Summary of Results
CSG Justice Center staff’s analysis demonstrates a largely consistent pattern of American Indian-White disparities in decision-making across Montana’s criminal justice system.
Incarceration sentencing and placement:
Descriptive analysis: Most common felony offenses
- Although there was no racial disparity observed in analysis of the most common offenses for both American Indian people and White people, over 30 percent of all felony convictions are for drug offenses.
Judicial placement decisions (non-DOC commit sentences)
- American Indian people are 1.5 times more likely to be incarcerated for felony criminal endangerment and other person offenses and 1.4 times more likely to be incarcerated for felony public order offenses relative to comparable White people.
MT DOC placement decisions (DOC commit sentences)
- American Indian people are 1.3 times more likely to be incarcerated for felony criminal endangerment and other person offenses and 1.2 times more likely to be incarcerated for felony public order offenses relative to comparable White people.
Incarceration sentence length:
- There are no observed differences for incarceration sentence length.
Incarceration length of stay:
- Once incarcerated, American Indian people remain in secure or alternative facilities for an average of 27.4 days longer than similarly situated White people.
Probation/conditional release revocations:
- American Indian people on conditional release are 1.36 times more likely than comparable White people to have supervision revoked during the first year of supervision. Similarly, American Indian people on probation are 1.44 times more likely to have supervision revoked during that period.
- Supplemental analysis identified revocation disparities for both compliance and noncompliance violations.
- American Indian people are 1.3 times more likely to have parole revoked relative to similarly situated White people.
Incarceration Sentencing and Placement Decisions
Prior to conducting regression analysis on incarceration decisions, CSG Justice Center staff used information from MT DOC to classify all felony offenses into high-level categories (e.g., drug offense, property offense).26 As summarized in Table 2 below, MT DOC uses a total of nine different offense categories: drug, influence, person, property, public order, sexual crime, vehicle, violent, and weapon offenses. CSG Justice Center staff renamed “person” offenses to “criminal endangerment and other person offenses” to reflect the high proportion of criminal endangerment convictions that comprise this category. Additionally, during the study period, only nine felony convictions were recorded for vehicle offenses. As a result, CSG Justice Center staff collapsed vehicle offenses into the influence category and developed a new category called driving while under the influence (DWI). Eight offense categories were used in analyses; however, there were too few weapons cases to analyze using regression. As such, regression results shown in Figures 5 and 6 exclude weapons offenses.
Table 2. Offense Categories and Most Common Offenses (2016–2020)
Among Felony Cases Resulting in a Conviction
Figure 4: Felony Convictions by Offense Type and Race
Most Common Felony Offenses Resulting in Conviction
In addition to categorizing all offenses, CSG Justice Center staff explored the most common felony offenses for which American Indian people and White people in the state are convicted to understand the context in which sentencing and placement decisions take place. Descriptive results, presented above in Figure 4, indicate that for both American Indian and White people, drug offenses comprise the largest proportion of all felony convictions. Notably, however, in the analysis of incarceration sentencing and placement decisions, CSG Justice Center staff did not find evidence of racial disparity in judicial or MT DOC decision-making for drug cases. In other words, the high volume of felony drug cases is a concern for both American Indian and White people in the state.
DOC Commit Status
Recall that in Montana, there are two routes by which a person may be placed in state prison after a new offense: first, a judge may decide to sentence a person to incarceration; second, a judge may decide to sentence a person to “DOC commit,” and MT DOC may then make a placement decision that involves incarceration. Because these two routes involve different decision-making processes, CSG Justice Center staff analyzed them separately. Below, results for judicial decision-making are reported first, and results for MT DOC decision-making are reported second. It is important to note that in this analysis sample, among all felony cases resulting in a conviction, the majority (about 59 percent) result in a sentence to DOC commit.
To analyze American Indian-White differences in decisions to incarcerate, CSG Justice Center staff used relative rate indices and regression analysis to examine the likelihood that a person convicted of a felony offense would be sentenced to incarceration in state prison. As noted earlier, the main analyses used regression, a statistical technique that allows for comparison after adjustment for baseline characteristics that might differ between groups. Factors that were considered for analyses of incarceration sentencing and placement decisions, as well as incarceration sentence length, are summarized in Table 3 below.
Table 3: Characteristics Accounted for in Analyses of Incarceration Sentencing and Placement Decisions and Incarceration Sentence Length
Judicial Decisions to Incarcerate
After accounting for key case and individual characteristics listed in Table 3 above, CSG Justice Center staff used regression analysis to calculate adjusted RRIs to examine American Indian-White differences in judicial sentences to incarceration for people convicted of felony offenses. Results are depicted in Figure 5 below; statistically significant differences are shown in blue, and results that are not statistically significant are shown in gray.
