Policies on Good Time and the Effects on Sentencing Practices:
History and Survey Results

By Susan Barth Fox, Research Analyst
For the Correctional Standards and Oversight Committee
May 1998

BACKGROUND AND HISTORY

This report is a summary of the recent history on good time policies in Montana. A survey wasconducted to ascertain whether sentencing recommendations or sentencing practices havechanged or will change in response to the elimination of good time. The intent of this report is toexplore those issues and whether the Department of Corrections (DOC) is factoring theelimination of good time into its prison population projections. Other related sentencingpractices are also explored.

Good Time Provisions

Good time in general refers to the practice of crediting an inmate's prison sentence with time offfor good behavior. The concept fits within Montana's indeterminate sentencing scheme andwithin a traditional rehabilitative model. Wide sentence ranges allow judges to take individualcircumstances and characteristics into consideration. By 1993, before significant changes weremade, the maximum amounts of good time that could be awarded were limited in statute byclassification of the inmate, enrollment in education, or self-improvement. Good time continuedduring parole, but did not apply to probation. Good time credits could be forfeited for escape orviolation of rules and were able to be restored for subsequent good behavior. An additional 180days of good time credits could be granted toward parole eligibility or to discharge if the designcapacity of the men's or women's prison was exceeded. An offender could be designated:
 (1) ineligible for parole;
 (2) a dangerous offender, requiring that one-half of a sentence less good time be servedprior to parole eligibility; or
 (3) a nondangerous offender, requiring that one-fourth of a sentence less good time beserved prior to parole eligibility.

In the past, statutory provisions and administrative practices made calculation of good timecomplicated. In addition, lack of computer automation practices force good time calculations tobe figured by hand, which contributes to the overall uncertainty as good time accrual informationis not readily available.

Governor's 1994 Advisory Council on Corrections and Criminal Justice Policy

By Executive Order in 1994, Governor Marc Racicot created the Advisory Council onCorrections and Criminal Justice Policy (Council). The Council divided into threesubcommittees, one of which was the Truth in Sentencing Subcommittee (subcommittee). In itsFinal Report of January 1995, the Council recommended establishing regional correctionalfacilities, lifetime sex offender supervision and registration, sex offender DNA registration, truthin sentencing, and good time reform and also recommended establishing a Montana sentencingcommission. It was from these recommendations that the DOC went forward. It was the truth insentencing proposals that would affect good time. The final report states, "The priority of thesubcommittee was to address the truth in sentencing issue and to ensure it would have a neutralimpact on prison population". The report notes that simplicity is vital for judges to know exactlyhow long an inmate will serve a sentence. The subcommittee proposed that:
 inmates receive a flat thirty (30) days of good time per month; in addition,inmates will have to serve at least 25% of their sentence before becoming paroleeligible. The truth in sentencing proposal does away with dangerous and non-dangerous designations at sentencing by essentially adopting the minimum timepresently required under the dangerous offender designation. Further, thesubcommittee recommended eliminating the 17-1/2 year rule pertaining to parole;abolishing good time for life sentences, requiring inmates to serve thirty (30)years, not fifteen (15), as is presently required; and eliminating early parolereleases relating to overpopulation.

The Council recommended the subcommittee's proposal in the form of legislation. The proposaldoes provide some simplicity, yet in no way could it be considered to have a neutral impact onprison population or to offer precision to a judge during sentencing. The subcommittee alsoproposed establishing a Montana Commission on Sentencing to study good time, sentencingpractices and guidelines, and the effects of sentences. The legislation recommended forintroduction to the 1995 Legislative Session (LC984) included as one of the Commission'sdiscretionary duties to "identify the impact of good time credits and sentencing guidelines on thecriminal justice system". The final report also included a memo from DOC Director Rick Day toCandyce Neubauer (Montana State Prison classification staff) providing his response to arequest regarding the primary objectives behind good time statute revisions. The first prioritywas "truth in sentencing without an effect of increasing prison population or length of stay", thesecond was simplicity, and the third was inmate management and motivation.

