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The state’s probation and parole system is no effective alternative to prison, the American Civil Liberties Union of Montana said in a new report, calling it “an onerous regime that is anything but rehabilitative.”

Supervised release is designed to save public dollars while transitioning offenders out of the criminal justice system. Instead it’s driving Montanans back behind bars due to the costs of compliance and to unrealistic conditions, the civil rights organization says.

The state is revamping its criminal justice system with a series of reforms passed during the 2017 Legislature that saw broad bipartisan support, despite resistance from law enforcement. The reforms could take four to six years to show results, Department of Corrections spokeswoman Judy Beck previously told The Gazette.

The measures, such as reducing penalties for nonviolent offenses, would save the state $69 million in the first six years, and would usher in a more rehabilitative and less punitive system, advocates said.

But the ACLU report released Monday says those goals won’t be realized unless the state pumps more money into treatment programs, doubles down on re-entry efforts and addresses racial disparities.

The ACLU did a six-month investigation into the state’s supervised release program, reviewing state data on release revocations, and conducting surveys and interviews with department staff, probationers and parolees.

The organization found that people serving probation or parole are being returned to custody most often for failing to comply with the conditions of their release, and not for committing new crimes. A recent state report to lawmakers illustrates that: In 2016, 74 percent of Montana’s prison admissions were people who had failed on probation or parole, according to the Department of Corrections.

The ACLU said that the lack of access to effective substance abuse and mental health treatment is a major factor in the problem, as is the financial burden offenders bear for being out on release. Costs can include fees for court-ordered GPS monitoring, prerelease center room and board, and chemical dependency evaluations.

Some release conditions are unrealistic, the report said. For instance, some offenders are not permitted to drive as a consequence of their conviction, but they are still required to check in with Probation and Parole on a regular basis. In rural areas, offenders without reliable transportation struggle. 

In another example, 49-year-old Melissa Smylie said her former Shelby-based probation officer did not permit her to accept a job offer as bookkeeper at the Lucky Lil's Casino because the casino setting, with alcohol and gambling, violated her release conditions. Smylie said she explained that she would work only in the casino's office, and not on the casino floor, but was still not permitted to accept the job. Smylie said the casino offer was her only job offer in the town of 3,200. 

The report cited racial disparities as another problem with Montana's probation and parole system. For instance, among the men on parole between 2010 and 2017, 26 percent of white parolees were returned to prison for a violation, while 35 percent of Native parolees were. An interim committee of lawmakers is proposing changes to address the disparities. 

Recommendations

The state should hire more Native probation and parole officers and conduct more frequent cultural competency training, the ACLU recommended in its report.

It asks the state to support mental health and substance abuse treatment in rural Montana, something lawmakers took a step toward by certifying peer advocates and lifting the ban on violent offenders in drug treatment courts in 2017. Rural Montana still suffers from a shortage of mental health professional services. 

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The ACLU asks the state to allow for less frequent check-ins with probation and parole officers when appropriate. 

It also called for more “achievable” conditions for probationers and parolees, such amending work requirements for people with disabilities to completing a resume and applying for jobs, rather than requiring them to be employed on a certain timeline. 

One report recommendation is to develop a one-stop, holistic defense system where indigent criminal defendants can receive legal representation and referrals to things like housing assistance. The state is instituting a pilot program for this. The Confederated Salish and Kootenai Tribes has pioneered this model in Montana. 

The Department of Corrections spends $4 a day supervising someone on probation or parole, or $22 a day if the supervision is "specialized," according to its 2017 biennial report. It spends roughly between $76 and $117 a day per person to keep someone in custody, depending on the facility. 

Two-thirds of the department's committed offenders are on probation or parole, while a fifth are in prison. 

In response to inquiries about the report, DOC Director Reginald Michael sent the following written statement: 

“It would be premature to comment on a 72-page report that we have not yet had time to read. What I can tell you is that the department’s American Indian Liaison, the Governor’s Director of Indian Affairs and I have met personally with tribal council members of the Fort Belknap, Blackfeet and Confederated Salish and Kootenai Tribes to start the conversation about how we can work together to reduce the over-representation of Native Americans in Montana’s correctional system.

"As the ACLU’s report implicitly acknowledges in its recommendations, the challenges facing Native American offenders in relation to housing, employment, mental health and addiction treatment are deep-rooted issues that the Department of Corrections and other stakeholders must work on together to protect our communities and assist those in need.”

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