Results shown in Figure 5 indicate that there are statistically significant American Indian-White racial disparities for two specific offense categories: criminal endangerment and other person offenses and public order offenses. After CSG Justice Center staff accounted for key characteristics that might otherwise help explain an incarceration sentence, American Indian people are 1.5 times more likely than their White counterparts to be sentenced to incarceration for criminal endangerment and other person offenses. Similarly, American Indian people are 1.4 times more likely to be sentenced to incarceration for public order offenses.
Importantly, in Montana, certain offenses carry mandatory prison terms, meaning judges have less discretion in their sentencing decisions for such crimes.27 CSG Justice Center staff examined these results a second time, accounting for whether an offense carries a mandatory prison term; however, results did not change substantively.
Figure 5: Relative Rate Indices of Probability of Incarceration for People Placed by a Judge, by Offense Type
Comparing American Indian People to White People
MT DOC Placement Decisions
CSG Justice Center staff used the same analytic approach to assess racial differences in the likelihood that a person convicted of a felony offense and sentenced to DOC commit would be placed in Montana State Prison or Montana Women’s Prison. Like the analysis of judicial decision-making for incarceration, CSG Justice Center staff calculated adjusted RRIs after accounting for key case and individual characteristics. Results are depicted in Figure 6 below.
Results indicate that MT DOC placement decisions exhibit American Indian-White disparities that are very similar to those seen in the analysis of judicial sentencing decisions. Specifically, after CSG Justice Center staff considered key characteristics, American Indian people are 1.3 times more likely than their White counterparts to be incarcerated for criminal endangerment and other person offenses; similarly, American Indian people are 1.2 times more likely to be incarcerated for public order offenses.
Figure 6: Relative Rate Indices of Probability of Incarceration for People Sentenced to DOC Commit, by Offense Type
Comparing American Indian People to White People
Most Common Offenses Resulting in Incarceration
To understand the specific circumstances in which these incarceration disparities are occurring, CSG Justice Center staff further examined convictions for criminal endangerment and other person offenses, as well as convictions for public order offenses, to identify the most common specific offenses that result in incarceration in each type of case. Among all offenses that fall into the criminal endangerment and other person offense category, criminal endangerment specifically is a major driver of incarceration for both American Indian and White people.
In particular, for American Indian people convicted of any crime that falls into the felony criminal endangerment or other person offense category and that results in incarceration (via judicial or MT DOC placement), 76 percent of such cases involve a criminal endangerment offense. Although this offense category also includes other types of crime—such as violation of a protection order or stalking— convictions for other crimes ultimately account for a much smaller proportion of all incarceration placements. At the same time, among all White people convicted of a felony criminal endangerment or other person offense, 67 percent of cases include a criminal endangerment offense. In sum, these findings demonstrate that any policy or practice changes intended to address racial disparities in criminal endangerment and other person offenses more broadly must account for disparities in criminal endangerment incarceration sentences and placements in particular.
For public order cases that result in incarceration, there is a range of specific offenses that are relevant. Escape, meaning escape from a correctional facility, is most common, followed by failure to register as someone who has been convicted of a sex or violent offense, bail jumping (this is Montana’s preferred term, but in practice, it means failure to appear or FTA28), and tampering with/fabricating evidence. Because racial differences are occurring across a number of specific offenses, efforts to ameliorate disparities in public order offenses will need to address this offense class as a whole, rather than focusing on just one or two offense types.
Table 4: Most Common Felony Public Order Offenses (2016–2020)
For Cases Resulting in Incarceration
Incarceration Sentence Length
CSG Justice Center staff additionally examined incarceration sentence length, i.e., the length of sentence imposed, among people placed in incarceration, to assess whether there are racial disparities in this outcome. Specifically, staff used regression analysis to assess racial differences in sentence length for eight felony crime categories. After accounting for key case and individual characteristics that are summarized in Table 3 above (i.e., the same factors considered in the analysis of incarceration sentencing and placement decisions), there were no statistically significant American Indian-White differences in sentence length across any of the eight felony crime categories tested. Figure 7 below shows a high-level summary of this analysis, illustrating the adjusted average sentence length for American Indian and White people across all crime categories.
Notably, additional analysis conducted by CSG Justice Center staff indicates that judges tend to sentence people to incarceration in more serious felony cases (e.g., sexual or violent crimes) and sentence people to DOC commit more often for relatively less severe felony cases (e.g., DWI cases). In this way, the substantially longer adjusted average sentence length for cases involving a judicial sentence to incarceration (versus a MT DOC placement decision) is not unexpected. In practice, sentenced incarceration length is not necessarily reflected in actual time served in prison, as general parole eligibility in Montana occurs at one-quarter of the sentence (for nonlife sentences).29
Figure 7: Predicted Length of Incarceration Sentence, by Race (2016–2020)
Length of Stay
Having examined differences in sentencing and placement, CSG Justice Center staff analyzed length of stay to understand if there are observable disparities in actual time served. For this analysis, CSG Justice Center staff again employed regression methods to account for a number of contextual and individual factors summarized in Table 5 below.
