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ACLU Smart Justice Montana - Set Up to Fail - Montana's Probation and Parole System, 2018

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Acknowledgments
The ACLU of Montana expresses its deepest appreciation to those who contributed their
time, expertise, and personal stories to this report. Those most impacted by the inequities
and flaws of the probation and parole system are often forgotten in the fight to end mass
incarceration. It is our goal that this report will spur Montana to become a leader in probation and parole reforms, decreasing the number of Montanans in our jails and prisons,
and truly supporting the formerly incarcerated as they attempt to reintegrate into their
communities.

Sarah Mehta
Sarah is a Human Rights Researcher with the ACLU’s Human
Rights Program. Previously, Sarah worked with the ACLU’s
Immigrants’ Rights Project and as a staff attorney at the ACLU
of Michigan. Her work has also focused on the rights of people
with mental disabilities in the U.S. immigration system and the
rights of prisoners. Prior to law school, Sarah was a Fulbright
scholar in India working on minority rights. She is a graduate
of Brown University and Yale Law School.

Robin Gomila
Robin is a PhD candidate in social psychology at Princeton
University, studying the psychological processes underlying
social change. He is interested in the interplay between social
structures and psychological processes in the development
of inequality. In his dissertation work, Robin asks: what leads
(some) people to behave in counter-normative ways, and
among those who do, what characterizes those who can
influence their peers?

3.

Table of Contents
We Need Your Help

5

I. Introduction and Key Recommendations

6

II. Methodology

9

III. Background: Probation and Parole Revocation Around the United States

10

IV. Revocation in Montana

15

A. Factual Background

15

B. Legislative Background and Developments in Montana

17

C. ACLU Findings: Common Impediments to Success on Supervision

20

1. Access to Substance Abuse and Mental Health Treatment Upon Release

21

2. Check-ins and Transportation

31

3. Housing

36

4. Reentry Assistance

40

V. Impact of Probation and Parole on Indigenous Communities

45

A. Health Concerns and Disparities for Indigenous People

46

B. Distrust of the System and Experiences of Discrimination

48

C. Lack of Cultural Programming and Competency Training for Probation Staff

49

VI. Conclusion & Recommendations

51

VII. References

53

VIII. Appendix A

57

IX. Appendix B

61

X. Appendix C

67

4. ACLU of Montana | Table of Contents

We Need Your Help
Probation and parole feed mass incarceration. In Montana, we spend nearly $200 million
a year incarcerating people – either in prisons or through constant supervision under
the probation and parole systems. Reducing incarceration means reducing the number
of people stuck in the maze probation and parole create. As Montanans, as legislators,
as people directly impacted by these systems, we must work to reform this system and
free people who do not deserve to have their lives controlled by the government. Not
only will this reduce incarceration numbers overall, it will obligate the state to spend less
money on incarcerating and monitoring Montanans and more money on our most
vulnerable populations.

Are you a state legislator interested in reducing the harmful
impacts of probation and parole?
Please contact Director of Advocacy and Policy,
SK Rossi, at rossis@aclumontana.org.

Are you a member of the public who wants to help us push
for reform in the probation and parole system?
Please contact Advocacy and Policy Assistant,
Zuri Moreno, at morenoz@aclumontana.org.

Are you a Montanan currently on probation or parole?
Or a Montanan who was formerly on probation or parole?
Please share your story with us. Contact
media@aclumontana.org.

5.

I. Introduction & Key Recommendations
Instead of being
an alternative
to custody,
COMMUNITY
SUPERVISION
(probation and
parole) in Montana is actually a
significant feeder
of incarceration.

Around the country, millions of people are living under community
supervision—more than twice the number of people in jails or prisons. Montana is no exception. According to the Montana Department
of Corrections (DOC), as of June 2016, 60% of the DOC population
was under community supervision through probation and parole.1
Community supervision—meaning here, probation and parole—
has historically been viewed as a preferable and more humane
alternative to incarceration. But increasingly, high costs, stringent
conditions, and lengthening lists of responsibilities associated with
supervision have created an onerous regime that is anything but
rehabilitative. Far from being an alternative to custody, community
supervision in Montana is actually a significant feeder of incarceration.
In Montana, hundreds of people—462 people in 2017—are incarcerated each year for technical or compliance violations of probation
or parole. State research demonstrates that most of these individuals
are returning to custody as a result of a violation of their supervision rules as opposed to the commission of a new crime. Indigenous
people, already significantly overrepresented in the Montana prison
system, are also more likely to return to prison for a technical violation. Between 2010 and 2017, 961 Native Americans were incarcerated as a result of a probation violation, 81% of whom were placed in
custody for a compliance or technical violation of their probation—
not for a new crime. Comparatively, white people were 5% less likely
to return to prison for a compliance or technical violation.
In the last year, Montana has made important legislative changes
to address the procedural reasons that lead individuals into state
custody for technical or compliance violations. The state’s acknowledgment that prison should generally be reserved for those who
are actually committing crimes is critical in creating a cultural shift
away from incarceration. However, in the absence of meaningful reentry and community rehabilitative services, it is likely that people
will continue to incur supervision violations and enter or reenter
state custody as a result of those violations or related new crimes.
ACLU research, conducted between November 2017 and March
2018, suggests that the primary reason for which people are

6. ACLU of Montana | I. Introduction & Key Recommendations

unsuccessful on community supervision is a combination of unmet treatment needs (for
substance abuse and mental health in particular) and unmanageable costs associated
with supervision requirements. Of the 94 individuals who responded to the ACLU’s questionnaire, 45% said they had a history of mental health issues and 61% reported having
substance abuse issues. Thirty-five percent said they had no housing when they were
released to the community on supervision, and few people reported having any transportation to get to work, meet with probation and parole staff, or attend treatment.

The existing supervision system penalizes people
on supervision for the ABSENCE of SERVICES and
assistance in the community, neither of which
they can control. This is counterproductive and
harmful not only to those on supervision, but to
their communities, families, and public safety.

Around the country, research now shows that supervision fines and fees levied on an impoverished population are counter-productive, ineffective, and fundamentally unjust.2 In
Montana, the costs of being on supervision are numerous—treatment, check-ins, rent for
prelease programs, etc.—and these costs weigh heavily on people already grappling with
poverty, substance abuse, and mental health issues who are trying to rebuild their lives
in the community and meet family and other responsibilities. At the same time, these
heavy costs are not matched with services that help people on community supervision to
be successful. People on parole or probation in Montana still aren’t able to find, access,
or afford critical social services and substance abuse treatment. This is particularly true
for Indigenous people given the dearth of resources available on reservations, prevalent
health disparities, and discrimination Indigenous people face in accessing services.
The current probation and parole system builds unnecessary and sometimes paralyzing obstacles across all demographics that delay people from getting the help they need,
but the primary obstacle to successful reentry is the lack of services. Without treatment,
housing, transportation and other basic services, people under supervision are unable
to meet the conditions and responsibilities—as well as costs—imposed by supervision.
Instead of providing support and incentives to comply and be successful on supervision,
the existing system penalizes people on supervision for the absence of services and assistance in the community, neither of which they can control. This is ultimately counterproductive and harmful not only to those on supervision but to their communities, families,
and public safety.

7.

Key Recommendations to the State of Montana

People on parole
or probation in
Montana still aren’t able to FIND,
ACCESS, or
AFFORD critical
social services
and substance
abuse treatment.

1.

FUND community mental health and substance abuse
treatment programs so that individuals can have their
treatment needs met without reentering DOC custody
and can be more successful on community
supervision;

2.

DEVELOP individualized community supervision plans
with realistic goals that identify an individual’s needs
as well as their responsibilities;

3.

SHORTEN community supervision terms;

4.

PROVIDE reentry planning for individuals released
from state custody to ensure basic needs (such as
housing, continuity of medical care, etc.) can be met;

5.

RECRUIT Indigenous staff for parole and probation offices and provide regular cultural competency training
for all staff;

6.

INVESTIGATE and develop alternative check-in
methods for people living in rural or tribal areas given
the lack of transportation options

On the road to Colstrip, Montana.

8. ACLU of Montana | I. Introduction & Key Recommendations

II. Methodology
It is our goal
that this report
spurs Montana to
become a leader
in PROBATION
AND PAROLE
reform, decreasing the number of
Montanans in our
jails and prisons,
and truly supporting the formerly
incarcerated as
they attempt to
reintegrate into
their communities.

This report is based on data obtained from the Montana Department
of Corrections (DOC); interviews with service providers, advocates,
correctional staff, and individuals on supervision and their families; and questionnaires sent to individuals in DOC custody between
December 2017 and March 2018. In October 2017, the ACLU submitted a data request to the Montana Department of Corrections for
information regarding probation and parole. Specifically, the request sought information regarding the demographics of individuals
who were returned to custody for violating parole or probation. The
information received from the DOC in February 2018 was analyzed
by Robin Gomila, Ph.D. candidate in social psychology and social
policy at Princeton University. The data requests and responses that
the DOC provided, as well as Mr. Gomila’s analyses, are provided as
Appendices A-C to this report.
The ACLU conducted in-person interviews in Montana in February
2018, did interviews by phone between November 2017 and February 2018, and sent questionnaires to people in 14 jails, secure facilities, or community corrections facilities across the state of Montana.
Of the 94 individuals currently or formerly on supervision who
either responded to the questionnaire or were interviewed by phone
or in person regarding their experience on community supervision:
Forty-two identified themselves as women and 52 identified as men;
31 individuals identified themselves as Native American; 56 individuals identified as white; three individuals identified as Black; one as
Black and Asian; one as Latino; and one as Latino and white. Two
people did not provide a race/ethnicity. Of the 31 individuals who
self-identified as Native American, 14 were women and 17 men.
To encourage individuals on supervision as well as state, tribal, and
non-governmental staff to be open and forthright about the challenges and pitfalls of the existing system, this report does not identify by name the individuals interviewed. The first name and first
initial of the last name is used for individuals in custody who authorized the use of their name and story.

9.

III. Background:

Probation & Parole Revocation Around the United States

The number of
people on probation and parole
has increased
four-fold since
1980; at the same
time, the number
of conditions for
those on supervision and the
average workload
for caseworkers have also
increased.

In the United States, in addition to the two million people in jails and
prisons each day, approximately 4,650,900 people are under community correctional supervision.3 This includes people who were released on parole after serving a portion of their sentence in custody,
people who are on supervision after incarceration, and individuals
who were given probation as an alternative to time in prison.
The number of people on parole and probation has increased fourfold since 1980; at the same time, the number of conditions for those
on supervision and the average workload for caseworkers have also
increased.4 According to a recent report by the Columbia Justice
Lab on mass supervision, the number of probation conditions—and
conditions with a financial obligation—have multiplied over the
years as probation has become more punitive in design and impact.5
The expansion of supervision conditions without a parallel increase
in resources and services has resulted in a huge number of people
being revoked for violating their conditions of supervision.6

Across the country, the probation and parole system is pushing people back into the criminal justice
system instead of fulfilling its mandate to help people reintegrate into and succeed in their communities.

10. ACLU of Montana | III. Background

What is a Compliance Violation?

Under Montana law, a “compliance violation” is a violation of the conditions of supervision that is not a new criminal offense, possession of a
firearm in violation of a condition of probation, behavior by the offender
that is threatening to the victim of the offense or a member of the victim’s
immediate family or support network, fleeing, or failure to enroll in or
complete a required sex offender treatment program or a treatment program designed to treat violent offenders. Basically, a “compliance violation” means you broke the rules of your probation but you didn’t actually
commit a new crime. Compliance violations are sometimes referred to as
“technical” violations.

Information about recidivism is imperfect, given significant differences in how states
categorize recidivism and also differences between states that have post-release supervision and those that do not.7However, national-level data suggests that approximately
three-quarters of released prisoners came back into contact with the legal system, with
many individuals on probation or parole incarcerated as a result of violating their supervision requirements.8 Between 1990 and 2004, around the United States, the number
of probationers revoked for non-compliance grew by 50% (from 220,000 to 330,000).9
Research from Professor Michelle S. Phelps shows that, in the mid-2000s, 33% of people
in jail and 23% of people in prison were on probation at the time of their arrest. Around
25% of those had been re-incarcerated solely for a technical violation of their probation.10 A 2017 study by the Marshall Project, based on a survey of 42 state corrections departments (including Montana), similarly found that more than 61,250 individuals were
incarcerated for technical parole violations.11
The reasons why people may be unable to comply with probation or parole conditions
are multiple, and not every violation leads to revocation or a custodial sentence. But in
general, around the country and certainly in Montana, people under state supervision
are contending with interrelated obstacles including mental health issues, substance
abuse, and the challenges that accompany poverty. These include lack of transportation,
housing, and insufficient income to pay for fees, services, and treatment or to provide a
safety net during transition from prison to the community.
Many of the costs frequently borne by people on probation or parole—for example, drug
testing, GPS monitors, and treatment—were originally paid for by the state, but fiscal
pressures have now pushed these costs onto the individuals on supervision.12 Dan
11.

