Legislative budget proposal breaks with governor on OPD, prison bed shortage requests

House Bill 2 passes second reading on party-line vote

By: - March 22, 2023 7:26 pm
Section D subcommittee chair Rep. Bill Mercer, R-Billings, outlines the Section D portion of House Bill 2 during the second reading floor discussion on the budget for the next biennium on March 22, 2023.

Section D subcommittee chair Rep. Bill Mercer, R-Billings, outlines the Section D portion of House Bill 2 during the second reading floor discussion on the budget for the next biennium on March 22, 2023. (Photo by Blair Miller, Daily Montanan)

The section of House Bill 2 that concerns the judicial branch, law enforcement and justice contains tens of millions of dollars worth of additional investments compared to the past biennium, but breaks with the governor’s requests on certain aspects, like more support for the Office of State Public Defender and how to deal with a prison bed shortage. 

The Republican supermajority legislative budget proposes one-quarter of the full-time equivalent (FTE) positions that was sought by Gov. Greg Gianforte to boost the number of attorneys at OPD to try to deal with a growing case backlog. 

It also contains less than half of the number of FTEs the governor requested for the Department of Justice, less allowance for overtime pay in several departments, and half of the employee funding he asked for at the Public Service Commission

Republicans rebuffed Democratic amendment proposals seeking to ax some of the more controversial aspects of the legislature’s budget proposal, defeating five proposed amendments to the section of the budget during the floor work Wednesday, nearly all on party lines.

Rep. Jennifer Carlson, R-Manhattan, a majority whip, was the lone Republican to break party lines all day – voting in favor of an amendment that would have removed an appropriation added in committee last week to put $4 million in each of the next two years toward sending up to 120 Montana prisoners to a private CoreCivic prison in Arizona.

The amendment was proposed by Rep. SJ Howell, D-Missoula, who said, along with other Democratic lawmakers, that while the House had been working on measures this session to lower recidivism and decrease the number of people incarcerated in Montana, the move to send prisoners 1,200 miles away “flies in the face of all of that.”

Democrats wondered how families with members who are in prison would be able to communicate with them that far away, how they would have a relationship with their legal counsel, and why lawmakers were not working harder to find alternative solutions despite others being on the table, like increasing the number of pre-release beds for people who have been granted parole.

“I get these people have committed a crime and been sentenced, but they’re still human beings. They’re still potentially my constituents; they’re still Montanans,” said Rep. Jonathan Karlen, D-Missoula. “We’re talking about shipping people off like an Amazon package.”

Section D subcommittee chair Rep. Bill Mercer, R-Billings, and other Republicans pushed back, saying utilizing the 120 beds at around $90 a day per person was the cheapest and fastest way to address the backlog of 280 people who have been sentenced already and are sitting in county detention centers waiting to be sent to prison in Montana.

Even with 52 community corrections beds coming available, which Mercer said was a late surprise for the subcommittee and House Appropriations Committee, those would only address a fraction of the backlog.

“I agree it would be better if we had another prison in Montana. If we can jointly agree, that’s fine. But it’s not something we can do in this budget. We need to figure out a way to deal with the math problem and this is the only alternative I’m aware of,” Mercer said.

Rep. John Fitzpatrick, R-Anaconda, who drafted the amendment to send prisoners to Arizona, drew the ire of Democrats when he joked and drew laughs by telling the House that while he had heard from some people upset about their family members potentially being sent hundreds of miles away, “a lot of families are happy that they’re a long ways away.”

“I doubt a person in this chamber wants to go back and tell their constituents they didn’t want to impose and send them to Arizona, so we decided to keep them in jail or release them onto the streets,” Fitzpatrick said.

The amendment was defeated in a 33-67 vote, with Carlson the lone lawmaker breaking party ranks.

The $8 million appropriated to using the 120 CoreCivic beds in Arizona is a fraction of the $511 million contained in the Department of Corrections funding proposal – about half of the full $1 billion legislative budget proposal for Section D, which covers the judicial branch, Department of Justice, Public Service Commission, Office of Public Defender, and DOC. That breaks down as follows:

  • $511 million for the Department of Corrections – a 15.7% increase over the 2023 biennium
  • $121 million for the judicial branch – a 10.9% increase over the 2023 biennium
  • $296 million for the Department of Justice – a 13% increase over the 2023 biennium
  • $10 million for the Public Service Commission – a 3.9% increase over the 2023 biennium
  • $91 million for the Office of State Public Defender – a 15.6% increase over the 2023 biennium

Department of Corrections

HB2 as it relates to the Department of Corrections came in around $1.6 million under Gov. Greg Gianforte’s budget request — $7.5 million less in ongoing funds but $9.1 more in one-time appropriations. Over the next biennium, that includes:

  • $6.1 million to increase pay for correctional officers ($2/hour for Montana State Prison correctional officers and $3/hour for correctional officers at the Montana Women’s Prison and Pine Hills Correctional Facility) and another $800,000 for Probation and Parole
  • $18.1 million for provider rates for contracted secure and treatment facilities from the general fund and $3.6 million more in one-time rate increases. Republicans shot down a proposed amendment from Democrats to do away with the one-time increase.
  • The $7.9 million for the CoreCivic beds in Arizona, as well as $5.7 million to increase contracted rates paid to the company for the Crossroads Correctional facility
  • $3.1 million for the roughly 50 additional community corrections beds
  • $2 million to send people back into the community from pre-release
  • Thirteen full-time employees for Probation and Parole
  • $12.1 million for inflation adjustments

Much of the discussion among both parties surrounding the Department of Corrections budget centered around the lack of prison space and how solutions and ideas about how to solve it needed to revolve around recidivism.

