mitigate challenges that may result in violations of legal processes. But this must be undertaken with a continued view of Tribes as true partners in the process, an emphasis on addressing clients’ treatment and service needs, and an understanding of how historical trauma may be connected to these violations of legal processes. 

Recommendation 3

To address longer lengths of stay for American Indian people, the judiciary, MT DOC, and Board of Pardons and Parole should continue their efforts to address the factors contributing to this disparity. 

Results of this analysis indicated that once incarcerated, American Indian people face longer terms in prison and alternative secure care (alt-secure) facilities than similarly situated White people. The judiciary should work with MT DOC to implement changes designed to address this disparity. In recent years, MT DOC has been planning for or implementing several initiatives aimed at supporting the American Indian population in prison or on community supervision. These efforts include adopting the Integrated Correctional Program Model (ICPM), which targets multiple risk factors for people who are incarcerated and offers programming in institutions and the community. The ICPM has programs specifically designed for Aboriginal populations to address their unique needs and risks. Other key initiatives include delivering cultural awareness training to MT DOC staff, planning for a career path geared toward supervision officers taking on liaison responsibilities to foster Tribal relationships in their community, and integrating cultural components to supportive housing initiatives. 

In 2017, during the JRI system analysis, focus groups with people in the criminal justice system and community advocates found that obtaining and maintaining housing was a significant barrier for people returning to the community after incarceration.⁴⁴ As a result of this work, Montana established a rental voucher program for people leaving incarceration, which is funded at $200,000 annually. Additionally, MT DOC has a transitional assistance program funded at $400,000 annually that offers critical support for individuals leaving prison or on community supervision to help them plan for release and secure appropriate housing.⁴⁵ MT DOC could leverage these programs and bolster their funding to provide additional housing and reentry supports specifically for American Indian people returning to rural areas, helping to reduce release delays. Analyzing whether disparities in length of stay vary by region of the state and understanding more about the number of people who get approved for rental vouchers by race could provide critical information to help direct resources. 

As the judiciary and MT DOC work to bolster culturally responsive programs and initiatives, they should continue to speak with Tribal leaders and American Indian people to understand their perspectives on release delays and the resulting impact on individuals, along with the Board of Pardons and Parole and alternative facilities staff to understand their processes related to release. Further analysis could focus on the availability of in-prison programming and its potential impact on release decisions. MT DOC could also deliver training on equity and bias for staff and contractors, in addition to training it already conducts on cultural awareness, to bring attention to this disparate treatment and pursue additional training for all supervision officers on cultural awareness and ways to address the needs of American Indian people on supervision. 

Additionally, Montana is unusual in that it allows judges to remove parole eligibility in a sentence;⁴⁶ however, it was not possible to examine whether judges apply this tool in an inequitable manner. As such, this issue should be examined further to determine whether it is applied disparately and contributes to the racial disparities in length of stay. 

Recommendation 4

To reduce unequal revocations for supervision violations, MT DOC should continue to investigate and analyze how supervision revocation recommendations and decisions are made through a racial equity lens. 

This analysis highlighted racial disparities in revocations— including revocations of probation and conditional release as well as parole revocations. MT DOC has been studying this trend and is working to identify ways in which this disparity can be addressed, including providing additional training to supervision officers. A common violation among people who experienced a revocation was related to drug or alcohol use. This suggests that people on supervision, particularly American Indian people, could benefit from more resources for behavioral health needs. Further, among American Indian and White people convicted of felony offenses, drug crimes were the most frequent type of offense. 

Montana is not alone in having a large population of justice-involved individuals with behavioral health needs; indeed, coordination between criminal justice and behavioral health systems is a pressing need across the U.S. Efforts to improve behavioral health services stand to benefit Montana’s justice-involved population as a whole, including many American Indian people, and may help reduce the number of people incarcerated or on supervision by better meeting their behavioral health needs. During the implementation phase of Montana’s JRI, MT DOC worked to revamp their behavioral health treatment programming referral processes to align with A Shared Framework for Reducing Recidivism and Promoting Recovery.⁴⁷ This evidence-based framework helps policymakers and practitioners prioritize scarce resources based on assessments of individuals’ risk of committing a future crime and their treatment and support needs. As a result of this work, there have been significant changes in how people in MT DOC’s jurisdiction enter treatment programs. It is important for MT DOC to assess these new practices, including referrals and outcomes, from an equity lens to ensure their current process is effective across all racial groups. Similarly, a 2018 report highlighted that treatment courts are under-resourced relative to need in the state.⁴⁸ When addressing these findings, Montanans should approach any expansion of specialty courts with an eye toward ensuring there is equitable access for American Indian people. 