Beto, a former probation director in Texas, observed that the increased conditions and
their heavy costs have created a “sense of hopelessness” among many people on supervision, while also dramatically altering the function of probation officers (POs): “[W]ith
[the] introduction of these financial conditions of probation, the role of the probation officer changed; no longer are they agents of change, but rather they have assumed the job
of collection agent.”13 Similarly, Michael Jacobson, former commissioner of New York City
Probation, and his colleagues wrote that the rising case load and lack of resources for
probation officers has made it impossible for most officers to provide tailored sanctions
or responses when people violate their conditions of supervision:
Few probation agencies have the ability to “step up” people on probation
who technically violate (or are at risk of violating) to drug treatment, cognitive behavioral therapy, or employment programs. As a result, probation
officers with little to no resources, eager to manage risk and their large
caseloads, default to the most available option they have — the most expensive and punitive option — the formal violation process which often results
in jail or prison.14
The research demonstrates that probation and parole terms, instead of replacing prison,
are now a feeder for incarceration. Instead of serving a rehabilitative function, probation and parole—or rather, the supervision and compliance conditions of probation and
parole—make reentry difficult if not impossible for the indigent. As the former Massachusetts probation commissioner Ronald Corbett wrote, many people involved in the
criminal justice system reportedly prefer a short incarceration sentence to supervision
because “probation is not viewed as an act of grace or a second chance at law-abiding
living but rather a staging area for eventual imprisonment.”15 This may hold true even
where probation programs or conditions include rehabilitative treatment. Law professor Cecelia Klingele observes that many studies of probation have found that people
who are given rehabilitative interventions including counseling or drug treatment are
more likely to be revoked than those who are not given those services: “Researchers
have attributed this result to the higher level of visibility and surveillance that attach to
state-imposed interventions, however benevolent their design; in short, more conditions
tend to mean more opportunities for violation and detection.”16 This may be particularly true and problematic for poor people—and particularly poor people of color—where
risk assessment tools may exaggerate the risk of recidivism and lead to more and stricter supervision requirements.17 Studies further suggest that some of the primary factors
influencing desistance from crime such as age or personal history “bear little connection
to the conditions and programmatic interventions imposed by sentences of community
supervision.”18
In response, some researchers and officials are advocating for the reduction or even
elimination of probation. Former New York probation commissioner Michael Jacobson
and others have recommended shortening or eliminating probation terms for low risk

12. ACLU of Montana | III. Background

individuals, utilizing instead conditional discharges or informal, unsupervised probation.19 Acknowledging that some probation departments “‘make a living’ off the fines and
fees they charge probationers,” these professionals suggest that departments should be
allowed to reinvest the savings from reduced caseloads back into services for individuals
who are “high risk” and need more services. New York adopted this approach and is now
able to spend twice as much per client as it could 14 years ago, essentially doubling the
department’s budget.20
Some states are exploring early termination of parole or probation terms after a successful period of compliance, offering individuals an incentive to comply with supervision
terms early on at the time when they are most likely to be re-arrested.21 The 2017 Council
of State Governments Report to the Montana Commission on Sentencing similarly recommended that probation officers recommend early conditional discharge for people who
are complying with the conditions of their supervision.22 Though this policy was adopted
in 2017, it may not immediately result in a huge reduction of the supervision population
in Montana, if one of the core causes of criminal conduct and supervision failure—substance abuse—is not addressed through community-based care and programs. However,
longer supervision periods hamper reentry and are difficult even for people who are
doing well on probation.
The Columbia Justice Lab report on “mass supervision” was accompanied by a statement
signed by 35 current and former community corrections administrators, in addition to
every major national community corrections organization (the American Probation and
Parole Association, the Association of Paroling Authorities International, the Association
of State Correctional Administrators, the International Community Corrections Association, the National Association of Pretrial Services Agencies, and the National Association
of Probation Executives).23 These officials and organizations wrote that the exploding
growth of community supervision was a core contributor to the prison system and, far
from being a cheap alternative to incarceration, was straining public resources given the
high volume of cases on supervision: “Public resources for community corrections have
been stretched, fostering large caseloads and inadequate programming and, in some
cases, forcing community corrections agencies to rely on fees from impoverished clients
for their very existence.”24

13.

Every major national community corrections organization and
35 individual corrections experts signed a statement listing these
6 key reform recommendations:

1.

RESERVING the use of community corrections for
only those who truly require supervision.

2.

REDUCING lengths of stay under community
supervision to only as long as necessary to accomplish
the goals of sentencing.

3.

EXERCISING parsimony in the use of supervision
conditions to no more conditions than required to
achieve the objectives of supervision.

4.

INCENTIVIZING progress on probation and parole
by granting early discharge for those who exhibit
significant progress.

5.

ELIMINATING or significantly curtailing charging
supervision fees and instead,

6.

PRESERVING most or all of the savings from reducing
probation and parole populations and focusing those
resources on improving community based services and
supports for people under supervision.25

As discussed below, many probation or parole conditions are a real obstacle to reentry,
adding impediments to community reintegration instead of facilitating rehabilitation.
However, even if conditions like check-ins and program participation did not exist, people with addiction and substance abuse issues may still recidivate and return to custody
on a new charge or be unable to comply with core conditions like securing housing and
a job. For these individuals to be successful living independently and/or on community
supervision, the state must view meaningful treatment and related assistance as a precondition to success on supervision, rather than the goal of supervision.

14. ACLU of Montana | III. Background

IV. Revocation in Montana

Despite being
only 6.5% percent
of MONTANA’S
POPULATION,
Indigenous people
comprised 20%
of the men’s state
prison population
and 34% of the
women’s state
prison population
in 2015-2016.

A. FACTUAL BACKGROUND
According to the 2017 Council of State Governments (CSG) Report
to the Montana Commisson on Sentencing, the primary source of
growth in arrests, admissions to alternative facilities, and prison
admissions is the substantial number of people revoked from supervision due to either technical violations or new crimes.26 Specifically,
between FY 2009 and FY 2015, arrests for revocations, violations,
and failures to appear increased by 65% and were responsible for a
45% increase in total arrests in the state.27 According to CSG’s report,
the supervision population is expected to increase by an additional 19% between FY2018-FY2023.28 If revoked, people on probation
spend an average of 23 months in prison (15 months for people
whose parole is revoked).29 At the same time that the number of people on supervision and the number of people returning to custody
as a result of a revocation is increasing, the number of supervising
officers has decreased in recent years.30 This has an impact similar
to what public defender and child protective service offices experience – line officers become overwhelmed, with less time to provide
individualized, supportive supervision, choosing revocation over a
deeper investment in the success of the probationer as a way to save
time and conserve scarce resources.

1000
2012

1800
2014

180
2012

2016

170
2014

2016

15.

This growth in revocations does not affect everyone equally. In Montana, the Indigenous
population is significantly overrepresented in the Montana prison system. Despite being only 6.5% percent of the state population, Native Americans accounted for 19% of
arrests and 27% of all arrests for supervision and failure to appear violations in FY2015
and comprised 20% of the men’s state prison population and 34% of the women’s state
prison population in FY2015-2016.31 This already dramatic disparity is actually an underestimate of Indigenous incarceration rates, as Indigenous people convicted of crimes
on tribal lands are incarcerated either by the tribal or federal systems, depending on the
offense, and so are not captured by the DOC data.
According to data the ACLU obtained from the Department of Corrections, in the years
2010 through 2017, 3,703 men and 530 women were released on parole in Montana. Seventy-six percent of men released on parole were white and 20% were Native American.
Among women released on parole, 67% were white and 30% were Native American. Of
those released on parole, 26.33% of white men returned to prison for a parole violation.
By contrast, 34.78% of Native Americans returned to prison for a parole violation.
Not all probation or parole violations receive a custodial sanction, but the DOC data indicate that individuals on probation who subsequently return to custody are overwhelmingly incarcerated for a violation of their probation, not for a new crime. In the years
2010 through 2017, 2,970 men on probation were placed in or returned to prison,32 of
whom 71.55% were white, 25.32% were Native American, 2.83% were Black, and 0.30%
were Asian. Approximately 27% of white men were sent (back) to custody for a new offense, whereas around 73% were incarcerated for a violation of their probation. For Native Americans, 19% were placed in custody for a new offense, whereas 80% were placed
in custody for a violation of their probation. Among Asian men, approximately 78% were
incarcerated for a probation violation compared with 22% for a new crime. The disparity
was highest for Black men, with approximately 18% placed in custody for a new offense
but around 82% placed in custody for a violation of their probation.

What is the difference between Parole and Probation?

“Parole” means the release to the community of a person incarcerated in a
detention facility, subject to conditions set by the parole board and to
government supervision.
“Probation” means the release by the court, without imprisonment, of a
person convicted of a crime, subject to conditions imposed by the court and
government supervision.

16. ACLU of Montana | IV. Revocation in Montana

From 2010 to 2017, 78% of men and women incarcerated as the result of a probation
violation were revoked not for new crimes, but for breaking the rules of their supervision.

Males
ETHNICITY

PROBATION TO PRISON

FOR NEW OFFENSE

FOR VIOLATION

White

2125

26.73%	

73.27%

Nativam

752

19.81%

80.19%

Black

84

17.86%

82.14%

Asian

9

22.22%

77.78%

ETHNICITY

PROBATION TO PRISON

FOR NEW OFFENSE

FOR VIOLATION

White

277	

21.66%

78.34%	

Nativam

209	

19.14%

80.86%

Black

10

10%

90%

Asian

3

0%

100%

Females

Among women, during the same years, 499 women on probation were placed in or
returned to prison, of whom 55.5% were white, 41.9% were Native American, 2% were
Black, and 0.6% were Asian. Approximately 78% of white women in/returned to custody
were incarcerated for a probation violation compared with 22% incarcerated for a new
offense. Among Native American women, approximately 80% were incarcerated for a
probation violation compared with 19% for a new offense. Among Black women, 90%
were incarcerated for a probation violation compared with 10% for a new crime, and
100% of Asian women on probation and returned to custody were incarcerated for a
probation violation.
B. LEGISLATIVE BACKGROUND & DEVELOPMENTS IN MONTANA
In 2017, the Montana Legislature passed a set of new laws on parole and probation. One
issue addressed in this legislation is the way violations are treated—what leads to revocation and what sanctions can be imposed when a person violates supervision conditions.
Recognizing that many people in Montana return to custody and/or have their probation
revoked due to failure to comply with conditions, this legislation is an important attempt
to recognize when violations are purely technical or compliance failures and also to curtail and guide the use of a custodial sentence.

17.

One issue addressed in legislation passed during
the 2017 legislative session is the way violations
are treated—what leads to revocation and what
sanctions can be imposed when a person violates
supervision conditions.

Under Senate Bill No. 63, a probation and parole officer (PO) who suspects that an individual on supervision has violated a condition will look to an incentives and interventions grid – a tool that guides POs through different responses to a list of supervision
violations – and may initiate an informal hearing on compliance without a formal revocation hearing.33 In theory, this will decrease probation revocations by avoiding a formal
hearing and give the supervisee and PO the opportunity to address the issue leading to
non-compliance in a less pressurized setting. A person accused of a compliance violation
will only be sent for a formal revocation hearing if “appropriate responses under the
incentives and interventions grid have been exhausted.”34 At a formal revocation hearing, the hearing officer can still order a person to detention or recommend placement in
a community facility like a prerelease center.35

The Montana State Senate in Helena, Montana.

18. ACLU of Montana | B. Legislative Background & Developments in Montana

Also under SB 63, if a judge finds that a person has violated the terms of their deferred
or suspended sentence, the judge shall refer the matter back to the probation hearings
officer if the violation is a compliance violation and the PO has not yet exhausted the responses required under the incentives and interventions grid.36 If the violation responses
have already been exhausted, however, the judge may (a) continue the suspended or
deferred sentence without changing the conditions; (b) modify or add terms and conditions to the sentence; or (c) amend the sentence if it appears that the individual will not
be responsive to further responses under the grid.37 For example, the judge may order
the individual to a residential treatment program or revoke a suspended sentence and
require that the individual serve time in custody. SB 63 also requires POs to petition for
conditional discharge (early release) for probationers if they have been in compliance
with their probation conditions for a certain period of time determined by regular risk
assessments. For example, if a probationer is determined to be “low risk” and has been
in compliance for nine months, the PO is required by law to petition for conditional discharge.
This new law is significant in preventing—or at least severely limiting—revocation based
on technical or compliance violations and overly long supervision periods for low risk
probationers. But ultimately, many people who remain on probation or who qualify for
conditional discharge will still struggle to comply with conditions due to poverty, health,
and addiction issues. Similarly, the incentives and interventions grid may be unsuccessful if required programming is unavailable or if people must undertake a substantial
financial burden to comply with the conditions. Expanding the range of penalties does
not address the lack of opportunities and programs in the community – a necessity for
success.

Our research and interviews to date suggest that, with or without
the threat of a custodial sanction, people on supervision will be
unable to move forward and be successful in reentry unless
significant changes are made to:

1. Improve access to treatment for substance abuse;
2. Provide better, holistic and culturally appropriate reentry services; and
3. Reduce the costs of supervision.

As one tribal counselor observed, probation and parole officers can be flexible and tailor
conditions to the individual’s circumstances, but “often probation and being on [probation] is the fact that keeps people from being successful.”38
19.

C. ACLU FINDINGS: COMMON IMPEDIMENTS TO SUCCESS ON SUPERVISION
The ACLU interviewed or corresponded with 94 individuals who were either on probation, had been charged with a probation or parole violation, or had their probation or
parole revoked. Of those, 51% said their probation or parole was revoked at least in part
because of drug use; 22% said their probation or parole was revoked at least in part due
to alcohol use; 20% said it was revoked due to absconding.39 Absconding is defined in law
as intentionally concealing one’s whereabouts from one’s supervision officer. The definition leaves a great amount of room for interpretation, usually in a way unfavorable to
those on probation or parole. Fourteen individuals did not list the specific condition violated. Of the 31 Native Americans who responded to the ACLU, 71% said their probation
or parole was revoked for use of drugs and/or alcohol.

Of the many ways a person’s probation can be revoked, only one violation is a standalone criminal offense
outside of the probation and parole setting—driving without a license.

Other issues that people said contributed to or were the reason for their probation or
parole was revoked included failure to get/stay in mental health, drug, alcohol, or sex
offender treatment, missing check-ins, driving without a license, gambling, not having a
living establishment, spending time with individuals with felony convictions, failure to
pay fines or restitution, or being arrested for a new crime (before being convicted thereof). Only one of these, driving without a license, is a standalone criminal offense outside
of the probation and parole setting, and even then it carries no jail time for the first
offense.
Individuals interviewed or surveyed by the ACLU identified a number of problems with
community supervision. Several interlinked issues were consistently raised by almost all:
(1) lack of access to treatment upon release; (2) inability to check in with POs and transportation challenges; (3) lack of housing upon release; and (4) the lack of meaningful
reentry services.
20. ACLU of Montana | C. ACLU Findings: Common Impediments to Success on Supervision

1. Access to Substance Abuse and Mental Health Treatment Upon Release

The absence of affordable substance abuse and mental health treatment in the community is both a primary reason people end up in the criminal justice system on the front end
and also one of the greatest impediments to reentry and success on probation or parole.
A Montana DOC official said that addressing mental health and substance abuse is essential to reducing the number of people coming to prison and returning to custody from
supervision:

In terms of what interrupts people’s ability to have a quality of
life to manage the large load that is a court judgment and navigate supervision, the most common challenge is addiction and
co-occurring disorders. The main violations we see are addiction-related. The thing that creates success is a combination of
having an available treatment program and having a positive
social support system. Without the latter, there is a lot of financial stress.40

As one advocate noted, getting treatment and assistance is really a precondition to success on supervision; complying with supervision requirements, finding work, and maintaining healthy habits and relationships often requires that a person has support and
assistance first. 41 Similarly, a tribal case worker observed that complying with supervision requirements while dealing with unmet mental health and substance abuse needs
sets people up for failure: “People are told to go to treatment, get help, come back fixed. .
. . It’s hard to follow all the rules—it would be hard for any of us. But then you add addiction and mental disabilities and it’s impossible.”42
Many people on probation or parole in Montana have mental health conditions and
may not have received treatment prior to their initial arrest. Of the 94 individuals who
responded to the ACLU’s questions, 45% said they had a history of mental health issues.
(Thirty individuals either did not respond to this question or said they were unsure.)
61% reported having substance abuse issues. (Twenty-seven individuals did not answer
this question and 10 indicated that substance abuse was not a factor for them.) As noted above, among individuals who responded to the ACLU questionnaire or interview
request, the most commonly reported probation or parole violation involved substance
abuse.

