Retailers and peace officers disillusioned with criminal justice reforms passed two years ago notched a win Thursday, but it might be temporary.

HB 421, carried by Rep. Julie Dooling, R-Helena, would give officers more latitude to make arrests on first-offense misdemeanors, including for disorderly conduct and theft.

Those changes were sought by retailers in an attempt to crack down on a rash of shoplifting they attribute to criminal justice reforms from 2017 that prevented police from making arrests on certain misdemeanors.

Police also backed the bill, saying their inability to arrest in certain cases simply led to more serious offenses hours later. 

The Senate passed the measure 29-21 Thursday and the House passed it 58-40.

The bill now goes to Gov. Steve Bullock, although the bill’s sponsor is skeptical he'll allow it to become law.

“I’ve been told that it’s on the chopping block,” Dooling said.

Police, retailers seek changes

Law enforcement has said changes made during the 2017 Legislature tied their hands on calls such as a disorderly bar patron and prevented them from making an arrest until the situation escalated.

Police say the ability to make an arrest early on in the evening can dispel more serious trouble hours later.

In a House Judiciary Committee hearing in February, Broadwater County Sheriff Wynn Meehan recounted a conversation he’d had with Bozeman Police Chief Steve Crawford.

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“And he said, ‘You know, the disorderly conduct at 5:30 at night saves us the aggravated assault at 6:30 in the morning,’” Meehan said. “And there’s a lot of truth to that.”

Retailers have also spoken out against the 2017 changes, arguing that when lawmakers took away jail time for misdemeanor theft, they gave shoplifters a green light to target big box stores.

Montana Retail Association President Brad Griffin said thefts at stores like Target, Walmart, Home Depot and Lowe’s have increased in the past two years.

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"We have members who are losing $10,000 to $20,000 per week, just in shoplifting," he said. "That’s on top of the Amazon effect."

Taking away jail time

The fact that officers can’t currently make arrests on certain misdemeanor offenses is due to the same 2017 reform law that retailers have blamed for increased shoplifting losses.

That bill, HB 133, took away jail time for a list of first-offense misdemeanors. Police can only make arrests for crimes that are punishable by incarceration, unless the person presents an immediate danger to themselves or others, explained Deputy City Attorney Teague Westrope. 

Westrope, who prosecutes theft cases for the city of Billings and participates in a multidisciplinary retail crime team, said the city’s nonappearance rate in municipal court went up after HB 133 was passed.

“Well there’s no consequences, really, is the problem,” he said. “And that’s the frustration is that people who commit crimes have problems with criminal thinking. And if they’ve walked out or if they’ve tried to steal something from a retailer, why would they go to court just because they’re told to go to court?”

Westrope said the change in law preventing arrests on certain misdemeanors has not resulted in significant jail space being saved, but has instead saved money on public defenders.

“That was the whole point of [HB 133],” Westrope said.

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