Proper use of risk and needs assessment (RNA) tools and the risk-needs-responsivity (RNR) model is especially important in targeting services to people in the criminal justice system to ensure that MT DOC is identifying and prioritizing people with the most urgent needs to reduce recidivism and supervision revocations. The Probation and Parole Division revised the Montana Incentive and Intervention Grid (MIIG) as part of JRI to provide a framework for officer responses to the behavior of people on supervision and align those responses with evidence-based practices to promote compliance on supervision. Supervision officers began using the MIIG statewide in 2019 and must exhaust appropriate responses in the MIIG before recommending a revocation. MT DOC should use data collected on the MIIG to systematically understand how supervision officers use incentives, sanctions, and referrals prior to reporting a violation and whether they are used equitably across racial groups. This effort should focus on the use of the MIIG by supervision officers to determine if modifications to either the grid or officers’ training on its use may reduce disparate treatment. Additionally, to the extent possible, MT DOC needs to be provided with necessary resources to move forward with quality assurance and local norming and validation projects for its Montana Offender Reentry and Risk Assessment/Women’s Risk and Need Assessment (MORRA/WRNA) RNA assessment tools, which it uses for people on community supervision. Quality assurance efforts on these assessment tools began during JRI. MT DOC should also confirm that these tools are appropriate (i.e., that predictive validity has been demonstrated) for American Indian people in the state. 

From a racial equity perspective, it is crucial to provide programs and services in a manner that does not result in disproportionate access across the state. It is important to determine where the greatest resource needs are to ensure both their fair distribution and their ability to make the greatest impact. Again, special outreach must be conducted with communities living in rural areas and on reservations, where access might otherwise be constrained, prior to the formulation of new policies or resource allocations. MT DOC has partnered with the Montana Department of Public Health and Human Services to plan for and deliver behavioral health resources to support the needs of its population in the justice system. MT DOC should continue to pay particular attention to its behavioral health and reentry resources and the availability of programs and treatment that are tailored to the needs of American Indian people and accessible to them on reservations or in rural areas. MT DOC could also consider whether technology or transportation challenges account for some of the underlying reasons for revocations of American Indian people on supervision. 

Recommendation 5

To impact racial disparities within the criminal justice system, the judiciary should build upon existing efforts to understand, track, and reduce bias. This includes coordinating ongoing racial equity initiatives in the state, implementing judicial education on equity and bias, and improving the collection of race data by courts. 

As a result of the systemic disparities found in this analysis and past studies, it is recommended that Montana’s judiciary further strengthen its commitment to study the causes of these disparities. It is also recommended that the judiciary continue its collective efforts to identify statewide changes, along with educational and information-sharing opportunities, that would address this disparate treatment, in partnership with stakeholders across the court system, including local judges, prosecutors, and defense attorneys. While specific actions to improve racial equity are important, no single policy change can address the totality of racial disparities in the criminal justice system. Advancing racial equity initiatives would ideally involve criminal justice system actors across branches to coordinate their responses with one another, other government agencies, and community-based partners. 

Montana already has several ongoing efforts to improve outcomes for justice-involved American Indian people; to the extent possible, the judiciary should seek to share information and coordinate efforts with such programs. For example, a recent report highlighted several noteworthy programs in the state,⁴⁹ including the Flathead Reservation’s Tribal Defenders Office⁵⁰ holistic defense program, which supports people facing criminal charges by connecting them to services like medical care or assistance with obtaining a driver’s license and has reported success in reducing recidivism among program participants.⁵¹ 

At the same time, there may be possible opportunities to build on existing efforts to address and share information on racial equity. For instance, while the Montana Supreme Court’s Access to Justice Commission focuses on civil legal issues,⁵² perhaps this body can serve as a model for coordination of criminal legal issues and develop a subcommittee focused on racial equity. 

As part of these initial steps to reduce disparate treatment in the court system, the judiciary should provide regular training on equity and bias so judges understand the impact that implicit racial biases can have on the fair administration of justice. Improving the collection of race data by the courts is also critical to understanding the extent of disparities and their causes and tracking progress over time. Additional detailed recommendations regarding court data quality are available in the accompanying report, Availability of Defendants’ Race and Ethnicity Information in Montana’s Case Management System.