21.

While many probation and parole staff said they understood the impact of addiction and
disease on a person’s ability to comply with supervision, some individuals on probation
felt that their substance abuse concerns were not understood and were consistently penalized by the probation system.

“

Voices of Probation and Parole
Amanda H., who grew up in foster care and was diagnosed with
PTSD, trauma, and depression, became dependent on alcohol and
says her addiction has continuously impacted her ability to comply
with probation conditions:
“Addiction is a disease but [probation officers] treat it as a choice.
We didn’t choose to be addicts. Many of us have had childhood trauma that led us to where we are.”43

Kendra K. said her substance dependency issues made compliance with probation conditions a challenge: “It would be nice to do your sentence on clean time. Then you know
what you are doing with your life.”44 Some probation and parole officers certainly recognize that unless and until those immediate treatment needs are met, compliance with
supervision conditions may be unrealistic. As one DOC official observed:

There are things people with addiction can’t do. Even if they get
transportation to a job, at some point they might not be able
to work. This isn’t about people in the criminal justice system,
this is about people, working class people who need assistance.
And in the midst of this is my agency. We are trying to get people
access to treatment and support. If we take care of people, that
will minimize who is in the system.45
Addiction or mental health issues were often the reason someone first had contact with
the criminal justice system, and some people wrote that incarceration was their first
opportunity to get treatment. However, being on probation or parole—even where treatment was required—did not ensure that people were able to access quality care in

22. ACLU of Montana | 1. Access to Substance Abuse and Mental Health Treatment Upon Release

the community. To the contrary, many people told the ACLU that their relapse in the community led to a probation or parole violation and then re-incarceration.

Featured Voice: Rhonda
Rhonda is 37 years old and grew up in Judith Basin County.
In 2007, she was convicted of stealing $390 from a hotel and
two other non-violent crimes. Rhonda served three years in
the Montana Women’s Prison (MWP) before being released on
supervision. While under supervision, Rhonda was unable to
carry a pregnancy to term because she had cancer. After this
trauma, she began using drugs. When her probation officer
(PO) sent her to Passages (an in-patient treatment and detention facility), she lost her
job and her apartment. Rhonda could not find a job, a house, or an apartment upon
release from Passages. She asked for help from her PO, but did not receive it.
Rhonda has a history of depression and wishes that before her supervision was revoked, she would’ve been asked if she was using drugs, if she asked for help while on
supervision, and if she received the help she asked for. Since she has been in prison,
she has lost her grandmother and sister and was unable to be with her mother during
brain surgery for multiple sclerosis.
Rhonda hopes that by raising awareness about the flaws in the supervision system,
other people will have a better chance – “no one should lose this much of there [sic] life
incarcerated for anything short of murder and sexual crimes.”

“

Voices of Probation and Parole
One man with schizophrenia told the ACLU he violated his
probation by using drugs and wished his mental health had been
taken into consideration by the probation officers:
“I relapsed after mental health issues. I was on my way to the emergency room to get admitted to the psych ward and a friend called the
cops, concerned I would commit suicide. Now I’m being revoked after
two stays in a psychiatric ward and a serious suicide attempt.”46

23.

Several advocates and people on supervision noted that on the treatment side, it is understood that relapse is part of recovery—but that acknowledgment did not exist in the
probation and parole world. One tribal counselor observed:
The benchmark of success is recidivism but relapse doesn’t
mean people aren’t improving their lives along the way. We keep
an eye out for what else a person is doing that can show progress and success. There is a misconception that relapse means
failure or that a person has to hit rock bottom. We don’t expect
relapse [from our patients] but we don’t tell a person that a relapse means they can’t change.47
Several individuals told the ACLU that asking for help from their PO resulted in a violation or more supervision and conditions—but not better or more affordable treatment.
A tribal case worker said, “Criminalization of addiction is the biggest problem for our
clients. We’ve had clients ask for help from probation officers and that just gets them
more conditions.”48 One woman who said she was dealing with substance abuse issues
wrote that she wished her probation period had been an opportunity to get real help and
treatment: “I personally felt that if my probation officer would have sat down and talked
to me, really took the time to understand my situation with my drug use, I think we could
have come up with a plan that was more effective than going back to jail without treatment.”49

As the number of supervision officers declines, and the number of people on supervision increases, individualized and flexible support becomes unrealistic.

24. ACLU of Montana | 1. Access to Substance Abuse and Mental Health Treatment Upon Release

“

Voices of Probation and Parole
Margaret B., an Indigenous woman in prison after her probation
was revoked, told the ACLU:
I get overwhelmed easily and ISP (intensive supervision plan) was
hard. I told them when they put me on ISP that I was going to fail. I
believe if I was on proper medication I would function better. . . . I
struggle with depression, PTSD [and] I turn to drugs and alcohol to
self-medicate. I believe if I was on proper meds I’d feel normal and
not get overwhelmed with stress and give up on myself.51

Again, some POs understood that treatment, not incarceration, was the necessary response, but they did not have the ability to make treatment opportunities immediately
appear. Said one DOC officer who works with people on probation:

“

The goal is to individualize the strategy to the
offender and their risk level. The goal and
ideal is to provide that structure and get you
to a point where you are at your most productive. It doesn’t mean you won’t have issues.
But hopefully they will have enough skills
and they are committed to it so that if they
drink and use again, they won’t enter into the
CJ system again. It’s about whether we can get
someone’s quality of life better. I wish we had
the ability to give super intense one-on-one
attention but we just can’t now as the numbers grow. We don’t choose who is on probation; we are just the receptacle for what gets
charged.” 50

Participating in treatment, when available, was often difficult for people with addiction
or disabilities who didn’t have assistance or support in the community. Yet failure to get
treatment could result in a probation or parole violation.

25.

Several people wrote to the ACLU that they wished they had had more time to get treatment and get set up in the community before their supervision regime started.
For most people the ACLU interviewed, the lack of mental health and substance abuse
treatment in the community (combined with barriers to accessing treatment like transportation and affordability) made compliance with the rest of their probation or parole conditions almost impossible. Individuals released to the community after a custodial sentence
said the transition back to their community from a controlled environment where treatment was consistent was traumatic and overwhelming. Several individuals wrote that they
felt from the moment of their release that they were going to fail on supervision.

“

Voices of Probation and Parole
Michelle C., a 50-year-old former nurse with physical health as well
as mental health and addiction issues, said: “You get back to the
streets after being in a controlled environment where you have
support, and you are put back in the community with no tools to
adjust. . . . Life hits you when you get out.” Michelle, currently incarcerated for a violation of her probation, says when she was previously released, she was homeless and stressed, and as her physical
health worsened, she returned to drug use. She says she hopes to
find more long-term treatment in another part of the state when she
is released:
‘When people leave jails, we are leaving in relapse mode. We leave
hungry, angry, and tired. For people who are looking for change—if
you don’t advocate for yourself, you can’t expect people to scoop
you out of the hundreds and find help for you. People are in survival
mode in these facilities and you can’t get past anything when you
are in that mode. There needs to be more long-term services for people with addiction. It took my whole life to get to where I am now
and it will take the rest of my life to deal with it.’”52

26. ACLU of Montana | 1. Access to Substance Abuse and Mental Health Treatment Upon Release

Individuals interviewed by the ACLU said that while they wanted treatment, programming, and assistance, the programs available and required for probation or parole were
just “ticking a box” and seemed to be driven by the profit interests of the pre-release centers, rather than the individualized needs of the person on supervision. One tribal legislator, listing the numerous costs of probation and then the absence of jobs and housing
once people return to the reservation, explained: “People are being pick-pocketed by the
state. They are setting them up for failure in the rehabilitation process.”53
Another service provider observed that most treatment options in the community—
when they exist—are not affordable for people returning from prison, looking for work,
and trying to comply with supervision requirements and their related costs:

“

It’s a lot of money to save for treatment when
people are making minimum wage.”54

Several advocates and people on supervision suggested a conflict of interest in sending
people to mandatory treatment programs—even those that were in the community but
part of the state correctional system—because of the expenses borne by the person on supervision who is required to participate in programs and related services. Said one man,
who has been in and out of prison for decades (all for alcohol-related crimes and related
probation violations):

“The whole system is designed around failure, not your
success. If you fail, they get money.”55

One service provider, who runs an urban sober living house said that the individuals she
sees have often had extended and expensive stays in facilities like Passages, but these
programs are not clearly responsive to the needs of the person: “There is no individualized plan for people with different treatment needs.”56 Instead these programs—including required “rent” to be paid at non-residential facilities—may leave individuals in
further debt and with fewer resources to seek out alternative assistance.57

27.

One state employee who works with people on pre-trial release and probation said that
unless people receive custodial sentences, they cannot get into treatment programs; similarly, individuals released on probation are put on waiting lists because of the absence of
services. “But the treatment period for meth addiction is a minimum of two years,” this
provider noted, and gaps or delays in treatment interrupt progress and lead to relapse.
One Indigenous woman, now back in prison for a probation violation, wrote that she
was getting treatment, but “I need help, not prison.”59 Similarly, individuals on probation
mentioned that they often could not get into programming because it was unavailable in
their area, there was a wait list, and/or programming was not consistently available so
they had to wait for classes to restart.

Featured Voice: Kris
Kris is a 32-year-old mother of four. She grew up in Fort Belknap and is Gros Ventre/Assiniboine. After receiving probation
for a criminal offense, Kris was required to complete out-patient treatment at the Carol Graham Home. She had been convicted of criminal endangerment, and the treatment program
at Carol Graham was meant as a rehabilitative measure. When
her baby became sick with R.S.V. (respiratory syncytial
virus), it became impossible for Kris to complete the treatment programs required by
her probation. She could not afford childcare and her mother, who usually helped her
with the baby, was also too sick to help. Kris could not complete her treatment programs and simultaneously take care of her sick child. Because of this, her probation
was revoked and Kris was sent back to jail. “My daughter was sick for 5 months w/ RSV
and she couldn’t go to day care, and then my mom was sick and couldn’t help me with
[my baby] so I got pulled and put back in jail because I couldn’t make it to treatment.”60
Kris wishes that the probation office had helped her find solutions when her daughter
was sick, instead of putting her “back in jail over day to day life issues.”

28. ACLU of Montana | 1. Access to Substance Abuse and Mental Health Treatment Upon Release

A man with mental disabilities wrote to the ACLU that he was suspended from his sex
offender treatment because he was using drugs; he was then told he had to get another
chemical dependency evaluation but the program still would not allow him to reenroll,
even with the second evaluation.61 An Indigenous man who said he needed substance
abuse counseling said, “You have to be in a chemical dependency program consistently
but they are term classes and aren’t available on a year-round basis, and that gap has
to be explained [to the probation office].” A tribal attorney noted that even getting the
required evaluation involves delays and costs that probation and parole officers might
not accommodate: “My clients need to get a chemical dependency evaluation, which they
cannot get until they are out of jail. And then there is a backlog and few staff for these
evaluations.”63
Case workers similarly described the difficulty of getting people into community treatment given the shortages, waitlists, and costs: “Getting someone into treatment is really
difficult. The first step is a chemical dependency evaluation and that’s only available two
days a week, if you can get in and have $25 in hand. A lot of people do not have that $25.
When people are asking for help, they need help right now. And after a while, if they
aren’t getting anything, they give up.”64
Moreover, as one counselor noted, while probation and parole services—and courts—
may like to order a person to receive treatment, they are not medical professionals and
are not best placed to decide whether such treatment is necessary:

In many of Montana’s rural communities, services and treatment programs required by probation and
parole simply do not exist, which requires people to travel long distances to comply with their supervision
conditions (Drummond, MT. Population 348).

29.

When a probation officer orders treatment, if the person’s assessment doesn’t require in-patient treatment, they can’t get in.
But the officer may have ordered it anyway and then the person
is facing a violation through no fault of their own. We can’t give
treatment that isn’t warranted. A lot of system-wide advocacy
and education is necessary. Some of the groups or programming
are not relevant so [probation officers should not] tell people
they have to do them. A lot of this is about developing relationships with probation to be able to communicate about appropriate treatment goals.65
Some probation and parole staff told the ACLU they understood there were treatment
shortages and costs that people on supervision could not meet, and it might not have
been the officer’s own decision to require treatment. Nevertheless, getting treatment and/
or refraining from drug or alcohol usage remains a central supervision condition. Yet
without community services, compliance with this condition is virtually impossible for
the majority of people on supervision.

30. ACLU of Montana | 1. Access to Substance Abuse and Mental Health Treatment Upon Release

2. Check-ins & Transportation

Transportation is a critical issue, raised by every person the ACLU interviewed. In a large
state like Montana, with virtually no advanced public transportation and few rural services or employment opportunities, the inability to get to work, treatment programs, and
supervision check-ins is essentially a bar to an individual’s success on supervision and
reentry to the community. Twenty-six people told the ACLU they had to rely on friends
for rides to work, check-ins with probation and parole officers, and treatment; nineteen
said they walked or took a bus (when and if available).
The absence of transportation was frequently raised as an obstacle to reentry and compliance with supervision conditions—in particular, check-ins with the probation and
parole officer. Amanda H. said, “I’m not allowed to drive so I have to take the bus everywhere. But where I live, I couldn’t get a job at night because so many buses stop at 7
p.m.”66 One Indigenous woman with mental disabilities told the ACLU that she was not allowed to drive as a result of her conviction but was 60 miles from the nearest probation
office.67 A criminal defense attorney observed, “There are counties with no probation
officer, and you have to go to them; and if you aren’t available when they want you to go,
you get violated.”68

“

I’m not allowed to drive so I have to take the
bus everywhere. But where I live, I couldn’t
get a job at night because so many buses
stop at 7 pm.”
Amanda H.

