Findings and Conclusions
Presentence investigations and sentencing recommendations
A PSI and report is required, with some exceptions, by statute (46-18-111, MCA) and is a reportof historical information including a defendant's criminal, social, medical, and psychologicalhistory and offense and victim data. For certain sexual offenses (see footnote #4), an evaluationis required, and in 1997, the Legislature adopted language requested by the DOC specificallyrequiring a psychosexual evaluation by a member of the Montana Sex Offender TreatmentAssociation. The court may make a finding that a PSI report is unnecessary; and if that finding isnot made, a defendant convicted of any offense that may result in incarceration for more than 1year may not be sentenced before a written report is made. The PSI report may contain asentencing recommendation, and the survey is intended to determine whether the elimination ofgood time will be taken into account in future recommendations.
The first two questions reviewed are the questions specific to probation and parole officers onPSIs and reports.
What percentage of felony defendants do you estimate that you do a presentence investigationon?
Out of 25 responses, the mean or average amount was 84.6%, the median was90%, and the most common response was either 95% or 99.9%/100%. Someexamples were given by jurisdiction: Bozeman and Livingston 80%, Deer Lodgeand Anaconda 75%, Butte and Dillon 60%, and Helena 45%. Ninety percent ofFlathead felons have a PSI ordered by the judges. These comments indicate thereis considerable variation across the state.
Twenty-three of 24 respondents (96%) indicated that they did include asentencing recommendation, although one respondent qualified the response bystating that the respondent included a type of sentence but not a length ofsentence.
There are two basic elements that need to be explored. First, if a PSI report is required for anysentence that may result in incarceration for 1 year or more, then what are the reasons that morePSIs are not being performed? A review of whether the judgments contain any written findingsthat the PSI report is unnecessary, as well as the reasoning behind the findings, would beinformative and should be conducted.
Second, the results indicate that most probation and parole officers who answered this surveymake sentencing recommendations. If sentencing recommendations are desirable, does thereneed to be statutory authority or guidance? This may be an area where the DOC canadministratively affect sentencing by providing guidance in the form of policies and training forprobation and parole officers making recommendations and by providing additional informationon the effect of the elimination of good time. If sentencing recommendations are notappropriate, does there need to be a statutory prohibition?
Whether or not a sentencing recommendation is provided, a PSI report may be an opportunity tosupply judges with comparative information on the type of crime, sentences being imposedstatewide, and simple statistical data. This information is not available to date, but with themany technological projects occurring in the DOC, the Department of Justice, and the StateCourt Administrator's Office of the Supreme Court, it could be made a priority. Untilcomparative data is available, the probation and parole officers could provide informationregarding the minimum length of stay to reach parole eligibility that is possible given theelimination of good time.
Sentencing and sentencing recommendations
The first shared question by all three groups was:
When sentencing a defendant or making a sentencing recommendation for a defendant prior tothe elimination of good time, did you take into consideration (and include as a calculation in thesentence recommendation) the amount of good time a defendant would receive toward adischarge date?
Of the 60 responses, only 30 (50%) took good time into consideration prior to itselimination. Over one-third (22) did not, and another five answered that it wastaken into consideration but was not included in a calculation, that it was onlyverbal, or that it was occasional. This may indicate, especially in light of theanswers to the following question, that credit for good time was confusing and notuniformly considered across the state in the past, which may have resulted in pastdisparity.
The next question was a subquestion intended to illustrate past practices:
For the purposes of example, under the law in effect prior to the elimination of good time as ofJanuary 31, 1997, could you illustrate your understanding of how long a defendant with oneprior property crime would serve in prison before becoming parole-eligible for a 10-yearsentence for the offense of felony theft?
A significant drop in response was noted (in part due to the electronictransmission of the questionnaire) but the range of the 38 answers to the questionwas from 15 months to 3 years. Many responded one-fourth less good time,which is accurate but the rate by which good time was earned was variable priorto April 12, 1995. Some answered one-eighth or one-fifth, and one CountyAttorney made a distinction between dangerous and nondangerous offender (adesignation that was deleted in 1995). Another stated one-fourth less 30 days eachmonth assuming the good time allowance between April 12, 1995, and January30, 1997. The question did not include a date for which the crime was committed,leaving it ambiguous. Therefore it is no surprise that the answers would also beambiguous, but the range of answers is informative and probably best illustratesthat good time was a confusing factor when judges determined sentences or whenCounty Attorneys and probation and parole officers made recommendations.
