2021 Montana Legislature

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house joint resolution NO. 32


By Request of the ****


A joint resolution of the Senate and the House of Representatives of the state of montana requesting an interim study to examine discrimination in Montana's criminal justice system based on race, ethnicity, or national origin.


WHEREAS, Indians and other minorities in the state are disproportionately overrepresented in the criminal justice system compared to their representation in the general population; and

WHEREAS, there are numerous points of discretion in the criminal justice system and the corrections system that need to be reviewed for causes behind racial disparity in sentencing, including quality of counsel, arrest rates, detention in jail versus release on bail, the various uses of plea agreements and trials, rates of conviction, sentencing patterns, opportunities for effective treatment, rates of incarceration, rates in receiving deferred or suspended sentences and in granting of parole, and differences in probation and parole revocations; and

WHEREAS, Indians represent at least 8.4% of the overall population of the state according to 2019 American Community Survey data from the United States Census Bureau, yet Indian females represent 24% and Indian males represent 17% of the overall 2020 state adult offender population, including prison, intensive supervision parole, prerelease, and probation; and

WHEREAS, the numbers incarcerated in state prisons are even more disproportionate-37% of incarcerated females and 20% of incarcerated males are Indian; and

WHEREAS, Indian youth are also disproportionately overrepresented in the Youth Court system, representing 14% of all referrals to a youth court in 2020, and in the juvenile corrections systems, ranging from 26% of the youth population at the Pine Hills Youth Correctional Facility for boys and up to 44% at the Five County Treatment and Youth Rehabilitation Center for girls for fiscal year 2020; and

WHEREAS, discrimination in our criminal justice system based on race, ethnicity, or national origin ("race" or "racial bias") has a deleterious effect not only on individual criminal defendants but on our system of justice as a whole. The United States Supreme Court has said: "Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice" (Rose v. Mitchell, 443 U.S. 545, 556 (1979) (quoting Ballard v. United States, 329 U.S. 187, 195 (1946))). The United States Supreme Court has also recognized "the impact of... evidence [of racial bias] cannot be measured simply by how much airtime it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses" (Buck v. Davis, 137 S. Ct. 759, 777 (2017)). Discrimination undermines public confidence in the fairness of the state's system of justice and deprives Montanans of equal justice under the law; and

WHEREAS, even though racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms; and

WHEREAS, existing precedent may tolerate the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials, at least until these remarks and language reach a very high threshold. For example, in a case alleging racially incendiary remarks by a prosecutor, Montana courts have held that "it is not enough that the prosecutor's remarks are undesirable or even universally condemned; rather the question is whether the comments so infected the trial with unfairness as to make the resulting conviction a denial of due process" (State v. Haithcox, 2019 MT 201, 397 Mont 103, 447P. 2d 452 (Mont. 2019)); and

WHEREAS, there is growing awareness that no degree or amount of racial bias is tolerable in a fair and just criminal justice system, that racial bias is often insidious, and that purposeful discrimination is often masked and racial animus disguised.


Now, therefore, be it resolved by the Senate and the House of Representatives OF THE STATE OF MONTANA:

That the Legislative Council be requested to designate an appropriate interim committee or statutory committee, pursuant to section 5-5-217, MCA, or direct sufficient staff resources to examine discrimination in Montana's criminal justice system based on race, ethnicity, or national origin.

BE IT FURTHER RESOLVED, that the study must:

(1) identify potential causes of discrimination in Montana's criminal justice system;

(2) identify points in the state's criminal justice system at which discrimination may occur and affect proceedings and outcomes;

(3) review strategies used in other states and the federal government to reduce discriminatory behavior and decisions, including efforts to reduce disproportionate minority contact in the juvenile justice system;

(4) identify any data that is available or might be needed to examine discrimination in the criminal justice system; and

(5) propose remedies to reduce or eliminate racial discrimination in the criminal justice system, including methods to appeal and seek judicial relief from decisions that may have been affected by intentional or unintentional discrimination.

BE IT FURTHER RESOLVED, that the study involve stakeholders in the criminal justice system, including representatives of communities that could be disproportionately involved in the criminal justice system, the court system, law enforcement professionals, prosecutors, defense attorneys, the Department of Corrections, and the Montana Board of Pardons and Parole.

BE IT FURTHER RESOLVED, that if the study is assigned to staff, any findings or conclusions be presented to and reviewed by an appropriate committee designated by the Legislative Council.

BE IT FURTHER RESOLVED, that all aspects of the study, including presentation and review requirements, be concluded prior to September 15, 2022.

BE IT FURTHER RESOLVED, that the final results of the study, including any findings, conclusions, comments, or recommendations of the appropriate committee, be reported to the 68th Legislature, each tribal government located on the seven Montana Indian reservations and the Little Shell Chippewa tribe, the Governor, the Montana Congressional Delegation, and the Bureau of Indian Affairs of the United States Department of the Interior.


Latest Version of HJ 32 (HJ0032.001)
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