Being able to check in with POs in person and to show up at required appointments for
drug testing and other rehabilitative programming requires a car or at least a drivers’
license in a rural state like Montana. However, many people on probation cannot afford
their own transport, and some people are not permitted to drive, having had their drivers’ license revoked or suspended due to their conviction. Under Montana law, the state
will revoke the driver’s license of an individual who is convicted of certain crimes, including negligent homicide resulting from the operation of a motor vehicle, any felony in
the commission of which a motor vehicle is used, and fleeing from a peace officer.69 The
state will also suspend a driver’s license for an individual convicted of offenses including
three reckless driving offenses committed within a period of 12 months or driving under
the influence of drugs or alcohol.70 While the defender office for the Confederated Salish
and Kootenai Tribes (CSKT) has a driver restoration program, in most communities, there
is limited assistance in getting a license back even for those eligible and with funds.
31.

One tribal lawyer in the eastern part of the state observed, “Drivers safety training is also
required for DUIs but there really isn’t a program on the reservation or the county.”71
One man who said his drivers’ license was revoked explained that not having transportation and yet having a curfew, work responsibilities, and check-in obligations made
success on probation feel impossible: “I told my officer I can’t keep coming to the office
so many times a week because it was affecting my job. I had no transportation to the P&P
office and 3 or 4 times a week I was forced to leave work and walk miles and miles to get
there.”72 One case manager who works with people on probation said that poverty stops
many people from getting a drivers’ license, which impacts their ability to get work:
“Most jobs require a drivers’ license. For some people $200 is holding them up from getting a license and then a job.”73
Juveniles on community supervision also face real difficulties in complying with probation requirements when they do not control their transportation and their families are
already overburdened with work, childcare, and other responsibilities. As one teacher
told the ACLU, “The officers think, this is serious and their families will get them there.
And it is serious, but so is poverty.”74 One mother whose son had spent his youth in and
out of detention facilities said that even though he is now an adult, he needs significant
support in navigating basic social services and getting to appointments: “[H]e needed
someone to help him transition into adulthood. When a kid has never had a normal life
and experienced being a teenager, they have no idea what to expect or how to negotiate
things. He was required to go get groceries and go to therapy and he had no idea how to
get to therapy or where a store was.”75

Montana is the fourth largest state in the country. The public transportation system in Montana is
sparse as a whole, and only a few cities have local bus networks, which have limited service hours.

Similarly, several people on reservations and from rural areas mentioned the difficulty of
staying in contact with probation and parole officers when a telephone check-in was not
a local call and it often took several calls to get in touch with one’s officer. One attorney
in tribal court observed that many of her clients don’t have their own phone. With the
burden on the person on supervision, many people dealing with poverty are unable to
comply with check-in conditions: “The probation officers need to follow up themselves
and have a human interest instead of just waiting for the defendant to call in. It could be
a more proactive approach.”76
32. ACLU of Montana | 2. Check-ins & Transportation

Against All Odds:

Melissa’s Story of Success in Spite of the Criminal Justice System

My name is Melissa Smylie. I am a mother, a former AmeriCorps member, and student. I also have three felony convictions and a hefty handful of probation violations. I have
reclaimed my life, but re-entry into life after being convicted
and incarcerated was hard. The barriers the probation system
created made recovery nearly impossible. I was successful
because I found ways to get active, volunteer, and be of
service to others. I filled my days with this, so that I wouldn’t
be thinking about giving up. When a person is on probation,
Shelby, MT is an 85 mile
they are not allowed to drink. You aren’t allowed to go into
drive from Great Falls.
any drinking establishments, even if your conviction had
nothing to do with alcohol. In 2008, while on probation, I was caught drinking and
received a probation violation. I pled guilty to the violation and was resentenced in the
Department of Corrections (DOC).
Attached to this sentence was a requirement of treatment at the Elkhorn Treatment
Center and nine months detention at a pre-release center, but at the time of my sentencing, no bed was available in the Elkhorn facility. I was sent to a women’s community-based correctional facility, where I spent five months waiting for a bed at Elkhorn.
That’s five months of my life I could’ve spent at home with family but couldn’t, because
there weren’t enough treatment beds available.
It was during my time at Elkhorn that I realized I didn’t have a drinking problem, I had
a thinking problem – I had a constant feeling of hopelessness, of being unable to escape the hold of my convictions and violations. Eventually, I successfully completed my
treatment at Elkhorn and was released into the Great Falls Pre-Release Center. Shortly
after arriving at pre-release I found out that a Montana law allowed for the remainder
of my sentence to be suspended. I walked out of the pre-release center and back into
probation supervision seven months early, not because the authorities told me I could,
but because I did my own research. No wonder detention facilities are overflowing.
In Great Falls, I had a job set up before I walked out of the pre-release center. But then,
upon release, I was told I had to report to the Shelby probation office within 24 hours. I
drove to Shelby from Great Falls in order to meet this requirement – 85 miles one way.
For some reason, my PO (probation officer) in Shelby was quite livid that I had somehow found a way to avoid serving the full sentence in the pre-release and was once
again on her caseload. She immediately saw me as a burden when I thought I was
being resourceful.

33.

During that initial visit, I was informed that I
would not receive a travel permit to commute
to my job in Great Falls. My probation officer
informed me that she would bring charges
against me if she caught me driving at all,
even though I had a valid driver’s license. She
communicated that she felt my license should
have been revoked over the DUI that was formally dismissed the year before. This meant
I had to quit my job in Great Falls and move
to Shelby. In one meeting, she took away my
transportation and my job. She then told me
I had to find another job immediately or she
would hit me with a violation.
Being on probation meant I had to follow a lot
of rules. It felt like the probation officer was in
charge of my life, but never acted as an advocate. I felt like I was the only advocate I had,
to make sure that I could get past my term
of probation and accomplish the goals I had.
For the next few weeks, I applied for jobs and
only got calls back from the places that were
Melissa graduating from UGF in 2016.
not in contact with my probation officer. After
following up with a couple of places, I learned
that my probation officer was also calling these locations and providing employers
with bad information about me. I was not receiving any job offers because of that. I felt
like she actually wanted me to fail and go back to jail, no matter how hard I was trying
to keep it together.
I finally got offered a job doing the bookkeeping for Lucky Lil’s. Per rules of probation,
I was not allowed to gamble or be in a casino. I explained to my PO that the office was
separate from the casino. The PO refused to allow me to work there. I felt that I was out
of options since employment in Shelby is limited.
Shortly after realizing that I had run out of options for employment, a probation officer
in Shelby had me picked up out of Toole County on a “no bond” hold, hoping to send
me back to the women’s prison. The no-bond hold is a tool used by the DOC to hold probationers in custody without bond while they build a case against you for probation violations. You have no access to a lawyer, witnesses, or family members. Then, 72 hours
later the PO and a hearings officer will tell you what you’re guilty of and then you go to
prison. The “no bond” hold ordered by my PO was actually improper and I was eventually released. I went before a judge once my PO officially recommended I be revoked
from probation.

34. ACLU of Montana | Melissa’s Story

Once in front of the judge, I learned why I was picked up and being accused of violating my probation. The charges in the violation from the probation officer read:
“Melissa continues to run amok.” Confused and frustrated, I asked for her to be more
specific because I was not pleading guilty to that. The violation also charged: “Melissa
continues to be a menace to society,” and again, I asked her to be more specific. Finally,
the last charge was: “Melissa fails to work an honest program.” And I refused to plead
guilty to that either. Although I received tremendous pressure from my own public defender to plead, I continued to refuse. I knew that I had to advocate for myself – I was
not going to plead to things that had no basis in fact.
While waiting for my bond to be posted, I was visited by the regional probation officer.
He informed me that I would need to make arrangements for moving to and living in
Great Falls upon my release. He thought I would not get a fair chance if I were to return to Shelby. So, upon release, I did as I was told, left my family in Shelby, and came
back to Great Falls. My daughter was still in Shelby, with my mom. I asked for a travel
permit from my new PO in Great Falls to go up and get her. Instead I was told to contact Child Protective Services (CPS) in Shelby.
I thought the move back to Great Falls would be beneficial. There are more employment options here. I thought I would be free from the frustrations of my probation
officer. Instead, I began to battle to get my daughter back. My PO in Shelby was working with Shelby CPS to convince me I would be going to prison soon for the baseless
probation violations I had been accused of. They said I should leave my kiddo with
my mom. If not, the CPS officer would get an emergency custody order from the state.
I made it clear to CPS that I would not be pleading guilty to the violations and that he
had no grounds for investigating my custody of my own child. Once the CPS officer was
convinced I would not give up custody of my child, he agreed that there were no legal
grounds for them to keep us apart any longer and he would call my PO and let them
know I could parent again. I couldn’t believe that instead of helping me figure out a
way to maintain a connection with my child, my PO made it sound like I should
be willing to leave her.
Our society sets up so many barriers for individuals affected by the criminal justice
system. For the next six months of my life, I wasn’t allowed to get food assistance because of this. I was told that I couldn’t sign a lease agreement until the “running amok”
charges were settled. And I was told I would not be able to go to college because of this
legal uncertainty. Hungry, homeless, and underprivileged is where I landed while on
probation.
Since 2010, I have successfully completed five years of college to earn a bachelor’s
degree in Paralegal Studies from the University of Great Falls. I continue to share my
story, hoping to raise awareness about the pressure to plead and how the probation
system continues to drive prison rates up every year. I will continue to be part of conversations that help to address issues like probation and parole, pressure to plead, and
re-entry, as I have lived it and survived it, against all the odds.
35.

3. Housing

Returning to the community to find work and rebuild one’s life is particularly difficult
given housing shortages, costs, and restrictions. Thirty-three individuals (35% of questionnaire respondents) said they had no housing when they were released on probation
or parole, with four individuals saying they remained homeless until returning to DOC
custody for a probation violation. Going to prison often resulted in people losing their
housing for a variety of reasons: because of the conviction; defaulting on payments while
incarcerated; being unable to return to their shared home because another occupant
had a felony; or because of lost ties while incarcerated. Upon release, individuals told the
ACLU they had to figure out how to balance the costs of housing with the numerous fines
and fees related to restitution payments, treatment costs, transportation, and other costs
related to their supervision. One man, who says he had bipolar disorder as well as other mental disabilities and substance abuse issues, wrote to the ACLU that between child
support payments, medication costs, required programming, and transportation costs, he
was repeatedly homeless after being released on probation.77

Thirty-three individuals (35% of questionnaire
respondents) said they had no housing when they
were released on probation or parole.

Housing is particularly challenging for Indigenous people returning to reservations, unless they have family housing available, given severe public housing shortages on tribal
lands. Native families, for cultural as well as economic reasons, commonly have many
relatives living in one home.78 When probation or parole restrictions rule out a family
home as a possible place to return to, this leaves many Native people with nowhere to
go. Several tribal services providers told the ACLU there is no homeless shelter on their
reservation, adding to the stress and dangers of homelessness.
An Indigenous man who has been on and off probation for decades reported that probation officers were hesitant to let him live with his family, perceiving the home to be
overcrowded. But for him, living in this inter-generational home was a cultural priority.79
Another Indigenous man felt the probation officers thought this showed a lack of independence: “In Native culture, family comes first, and we have our cultural beliefs. I think
it’s tougher for Natives to be successful because POs look down on Natives for living with
and relying on their families for support.”80
36. ACLU of Montana | 3. Housing

Many families struggle to support relatives returning to the reservation, given high rates
of poverty and unemployment on many reservations. One teacher on a reservation observed that many Native families are poor and already housing many members of their
family due to housing shortages; some families are not able or willing to provide housing
for relatives returning from prison: “So many people come home [from prison] homeless. Being in prison isolates you from your family. Many don’t want anything to do with
someone when they come home. There is a terrific amount of shame.”81

Many people on probation experience homelessness because they cannot find or afford housing. Without a
consistent address, they will very likely be in violation of their probation.

Being homeless adds significant challenges to compliance with probation—not having
an address being a violation itself—and several people said the system does not assist or
accommodate with homelessness. One Indigenous man said, “I wish they would’ve given
me more time to check in because I was homeless. I don’t know how to connect with
services in this [urban] community [because] I was born and raised on the reservation.”82
One tribal case worker who helps people living on a reservation said, “How can you go
find a job when you are stressed trying to find a place to sleep that night? We have a real
housing shortage here and a lot of people are homeless.”83 This case worker added that,
aside from the social stress and anxiety that people without housing face, they may now
also risk violating terms of their probation or parole or quickly reentering an unhealthy
lifestyle: “Without a mailing address, people can’t get official mail from their probation
officer. Bouncing from home to home can be a probation violation. Sometimes people
who are couch-surfing have to return to the environment that got them in trouble
because these are the only people and homes that will take them.”84
37.

For individuals returning to the community even after a short stay in custody, the lack
of transitional planning and assistance means that many are without a place to go when
first released from prison.