Do you include treatment requirements for parole eligibility in any, all, or most of your sentencerecommendations?
Thirty-eight (63%) indicated that yes, all or most sentences or sentencerecommendations include treatment requirements for parole eligibility, another22% (13) respondents indicated that they do so for some, if warranted, orindicated seldom. Two respondents stated treatment requirements were includedfor sex offenders only, and two responded no or rarely.
Also, there is evidence that the BOPP adds additional treatment requirements before grantingparole. This would indicate strictures imposed on the system at the front end, in sentencing, andat the back end, in granting parole. Probation and parole officers, County Attorneys, DistrictCourt Judges, and the BOPP may not be sharing the same assumptions regarding parole. Inaddition, there is no analysis of treatment resources or outcomes in the prisons or correctionalsystem that is made available to the parties that require use of those same resources.
Since the elimination of good time on January 31, 1997, have you changed or will you changeyour sentence recommendations to take into consideration the fact that a defendant will not beearning good time toward a discharge date?
Of the 63 responses, 37 (59%) indicated "yes" or "probably" they would change,but 23 (36.5%) indicated that they would not. Of the third that indicated theywould not, it was 9 (43%) of the judges that indicated that they would not change.
The results indicate the DOC should conduct a serious assessment of population neutrality claimsand provide specific population projections based on the elimination of good time. ThePopulation Management Plan that is regularly prepared by the DOC has to date not included theelimination of good time in its projections.
The survey responses would also indicate that BOPP practices may need a similar review. By statutorily requiring that all offenders serve one-fourth of their sentence before becoming eligible for parole, the extended portion of time in prison should be of greater consideration to the BOPP. It also gives the DOC more time to ensure that each inmate gets the treatment that is required in a judgment or that is determined to be needed. If the DOC cannot ensure the opportunity for treatment, the policy question must be asked--is it appropriate that the DOC be in essence administratively lengthening an inmate's length of stay? By not having sufficient programs available to inmates that have treatment required in their sentence or required by the BOPP for parole, the lengthening of the period of incarceration is inevitable by default. Perhaps a greater distinction needs to be made between the treatment that is required in a secure setting in order to prepare an inmate for a safe release to society and that which is necessary for rehabilitation but that could be obtained outside the walls of a secure correctional facility.
This is an indication of the disjointed nature of the system and a lack of understanding between the participants. A higher percentage of players will now pay attention to good time than had in the past, but not everyone will, and that seriously challenges any population-neutral effect of the elimination of good time.
When making a sentencing recommendation for or sentencing a defendant now, or under thegood time provisions, do you assume that any, most, or all inmates will actually be paroled, ifeligible, at or near their parole eligibility date?
Autonomy and authority of this citizen body (BOPP) is an important and traditional piece ofMontana's correctional system, but analysis of the percentage of inmates who are paroled and theunderstanding that those involved in the sentencing process have regarding parole indicates aweak link. In the October 1996 Report of the Montana Board of Pardons and Parole, fiscal year1996 data indicates that a combined total of 46.4% of inmates are paroled at either their initialappearance or a subsequent reappearance. Only 13.6% of inmates at annual review are paroled,which combined with the other categories indicates that 34% of inmates who had parole hearingsin fiscal year 1996 were paroled. The BOPP report demonstrates that all or most inmates arenot being paroled, as was indicated by survey respondents, less than one-half are. If sentencingrecommendations and practices are being performed under the assumption that all or mostinmates are paroled, then it is no wonder that overcrowding is occurring. With that assumptionof a high number of paroles, the elimination of good time should not be expected to affect thesentencing practices of judges for at least a number of judgments in the future. Judges need to bebetter informed of parole practices, and the BOPP needs to be better informed of sentencingpractices and assumptions.
Have you received any information regarding either the elimination of or the effects of theelimination of good time from either the DOC or the BOPP? If so, please describe.
