Legislature tackle criminal justice reform package

By Perrin Stein

Gillette News Record

Via Wyoming News Exchange

GILLETTE — Between 2006 and 2016, the state’s prison population rose 12 percent, the ninth largest increase in the United States for that period.

The increase has prompted the Department of Corrections to transfer about 90 inmates from the Wyoming State Penitentiary in Rawlins to a private prison in Mississippi and to contract with county jails to house an additional 50 inmates.

If the trend continues, the state likely will need 200 more prison beds and may spend more than $50 million to accommodate growth in the prison population over the next five years, according to a comprehensive study by the Council of State Governments, a nonpartisan nonprofit that supports state governments in developing effective public policies and that recently conducted an analysis of Wyoming’s criminal justice system.

To reduce the state’s ballooning prison population, the Legislature’s Joint Judiciary Committee has sponsored a handful of bills for consideration in this legislative session aimed at reforming the criminal justice system.

“I think people across the state are realizing that something needs to be done to address the crowding in our prisons and the lack of substance abuse and mental health treatment that is contributing to it,” said Rep. Bill Pownall, R-Gillette, a member of the Joint Judiciary Committee. “I think the conversation is focusing now on ways we can get people back on track instead of returning to prison.”

Altering probation and parole

The majority of the proposed changes focus on probation and parole because about half of the inmates in Wyoming prisons are there for violating the conditions of their supervision, such as failing a drug test or falling behind on paying their fines, according to the Council of State Governments.

House Bill 53, which passed the Judiciary Committee unanimously and has been referred to the Appropriations Committee, would enhance the probation and parole system to include sanctions such as short periods in jail or prison coupled with substance abuse treatment for minor nonviolent infractions.

“This is a way to hold people accountable and provides swift and certain responses to violations without just returning people to prison,” said Pownall, former Campbell County sheriff. “We have to make sure that people who committed horrendous crimes serve their time. … We also have to make sure that people receive the support they need to return to the community. And this is a balance.”

Senate File 38 limits the length of probation to three years for felony offenses. The bill is based on Council of State Governments data, which shows 85 percent of Wyomingites violate the terms of their probation within the first three years of supervision.

“This is all about resource allocation,” said Department of Corrections Deputy Director Steve Lindly. “By supervising people in their first three years and not allocating resources to people later when it’s no longer needed, we are using what we have better.”

However, Campbell County Attorney Ron Wirthwein voiced skepticism about the data on which the bill is based.

“Statistics can be slippery,” he said.

This fall, when the Department of Corrections gave a presentation to the Wyoming Association of County Officers, “I asked some questions about how they gathered their data, where the raw data is, that sort of stuff,” he said. “And (they) couldn’t answer. The slides they showed looked great, but I am sort of dubious when they can’t explain their data.”

The bill, which passed unanimously on its third reading in the Senate and has been introduced in the House, leaves it up to judges to sentence people to longer terms of probation if they see “good cause” to do so.

WyoFile reported this past week that the wording leaves the Council of State Governments concerned the bill might not make a significant difference in the state’s prison population because judges could use the provision to continue to sentence people to longer terms of probation.

Wirthwein suggested that the legislation could backfire with judges viewing three years of probation as too short and instead simply sending offenders to prison.

Campbell County Sheriff Scott Matheny also expressed some hesitancy about Senate File 38.

“In law enforcement, if you do the crime, you need to do the time because that’s a deterrent,” he said. “I understand that they are trying to find a way to address prison crowding, but I’m not sure reducing a sentence is the answer. If they’re doing treatment and other interventions properly, maybe then yes, they can get out earlier, but I’m leery of across-the-board reductions to sentences.”

A third criminal justice reform bill, Senate File 10, enables judges to consider several factors, including employment, family support and progress in addressing substance abuse issues, when deciding whether to reduce a person’s probation.

The Senate passed the bill unanimously on the third reading and it has been introduced in the House.

“There needed to be more clarity in how judges assess probation,” Lindly said. “Many people are in prison for probation and parole violations that stem from substance abuse, so we are finding ways to hold offenders accountable and keep the public safe, while also spending less money by not having them in prison.”

Helping victims

The Council of State Governments also recommended the Legislature extend the period of time during which crime victims can receive state compensation for mental health treatment. In response, the Joint Judiciary Committee has sponsored House Bill 45, which enables victims to be reimbursed for up to three years following a crime — one year longer than at present.

“Victims of serious crimes need anything we can do to help them,” said Pownall about the bill, which has passed its second reading in the House. “On the state level, we can give them a little more time to work through what happened to them.

“In many cases, crimes are horrific and people will never get over them, so the little we can do to help is important.”

The bill passed its third reading in the House unanimously and has been introduced in the Senate.

“It’s pretty hard to be against this,” Wirthwein said. “Every little bit helps.”