“

Voices of Probation and Parole
Dakota B. told the ACLU that delays in processing his release combined with his conviction for assault have left him without immediate housing options and complicated release:
“[It] took a month to have my conditional release go through. By
the time it did, my rental company had put in for an eviction. Had
the process been faster, I would still have a home. Now I can’t be
released without an address. I suggested a local shelter but was told
that’s not a possibility for me, being a violent offender.”85

Four other individuals (three men and one woman) also told the ACLU that they lost their
housing while in custody for revocation of their probation. An additional four said they
continued to be homeless and were unable to find housing upon release. One of these
men wrote to the ACLU that, at the time his probation was revoked, he was living in a
motel, working two jobs, and supporting his grandmother, girlfriend, and two daughters.
Being revoked and going into custody meant his family also lost a place to live. 86 Susan
H. wrote that many management companies don’t want to rent to people with a felony
conviction, and finding a place to accept you before you are released to your community
is a challenge: “When at pre-release, it is very difficult to secure housing without being in
the town you are going to.”87
Finding public housing is especially difficult for individuals convicted of sex offenses
who often cannot get housing due to their conviction and/or presence on the sex offender registry. One person noted that even though his probation is now over, he is still
dependent on a month-to-month lease because of his 25-year old sex offense, for which
he received probation.88
One police officer who works with youth on probation recommended that housing and
related services be provided for children who are homeless and otherwise without support. In many cases, the officer said, when they investigate why children are getting into

38. ACLU of Montana | 3. Housing

trouble with the law, neglect or abuse at home was a root cause: “There are a lot of kids
looking for an escape.”89 Having housing with accompanying reentry services can help
youth and adults comply with conditions and reintegrate into the community. As one person who does pre-trial and probation work observed, “Transitional homes can provide
structure and life skills,” and this is particularly true for individuals also dealing with
substance abuse issues.90
Several people also discussed the isolation and anxiety of living alone upon release. In
many cases, individuals said that they were required to stay in a new city for treatment
purposes but had no support or assistance there. In others, they found themselves alone
because their probation conditions barred them from living with anyone with a felony
conviction, including their spouses or other relatives.

“

Voices of Probation and Parole
Matthew U. wrote to the ACLU that he was not allowed to return
home to his girlfriend because she had a deferred sentence. He was
homeless and ended up self-medicating with drugs while living on
the streets.91

One Indigenous man, who says his parole violation was driving without a license, wrote
that his PO told him he was not permitted to live with someone who is not a U.S. citizen.92
Several individuals told the ACLU that separation from their family upon release or the
deaths of relatives prompted them to start using drugs or alcohol again. As one tribal
service provider noted, “For people released to have to live by themselves, they are being
set up for failure.”93 One advocate who runs a sober living home said the isolation can
be crippling for people released after time in custody: “You go from being completely
surrounded by people to being all alone.”94 This drastic change in life conditions would
be difficult anyone, let alone someone who is faced with a complete rebuilding of their
life once outside of prison and completely disconnected from the only relationships and
community they have known for years.
Several people, including advocates and people on community supervision, recommended that the state provide more transitional living housing so that people returning to the
community have a place to live and some assistance while finding a job, setting up treatment, figuring out transportation, and establishing a routine. Without that basic security,
many people on supervision explained they found reentry to be overwhelming. The additional benefit of transitional housing, many said, was the community and stability that
housing provides; it creates structure for people who need more assistance returning to a
(sometimes new and unknown) community.
39.

4. Reentry Assistance

The primary recommendation from everyone the ACLU spoke to—from service providers to people on supervision to officers providing supervision—was for better reentry
services to ensure that people released to the community had immediate and continuous
access to programming and knew how to find and navigate basic social services. Particularly for individuals returning to the community after time in custody, the transition to
independent living and the responsibilities of community supervision can be extremely
daunting. A social service provider who runs a sober living house said, “People are getting out of prison and treatment without the basics—no driver’s license, no food stamps,
no cell phone. Women are leaving prison with only the clothes on their back.”95
Many people returning to the community after incarceration told the ACLU that they
were returning with additional financial burdens from their incarceration before they
even started paying for supervision costs and other obligations (restitution, child support, required courses to reestablish custody of their children, housing, treatment, etc.).
For example, individuals who are placed in custody at community-based prerelease
facilities are required to pay room and board. According to the Montana Parole and Probation division, individuals housed in a prerelease facility were required to pay $14.00
per day in 2016. While that cost might sound nominal, for individuals required to spend
three to six months in these facilities, the costs can be overwhelming, especially without
a steady income.96 In fiscal year 2016, the average length of stay in a prerelease facility
was 164 days for men ($2,296) and 153 for women ($2,142); in that same year, the state
reported that “residents paid $3,899,829 toward room and board.”97

The addition of probation or parole
supervision costs to the every day
expenses of people returning to
their communities create an
insurmountable burden.

40. ACLU of Montana | 4. Reentry Assistance

As one tribal staff member said, these community care facilities are viewed as exploitative: “The pre-release centers are particularly problematic; they can cost $450 a month
just for housing and then you have to pay for transport for daily check-ins and for programming. It seems like they are all about profit in these programs.”98 For individuals
who have been incarcerated without an income and are now returning to the community to find employment while also meeting new financial burdens, the costs of prerelease
may be significant. This is true of other supervision costs and responsibilities as well. As
one community advocate observed, “You pay $60 to do community service in Billings and
then breathalyzers are around $500 a month. They really set people up for failure. For
parenting classes, it’s $600-900 for required classes, and that’s an entire month’s salary.”99
Many people on supervision, as well as service providers, noted that they had to choose
between or deprioritize essential expenses in order to meet the costs imposed by community supervision or pre-release. At the same time, some of these needs, like housing, are
preconditions for other obligations, like restoration of parental rights. These preconditions are often required, but requiring them does not mean they are affordable or even
available.

In 2016, Montana reported
that residents paid over

$3,899,829



towards room and board
at pre-release facilities.

In tribal communities and rural areas, there may be even fewer resources and programs
for people on supervision. As one tribal attorney observed, “If people come back to the
same environment it isn’t too long before they fall off the wagon again. We need something here for them to return to. There are few jobs and resources are very limited.” Just
releasing people to urban areas, however, is not enough as people need support and
often want to return to their family responsibilities as part of their rehabilitation: “If a
person is really motivated they can do well but often they don’t have family support and
are in an environment that is totally different. I really liked the possibility of our people,
instead of being jailed, being home to take care of their families. Right now, the system is
very regressive. We see a lot of people back in custody.”101 A tribal community organization observed that if Indigenous people are not returning to the reservation, it is critical
that there are targeted services available in cities: “If they are going to stay in urban
areas, they need job training and opportunities so people aren’t ostracized.”102 Moreover,
Indigenous people who have always lived on a reservation may be unfamiliar with the
services they now need to navigate while on probation or parole and may need additional assistance. As one Indigenous teacher and mentor explained, “Getting any medical
care, plus housing, [and] childcare takes so much time and work. For people who live on
a reservation, the terms and vocabulary are also really different.”103

41.

Our interviews indicate that most people are unable to arrange for these services independently immediately upon release, particularly when struggling with poverty and
addiction. As one teacher who works primarily with Indigenous students said, “To reestablish someone in society after being in prison or being homeless takes a lot of advocacy.”104 With the students she sees who are trying to move forward with their lives, the
lack of basic services and assistance in accessing them makes reentry a trap: “Where is
the safety net? [These kids] aren’t eligible for any of the social programs they need due
to poverty. I have lots of students who work two jobs and are full-time students and then
add a conviction onto that. Few come out of this system unscathed.”105
One consistent recommendation, particularly among Indigenous people, was the creation and support of a peer system to assist in reentry. One tribal legislator explained,
“We need a way that works within the tribe to provide rehabilitation.”106 A community
service provider noted that supervision restrictions that limit contact with felons is problematic because people who have been through the criminal justice system are in many
cases better equipped to help explain and guide reentry: “If the system isn’t going to help,
you need a mentor who can help people.”107 Some probation staff said they didn’t use this
restriction to stop people on supervision from getting mentorship, support, and other
assistance from people with prior convictions.
Throughout our conversations with service providers, correctional staff, advocates, and
people on supervision, we consistently heard two seemingly contradictory conclusions:
on the one hand that there is too much supervision, too many conditions, and too much
required contact. And on the other, that the system provides too little support, individualized attention, and contact. What linked these two observations was a shared conclusion that people on supervision need support in creating and maintaining structure.
An overly punitive response from probation and parole services when a person fails to
adhere to the structure and requirements of supervision disincentivizes cooperation. As
one Indigenous man on probation and facing substance abuse issues noted, “When a probationer makes a mistake, the first thing they think is, ‘well now I’m going back [to prison] no matter what.’ Knowing the officer can send you back to prison—there is a power
dynamic that affects trust.”108
As one tribal advocate who works as a peer mentor observed, community supervision
is supposed to be about reentry and rehabilitation but the system in place denies people
real opportunities to become independent and successful on probation: “They say they
are reintegrating [probationers] into society but they block the path at every turn. They
treat them as children but tell them they are adults. They have to plan their schedules
out in advance, in a way few adults can, but life intervenes.”109 Several people on probation said that the burden of checking in and complying with the numerous conditions
was stressful and made it difficult to reintegrate into daily life. For example, one Indigenous man said the constant check-ins and other conditions felt like they were designed to
trap you in failure: “You are constantly walking on eggshells trying not to mess up, and
that stress makes people slip.”110

42. ACLU of Montana | 4. Reentry Assistance

“

They say they are reintegrating [probationers] into society but they block the path
at every turn. They treat them as children but
tell them they are adults. They have to plan
their schedules out in advance, in a way few
adults can, but life intervenes.”
Montana Tribal Advocate

A government employee who works with people on pretrial and probation said, “When
it comes to probation, the contact is important and once a month doesn’t cut it. . . . You
still have to hold people accountable. Some know they can’t do well with infrequent
check-ins.” This was an opinion shared not only by people who work for the state. Even
some individuals who had been on probation said they wanted more contact—and more
assistance. One Indigenous man on probation said the check-ins were helpful in getting
him accustomed to life post-release: “A little structure goes a long way and addicts have
no structure,” he explained. “It’s our choice to be successful but we need more [probation
officers] to be understanding and to listen and ask questions. As an addict, we lose our
freedom and often we just want to be heard—it’s our choice but that cycle is going to continue otherwise.”111 While these two conclusions seem to be at odds, it appears that both
sides are recommending a similar proposal: that people on community supervision need
support and programming, and the assistance of someone they trust who is required and
empowered to help them get the services they need.
Many of the complaints about the type and frequency of contact with probation officers
are linked to the conduct and personality of the POs themselves. Several individuals and
a few advocates told the ACLU that probation and parole officers seemed singularly focused on finding violations, sometimes explicitly telling people on supervision that they
would be looking for opportunities to put a person back in the system. An Indigenous
man who had served probation on and off his reservation said, “I understand the probation officers have a job to do but some probation officers are looking for opportunities to
violate you. . . . Probation officers have the power to take away your freedom, and they
take advantage of that. This causes a lot of stress, when you are doing everything right
and a person seems like they are out to get you.”112
Conversely, others said it was the attention, support and commitment of probation and
parole officers that helped them find treatment. One thing almost everyone mentioned,
however, was that their officers were overloaded with cases and unable to provide individualized attention or more flexible assistance. It is clear that contact and check-ins
with probation and parole officers must be individualized and meaningful, which would
inevitably lead to less frequent check-in requirements. Programs like the Tribal Defenders Office at the Confederated Salish and Kootenai Tribes (CSKT) are particularly successful because there is a holistic approach and individual case attention that probation
officers are not often equipped to provide.

43.

The CSKT Model

Already well-known to the State of Montana, the Tribal Defenders Office
for the Confederated Salish and Kootenai Tribes continues to be a model
of success that should be supported and replicated around the state—not
only by tribal communities but by the State, particularly in rural areas.
This office has adopted a holistic representation approach that includes
cultural mentoring, assistance with reentry and collateral consequences of
an arrest (with housing, a driver’s license restoration program and other
assistance), and mental health assistance. The office has developed a reentry intake tool that appreciates the specific experiences of Native people
and matches their needs with appropriate services for both the individual
and their family. One of the hallmarks of this program is providing individualized assistance that works to remove the barriers and impediments
to reentry through better communication and holistic representation. It
looks to the underlying reasons for a person’s contact with the criminal
justice system and identifies treatment needs and goals. According to the
Tribal Defenders’ Office, they have seen a one-year recidivism rate as low
as 35.5% which constitutes a major reduction in recidivism, given that the
participants previously had a recidivism rate of 100%. Because this program is based on a reservation, it has not only been able to provide specialized assistance for Indigenous people but is also a realistic model for identifying services and goals that can be met in a rural area.

For most people, the problems were interlinked—too many or inflexible check-ins made it
hard to get a job; without a job, a person was unable to pay for transportation or housing;
without transportation or housing, people struggled to keep to appointments and continue
work but also couldn’t afford treatment or access the few programs available in the community. As one man with mental disabilities wrote to the ACLU, “I couldn’t pay for my medications and then I couldn’t afford the fines and fees with probation and for child support.
I couldn’t get to my anger management class because of my work schedule and I had no
transportation because I had a suspended license. I was homeless repeatedly with all the
fines and fees.”113 People on supervision need assistance and structural flexibility in prioritizing the costs that cannot be removed, but there also must be a re-examination of whether it makes sense to force the people on probation and parole to absorb all these costs.

44. ACLU of Montana | 4. Reentry Assistance

V. Impact of Probation and Parole on
Indigenous Communities

For Indigenous
people in Montana, whether
they live in urban,
rural, or tribal
areas, there are
unique and additional challenges
in accessing
rehabilitative
services.

Montana is home to thirteen federally recognized tribes on seven
reservations and also has a large Indigenous population in urban
areas across the state. Several thousand Indigenous people live on or
near reservations in Montana; as of 2015, nearly 69,000 people lived
on reservations in the state.114 For Indigenous people in Montana,
whether they live in urban, rural, or tribal areas, there are unique
and additional challenges in accessing rehabilitative services. These
challenges are reflected in their overrepresentation in the criminal
justice system and among probation or parole revocations in particular.