Department of Corrections and the 1995 Legislature

Based on the Council's recommendations in 1995, the DOC requested the bill for the purpose of“implementing truth in sentencing by making the time a prisoner will actually serve moreapparent". The bill, House Bill No. 356, sponsored by Representative Bill Boharski, was passedinto law (Ch. 372, L. 1995). Certain provisions of the bill had a delayed effective date. The billabolished the designation of dangerous or nondangerous offender for the purposes of parole,effective April 12, 1995, virtually the same as was recommended by the Council, but the billwent further and eliminated good time credits altogether, with a delayed effective date of January31, 1997.

Also based on the Council's recommendation in 1995, the DOC requested the bill, House BillNo. 357, creating the Montana Sentencing Commission (Ch. 306, L. 1995). The Commissionwas authorized, but not required, to make recommendations to the 1997 Legislature concerningmodifications or enactment of sentencing and correctional statutes, continuation of theCommission, identification of the impact of good time credits and sentencing guidelines on thecriminal justice system, and the advisability of retaining or eliminating good time credits. TheCommission was required to determine the advisability of proposing sentencing guidelines andto make recommendations to the 55th Legislature.

Montana Sentencing Commission

In its January report to the 1997 Legislature, the Montana Sentencing Commission recommendedthat the Legislature not implement sentencing guidelines and that the Commission shouldcontinue in existence for four purposes: (1) to continue to collect sentencing data; (2) to developa system of voluntary guidelines; (3) to review the current criminal code and sentencingstructure; and (4) to serve an educational function. The Commission made recommendations onthe two-strikes and three-strikes law, voted to support the elimination of good time credits, anddetermined that "the elimination of good time should not be evaluated until the Legislature'saction has had time to take effect", even though in a section on Prison Overcrowding the reportstated that the Commission had learned that:
 The Legislature eliminated good time in Montana effective January 31, 1997. Theelimination of good time may increase prison populations. The projected impactcould be as significant at [sic] 600 more prisoners by the year 2001.

1997 Legislature

The 1997 Legislature did not extend the funding or authorization for the Montana SentencingCommission, and it is no longer in existence. The 1995 Legislature's actions eliminating goodtime that were requested by the DOC took effect as of January 31, 1997, as no legislation wasrequested nor considered to stop the implementation by the effective date. Except to the extentrepresented in this report, the results of the elimination of good time are not being evaluatedsystematically. With the exception of the DOC, no group, such as the former MontanaSentencing Commission, exists to measure or estimate the impacts of this legislative decision.

DOC Good Time Policy

The DOC has taken the position that the law in effect at the time of the commission of an offenseprevails¹. For crimes committed prior to April 12, 1995, an offender must serve one-fourth of theoffender's sentence if designated as a nondangerous offender or one-half of the offender'ssentence if designated as a dangerous offender less good time for parole eligibility. Most inmatesserving a time sentence (certain number of years) were parole-eligible after 17 ½ years, and anoffender on a life sentence served 30 years less good time to reach parole eligibility. For thetime period prior to April 12, 1995, there are variable rates for earning good time.

For offenses committed on or after April 12, 1995, through those committed on January 30,1997, offenders must serve one-fourth of their sentence before they are eligible for parole. Anoffender on a life sentence must serve 30 years prior to reaching parole eligibility. Good time isearned at a day-for-day rate by inmates in an adult correctional facility or while on parole andapplies to a reduction in the sentence for purposes of calculating the date of discharge. Allocation of good time will apply in a situation involving the revocation of probation for acrime committed before January 31, 1997.

For offenses committed on or after January 31, 1997, an offender must serve one-fourth of thesentence prior to achieving parole eligibility and there is no good time earned toward a dischargedate. An offender incarcerated on a life sentence must serve at least 30 years prior to achievingparole eligibility. Population projections based on the elimination of good time have not beencalculated by the DOC, but as of January 23, 1998, the DOC listed 40 inmates that had beensentenced to prison since the January 31, 1997, effective date of the elimination of good time².

