New study of Montana’s criminal justice system reveals further disparities for Native Americans

By: - July 27, 2022 6:40 pm

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).

A new study on racial equity in Montana’s criminal justice system revealed that Native Americans in the state are more likely than their white counterparts to face prison time for certain felonies, spend more time incarcerated and have probation or conditional release revoked.

The study, done by the Council of State Governments Justice Center, was a continuation of previous work done in Montana as part of the 2017 Justice Reinvestment Initiative, which documented initial evidence of racial disparities between white and American Indian people in arrests and corrections populations.

The Council examined data provided by the Montana Office of Court Administration and the Montana Department of Corrections from January 2016 to December 2020. The project was funded through a grant from the Bureau of Justice Assistance.

“CSG Justice Center staff’s analysis demonstrates a largely consistent pattern of American Indian-white disparities in decision-making across Montana’s criminal justice system,” the study read.

While the study was able to identify areas where Native Americans faired worse in the state’s criminal justice system, their ability to analyze the degree of the disparities was limited because of the lack of data kept throughout the system.

According to the study, on average, across all courts, defendants’ race and ethnicity information was missing in 32 percent of cases filed from 2015 to 2020.

“Other important racial and ethnic disparities (e.g., impacting Black or Hispanic populations) may very well exist across Montana’s criminal justice system, and as more data become available within the Montana courts, future analysis should investigate those as well,” the study reads.

To fix the data collection problem, the study suggested that Montana standardize how race and ethnicity are captured, allow people to self-identify their race, and improve the capacity for data sharing. The Law and Justice Interim Committee has also been studying and drafting legislation to improve data sharing within the criminal justice system over the summer.

Racial disparities in Montana’s criminal justice system are no secret. Previous work done as part of the Justice Reinvestment Initiative found that despite making up only 7% of the population, Native Americans account for 17% of the total prison population and 19% of total arrests in the state, according to the study.

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While the study identified areas where disparities exist, it also found areas where they don’t. For example, there were no observed differences in incarceration sentence length. And no racial disparity was observed in the analysis of the most common offenses for both American Indian people and White people — over 30 percent of all felony convictions were for drug offenses.

However, the study found that Native Americans in Montana remain incarcerated for an average of 27.4 days longer than their White counterparts.

The Department of Corrections said plans for housing and employment for Native American inmates can contribute to them staying in prison longer.

“The department has long identified a lack of adequate housing and employment opportunities in rural and/or tribal areas as challenges for incarcerated individuals reentering society. The department has also long supported local re-entry initiatives aimed at tackling this issue, such as CSKT’s Flathead Re-entry program,” DOC spokesperson Alexandria Klapmeier said in an email.

It also found American Indian people on probation are 1.44 times more likely to have supervision revoked during the first year of supervision and are 1.3 times more likely to have parole revoked compared to similarly situated White people.

Key findings:

*American Indian people are 1.5 times more likely to be incarcerated for felony criminal endangerment and offenses against the person and 1.4 times more likely to be incarcerated for felony public order offenses relative to comparable white people when sentenced by a judge.

*American Indian people are 1.3 times more likely to be incarcerated for felony criminal endangerment and offenses against the other person and 1.2 times more likely to be incarcerated for felony public order offenses relative to comparable white people when placed through the “DOC Commit” process.

*American Indian people are 1.3 times more likely to have parole revoked relative to similarly situated white people.

*American Indian people on conditional release are 1.36 times more likely than comparable white people to have supervision revoked during the first year of supervision.

*American Indian people on probation are 1.44 times more likely to have supervision revoked during the first year of supervision.

*American Indian people remain in secure or alternative facilities for an average of 27.4 days longer than similarly situated white people.

Additionally, the study found American Indian people are more likely to be incarcerated for felony criminal endangerment and offenses and felony public order offenses.

But the disparities vary slightly depending on who is making the decision to incarcerate.

When decided by a judge, Native Americans are 1.5 times more likely to be incarcerated for felony criminal endangerment and offenses against the person and 1.4 times more likely to be incarcerated for felony public order offenses. And when decided by the DOC, through the “DOC commit” process, they are are 1.3 times more likely to be incarcerated for felony criminal endangerment and offenses against the person and 1.2 times more likely to be incarcerated for felony public order offenses.

The study also produced policy recommendations to address the disparities identified — many of which included further training for stakeholders on things like racial equity and bias.

When it comes to the disparities surrounding incarceration rates among Native Americans for criminal endangerment, the Council recommended the judiciary educate judges about racial disparities driven by use of the criminal endangerment offense and explore the role of plea agreements in enabling these disparities.

More specifically, the Council noted that criminal endangerment is used far more widely in Montana than in other states and carries a much higher penalty than in other states. According to the study, the Montana statute on criminal endangerment creates a felony punishable by up to 10 years in prison, as compared to a misdemeanor punishable up to 12 to 18 months in other states.

“This education effort should promote careful review of how the offense is being used, particularly in plea agreements, and encourage judges to work with prosecutors and defense attorneys to promote equitable outcomes for people who plead to this offense,” the study reads.

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And when it comes to incarceration rates for public order offenses like failure to appear at court or failure to register as someone convicted of a sex or violent offense, the study recommended stakeholders take a look at the barriers that Native Americans face. Examples include limited transportation or that about 15 percent of American Indian people living on or near a reservation have no internet at home and some residents of reservations do not have a mailing address that state governments recognize.

“Such limitations are especially important when considering how to reduce nonviolent offenses that fall into the category of violations of legal processes, like failure to appear in court,” the study said. Adding simple communication tools like text reminders can reduce failures to appear.

The study also said Montana should contemplate whether legal processes like registering as someone convicted of a sex or violent offense may be overly burdensome for American Indian people and lead to a disparate racial impact.

“The Montana judiciary should begin work in this area by developing strategies to educate judges on this disparity and the collateral consequences of convictions that require registration,” the study said. “With greater education on this issue, Montanans, including judges, prosecutors, defense attorneys, Tribal leaders, and supervision staff, could collaborate on targeted efforts to improve compliance with these legal requirements and strategies to manage registration challenges more effectively.”

To address longer lengths of stay for American Indian people, the judiciary, the DOC, and the Board of Pardons and Parole should continue their efforts to address the factors contributing to this disparity, the study said.

“MT DOC could also deliver training on equity and bias for staff and contractors, in addition to training it already conducts on cultural awareness, to bring attention to this disparate treatment and pursue additional training for all supervision officers on cultural awareness and ways to address the needs of American Indian people on supervision,” the Council said in the study.

And to reduce unequal revocations for supervision violations, DOC should continue to investigate how supervision revocation recommendations and decisions are made through a racial equity lens, the study recommended.

“A common violation among people who experienced a revocation was related to drug or alcohol use. This suggests that people on supervision, particularly American Indian people, could benefit from more resources for behavioral health needs,” the study said.

More broadly, the study recommended that the judiciary build on existing efforts to understand, track, and reduce bias, as well as coordinate racial equity initiatives and improve the collection rate of race data by the courts.

“While specific actions to improve racial equity are important, no single policy change can address the totality of racial disparities in the criminal justice system. Advancing racial equity initiatives would ideally involve criminal justice system actors across branches to coordinate their responses with one another, other government agencies, and community-based partners,” the study read.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

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