Indigenous people comprise approximately 6.5% of the Montana state
population and yet account for 20% of the men’s state prisoners,
34% of the women’s state prisoners, and 27% of the state’s arrests for failures to appear
in court or for probation or parole violations.115 Striking as these statistics are, they actually underestimate the disparity, as they do not encapsulate the number of Indigenous
people over whom the state does not have jurisdiction. Indigenous people convicted
of crimes committed on reservations are incarcerated in either tribal or federal prisons, depending on the offense, and so are not included in the state prison population.
In FY 2016, 1,255 Indigenous people were convicted of federal offenses and comprised
2% of federal offenders but over 35% of the federal criminal caseload for the District of
Montana.116 In Montana, as of June 2016, tribal jails held approximately 300 Native individuals.117 Because of overcrowding and poor conditions, the Bureau of Indian Affairs
is considering re-opening the Two Rivers Prison in Hardin to house Indigenous people
convicted of federal and tribal crimes. This would add over 400 hard beds reserved exclusively for Indigenous people.
State data analyzed by the ACLU indicates that not only are Indigenous people overrepresented in arrests for supervision violations and as state prisoners but there is also a disparity in their rates of revocation leading to incarceration and the frequency with which
Indigenous people have had their probation revoked. According to data requested by
the ACLU, in 2017, 462 people were incarcerated for a technical or compliance violation
of their parole or probation, 116 of whom were Native American (just over 25%).118 Of
the 169 men sent to prison for a violation of their parole, 22.5% were Native American.
Of the 233 men incarcerated for a technical probation violation, 24.5% were Native. The
disparities were even starker for women. Of the 45 women incarcerated for a technical/
compliance violation of their probation, 35.55% were Native American; of the 15 women incarcerated for a technical parole violation, Native American women accounted for
33.33%.

45.

This disparity in revocation, leading to incarceration or re-incarceration of minorities
at heightened rates, is not unique to Montana. Around the country, there are concerns
that minority community members are more likely to have their probation revoked than
their white counterparts. A 2014 study on racial disparities in probation by the Urban Institute found significant disparities in revocation between white and black probationers
that could not be accounted for based on group differences. Identifying where and when
that disparity occurred (from police, courts, or the probation system, for example) was
less obvious.119 Wherever bias is operating in the criminal justice system, however, from
policing at the outset through release and revocation on the backend, it may continue to
operate and may be magnified at different stages. For example, the Urban Institute notes,
“If bias is present in front-end practices, it will be ‘soaked up’ in objective measures of
criminal history.”120 This means bias will impact risk assessment scores, probation or
parole supervision conditions, re-arrest, and revocation rates.
In Montana, individuals on parole or probation raised concerns about discrimination
against Indigenous people in the criminal justice system at all levels, from policing and
harsher sentences to discriminatory, sometimes outright racist, treatment in the probation system. Beyond discriminatory treatment by state actors, the overrepresentation
of Indigenous people in the criminal justice system for a new crime or a parole or probation violation appears related to several factors including (1) acute health needs and
the lack of services and resources on reservations and in rural areas; (2) distrust of state
actors and programs, where available; and (3) the absence of culturally appropriate
services, Indigenous staff, and cultural awareness among non-Indigenous state staff.

A. Health Concerns & Disparities for Indigenous People

For Indigenous people in Montana, the absence of treatment and programming for substance abuse and mental health upon reentry is exacerbated by the general lack of health
services for Indigenous people on reservations. In Montana, there are stark disparities in
the health status and life expectancy of Indigenous people, with the median age at death
in Montana nearly 20 years shorter for Indigenous people than for white people.121 The
U.S. Department of Health and Human Services, which funds the Indian Health Service
(IHS), observes that Indigenous people often lack access to quality medical care due to
“cultural barriers, geographic isolation, inadequate sewage disposal, and low income.”122
Poverty compounds these difficulties in access to health care as Indigenous people have
the highest rate of poverty (almost twice the national average) of any racial group in the
United States.123 Moreover, according to a 2017 study, around 25% of Native Americans
report experiencing discrimination when they try to access the health system.124 According to this poll, “Native Americans who live in areas where they are in the majority
reported experiencing prejudice at rates far higher than in areas where they constituted
a minority.”125

46. ACLU of Montana | V. Impact of Probation and Parole on Indigenous Communities

In Montana, there are stark disparities in the
health status and life expectancy of Indigenous
people, with the median age at death in Montana
nearly 20 years shorter for Indigenous people
than for white people.121

According to a 2011 report from the Office of the Inspector General for the U.S. Department of Health and Human Services, 82% of tribal and IHS facilities reported they provide mental health services to the Native American population.126 However, the quality
and range of those services varied and were limited by staffing shortages and qualifications, among other factors. Even among those facilities that did provide services, over
50% reported that physical barriers (poor roads, distance, or weather) prevented clients
living on rural reservations from obtaining mental health services.127 Specifically for
mental healthcare, 34% of surveyed facilities said that Indigenous clients faced additional obstacles due to childcare obligations, 28% cited the cost of services, and others
cited additional impediments like stigma and concern over confidentiality as obstacles to
mental health services.128 In the ACLU questionnaires, 10 of the 33 individuals (30%) who
identified as Native American said they had a mental health condition, and a further 18
(55%) said they had substance abuse issues.
Indigenous people interviewed by the ACLU in Montana similarly said that the stigma of
substance abuse and mental health concerns was a real issue preventing people from accessing health services, even when available, on the reservation. One tribal policymaker
observed that there are no treatment services on her reservation and no transit system
available to take people to urban areas for treatment.129 A tribal attorney observed that
even when services are technically available, there is a significant waiting list on many
reservations and the programs and treatment required for probation may not be consistently offered: “It is problematic to get resources that aren’t there.”130 One tribal counselor added that there is a lot of staff turnover and finding consistent programming on
a reservation is a challenge.131 As earlier noted, the costs of transportation make access
to programming and treatment particularly difficult for people living on tribal lands.
Several advocates mentioned that their clients had found more culturally appropriate
and affordable programming out of state and hoped there would be more support from
lawmakers and the DOC for allowing individuals to serve their probation where the
treatment was.
But Indigenous people also cited difficulties accessing services in urban areas due to discrimination, stigma, and lack of information. One Indigenous teacher told the ACLU that
her students frequently “need counseling and mental health services, but for Natives,
they hesitate and want a safe entryway to counseling. But there are few Indian counselors [here.]”132
47.

B. Distrust of the System and Experiences of Discrimination

Indigenous service providers, advocates, and community members noted that Indigenous people routinely face explicit discrimination in their daily lives, but particularly
from law enforcement agencies. One tribal policy maker observed that “non-Indian
probation officers in the border towns are discriminatory and seem to want Natives to
go back in the system.”133[i] An Indigenous teacher and student mentor said her students
regularly mention racism from police and POs they encounter and wish there were more
Indigenous officers in both departments.134 Another Indigenous advocate observed that
given Native peoples’ historic and very recent experience with state violence, forced
assimilation, destruction, and neglect of Indigenous communities, it is predictable they
would be suspicious of agencies like the police, child protective services, and other social
or law enforcement agencies.135
One Indigenous man who lives on a reservation said that discrimination but also lack of
cultural education needs to be addressed in order to create trust between the probation
officers and the Indigenous people under supervision: “Cultural education is necessary
because there is a lot of trauma that has been brought down through the generations and
impacts how people view probation and state officers.”136 Another Indigenous man who
has struggled with alcohol addiction for years said he would like to have had a Native
probation officer because there would have been more implicit trust: “I’d be more open
and they would be more willing
to intervene and give you help
early on, to help you calm down
by going to sweat and smudging. I
have gone to [Native] people and
told them when I wanted to drink,
and I’m more open because I feel
comfortable with them.”137
A Native advocate mentioned that
where the criminal justice system
allows for discretion, discrimination often seeps in too: “What
is considered a violation - that is
where the implicit bias comes in.
Any time there is discretion, it
goes against Indian people. You
need to know did the probation
Entering Crow Agency in south central Montana.
officer try to find out why the person couldn’t ‘comply’?”138 Another tribal case manager similarly said, “Implicit bias also
comes in when you have a difficult person. Probation doesn’t want to do the extra work
for someone who has addiction, needs housing, is difficult, and is Native American.”139

48. ACLU of Montana | B. Distrust of the System and Experiences of Discrimination

C. Lack of Cultural Programming & Competency Training for Probation Staff

Several Indigenous people interviewed by the ACLU said that participating in cultural
programming like sweat lodge ceremonies had been essential for their rehabilitation but
the lack of funding and availability for such services was a real impediment.

“

Voices of Probation and Parole
Nadine R. said that being involved in cultural therapeutic programming was helpful for him in dealing with previous substance abuse
issues and the challenge of dealing with a criminal conviction:
“The fear, stress, anxiety of being involved in the criminal justice
system was eating me alive. Sweat has helped me let go of things
and now I can go home sober to my family.”140

In part because of this historic distrust of the state, he continued, many Native people like
himself struggle to communicate with the officers overseeing their probation or parole in
the community: “Probationers don’t ask questions and that’s not the officer’s fault. It’s part
of the historical trauma. Indigenous people don’t ask questions, we are afraid to ask and
we communicate differently. And that is part of survival.”141
Several tribal staff and tribal members recommended that POs receive cultural education
training, and some probation and parole offices have done this already. Whether the
training is impactful depends a lot on the office leadership and should be supplemented
with greater outreach efforts to hire Indigenous staff. One tribal counselor observed that
while cultural competency may get lip service, the importance of understanding historical
trauma and specific Indigenous experience continues to be underappreciated: “The cultural sensitivity piece is overlooked a lot and you need to explain that trauma is not an excuse
but it explains the roots—things like going to boarding school, being taken from your family and told it was bad to be Native.”142 Taking this trauma into account, she explained, matters for treatment purposes: “There is research now on how historical trauma continues to
impact future generations. The goal here is to make people more resilient and to meet their
goals.”143
49.

Having cultural training and appropriate tools is not only about making Indigenous
people more comfortable with the state machinery; it also about making community supervision more effective for and responsive to the Indigenous population. As one advocate observed, chemical dependency evaluations and other psychological tests “are not
normed for Indian people, and yet they are used for recommendations for treatment and
supervision. There are very few Indians who do these tests or professionals who know
that the tests need to be different for this population. Unless you address the underlying
problem, treatment won’t work.”144 The CSKT defender program is currently developing
a risk assessment tool that will be validated for the Native population, taking cultural
connectedness, historical trauma and other factors into account and also looking into
whether particular services address recidivism.145
Finally, Native treatment providers and advocates recommended that the state adopt or
authorize the use of more holistic and restorative programs embedded in cultural traditions, for example the White Bison program,146 a culturally-based healing program for Indigenous people, or family treatment models that some tribes used to employ. Programs
like the holistic defender program at CSKT work because they meet people where they
live and provide wraparound, individualized support and services based on what exists
in the community. But it’s no accident that this program, which originated with a grant
from the Bronx Defenders, is effective for non-Native communities who also need assistance with reentry, rehabilitation, and basic needs to be successful in their communities.

The intricate support structure of a Tipi at the 2018 Crow Fair.

50. ACLU of Montana | C. Lack of Cultural Programming & Competency Training for Probation Staff

VI. Conclusion & Recommendations
Recent reforms
have not
addressed the
primary reasons
people enter and
repeatedly return
to the criminal
justice system—
namely, substance abuse and
mental health
concerns. This
is exacerbated
by state funding
cuts to treatment
and addiction
support.

In recent years, the state of Montana has undertaken reforms to its
probation and parole system, recognizing that the state prison population is growing as a result of unnecessary incarceration for violations of correctional community supervision. However, the reforms
to date have not addressed the primary reasons why people come
into and repeatedly return to the criminal justice system—namely,
substance abuse and mental health concerns. Recent state cuts to
community programming in mental health generally, and addiction
treatments and programming in particular, mean that people are
likely unable to get preventative care before their contact with the
criminal justice system. It also means, for those who were arrested
and are now on community supervision, that they are unable to get
into treatment and programming required as a condition and necessity for successful reentry and rehabilitation.

While probation and parole offices do not control who is charged
with a crime and put on community supervision, they can play a
critical role in facilitating successful reentry and helping people on
supervision comply with conditions, access services, and remain with their families in
the community. In many cases, the conditions of community supervision are too inflexible to accommodate the daily realities of reentry, particularly for people without resources returning to impoverished communities. Even when parole and probation officers are
more tolerant and understanding of these complications, in the absence of community
treatment programming and individualized assistance, people return to custody as a
result of repeated compliance violations or new crimes.

Montana’s capitol on an early legislative session morning.

51.

To address the large number of people returning to
custody for technical or compliance violations and
provide a more impactful system, we recommend
the following:

Reforms must
focus on providing treatment and
services and, in
the case of Indigenous people,
culturally relevant
programming.

1.

DEVELOP holistic defender services like the CSKT
office that can provide assistance and support to
people on supervision in finding housing, treatment,
transportation, and required or otherwise appropriate
programming;

2.

PROVIDE community mental health and substance
abuse treatment—particularly in rural areas— to ensure
that people on supervision can be successful upon
reentry and have continuity of care upon release
from custody;

3.

DEVELOP achievable goals that recognize the reality
of dealing with poverty and environmental circumstances. For example, for people with disabilities and
dealing with addiction issues, the goal may not be to
obtain a job immediately but at least to write a resume,
apply for several jobs, etc. If a required treatment
program is costly or unavailable, work with the person
on supervision to find alternatives and give credit for
self-initiated efforts to engage in alternative programming;

4.

ALLOW and encourage probation offices to reduce
probation terms and to reduce in-person check-ins
where appropriate;

5.

RECRUIT Indigenous staff in probation, parole, and
other public service positions (including for treatment
and diagnosis of mental health and substance abuse)
to work with Native people on supervision; and

6.

ACCEPT and support traditional tribal programs and
traditions as part of the rehabilitative process.