Fitzpatrick said while there are efforts underway over the next few years to try to solve the space issue, he argued waiting several years would not be a good solution. 

Rep. Jonathan Windy Boy, D-Box Elder, wondered why more of the surplus, the majority of which has gone to various tax reductions, didn’t go toward those efforts instead.

“We could have built a castle, added security and added mental health services for inmates rather than sending them out of state,” he said, before quipping about what might happen if that surplus increases. “… Maybe we can put money aside for bus tickets.”

Department of Justice

The House budget proposal is about $3.5 million under what Gianforte requested and appropriates less than half of the full-time employees – crime investigators, attorneys, Montana Highway Patrol officers, and more – the governor asked for. The legislative appropriators also did not agree to fund additional overtime pay for the Division of Criminal Investigation. 

The legislative proposal includes $4 million to support victims services not included in Gianforte’s ask, and a half-million dollars for training support at the Montana Law Enforcement Academy.

The budget also includes:

  • $5.2 million to fund four attorneys, seven maintenance workers, six crime investigators and a part time grant coordinator for a total of 17.5 FTE. The governor had asked for 38.5 FTE, including five MHP officers, nine more crime investigators than the legislature budgeted, and additional attorneys. Mercer said the allocation was not what had been requested but was still “sizable.”
  • $1.1 million for employee salary and benefits adjustments
  • $4 million for victims’ services
  • $2.9 million for 6% MHP officer salary bumps
  • $2 million to fund Attorney General Austin Knudsen’s litigation costs in defense of the state and outside lawsuits
  • $1.4 million for body cameras and dashboard cameras for MHP officers
  • $2 million to upgrade servers and $1.4 million for IT system maintenance
  • $745,000 to fund a domestic violence grant that used to be run by DPHHS

Rep. Ed Stafman, D-Bozeman, proposed an amendment to strip the DOJ litigation funding, saying there was already supplemental funding allocated in another bill for the state to defend laws passed by the legislature, that the funding contained no side rails, and that some of Knudsen’s outside legal pursuits were “more about national politics than in the interest of Montana families.”

Another amendment from Stafman sought to add contingencies that would require the attorney general to provide notice to the governor, House and Senate judiciary committees, or interim judiciary committee relaying the nature of the suit, the state’s interest, and the projected costs.

Mercer urged lawmakers to vote against both amendments, saying the first was denying the interests of Montanans who agree with the lawsuits and who elected the attorney general in the first place. Further, he said, other states leading the lawsuits are often paying the more sizeable costs of the ones that Montana joins.

The second proposal, Mercer said, was infringing on the tension between the legislative branch and the executive functions, saying he felt it would be an overreach on the executive duties.

Office of State Public Defender

The legislative budget considered by the House Wednesday is about $5.8 million overall less than what Gianforte proposed, the largest difference being its funding of just five FTEs for the much-scrutinized OPD compared to the governor’s request for 20.

The office provides legal counsel in criminal cases for people facing charges that carry possible jail time.

While Gianforte had requested funding for 11 new attorneys, six criminal investigators, two administrative assistants and one project manager, the legislature’s budget only provides funding for five attorneys.

But Mercer said there was about $2.5 million in savings from vacancies the office could use when Democrats tried to amend the bill to add back the full FTE requested by Gianforte.

Rep. Laura Smith, D-Missoula, said the full funding was needed because of the caseload the department is facing, saying the $600,000 appropriated for contractors would not have the same effect as full-time office attorneys, who she said were nearly twice as effective and efficient in their case work as the contractors.

“OPD has 60 FTEs worth of work each month they can’t get to,” she said.

Smith said without the full request for staffing, it could lead to a “giant dam” breaking because the department would be “sending in five attorneys with a box of Band-Aids.”

Mercer asked lawmakers to vote against the amendment, saying it was rare that an office or agency was being exempted from the vacancy savings reduction.

The amendment failed on a party-line vote.

The rest of the OPD portion of the budget includes:

  • $6.2 million in salary and benefit adjustments
  • $1.5 million to continue to try to reduce case backlogs, particularly in Yellowstone County
  • $1.1 million to account for increases in lease costs
  • $600,000 for contracted attorneys, though that was $830,000 less than the governor’s request
  • $450,000 for IT purchases and upgrades

Judicial branch

The House’s budget proposal came in only around $70,000 less than the governor’s request. It did not fund a full-time employee for a specialist to oversee security at courts and did add $600,000 for a court mediation program in Yellowstone County it wants to expand to other counties.

Over the next biennium, the budget includes:

  • $1.7 million to continue to pre-trial diversion program
  • $6.5 million for salary and benefit adjustments for employees
  • $1.3 million to fund eight employees as the state takes over a federal drug court program
  • $100,000 to analyze the efficacy of the drug courts
  • $600,000 for family mediation over the next two years

Though the judicial branch has been under scrutiny this session with bills seeking to give the legislature more oversight over the judiciary, there was little discussion on the portion of the budget on the floor Wednesday.

Public Service Commission

The legislature’s proposal came in about $477,000 below Gianforte’s request, with most of the difference coming from its decision to fund only two of the four full-time employee appropriations he requested.

The budget includes over the next biennium:

  • $473,000 in salary and benefit adjustments for employees
  • $461,000 for the two FTEs – an IT systems administrator and an attorney, though the salary for the attorney came in under the governor’s request
  • $308,000 for software modernization

There was also little discussion on the floor related to the PSC funding outside of Mercer’s outline of the section. Rep. Steven Galloway, R-Great Falls, introduced several amendments that would have boosted the FTE and funding, but did not propose them during the floor discussion.

House Bill 2 passed second reading on a party-line 68-32 vote and will head to the Senate for further amendments and consideration if it, as expected, passes its third House reading on Thursday.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.