The DOC has implemented an inmate incentive program to encourage and reward positivebehavior while in the institution, but it does not affect sentence length or parole eligibility. However, it may affect the willingness of the Board of Pardons and Parole (BOPP) to grantparole.

Correctional Standards and Oversight Committee

The 1997 Legislature established an interim legislative committee, the Correctional Standardsand Oversight Committee, to review many aspects of criminal justice and corrections. TheCommittee divided into four subcommittees, one of which, the Private Prisons and ProgramsSubcommittee, was concerned about the effect of the elimination of good time on prisonpopulations and interested in how the elimination of good time has affected sentencing practices. A snapshot, informal survey regarding sentencing and sentencing recommendation practicessince the elimination of good time was conducted of District Court Judges, probation and paroleofficers, and County Attorneys.

The Subcommittee plans to use the information in conjunction with an Ad Hoc Committee onSentencing that will include District Court Judges, County Attorneys, defense attorneys, andlegislators to explore the ramifications of the statutory changes on sentencing practices and oncorrectional populations.

GOOD TIME SURVEY

Methodology

Three separate, but similar surveys were prepared to ascertain the extent of understanding ofgood time provisions in the state among District Court Judges, County Attorneys, and probationand parole officers. These three groups were chosen because of their direct involvement in thesentencing process. The surveys were distributed at the end of September 1997.

The probation and parole officers³ employed by the DOC are required by law to conduct apresentence investigation (PSI) and prepare a report that may include a sentencingrecommendation, although the only specific mention in statute is for treatment recommendationsfor offenders who have committed certain sexual offenses⁴. The County Attorney, as the arm ofthe state, represents the public and often makes sentencing recommendations, formally orinformally, and has the authority to engage in discussions on plea bargains that may affect theeventual plea, conviction, and sentence. The District Court Judge makes the final judgment andimposes a specific sentence. The survey is intended to ascertain how the elimination of goodtime will affect sentencing and sentencing recommendations.

There were six questions that dealt with good time and sentencing provisions common to allthree surveys. The only difference being that County Attorneys and probation and parole officerswere asked about sentencing recommendations instead of the act of actually sentencing adefendant. In addition, the probation and parole officer survey included two questionsspecifically related to PSIs. Two final questions allowed the respondent to make comments tothe Correctional Standards and Oversight Committee on sentencing specifically or anything ingeneral.

The response rate varied between categories of respondents. The responses were received over a3-month period.

RESPONSE RATE
District Court Judges	21/36	58%
County Attorneys	18/55	33%
Probation and ParoleOfficers	25/71	35%
Total	64/162	39.5%

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.

Do you include a sentencing recommendation in any of your presentence investigations?

 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.

A DOC memo dated January 15, 1997, indicated that of the 1,095 felony files of offenders whowere sentenced in 1994 that were reviewed for the Montana Sentencing Commission, 62.2%included a PSI report. In information received by the Private Prisons and ProgramsSubcommittee, the point was raised that PSIs are ordered in nearly all cases in which therecommendation will be for a prison sentence, which only partially comports with the statutoryrequirement in 46-18-111, MCA. The problem arises when a defendant receives a suspended ordeferred sentence initially, but becomes involved in a probation revocation proceeding thatresults in a prison stay, but without a PSI report.

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 results indicate a general misunderstanding of DOC and BOPP practices that could bemitigated by training and increased communication with judges and that should be pursued nowthat the effects of the elimination of good time will begin to be seen.

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.

The DOC may want to extend some efforts in assisting the judges, County Attorneys, andprobation and parole officers in better understanding the ramifications of good time on pastsentences since some inmates continue to earn good time. Especially important are theimplications of the lack of good time on sentences for crimes committed on or after January 31,1997, for which a significant number of offenders are yet to be sentenced or are coming to trialand for which the judges could still have an opportunity to alter their sentencing practices.

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.