The bottom line

By passing these bills, the Council of State Governments estimates Wyoming will save several million dollars over the next five years alone instead of continuing to increase spending on the criminal justice system.

The bills, however, also require some funding. The total cost of the new legislation is not known, but the Legislature estimates that extending the time frame for mental health reimbursement will cost about $240,000 a year, most of which could be covered by grants. Lindly estimates the implementation of expanded sanctions for probation and parole violations, which would take a year, could cost about $1.6 million.

“With the continuing financial challenges the state faces, I think it’s important that we spend a little initially so we will be able to save in the long run,” Lindly said.

Matheny is concerned the bills may end up costing more than Legislators think and, thus, may provide fewer savings to the state.

“I always worry about unfunded mandates like this,” he said. “I am concerned about things like how the county jails will be paid for housing people who violate probation or parole and are sanctioned by being sent to jail for a few days. We (the counties) don’t get fully reimbursed by the state when we hold inmates for them, so what are we going to be expected to pay for this?”

Because the proposed legislation would significantly alter probation and parole, Lindly said it is unclear how the Department of Corrections would need to restructure to accommodate the new laws but is working on implementation plans.

“Once we implement the new legislation, we anticipate it will be more about shuffling work around rather than making more work,” said Dawn Sides, the field services administrator for the Department of Corrections. “In the end, we’ll have more success in the first few years of probation and won’t have to wait until people are inside the prison walls to get help. It’s a change in focus.”

Focus on treatment

Many of the Council of State Governments findings indicate that Wyoming’s lack of substance abuse treatment, which the bills before the Legislature only address partially, is the main contributor to the state’s growing prison population.

Only about half of probationers and parolees the Department of Corrections has identified as having mental health or substance abuse issues are now receiving adequate treatment.

This is, in part, because over the last decade state funding for substance abuse treatment through the Department of Corrections has declined from $11 million annually to about $8 million — a 25 percent decrease — and intensive outpatient treatment has been eliminated.

In addition, the Council of State Governments study shows there is a shortage of treatment centers in some parts of the state and that the state has difficulty transitioning the care people receive in prison to the community.

“We have a real need for treatment,” Matheny said. “As a general statement, it seems like if you can’t find a place to put someone treatment-wise, then you just put them in jail, which is not the place they need to be. “Treatment is an intervention that has been coming and going as the state has made cuts, which is not good enough because there is such a need for it.”

He added that there must be a conversation about whose responsibility it is to provide substance abuse and mental health treatment and whose responsibility it is to pay for it so the state can develop a sustainable model for services.

“Interventions that works like Felony Treatment Court, DUI Court and the 24/7 program are things that are helping people get back on track,” he said, referring to three Campbell County initiatives. “There is such a huge need for programs like these, and I just don’t see enough being spent on these treatment-type things.”

Wirthwein also views Campbell County’s treatment courts as successful at reducing recidivism and said there needs to be more substance abuse and mental health treatment.

He is supportive of Rep. Eric Barlow’s, R-Gillette, effort to understand the impact the state’s accreditation and certification requirements have on access to treatment. Wirthwein worries that since Wyoming began requiring that treatment centers have CARF accreditation in addition to a state certification, fewer businesses have bid on state contracts, limiting the number of treatment facilities in the state.

“It’s hoops they have to jump through and some providers are just not super willing to jump through those hoops,” he said. “I don’t know how smaller counties than us do it for things like drug court.”

Because the four bills before the Legislature do not fully address substance abuse and mental health care, the Department of Corrections is working with the Department of Health and a handful of other state agencies to understand what is preventing people from receiving treatment and what needs to be done to solve the problem.

Lindly said he is hopeful the work will lead to bills the Legislature could consider during its 2020 session.

Will they or won’t they?

While the Legislature and the Department of Corrections have examined the state’s growing prison population in various ways for several years, including in 2014 by working with researchers from the Pew Charitable Trusts, no large-scale reforms have been passed.

Last year, lawmakers grappled with a number of criminal justice issues. While they passed non-prison sentencing options for parole and probation violators, they also enhanced penalties for some crimes and failed to pass a handful of reform measures, including a bill that would have reduced the penalties for property crimes and a bill that would have made it easier to expunge juvenile records.

Last spring, all three branches of the state government invited the Council of State Governments to review the state’s criminal justice system, which was funded by the Pew Charitable Trusts and the U.S. Department of Justice.

“I am more hopeful about this legislation passing than I was with past years’ efforts,” Lindly said. “The estimated fiscal impact is less, it’s been well received by the Legislature and the (Council of State Governments) data was well collected and Wyoming specific.”

Pownall feels similarly optimistic.

“There was a lot of support from the Joint Judiciary Committee for these bills, so if that is any indication, I think they could pass,” he said. “But things are constantly changing during the legislative session, so it is always hard to know.”