52. ACLU of Montana | VI. Conclusion & Recommendations

VII. References
1
According to the DOC, there were 16,200 people
under DOC jurisdiction, of whom 9,703 were on
probation or parole; 2,604 were in prison; 2,978
were in prerelease, treatment or sanction; and
1,479 were under some other jurisdiction Montana Department of Corrections, 2017BIENNIAL
REPORT, at A-9, available at https://cor.mt.gov/Portals/104/Resources/Reports/2017BiennialReport.pdf.
2
COLUMBIA UNIVERSITY JUSTICE LAB, TOO BIG
TO SUCCEED:THE IMPACT OF THE GROWTH OF
COMMUNITY CORRECTIONS at 5 (2018), available
athttp://justicelab.iserp.columbia.edu/img/Too_Big_
to_Succeed_Report_FINAL.pdf; Ronald P. Corbett,
Jr., The Burdens of Leniency: The Changing Face
of Probation, 99 MINN.L.REV. 1697, 1708 (2015);
Cecelia Klingele, Rethinking the Use of Community
Supervision, 103 J. CRIM. L. & CRIMINOLOGY 1015,
1035 (2013); Michael P. Jacobson, Vincent Schiraldi,
Reagan Daly, and Emily Hotez, Harvard Kennedy
School Program in Criminal Justice Policy and
Management. Less Is More: How Reducing Probation Populations Can Improve Outcomes (2017),
available athttps://www.hks.harvard.edu/sites/
default/files/centers/wiener/programs/pcj/files/
less_is_more_final.pdf.
3
U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, Probation
and Parole in the United States, 2015 (Feb. 2017),
available athttps://www.bjs.gov/content/pub/pdf/
ppus15.pdf.
4
COLUMBIA UNIVERSITY JUSTICE LAB, TOO BIG
TO SUCCEED:THE IMPACT OF THE GROWTH OF
COMMUNITY CORRECTIONS at 5 (2018), available
athttp://justicelab.iserp.columbia.edu/img/Too_Big_
to_Succeed_Report_FINAL.pdf.
5
Ronald P. Corbett, Jr., The Burdens of Leniency:
The Changing Face of Probation, 99 MINN.L.REV.
1697, 1708 (2015); Cecelia Klingele, Rethinking the
Use of Community Supervision, 103 J. CRIM. L. &
CRIMINOLOGY 1015, 1035 (2013); Dale G. Parent
et al., OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T
OF JUSTICE, RESPONDING TO PROBATION AND
PAROLE VIOLATIONS 25 (1994), available athttps://
www.ncjrs.gov/pdffiles1/Digitization/149473NCJRS.
pdf;
6
COLUMBIA UNIVERSITY JUSTICE LAB, TOO BIG
TO SUCCEED:THE IMPACT OF THE GROWTH OF
COMMUNITY CORRECTIONS at 5 (2018), available
athttp://justicelab.iserp.columbia.edu/img/Too_Big_
to_Succeed_Report_FINAL.pdf.
7
See e.g., Nathan James, CONGRESSIONAL RESEARCH SERVICE, OFFENDER REENTRY:CORRECTIONAL STATISTICS,REINTEGRATION INTO THE
COMMUNITY,AND RECIDIVISM 5-6 (2015), available athttps://fas.org/sgp/crs/misc/RL34287.pdf;
Dana Goldstein, The Marshall Project, “The Misleading Math of ‘Recidivism’,” December 12,

2014; Ryan G. Fischer, UC Irvine Center for Evidence-Based Corrections, Are California’s Recidivism Rates Really the Highest in the Nation? It
Depends on What Measure of Recidivism You Use
(2005), available athttp://ucicorrections.seweb.uci.
edu/files/2013/06/bulletin_2005_vol-1_is-1.pdf.
8
Nathan James, CONGRESSIONAL RESEARCH
SERVICE, OFFENDER REENTRY:CORRECTIONAL
STATISTICS,REINTEGRATION INTO THE COMMUNITY,AND RECIDIVISM 21 (2015).
9
Ronald P. Corbett, Jr., The Burdens of Leniency:
The Changing Face of Probation, 99 MINN.L.REV.
1697, 1708 (2015)
10
Michelle S. Phelps, “Mass Probation and Inequality: Race, Class, and Gender Disparities in Supervision and Revocation,” in Jeffery T. Ulner and Mindy
S. Bradley (Eds.), Handbook on Punishment Decisions: Locations of Disparity (2017).
11
Eli Hager, The Marshall Project, April 23, 2017, “At
Least 61,000 Nationwide Are in Prison for Minor
Parole Violations,”available athttps://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations.
12
Corbett at 1714; Joseph Shapiro, As Court
Fees Rise, the Poor Are Paying the Price, NPR
(May 19, 2014, 4:02 PM), http://www.npr.
org/2014/05/19/312158516/ increasing-court-feespunish-the-poor.
13
Corbett at 1712 (citing email from Dan Beto to
author).
14
Michael P. Jacobson, Vincent Schiraldi, Reagan
Daly, and Emily Hotez, Harvard Kennedy School
Program in Criminal Justice Policy and Management. Less Is More: How Reducing Probation Populations Can Improve Outcomes (2017), available
athttps://www.hks.harvard.edu/sites/default/files/
centers/wiener/programs/pcj/files/less_is_more_final.pdf.
15
Corbett at 1711.
16
Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015,
1038 (2013).
17
THE URBAN INSTITUTE, EXAMINING RACIAL
AND ETHNICA DISPARITIES IN PROBATION REVOCATION:SUMMARY FINDINGS AND IMPLICATIONS
FROM A MULTISITE STUDY (2014), available at
https://www.urban.org/sites/default/files/publication/22746/413174-Examining-Racial-and-Ethnic-Disparities-in-Probation-Revocation.PDF; Fiona
Doherty, Obey All Laws and Be Good: Probation
and the Meaning of Recidivism,104 GEO.L.J. 291,
353 (2016) (“the poor can be disproportionately
punished both by being placed under supervision
at higher rates (as they present a higher risk of
recidivism) and by being monitored more strictly
once they are under supervision (for the same
1
reason).”)

53.

Id.
Jacobson et al. at 12.
20
Id.
21
See Klingele at 1064.
22
COUNCIL OF STATE GOVERNMENTS, JUSTICE
CENTER, JUSTICE REINVESTMENT IN MONTANA:REPORT TO THE MONTANA COMMISSION
ON SENTENCING at 11 (2017).
23
Statement on the Future of Community Corrections Aug. 28 2017, available athttps://www.hks.
harvard.edu/sites/default/files/centers/wiener/programs/pcj/files/statement_on_the_future_of_community_corrections_final.pdf.
24
Id.
25
Id.
26
COUNCIL OF STATE GOVERNMENTS, JUSTICE
CENTER, JUSTICE REINVESTMENT IN MONTANA:REPORT TO THE MONTANA COMMISSION
ON SENTENCING at 2 (2017).
27
COUNCIL OF STATE GOVERNMENTS, JUSTICE
CENTER, JUSTICE REINVESTMENT IN MONTANA:REPORT TO THE MONTANA COMMISSION
ON SENTENCING (“CSG”) at 2 (2017).
28
CSG at 5.
29
Id. at 13.
30
Montana Department of Corrections, 2017BIENNIAL REPORT, at C-3, available athttps://cor.mt.gov/
Portals/104/Resources/Reports/2017BiennialReport.
pdf.
31
Id. at C-4.
32
While some people on probation had never been
in custody or served a prison term prior to their
probation term, these statistics refer to individuals who were given a term of probation and
subsequently were either returned to or placed in
prison.
33
Mont. Code Ann. § 46-23-1015 (West)
34
Mont. Code Ann. § 46-23-1015(3)(d) (West).
35
Mont. Code Ann. § 46-23-1015(3) (West).
36
Mont. Code Ann. § 46-18-203 (West).
37
Id.
38
Interview with the ACLU, Billings, MT, Feb. 21,
2018.
39
“Absconding” means to deliberately makes the
offender’s whereabouts unknown to a probation
and parole officer or fails to report for the purposes of avoiding supervision, and reasonable efforts
by the probation and parole officer to locate the
offender have been unsuccessful. Mont. Code Ann.
§ 46-18-203(11)(a) (West).
40
Interview with the ACLU, by phone, March 12,
2018.
41
Interview with the ACLU, Feb. 20, 2018.
42
Interview with the ACLU, Feb. 20, 2018.
43
Interview with Amanda H. by phone, December
18, 2017.
44
ACLU Questionnaire response from Kendra K.
(on file with the ACLU).
45
Interview with the ACLU, by phone, March 12,
2018.
46
ACLU Questionnaire response from Earl S. (on
file with the ACLU).
47
Interview with the ACLU, Feb. 20, 2018.
48
Interview with the ACLU, Feb. 20, 2018.
18
19

54. ACLU of Montana | VII. References

49
ACLU Questionnaire response from Alliana L. (on
file with the ACLU).
50
Interview with the ACLU, by phone, March 12,
2018.
51
ACLU Questionnaire Response from Margaret B.
(on file with the ACLU).
52
Interview with Michelle C. by phone, March 12,
2018.
53
Interview with the ACLU, Feb. 13, 2018.
54
Interview with the ACLU by telephone, March 8,
2018.
55
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
56
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
57
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
58
ACLU Questionnaire response from Danielle T.
(on file with the ACLU).
59
ACLU Questionnaire response from Krista H. (on
file with the ACLU).
60
ACLU Questionnaire response from Michael P.
(on file with the ACLU).
61
Interview with the ACLU, Feb. 14, 2018.
62
Interview with the ACLU, Feb. 15, 2018.
63
Interview with the ACLU, Feb. 20, 2018.
64
Interview with the ACLU, Feb. 20, 2018.
65
Interview with Amanda H. by phone, December
18, 2017.
66
ACLU Questionnaire from June M. (on file with
the ACLU).
67
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
68
Mont. Code Ann. § 61-5-205 (West).
69
Id.
70
Interview with the ACLU, Feb. 15, 2018.
71
ACLU Questionnaire response from Derek C. (on
file with the ACLU).
72
Interview with the ACLU, Feb. 13, 2018.
73
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
74
Interview with Heidi N., by phone, Dec. 19, 2017.
75
Interview with the ACLU, by phone, Feb. 15, 2018
77
David Murray, The Billings Gazette, April 11,
2016, “Montana Native American tribes struggle with decades of housing neglect,”available
athttp://billingsgazette.com/news/state-and-regional/montana/montana-native-americantribes-struggle-with-decades-of-housing-neglect/
article_2c84fbf3-bc1b-5ea5-b4c2-3e22bc6965b9.
html; Elizabeth Leman, Human Rights Brief, Oct.
21, 2016, “Indian Housing in the U.S.”available
athttp://hrbrief.org/2016/10/indian-housing-u-s/;
Naomi Schaefer Riley, The Atlantic, July 30, 2016
“One Way to Help Native Americans: Property
Rights,”available athttps://www.theatlantic.com/
politics/archive/2016/07/native-americans-property-rights/492941/.
78
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
79
Interview with the ACLU, MT, Feb. 14, 2018.
80
Interview with the ACLU, Feb.13, 2018.

81
ACLU Questionnaire response from Robert B. (on
file with the ACLU).
82
Interview with the ACLU Feb. 20, 2018.
83
Interview with the ACLU Feb. 20, 2018.
84
ACLU Questionnaire response from Dakota B. (on
file with the ACLU).
85
ACLU Questionnaire response from Johnathon K.
(on file with the ACLU).
86
ACLU Questionnaire response from Susan H. (on
file with the ACLU).
87
Interview with the ACLU by telephone, February
19, 2018.
88
Interview with the ACLU, February 13, 2018.
89
Interview with the ACLU, Feb. 14, 2018.
90
ACLU Questionnaire from Matthew U. (on file
with the ACLU.)
91
ACLU Questionnaire from Bennie L. (on file with
the ACLU).
92
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
93
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
94
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
95
Montana Department of Corrections, Parole and
Probation Division, PROBATION AND PAROLE AT
A GLANCE at 19, (Jan 2017) available athttps://cor.
mt.gov/Portals/104/ProbationParole/2017%20Rainbow%20Book.pdf
96
Id.
97
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
98
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
99
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
100
Id.
101
Interview with the ACLU, Butte, MT, Feb. 16,
2018.
102
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
103
Interview with the ACLU, Feb. 13, 2018.
104
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
105
Interview with the ACLU, Feb. 13, 2018.
106
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
107
Interview with the ACLU, Feb. 14, 2018.
108
Interview with the ACLU, Feb. 16, 2018.
109
Interview with the ACLU, Feb. 16, 2018.
110
Interview with the ACLU, Feb. 14, 2018.
111
Interview with the ACLU, February 14, 2018.
112
ACLU Questionnaire response from Joshua M.
(on file with the ACLU).
113
See generally Montana State University, Montana Poverty Study Report Card, available athttp://
www.montana.edu/extensionecon/countydata/allreservations.pdf (last accessed March 19, 2018).

114
COUNCIL OF STATE GOVERNMENTS, JUSTICE
CENTER, JUSTICE REINVESTMENT IN MONTANA:REPORT TO THE MONTANA COMMISSION
ON SENTENCING at 12 (2017).
115
United States Sentencing Commission, “Quick
Facts: Native Americans in the Federal Offender
Population,” Aug. 2017, available athttps://www.
ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Native_American_Offenders_FY16.pdf.
116
Department of Justice, Office of Justice Program,
Bureau of Justice Statistics, JAILS IN INDIAN COUNTRY 2016 (Dec. 2017) available athttps://www.bjs.
gov/index.cfm?ty=pbdetail&iid=6146.
117
See Appendix B.
118
THE URBAN INSTITUTE, EXAMINING RACIAL
AND ETHNICAL DISPARITIES IN PROBATION
REVOCATION:SUMMARY FINDINGS AND IMPLICATIONS FROM A MULTISITE STUDY (2014), available
at https://www.urban.org/sites/default/files/publication/22746/413174-Examining-Racial-and-Ethnic-Disparities-in-Probation-Revocation.PDF
119
Id. at 9.
120
Montana Healthcare Foundation, “Reducing
American Indian Health Disparities,”available
athttps://mthcf.org/focus-area/american-indian-health/health-disparities/ (accessed March 19,
2018).
121
U.S. Department of Health and Human Services,
Office of Minority Health, “Profile: American
Indian/Alaska Native,”available athttps://minorityhealth.hhs.gov/omh/browse.aspx?lvl=3&lvlid=62
(last accessedFebruary 17, 2018).
122
United States Census Bureau, Facts for Features:
American Indian and Alaska Native Heritage
Month: November 2015 (2015), available athttps://
www.census.gov/newsroom/facts-for-features/2015/
cb15-28ff22.html; see also Naomi Schaefer Riley,
The Atlantic, July 30, 2016 “One Way to Help Native
Americans: Property Rights,”available athttps://
www.theatlantic.com/politics/archive/2016/07/native-americans-property-rights/492941/.
123
Eric Whitney, Montana Public Radio, Dec. 12,
2017, “Native Americans Feel Invisible In U.S.
Health Care System,”available athttps://www.npr.
org/sections/health-shots/2017/12/12/569910574/
native-americans-feel-invisible-in-u-s-health-caresystem?utm_source=twitter.com&utm_medium=social&utm_campaign=morningedition&utm_term=nprnews&utm_content=2041; see also HEALTH
RIGHTS ORGANIZING PROJECT, AN AMERICA
DEBT UNPAID:STORIES OF NATIVE HEALTH at 17
(2009), available athttps://static1.squarespace.com/
static/581649c3e4fcb5fd5918948d/t/58166cca893fc013e67b3b1a/1477864667173/2009-0925_An-American-Debt-Unpaid.pdf.

