The Joseph P. Mazurek Justice Building in Helena which houses the Attorney General’s Office, the Montana Supreme Court and the state law library (Photo by Eric Seidle/ For the Daily Montanan).
Montana’s judicial branch, with help from the Council of State Governments, is conducting a study of sentencing patterns in the state across racial groups to determine whether disparities exist and if so, where.
In Montana, data from the Department of Corrections show Native Americans are overrepresented in state prisons. Montana is home to seven Indian reservations and 12 tribes, and Native Americans represent about 7 percent of the state’s population — but 20 percent of the prison population.
However, little data is available to show how Native people fair in earlier stages of the criminal justice process.
“We know there is a problem, and so I think the problem starts well before they are incarcerated, and we have to look at things like how are these judges ruling on cases involving people of color,” said Sen. Shane Morigeau, D-Missoula, and member of the Confederated Salish and Kootenai Tribes of the Flathead Nation.
While the study proposal indicated a much more ambitious scope, data limitations have narrowed it to focus primarily on sentencing patterns, said Supreme Court Administrator Beth McLaughlin. The Council of State Governments is a nonpartisan organization that serves to assist all three branches of state elected and appointed officials.
The study was initially slated to be completed by December 2021, but has been delayed because of the COVID-19 pandemic.
“This study hasn’t gotten the focus it needs to get moving because of other demands, so we really are at the starting point,” McLaughlin said in an email. The state has given the council a “dump of sentencing data” that it will use to determine the next steps.
“The big question, at this point, is what can they do given the data we have provided to them – race is not routinely collected or available in some cases. They may come back to us and say, ‘We can’t provide any analysis until you start collecting additional data,'” she said.
There is no set date for when the study will be completed.
The study is an off-shoot of the 2017 Justice Reform work the Legislature undertook, McLaughlin said. Given the disparities that exist among Native Americans in other areas of the justice system, McLaughlin said the Supreme Court has an interest in seeing whether there is a similar disparity in sentencing. According to McLaughlin, no state funds will be used for the work, and all money will come from the original Justice Reinvestment federal grant.
“Obviously, judges are always trying to improve judicial practices to promote equal justice for all, and we need information in order to determine what improvements to make,” Mclaughlin said.
Morigeau said data like this is imperative to understanding how the state got to the point where Native Americans represent such a disproportionate amount of the incarcerated population.
“I think we need to know how often people of color are being pulled over, how the plea agreements go, and how judges are sentencing,” he said.
He said he hopes collecting the data will shed more light on how implicit biases may be affecting decision-making within the state’s criminal justice system.
“There are implicit biases ingrained in us as Montanans that just linger inside people’s subconscious … these things impact [people’s]decision making whether they realize it or not,” he said. He continued, “I tell people to get their windshield fixed, or taillight fixed, because they have darker skin, and they will get pulled over.”
The goal of the study is to create a plan to better measure and systematically address the racial disparities that may exist within sentencing patterns. “If the data analysis results allow, CSG Justice Center staff will highlight decision-making points that are exacerbating disparities and make recommendations for how to adopt judicial practice changes to address those disparities,” the Council for State Governments said in the proposal.
The little data that does exist about Native jail populations in the U.S. show a national trend of over-representation in prisons.
According to a report from the Prison Policy Initiative, there were more than 10,000 Native people incarcerated in local jails in 2019. That same year, according to the report, Native people made up 2.1 percent of all federally incarcerated people, while accounting for less than 1 percent of the U.S. population.
The disparity is especially evident among Native women, who made up 2.5 percent of women in prisons and jails in 2010 and accounted for only 0.7 percent of the total U.S. female population. According to the report, 2010 was the last available year for this data until 2020 census data is published.
The report from the Prison Policy Initiative found that while the national population of incarcerated Native Americans has fluctuated during the past 10 years, it has increased 85 percent since 2000. And, according to the report, the number of people in Indian country jails increased by 61 percent between 2000 and 2018.
At the same time, the report found the total population of Native people living on tribal lands has decreased slightly during the same period.
In Montana, the number of Native people in state prisons has been reduced from 1,059 in 2011 to 1,007 in 2020, but the percent of the population they make up has risen from 21 percent in 2011 to 23 percent in 2020, according to DOC data.
The Montana DOC said it is well aware of the overrepresentation in its prisons. The department said it has partnered with the Crime Justice Institute to conduct a separate study on the issue. The Crime and Justice Institute is a national nonprofit that works with state and local governments to improve criminal justice systems.
“With the information gathered through this effort, the department hopes to identify areas of concern, and develop strategies to better support offenders so they can be more successful in Montana communities and less likely to recidivate,” said DOC Director Brian Gootkin in a statement provided to the Daily Montanan. “From the research conducted, the department hopes to better understand what is driving the disproportionate rate of American Indians involved in the criminal justice system. We want to address this concerning trend to improve outcomes for these offenders.”
Across the country, studies have found racial disparities exist at all levels of the criminal justice system, from traffic stops to sentencing recommendations. But many of these studies focus on disparities among Black, white and Hispanic populations.
“Montana has an opportunity to uncover data regarding Native Americans that has not been available because of how criminal justice data is collected,” said Wanda Bertram, who studies disparities in the criminal justice system for the Prison Policy Initiative. She said Native Americans are sometimes omitted or put into an “other category” in national data publications, making it harder to understand the disparities.
Some examples of racial disparities found in other states include:
- An analysis of 14 years of traffic stops that occurred through 2016 in the state of North Carolina found Black drivers were 63 percent more likely to be stopped even though, as a whole, they drive 16 percent less. It also found that Black drivers were 115 percent more likely than whites to be searched in a traffic stop, even though contraband was more likely to be found in searches of white drivers.
- A 2019 review of 9,788 felony pre-sentence investigation reports in Utah between 2015 and 2017 by the Utah Commission on Criminal & Juvenile Justice found “a significant relationship between ethnicity and the severity of the (sentencing) recommendation for offenders of Hispanic origin.”
- A survey of data from the U.S. Sentencing Commission in 2017 found that Black men on average received sentences 20 percent longer than similarly situated white men.
Bertram said she expects similar disparities to exist in Montana for Native Americans.
“We know there are racial disparities in every part of the criminal justice system caused in part by bias among prosecutors, police and judges and also largely due to the way that we have designed our criminal justice to warehouse people in poverty … who are disproportionately Black, Hispanic and Native American,” she said.
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