Do you have any recommendations for consideration by the Legislature for changes insentencing in general? If so, please describe. AND Please include any other comments youfeel would be helpful for the Correctional Standards and Oversight Committee.
Fifty-five persons responded to the first question and 32 persons responded to the second. A summary of the responses follows and only answers related to sentencing or good timeare included.
One respondent desired greater uniformity as compared to the wide sentence ranges thatcurrently allow disparity in actual time served. The example was given comparing a 90-day jailsentence for a misdemeanor drug charge to a net sentence of 90 days in jail on a 10-yearsuspended sentence for a $60,000 embezzlement.
The Montana Sentencing Commission voluntary guidelines were mentioned as positive work thatone respondent wanted implemented. The Commission had recommended that mandatorysentencing guidelines not be implemented, but they were interested in continuing their work anddeveloping voluntary guidelines for use on an experimental basis. One respondent who wasagainst sentencing guidelines believed them to be mandates that would only worsenovercrowding and another believed they would be manipulated for convenience and budgetaryconsiderations of the DOC.
Judicial discretion is the crux of the issue and was supported by many respondents. Onerespondent wanted complete discretion within guidelines set in statute instead of sentencingrequirements. One respondent wanted judges' discretion to extend even into housingclassification decisions. Another wanted to eliminate District Court Judges' discretion to grant adeferred imposition of sentence because it resulted in first-time offenders being more willing torisk a jury trial because of the perception that probation is the most that will result.
One prosecutor saw sentencing as the role of the judge and of the Probation and Parole Bureau atthe DOC. A respondent believed that the Legislature should set the maximum sentence lengthand allow judges to impose the sentence. Another wanted the Legislature to let the judges andprosecutors do the sentencing. The statutes currently cause confusion and examples were givenof the exceptions and considerations that are expected of judges, but are then taken away in otherstatutes. Section 46-18-225, MCA (criteria for sentencing nonviolent felony offenders), wasboth praised as good direction and criticized as something that needs to be repealed. Onerespondent wanted the law rewritten and organized to incorporate all restrictions and exceptionsin a more orderly manner.
Mandatory minimum sentences were raised as problematic four times. Two examples weregiven: (1) that it created too large a net for offenses such as those involving small amounts ofdrugs; or (2) in the case of "statutory rape". Faced with these cases, the judges may be unwillingto apply exceptions. One respondent believed mandatory minimum sentences to bemicromanagement that creates numerous difficulties when applied in individual cases. Rigidminimums often result in "charge bargaining" with the prosecution, which eventually affectsaccuracy in criminal history records. Another respondent stated that the threat of mandatoryminimums often results in jury trials because the defendant has nothing to lose and it makes itdifficult to get a plea bargain. One respondent believed that many first-time offenders could bedealt with more effectively through rehabilitation, which a mandatory minimum precludes. Onthe other hand, there was a respondent that wanted minimum sentences raised as the respondentbelieved that judges only imposed minimum jail time.
Additional education on good time, DOC commitments, and deferred and suspended sentenceswas raised as vital since the issues are not well understood, at least by judges, and are most likelymisunderstood by all parties in the system. One respondent stated that judges need the tools andthe discretion to work with the inmates as the judges are directly accountable to the victim andthe public. One respondent wanted more information on good time accrual forwarded toprosecutors and judges so that information is known on an offender's potential parole eligibilityand discharge. Others wanted statistical information on sentencing (averages, ranges) as part ofPSI reports. A comment was made that stated a frustration with judges and the inability to getthem to follow the statutes.
A provision was passed in the Legislature in 1995 to allow a commitment directly to the DOC,which permits the DOC to administratively decide the most appropriate placement for aninmate5. This DOC commitment was raised twice as a provision that respondents wantedeliminated and raised at least twice as problematic and requiring more education. Onerespondent appreciated the DOC commitment, but desired additional resources so that programscould be offered to all inmates. Many comments were received on the need for additionalresources, such as prerelease centers and treatment, across the state and especially in ruralMontana, so that the prison in Deer Lodge can be reserved for violent offenders.