Treatment recommendations are statutorily required only for those offenders who havecommitted certain sexual offenses. There are no other statutes either authorizing or definingrequirements for treatment recommendations for parole eligibility. The results indicate thattreatment is included in the sentences for over half of the inmates as a requirement for paroleeligibility regardless of the offense. Recommendations for treatment have a significant impacton prison populations based on the availability of treatment programs, the length of waiting lists,and the understanding of the BOPP about those factors in granting parole.

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.

Change in sentencing recommendations due to good time changes

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.

Any assumption that the elimination of good time is population-neutral needs to be seriouslychallenged. Some judges may not change sentencing practices, assuming good time was anadministrative decision and that those who are administering the prison are responsible fordealing with the consequences.

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?

 When asked this question, 75% (45) of the respondents indicated that yes, all ormost inmates will actually be paroled, 20% (12) indicated no, and 5% (3)acknowledged it depends on the DOC or the BOPP.

The BOPP is responsible for the granting of parole. Section 46-23-201, MCA, grants the BOPPauthority to grant parole "when in its opinion there is reasonable probability that the prisoner canbe released without detriment to the prisoner or to the community". Restrictions on parole fromthe original sentence include the statutory requirement for how much of that sentence must beserved before parole, i.e., one-fourth for a time sentence and 30 years for a life sentence. (Someoffenders may be ineligible for parole as well, 46-18-202(2), MCA.) Further, "parole may beordered under this section only for the best interests of society and not as an award of clemencyor a reduction of sentence or pardon. A prisoner may be placed on parole only when the boardbelieves that the prisoner is able and willing to fulfill the obligations of a law-abiding citizen"(46-23-201(4), MCA).

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 most”inmates 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.

 Thirty-eight percent (24) recalled receiving information, but 57% (31) stated no orthey couldn't recall if there was any. This was even after the DOC sent a memoon September 15, 1997, 2 weeks before this survey was sent. Probation andparole officers had the highest percentage of positive answers, 42%, and they areemployees of the DOC. Only 3 of 18 County Attorneys and 3 of 21 District CourtJudges recalled receiving information.

These results point to a vital need for greater and more effective communication from both theDOC and the BOPP on the effects of the elimination of good time on prison length of stay andtherefore prison populations and a need for District Court Judges and County Attorneys toacknowledge DOC communications. Enhanced communication efforts by the BOPP on theirparole philosophy and practices are needed because if judges and County Attorneys are truly toprovide truth in sentencing, they need to know what will happen when inmates are under theadministrative control of the DOC and the BOPP. Judges and County Attorneys may believethat it is not their concern what the DOC does with an inmate after they are sentenced, butovercrowding in the correctional system is a matter of statewide importance and each sector ofthe system should acknowledge its contributions to the situation, warranted or not, including theLegislature.

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.

The two questions elicited some interesting responses. There is still sensitivity to the issue ofsentencing guidelines that the Montana Commission on Sentencing was mandated to study.Seven respondents were against guidelines, and two respondents were in favor of guidelines,although both still believe in exceptions and a range of sentence options for judges' discretion.One respondent commented that guidelines give discretion to the prosecutor and take it awayfrom the judge. Two respondents seem to have mixed feelings on guidelines, yet inferred that aninmate should serve the entire sentence. It is clear that truth in sentencing has different meaningsto different people.

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.

There were six responses that agreed with no longer providing good time, with one of therespondents making the assumption that "it" will shorten sentences given by judges. Anotherrespondent believed that the abolishment of good time would mean longer stays because judgeswould not change sentences, which is borne out in the survey that showed that 43% of the judgeswould not change their sentencing practices with the elimination of good time. Two responsesquestioned the change, believing that a great deal was lost in not providing to inmates anincentive such as good time. One respondent disagreed, believing that good time created toomuch uncertainty and that other methods for incentive or compliance should be considered. (TheDOC has implemented an alternative incentive system to encourage positive behavior by inmateswithout affecting sentence length). One respondent stated the lack of good time credits for parolehindered appropriate supervision of inmates who graduate from boot camp.

