Washakie County Sheriff Steve Rakness listens to a Joint Judiciary Committee meeting in Worland in May. The meeting was the committee’s first introduction to outside researchers from the Council of State Governments, who have since studied Wyoming’s criminal justice system and offered reform suggestions, three of which are being advanced by the judiciary committee in draft bills. (Andrew Graham/WyoFile)

A legislative package designed to stem Wyoming’s prison crisis began to take shape this month as lawmakers on the Joint Judiciary Committee considered four criminal justice reform bills, advancing three of them.

The committee voted Nov. 16 to endorse three bills that could reduce imprisonment resulting from probation or parole violations. More inmates — driven in large part by such violations — have filled Wyoming’s prisons beyond capacity and sapped the state’s resources.

The lawmakers also voted to sponsor a bill that would make crime victims eligible for increased mental health treatment.

The package comes after months of analysis of state criminal justice data by outside researchers, a decade of reform efforts by the Wyoming Department of Corrections and repeated failures by the Legislature to enact fixes. But reform advocates, including House Judiciary Chairman Dan Kirkbride (R-Chugwater), are “cautiously optimistic” that these latest efforts can work — citing the state’s participation in the Council of State Government’s Justice Reinvestment Initiative and the involvement of all branches of the criminal justice system.

“We’ve got more of the players in on it sooner,” Kirkbride (R-Chugwater) told WyoFile on Monday. “There’s been more exposure and more participation.” Kirkbride will remain chairman when the new Legislature convenes Jan. 8. He hopes to begin the session by briefing lawmakers who aren’t on the judiciary committee, he said.

Advocates will have the looming and pricey consequence of inaction working in their favor. Wyoming’s prisons are already full. The state is paying private prison company CoreCivic to house 88 Wyoming prisoners in Mississippi. Up to 75 additional state prisoners are being housed in county jails at state expense, according to DOC data. Without statutory reform, the department projects an increase of 200 more inmates by 2023, according to the CSG researchers.

Sen. Larry Hicks (R-Baggs) bows his head as the Wyoming Legislature spends a moment in prayer on the opening day of the 2018 Legislative Session. (Andrew Graham/WyoFile)

Such an increase would cost the state at least $50 million in new contracts or prison capacity or both, lawmakers said. The added expense would not necessarily increase public safety or improve rehabilitation outcomes for lawbreakers according to CSG’s data analysis. And for lawmakers, still dealing with strapped state budgets, it’s an expense many would like to avoid.

Sen. Larry Hicks (R-Baggs) expressed frustration following the testimony of judges and prosecutors who told lawmakers they worried they could lose the flexibility to properly punish repeat offenders if lawmakers changed statutes.

“It is a spiraling out of control fiscal nightmare,” Hicks said.

The senator, a longtime conservative stalwart, told those working in Wyoming’s county and municipal courtrooms that they had to take a look at the statewide picture. “There has to be a shared concern with what we’ve got to face as a Legislature,” he said. Over the years lawmakers have given “tremendous deference” to the courts, he said.

“We’ve got to come up with solutions and what we’ve got are solutions based on empirical data,” he said.

Probation and parole hold the keys, data says

CSG researchers have found several related data points that suggest Wyoming’s best chance for a return on justice “reinvestment” will come from fixing probation and parole.

Offenders failing the supervision programs play an outsized role in driving incarceration rates. More than half of Wyoming’s prison entries come from people failing the conditions of their probation or parole.

Supervision programs could also be more effective, the researchers found. Failures tend to occur early in a probation or parole term, but Wyoming is delivering longer supervision sentences that stretch the resources of probation and parole officers. Meanwhile people under supervision aren’t getting the mental health and substance abuse treatment they need at a critical time for their success or failure, according to researchers.

Only slightly more than half of people on felony probation or parole who needed treatment got it from 2014 to 2017. There is a lot of geographical disparity in receiving treatment, with some areas of the state having better access to counseling centers than others.

The need, however, is widespread. Of those on felony probation or parole from 2014 to 2017, 86 percent had some need for substance abuse or mental health help.

Three bills to address problem

At CSG and the DOC’s recommendation, the judiciary committee advanced three bills crafted to take advantage of the findings described above. They killed a fourth measure after doubts were raised about its effectiveness. Most votes were unanimous or close to it.

Draft bill 231, which advanced, would put a 42-month maximum on the length of probation terms. Both Wyoming and national data show that failures on probation usually happen in the first two years of the term. In Wyoming, CSG found that two-thirds of probation revocations happen in the first two years. Placing a limit on the probation terms a judge can apply should keep probation officers from using time and resources on people who have made it through the most vulnerable period of their supervision.

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Draft bill 217, which also advanced, allows judges to sentence people to unsupervised probation, as well as probation, except for crimes punishable by life imprisonment. It also gives judges the ability to reduce a probation sentence and provides eight criteria for evaluating an offender’s mental and social health. The list includes the severity of the crime, the risk posed to the community, stability of employment, quality of family relations and progress treating substance abuse, among other things.

The most complex piece of legislation, and one that saw significant scrutiny and amendments from lawmakers before they advanced it, was draft bill 230. The bill is designed to keep people who violate probation or parole from ending up in prison by authorizing judges and supervision officers to use lesser punishments. The proposed legislation builds on law passed during the Legislature’s 2018 budget session.

The 2018 law allowed the DOC to couple a jail detention with drug treatment programs over a 90-day period for offenders who continually violated probation or parole conditions because of substance abuse — failing drug tests, for example. It also allowed probation and parole officers to use “quick dips,” a two- to three-day jail stay designed to scare someone straight when he or she starts slipping into parole violations.

Lawmakers look over Gov. Matt Mead’s shoulder as he prepares to sign limited criminal justice reform bills at the end of the 2018 legislative session. From left: House Judiciary Chairman Dan Kirkbride (R-Chugwater), Senate Judiciary Chairman Leland Christensen (R-Afton), Rep. Charles Pelkey (D-Laramie), Sen. Liisa Anselmi-Dalton (D-Rock Springs). (Andrew Graham/WyoFile)

Draft bill 230 would lengthen such jail stays to up to 15 days for more serious violations, while still avoiding a return to prison. It broadens the 90-day stays in county jails to include prisons or adult community correction programs — which keep offenders in the community while they receive treatment. It would also allow that punishment to be applied for more than just substance abuse violations.  

At one point, Rep. Charles Pelkey (D-Laramie) suggested tabling the legislation to further consider a wide range of concerns raised by trial lawyers, public defenders, judges, prosecutors and others. Again, however, the urgency of the state’s situation and the Legislature’s history with reforms drove lawmakers to urge action.

“In my world they call it inertia,” Hicks said. “We have spent a tremendous amount of time just to move this ball a little bit and to stop that I think is a fundamental mistake.”

Other lawmakers echoed the sentiment, and noted that come January some members of the Judiciary Committee will change in a new Legislature. The group opted to keep the measure moving forward.

Lawmakers killed a bill that would have capped parole terms in a manner similar to the probation caps proposed by draft bill 231. The lawmakers voted the measure down after concerns were raised, including by CSG, that knowing parole could be capped would drive judges to apply longer sentences.

Andrew Graham

Andrew Graham is reporting for WyoFile from Laramie. He covers state government, energy and the economy. Reach him at 443-848-8756 or at andrew@wyofile.com, follow him @AndrewGraham88

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