Table 5: Characteristics Accounted for in Analyses of Incarceration Sentencing and Placement Decisions and Incarceration Sentence Length
Across all 8 felony offense types, results indicate that American Indian people are staying incarcerated for an average of 27.4 days longer than their White counterparts, across all offense categories. As shown in Figure 8 below, this disparity is apparent for sexual crimes, which have the longest overall lengths of stay, for DWIs, which correspond with the shortest lengths of stay, and everything in between. Although this analysis was not able to assess the role of all potential drivers of disparity—such as the MT Board of Pardons and Parole (BOPP) decision-making or availability of prison services—it is nonetheless clear that after accounting for many important factors, there is a consistent American Indian-White disparity in incarceration stays.
CSG Justice Center staff additionally examined whether this racial disparity in length of stay varied depending on where a person was incarcerated before release30—a secure facility (i.e., state prison) versus alternative secure care (alt-secure) facility. This difference is important because the BOPP makes release decisions about people in prison, whereas MT DOC leadership makes those determinations for people in an alternative facility. Results indicate that the racial disparity is worse on average for people in secure facilities: American Indian people in secure facilities serve an average of 34.6 additional days than their White counterparts. Among those in alt-secure facilities, American Indian people serve an average of 25.1 extra days than their White counterparts.
Figure 8: Predicted Length of Incarceration Stay, by Offense Type, Race, and Placement Prior to Release
CSG Justice Center staff additionally examined the extent to which there are American Indian-White differences in decisions to revoke supervision for people on probation, conditional release, and parole. Analysis was conducted first for people on probation and conditional release and second for people on parole, as the decision to revoke people on probation or conditional release is made by a judge or the MT DOC, respectively, while the decision to revoke people on parole is made by the BOPP.
Here, as in the analysis sections above, CSG Justice Center staff used regression methods and relative rate index calculations to examine racial differences in the likelihood of facing a supervision revocation within the first year of supervision. Table 6 below shows the factors accounted for in each of the revocation analyses.
Table 6: Characteristics Accounted for in Analyses of Supervision Revocations (2016–2020)
Probation and Conditional Release
Regression was used to analyze the likelihood of revocation for people on probation and conditional release while controlling for case and individual characteristics described above. The regression results indicate that during the first year of supervision, American Indian people are 1.44 times more likely to be revoked from probation compared to White people and 1.36 times more likely than White people to be revoked from conditional release. These results are presented in Figure 9 below.
CSG Justice Center staff then ran separate models comparing two subgroups that are of particular interest to Montana stakeholders. On May 17, 2017, Montana enacted legislation that defined two types of supervision violations: compliance (relatively less serious violations related to violating conditions of supervision) and noncompliance violations (more serious violations including new offenses and four other categories of behavior—for details, see the Glossary).31 As such, CSG Justice Center staff analyzed whether there are disparities for these two types of violations for probation or conditional release terms from May 2017 through 2020. Results indicate that there are racial disparities for both types of violations.
Figure 9: Predicted Probability of Probation and Conditional Release Revocation, by Race
The results of the analysis of parole revocations are similar to the probation and conditional release analysis: American Indian people are revoked at higher rates than White people. Specifically, after accounting for contextual and individual factors, American Indian people are 1.3 times more likely to be revoked than White people.
Figure 10: Predicted Probability of Parole Revocation, by Race
26. Montana Department of Corrections, MDOC Offense Table Information (Helena, MT: Montana Department of Corrections, n.d.); “Data and Statistics: Offense Counts Dashboard,” Montana Department of Corrections, 2022, accessed January 3, 2022, https://dataportal.mt.gov/t/COR/views/DOCPublicDashboard/OffenseCountDashboard?%3AshowAppBanner=false&%3Adisplay_count=n&%3AshowVizHome=n&%3Aorigin=viz_share_link&%3AisGuestRedirectFromVizportal=y&%3Aembed=y.
27. See 46-18-205 and 46-18-222, MCA.
28. Meeting between The Council of State Governments and Montana Departments of Corrections Probation and Parole Division, January 13, 2022.
29. “Getting Ready for Parole,” Montana Board of Pardons and Parole, 2021, accessed January 3, 2022, https://bopp.mt.gov/GeneralInfo.
30. To determine a person’s secure versus alternative secure status, CSG Justice Center staff examined the final correctional status that was recorded prior to release. Although people can be moved between secure and alternative secure facilities during their incarceration term, the last correctional status is a good indicator of where a person spent most of their time incarcerated. Specifically, among people whose final correctional status is a secure facility, on average about 87 percent of their term was served in prison. Among those whose final correctional status is an alternative secure facility, about 90 percent of individuals spent no days in prison; that is, in the vast majority of cases, their entire term was served in an alternative secure facility.
31. See 46-23-1001, MCA, as amended by Sec. 11, Ch. 392, L. 2017.