Other areas of comment include eliminating stays in county jails because they do not allow forthe treatment that is necessary for rehabilitation. One respondent believed that the state shouldtake responsibility for violent felons and not leave them in county jails, and another stated thatthe Legislature should give better consideration to societal and economic costs from overlypunitive sentencing policies and should provide more resources to both communities andinstitutions, including resources for fourth-time DUI offenders, when prison is not appropriate. The concepts of simplicity and the Legislature leaving the statutes alone for awhile werementioned. There were at least two references that DOC line staff or the "people" should belistened to over the DOC administration. One respondent hoped that the Correctional Standardsand Oversight Committee included correctional professionals and another, judges. There weretwo comments supporting building more prisons instead of sending money out of state. Onecomment bemoaned having sentencing affected because of overcrowding and the impact oncounty jails.
CONCLUSIONS AND POLICY ISSUES
Although the Montana Sentencing Commission was authorized to identify the impact of goodtime credits and the advisability of retaining or eliminating good time credits, they did not do so. In fact, the Commission decided not to evaluate the elimination of good time credits until afterthe legislation had time to take effect. The elimination of good time credits has taken effect andstill no entity has evaluated, either in a hypothetical or actual case scenario, the impact of theelimination of good time credits on future prison populations. The question must be asked--in astate that already has burgeoning correctional populations and budgets, is it responsible to pursue"truth in sentencing", even partially, when there is no information on which to gauge the effectsof such practices until long after they are in effect?
Elimination of good time credits has made administration of parole eligibility for offenderssentenced for an offense committed on or after January 31, 1997, easier. Inmates sentenced foran offense committed before that date are still receiving variable good time credits. Thatfunction must be continued until every inmate sentenced prior to January 31, 1997, is paroled, isdischarged, or dies. The task should be institutionalized and automated rather than relying on asingle individual to accomplish that task. Any future change in good time policy must take intoconsideration a retroactive effect to prevent yet another category of good time accrual. Whetherthe elimination of good time will have an effect on judges' sentencing practices is debatable andis not an assumption that should be made. This survey, albeit informal, indicates that at leastone-third of those polled will not change their sentencing or recommendation practices, including43% of the judges who responded.
The question of whether PSI reports are being prepared as mandated by statute must be exploredfurther. This is a judicial matter as well as an administrative issue within the DOC. The DOCreceives copies of all judgments of persons who are placed in a correctional institution or underprobation on a felony deferred or suspended sentence. A review to determine whether sentencingjudgments contain any written findings that either order a PSI report or find one unnecessaryshould be performed, as well as to determine the extent to which judgments follow anyrecommendations included in a PSI report. This information could assist the DOC inunderstanding reasons why judges may not believe that PSIs are necessary and could begin adialogue with the judges. The DOC would also eventually need to analyze the effects onprobation and parole officer workload if additional PSIs are ordered.
The issue of sentencing recommendations by probation and parole officers needs to be reviewedby the DOC. Sentencing recommendations include treatment recommendations. Two-thirds ofthose who responded include treatment recommendations in their sentencing recommendationsor sentences. Statutorily, treatment recommendations are required only for sex offenders, whichconstitute only a portion of the offenders6. If a majority of probation and parole officers aremaking sentencing recommendations, then questions arises as to whether they are using any sortof uniform standards or general guidelines to do so and whether they are makingrecommendations knowing the amount of resources available in the DOC institutional andcommunity correctional programs and the effects of their recommendations on the entire system.
The questions of relevance and appropriateness of the sentencing recommendations should bediscussed as public policy. The probation and parole officers spend more time with the inmatesin the community and their knowledge is vital, but their actions concerning PSI sentencingrecommendations have consequences on a statewide system and need to be incorporatedsystematically. The PSI report also provides an opportune forum for probation and paroleofficers to inform District Court Judges and County Attorneys.
The PSI sentencing recommendation presents an opportunity to inform judges and CountyAttorneys as to DOC resources. As better and more coordinated statewide data becomesavailable on sentencing, a PSI report would be an ideal vehicle to provide information on specificoffenses, such as average sentence length, range of sentences statewide, minimum time to serveto reach parole eligibility, etc. A more general and regular report on statewide sentencingpractices and all of the resources available in the DOC institutional and community correctionalprograms is also information that needs to be disseminated to probation and parole officers,County Attorneys, District Court Judges, and the BOPP.
