This story is part of our series that looks at lasting ways Montana is adapting during the pandemic. It’s funded in part by the Solutions Journalism Network.
Criminal justice system reformers for years have sought to reduce county jail and state prison populations in Montana. The COVID-19 pandemic has sped up the process, mostly at county detention facilities across the state.
Jordan Gross is giving a lot of thought to a graduate seminar on criminal justice reform she’ll teach this fall. Gross is a law professor at the University of Montana. It’s on her mind because the COVID-19 pandemic has, in certain ways, had significant impacts already.
“What we've seen is that if the criminal justice system wants to react swiftly and effectively, it can. It illustrates just the tremendous amount of discretion that is baked into the system. There was no change in the law. There was a change in policy,” Gross says over Zoom.
That change in policy led to rapid reductions in county jail populations across the state in March and April. State and local officials got behind calls to release as many non violent offenders as possible.
The Missoula County Detention Facility was at 194 county side inmates on Mar. 3. It dropped to 121 by Apr. 28. That’s a 37 percent dip. Across the state, Yellowstone County saw its monthly average in March of 470 drop to 388 in April.
Gallatin County had an average of about 170 inmates in March. That dropped to 70 in April, and in Cascade County, the detention center there hit a low point of 380 inmates on May 2. That’s down from 453.
“Did we see any kind of negative impact on public safety because if we didn't, that should indicate to us that, that should be our default policy, not just our temporary emergency policy,” Gross says.
The drops could well be temporary. For sure, they’re driven by officials trying to prevent an outbreak of COVID-19, though they can’t stop it. For example, eight women inside the Yellowstone County Detention Center tested positive in May and were then isolated.
But to Gross, a shift happened, especially with the population she often studies: pretrial detainees. These are people who’ve been charged and can be locked up in advance of court hearings.
“Pre-COVID a lot of counties including Missoula County, were working on thinking about that pretrial detention piece, but this is kind of like it just sort of fast forward and threw everything out and said, you know, let's just let people go who aren't a safety risk,” Gross says.
To help reduce their jail populations, Missoula County officials signed off on a March resolution to block its detention facility from accepting charged, but not convicted, non violent misdemeanor offenders. They’re also turning away people who failed to appear in court for the same types of offenses.
Kristen Jordan and her team at the Missoula County’s Criminal Justice Coordinating Council are the ones crunching the numbers and doing the research.
"We're trying to figure out what exactly happens in the pretrial space. On any given day at our local jail here in Missoula County, we have 80 percent of the population who is in pretrial status. It's really expensive to keep people in jail. It costs us $115 a day per person in Missoula County," Jordan says.
Jordan’s team is tasked with administering a grant from the MacArthur Foundation. One of the primary goals is to figure out how to reduce jail populations.
“We're going to track people who were released early from the initial release period, to see what their success and failure look like, and so, successes would mean no violations, no new arrests, and a failure, of course, would be the opposite of that," Jordan says. "I do see it trending toward really taking a deeper look into who we’re, who we’re incarcerating in a pretrial status.”
Jordan says her team plans to finish their research by the end of the summer.
“We don’t know until we know what the data says. We can all speculate and that's kind of what got us in this position in the first place is filling our jails with people in pretrial status, because we're speculating that they're going to fail while they await trial.”
There’s less of an option to try Covid related releases at the state level, says Montana Department of Corrections deputy director Cynthia Wolken.
“All of the offenders in our system have been adjudicated as guilty of a felony offense. It’s just a different population,” Wolken says.
The Board of Probations and Parole did review 274 cases for potential release in response to COVID. Eight people have been released to parole supervision as of May 14.
Meanwhile, ACLU Montana, on behalf of Disability Rights Montana, filed an emergency petition with the state Supreme Court on Apr. 1. It asked the court to order reductions of inmates across the state. The same day, Governor Steve Bullock issued a directive to the Department of Corrections with guidelines to combat COVID-19.
The state Supreme Court denied the petition in an Apr. 14 order, saying the state’s executive and judicial branches had already done enough to address COVID-19 in jails and correctional facilities.
“We're going to continue to deliver the highest level of services in our prisons as possible, including programming and treatment services, however we can. We’ll just keep on continuing to meet our public safety goals and keep folks safe,” Wolken says.