55.

Id.
125 U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, OFFICE OF INSPECTOR GENERAL, ACCESS TO MENTAL HEALTH SERVICES AT INDIAN
HEALTH SERVICE AND TRIBAL FACILITIES(2011),
available athttps://oig.hhs.gov/oei/reports/oei-0908-00580.pdf.
126
Id. at 19.
127
Id.
128
Interview with the ACLU, Feb. 13, 2018.
129
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
130
Interview with the ACLU, Feb 21, 2018.
131
Interview with the ACLU, Billings, MT, Feb. 15,
2018. [i] Interview with the ACLU, Feb. 13, 2018.
132
Interview with the ACLU in billings on feb. 15,
2018
133
Interview with the ACLU, Billings, MT, Feb. 21,
2018.
134
Interview with the ACLU Feb. 14, 2018.
135
Interview with the ACLU, Billings, MT, Feb. 15,
2018.
136
Interview with the ACLU, Feb 21, 2018.
137
Interview with the ACLU, Feb 21, 2018.
138
Interview with the ACLU Feb. 14, 2018.
139
Id.
140
Interview with the ACLU, Feb. 21, 2018.
141
Id.
142
Interview with the ACLU, Feb. 21, 2018.
143
Interview with the ACLU, Feb. 21, 2018.
144
White Bison, http://www.whitebison.org/
145
Corin Cates-Carney, Montana Public Radio, Dec.
15, 2017, “Hundreds Losing Mental Health Services
Due To State Budget Cut,”available athttp://mtpr.
org/post/hundreds-losing-mental-health-servicesdue-state-budget-cut; Dillon Kato, The Missoulan,
Jan. 27, 2018, “County attorney worries about effect
of mental health cuts on homeless,”available at
http://missoulian.com/news/local/county-attorneyworries-about-effect-of-mental-health-cuts-on/article_54754dd4-093a-50f9-b220-4b27653d7006.html;
Susan Olp, Billings Gazette,Jan. 27, 2018, “After
cutting case management, Mental Health Center
looks at deeper funding cuts,”available at http://
billingsgazette.com/news/local/after-cutting-casemanagement-mental-health-center-looks-at-deeper/article_b7ad73b6-445e-519d-b4f1-1204d88e16f1.
html.
124

56. ACLU of Montana | VII. References

VIII. Appendix A:

ACLU of Montana Public Information Request for Probation and Parole
Demographics to the Department of Corrections

57.

58. ACLU of Montana | VIII. Appendix A

59.

60. ACLU of Montana | VIII. Appendix A

IX. Appendix B:

Department of Corrections Response to the ACLU of Montana’s
Public Information Request
1. The number and gender of prisoners/inmates released on parole who are:
MALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

328

330

303

383

366

364

327

429

B. American Indian

76	

89	

90	

89	

102	

93	

85	

112	

C. Black or African-American

9

16

10

20

16

19

13

22

0

0

3

1

3

1

2

2

FEMALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

37

38

43

53

49

42

46

48

B. American Indian

11	

14	

16	

14	

22	

22	

26	

34	

C. Black or African-American

3

0

1

2

2

2

1

1

0

1

0

0

0

0

0

2

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

2. The number and gender of prisoners/inmates released on probation who are:
MALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

210

227

163

185

158

164

175

159

B. American Indian

75	

72	

59	

91	

54	

48	

59	

52	

C. Black or African-American

9

5

11

7

10

8

6

7

0

0

1

1

0

1

0

0

FEMALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

17

24

21

19

25

21

15

15

B. American Indian

15	

16	

12	

12	

12	

11	

13	

9	

C. Black or African-American

0

1

1

1

0

1

0

0

0

0

0

0

0

2

0

1

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

61.

3. The number and gender of individuals on parole who returned to prison and who are:
MALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

95

87

77

94

91

97

130

136

B. American Indian

31	

32	

33	

28	

33	

29	

45	

44	

C. Black or African-American

6

2

4

2

3

3

8

8

1

1

0

1

1

0

0

2

FEMALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

13

6

14

7

8

12

10

12

B. American Indian

1	

4	

3	

4	

4	

7	

7	

5	

C. Black or African-American

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

4. The number and gender of individuals on probation who were incarcerated and who are:
MALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

328

330

303

383

366

364

327

429

B. American Indian

76	

89	

90	

89	

102	

93	

85	

112	

C. Black or African-American

9

16

10

20

16

19

13

22

0

0

3

1

3

1

2

2

FEMALES

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

45

27

27

24

51

29

34

40

B. American Indian

30	

29	

18	

21	

25	

23	

33	

21	

C. Black or African-American

1

1

1

2

3

0

1

1

1

0

0

1

0

0

1

0

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

62. ACLU of Montana | IX. Appendix B

5. For request #3 and #4, the number of individuals in each category who returned to
prison for a new offense;
PAROLE MALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

7

2

10

1

6

4

18

14

B. American Indian

1	

1	

1	

1	

2	

5	

2	

6	

C. Black or African-American

0

0

1

0

0

0

0

1

0

0

0

0

0

0

0

0

PAROLE FEMALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

3

2

1

0

1

2

2

2

B. American Indian

0	

0	

1	

0	

0	

1	

0	

0	

C. Black or African-American

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

PROBATION MALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

79

74

52

77

76

62

59

89

B. American Indian

19	

21	

18	

19	

20	

13	

21	

18	

C. Black or African-American

0

3

2

4

2

1

2

1

1

0

3

0

0

0

1

0

PROBATION FEMALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

9

5

4

3

10

10

7

12

B. American Indian

15	

9	

2	

0	

1	

2	

6	

5	

C. Black or African-American

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

63.

6. For request #3 and #4, the number of individuals in each category who returned to
prison for a violation of their condition of release on parole or probation (i.e. a
technical or compliance violation).
PAROLE MALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

88

85

67

93

85

93

112

122

B. American Indian

30	

31	

32	

27	

31	

24	

43	

38	

C. Black or African-American

6

2

3

2

3

3

8

7

1

1

0

1

1

1

0

2

PAROLE FEMALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

10

4

13

7

7

7

8

10

B. American Indian

1	

4	

2	

4	

4	

4	

7	

5	

C. Black or African-American

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

0

PROBATION MALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

210

253

180

227

208

148

169

162

B. American Indian

91	

91	

59	

91	

84	

78	

52	

57	

C. Black or African-American

10

8

7

8

9

7

7

13

0

2

0

2

1

0

1

1

PROBAATION FEMALE

2010

2011

2012

2013

2014

2015

2016

2017

A. White or Caucasian

36

22

23

21

41

19

27

28

B. American Indian

25	

20	

15	

21	

24	

21	

27	

16	

C. Black or African-American

0

1

1

2

3

0

1

1

1

0

0

1

0

0

1

0

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

64. ACLU of Montana | IX. Appendix B

7. For request #6, the number of individuals who had previously had their parole
or probation revoked on technical/compliance grounds:
TOTAL

MALE

FEMALE

A. Once

972

854

118

B. Two times

156	

137	

19	

C. Three times

44

43

1

D. Four or more times

16

13

3

8. The number of individuals’ whose violation of parole’ and/or probation includes:
A. Failure to enroll in a required class;
B. Failure to complete a required class;
C. Drug use;
D. Alcohol use;
E. Missing a drug test;
F. ETC
G. Failure to pay fines or fees, or make other payments related to conditions of probation and/or parole.

9. For requests #7-8, number and gender of individuals in each category who are*:
MALES

ONCE

TWICE

3 TIMES

OR MORE

A. White or Caucasian

599

87

26

6

B. American Indian

23	

44	

16	

6	

C. Black or African-American

25

5

1

0

0

1

0

1

FEMALES

ONCE

TWICE

3 TIMES

OR MORE

A. White or Caucasian

62

13

1

3

B. American Indian

54	

5	

0	

0	

C. Black or African-American

1

1

0

0

1

0

0

0

D. Hispanic or Latino
E. Asian
F. Other

D. Hispanic or Latino
E. Asian
F. Other

65.

10. The number of technical or compliance probation and parole violators who were
incarcerated for:
A. 1-3 months;

56

B. 4-6 months;

271	

C. 7-9 months;

568

D. 10-12 months;

999

E. 13-15 months;

371

F. 18 months - 2 years;

783

11. For request #10, the number and gender of individuals who were:
TOTAL

MALE

FEMALE

A. White or Caucasian

2,586

2,301

285

B. American Indian

1,050	

848	

202	

C. Black or African-American

112

103

9

16

12

4

D. Hispanic or Latino
E. Asian
F. Other

*A missed keystroke led to an inaccurate response to Question 9. The corrected response is
available below.

9. For requests #7-8, number and gender of individuals in each category who are:
MALES

ONCE

TWICE

3 TIMES

OR MORE

A. White or Caucasian

599

87

26

6

B. American Indian

230	

44	

16	

6	

C. Black or African-American

25

5

1

0

0

1

0

1

D. Hispanic or Latino
E. Asian
F. Other

66. ACLU of Montana | IX. Appendix B

X. Appendix C:

Qualitative Analysis of Response Provided by the Department of
Corrections to the ACLU of Montana
PAROLE DATA:
The second column of the following two tables displays the overall number of people who
were released on parole between 2010 and 2017. The third column shows the overall percentage of people who returned to prison from parole. Finally, the last two columns display
the percentage of people who returned to prison from parole for a new offense and for a
violation, respectively. There is approximately a 10 percentage point difference in the overall probability of return to prison between White and Native American males who are on
parole. Native Americans are also more likely to return to prison for technical violation
of parole than white people. The differences between white and Native American females
show the same trend but are less significant in magnitude.
Males:
Ethnicity

Released on parole

Returned to prison (%)

For new offense (%)

For Violation (%)

White

2830

28.52

2.19

26.33	

Nativam

736

37.36

2.58

34.78	

Black

125

28.80

1.60

27.20	

Asian

12

50.00

0.00

50.00

Ethnicity

Released on parole

Returned to prison (%)

For new offense (%)

For Violation (%)

White

356	

23.03	

3.65	

19.38	

Nativam

160	

21.88	

1.25	

20.62	

Black

11	

0.00	

0.00	

9.09	

Asian

3

33.33

0.00

0.00

Females:

67.

FIGURE 1:
This panel is a graph of the last two columns of the previous two tables.
Percentage of people who returned to prison from parole, grouped by type of offense:
FEMALES

FOR VIOLATION

FOR NEW OFFENSE

MALES

FOR VIOLATION

FOR NEW OFFENSE

0%

10%

20%

30%

40%

Native Americans
Whites

PROBATION DATA SUMMARY:
The second column of the following two tables displays the number of people who returned
to prison from probation. The last two columns represent the proportion of people who
returned to prison from probation for a new offense and for a violation of the terms of their
probation, respectively. These analyses suggest that both Native American males and females who are on probation are more likely to be incarcerated for technical violations than
white males and females. Again, the magnitude of the difference is greater for males than
for females.

68. ACLU of Montana | X. Appendix C

Males:
Ethnicity

Probation to prison

For new offense (%)

For violation (%)

White

2125	

26.73	

73.27	

Nativam

752

19.81	

80.19

Black

84	

17.86	

82.14	

Asian

9

22.22

77.78

Ethnicity

Probation to prison

For new offense (%)

For violation (%)

White

277	

21.66	

78.34	

Nativam

209	

19.14	

80.86	

Black

10	

10.00	

82.14	

Asian

3

0.00

77.78

Females:

FIGURE 2:
This panel is a graph of the last two columns of the previous two tables.
Percentage of people who returned to prison from probation, grouped by type of offense:
FEMALES

FOR VIOLATION

FOR NEW OFFENSE

MALES

FOR VIOLATION

FOR NEW OFFENSE

0%

20%

40%

60%

80%

69.

TECHNICAL VIOLATIONS:
Past technical violations for males who returned to prison after a technical violation:
In the following two tables: The second column displays the number of people who returned
to prison for a technical violation of parole or probation. The next five columns represent
the proportion of these people who were on their first vs. second vs. . . . vs. fifth or more violation of parole or probation when they returned to prison. It appears that Native Americans
are more likely to be incarcerated for their 2nd, 3rd, 4th or 5th parole or probation violation
than whites. Conversely, whites are more likely to be on their first instance of parole or
probation violation.
Males:
Ethnicity

Nbr of violations

Is 1st vio (%)

Is 2nd vio (%)

Is 3rd vio (%)

Is 4th vio (%)

Is 4th vio (%)

White

2302	

68.81	

26.02	

3.78	

1.13	

0.26	

Nativam

859	

65.54	

26.78	

5.12	

1.86	

0.70	

Black

103	

69.90	

24.27	

4.85	

0.97	

0.00	

Asian

13

84.62

0.00

7.69

0.00

7.69

Is 1st vio (%)

Is 2nd vio (%)

Is 3rd vio (%)

Is 4th vio (%)

Is 4th vio (%)

Females:
Ethnicity

Nbr of violations

White

286	

72.38	

21.68	

4.55	

0.35	

1.05	

Nativam

202	

70.79	

26.73	

2.48	

0.00	

0.00	

Black

10	

80.00	

10.00	

10.00	

0.00	

0.00	

Asian

3

66.67

33.33

0.00

0.00

0.00

FIGURE 3:
The following figure displays the likelihood of whites vs. Native Americans of returning to
prison for their very first technical violation of parole or probation. As it appears on the
previous tables, whites are more likely to be returning to prison for their very first parole or
probation violation than Native Americans.
Percentage of people who were incarcerated for a ‘first’ vs. ‘second or more’ technical
violations of parole or probation:
1ST VIOLATION

AT LEAST 2ND

0%

70. ACLU of Montana | X. Appendix C

20%

40%

60%

80%

71.

This report, Set Up to Fail: Montana’s Probation & Parole
System, and other resources are available online at:
www.aclumontana.org/en/publications.
Let’s stay in touch! Connect with us for updates and
ways to take action. Sign up for our emails at
www.aclumontana.org.

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