The autonomy and integrity of the various parties in the criminal justice and corrections systemmust be respected, but these elements have evolved into a situation in which the participants donot communicate with one another. Information sharing does not have to mean oversteppingone's bounds, but in a state where the expansion of the corrections budget has an effect on everyother part of the criminal justice system and all other state functions, it is unwise to allow this topersist. Problems associated with prison overcrowding must be shouldered by every person inthe state of Montana and by every part of the criminal justice and corrections systems inparticular. A mere sharing of information may lead to better planning and problem solving andat the very least the left hand would know what the right hand is doing and the reasons behindthose actions. The elimination of good time did not cause the current prison overcrowding, but itcertainly has the potential to exacerbate the situation if no change in sentencing practices occurs.
Since elimination of good time credits is a reality, the question must be asked--is it responsible towait until the full-blown ramifications of that decision take place before any projections can becalculated or theoretical effects on populations tested? If an assumption was made at thebeginning of the proposal that any change in good time was population-neutral, what do thesentences have to look like for that assumption to be true, has a comparison to actual sentencingpractices been accomplished, and what is the conclusion? If the intention of populationneutrality was abandoned, was there a realistic explanation of the effect on population in theprisons and the concomitant costs?
The fiscal note to House Bill No. 356 that implemented the truth in sentencing provisions didassume that the fiscal impact would be related to the length of sentences issued by the DistrictCourt. If the Court sentences remained consistent, the average stay in prison would be extendedand the prison population would grow, therefore it was not assumed to be population-neutral onits face. Any inference in the fiscal note that the length of sentences imposed would be reducedwas not supported by any specific proposals such as statutory changes to sentence ranges, asystematic effort to educate the judiciary, or a statutory requirement that they be reduced. Along-range effect of the proposed legislation noted:
1. Discussion on a recommendation for a sentencing study that takes the truth in sentencingconcept one step further, that addresses the elimination of good time within the existingsentencing structure, and that allows the realistic exploration of the consequences of theexisting sentencing parameters now in statute. It could also be performed to further thegoals of simplicity in sentencing.
Because much of the Montana Sentencing Commission's energy and attention was devoted toreviewing mandatory sentencing guidelines that were eventually not recommended, it issuggested that sentencing guidelines not be taken up in this discussion. Instead, the effects ofsentencing on prison populations and state resources should enter more fully into the discussion. The concerns about mandatory minimums, judicial and prosecutorial discretion and its effects,and any confusing statutes could be addressed in this review.
2. Discussion on the need for increased communication and education efforts within theDOC with the probation and parole officers and with the BOPP regarding availableresources and the effects of sentencing and treatment recommendations; and the need forinformation sharing to extend externally to the judiciary, perhaps through the probationand parole officers and PSI reports.
a. Are treatment recommendations by the probation and parole officers, CountyAttorneys, or District Court Judges appropriate? If appropriate, should theparameters be statutorily defined? If not, should they be statutorily prohibited?
Footnote: 1 1 Information derived from DOC document Good Time Laws--and what they mean. Dates have been corrected to reflect effective dates of legislation.Footnote: 2 2 Correctional Standards and Oversight Committee, January 23, 1998, meeting minutes, p. 17. Footnote: 3 3 The probation and parole officer pool did not include Intensive Supervision Program officers, institutional probation and parole officers, juvenile parole officers, or administrative support. Footnote: 4 4 These offenses include sexual assault, sexual intercourse without consent, indecent exposure, deviate sexual conduct, incest, sexual abuse of children, and violation of order of protection. Footnote: 5 5 The provisions was limited to 5-year commitment in 1997. Footnote: 6 6 From 1990 to 1994, between 19% and 23.8% of the prison population was convicted of a sex crime (DOC unpublished annual report FY 1990-1994). In a 1994 Sentencing Study for the Montana Sentencing Commission, 6.5% of the total cases for calendar year 1994 that were reviewed were for sexual offense crimes (Report on Data Collection Findings, Sept. 16, 1996), which is the same percentage of felony cases disposed in calendar 1987 reported in a 1987 Study of Montana Sentencing Practices by the Criminal Justice and Corrections Advisory Council.
Provided by Montana Legislative Services
11/7/2002 5:56:09 PM