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

Some of the basic tenets under which House Bill No. 365, implementing "truth in sentencing",was recommended were never honored or incorporated in the legislation that promoted theconcept. Although progress toward truth in sentencing is furthered by the elimination of goodtime, the assumptions underlying sentencing actions by various parts of the criminal justicesystem do not seem to be shared or communicated among the participants. The correctionssystem is overcrowded and may be suffering from some of the ramifications of this lack ofcommunication. A neutral impact on prison population was stated as an initial priority for truthin sentencing, yet no mechanism for achieving population neutrality was incorporated into thelegislation. Elimination of good time and the potential of doubling the amount of time inmatesmust serve to reach parole eligibility will increase the length of stay and therefore prisonpopulations and cannot have the effect of population neutrality without some corresponding cutin sentence length and without coordinated parole practices.

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:
 If length of sentence is not reduced, inmates who do not receive parole (37.4% ofall inmates in the last five years) will serve twice as much time in prison. It isprojected that the prison population would grow by an estimated 898 inmates byfiscal year 2001. An increase in prison population of this proportion wouldnecessitate the construction of additional prison capacity.

These three simple sentences speak volumes, especially in hindsight. The current situation is aform of acceptance of the above-stated, long-range effect, and a doubling of the prisonpopulation by 2001 appears to be a reality that will have significant financial ramifications evenwithout the elimination of good time. From the outset of the discussion of truth in sentencing,this was not the assumption, and it appears that the implications of this proposal were notdebated or adopted with any true understanding of the actual financial and resource impact on thestate. Prison populations had risen dramatically before the change in good time, and populationsare projected to continue to rise even without factoring in the elimination of good time.

POLICY OPTIONS

There are several options that the Committee may consider and that could becomerecommendations:

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 Montana has an indeterminate sentencing system, this would involve a review of eachcriminal offense statute and statutes governing criminal procedure. The Montana SentencingCommission did intend, had it remained in existence, "to review the current maximum andminimum penalties prescribed in the Montana Criminal Code, as well as current sentencingpolicy and sentence ranges, and make recommendations to the 1999 Legislature formodifications to achieve a simpler, more understandable sentencing system".

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.

3. Discussion on whether PSI reports and investigations are necessary for all felonyoffenders and if so, methods to enforce the statutory provisions or at least to aid thecourts in ordering them. The ramifications on DOC probation and parole staffing levelswould need to be considered, but the information gained may be well worth it. Theinformation gathering could be streamlined and incorporated into the many criminaljustice data collection efforts being conducted across the state.

4. Discussion of ways to address the treatment recommendation situation in the DOCProbation and Parole Bureau, in the sentence and judgment, and in the BOPP practicesand requirements for parole eligibility. Major policy considerations for treatmentrecommendations in PSI reports and judgments include:

 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?
 b. Should the DOC be required to provide resource information to probation andparole officers, County Attorneys, District Court Judges, and the BOPP in order tobetter formulate sentencing and parole decisions? This information could guidedecisions that would provide greater truth in sentencing through a betterunderstanding of the limitations of what can feasibly happen while under theDOC's custody,
 c. Should the BOPP be required to take DOC resources into consideration and allowmore treatment in communities so long as public safety is not compromised?
 d. Is the DOC currently analyzing or should the DOC be required to analyze courtrecommendations for placement in the treatment and program planning?

The good time survey was accomplished in a short span of time and is informational rather thanstatistical in nature. While considerable followup is needed, the survey was effective inrevealing information that if acted upon by the DOC could assist in eventually mitigating prisonovercrowding concerns. The effects of the elimination of good time must be analyzed andincorporated into future prison population projections. The survey reveals that the District CourtJudges, County Attorneys, and probation and parole officers all make certain assumptions aboutthe DOC and the BOPP that are not accurate or shared. By implementing a thorough educationaland information-sharing process that ensures that the contributors to the correctional populationsare fully informed, each participant becomes a stakeholder in the system. Most importantly, thesurvey indicates that the Legislature needs to provide clearer direction and parameters in statutefor sentencing and that an effort to review and revise sentencing statutes may be in order.

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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