BEFORE THE DEPARTMENT OF CORRECTIONS
OF THE STATE OF MONTANA
pertaining to conditions on probation
NOTICE OF AMENDMENT
TO: All Concerned Persons
1. On December 6, 2007, the Department of Corrections published MAR Notice No. 20-7-38 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1984 of the 2007 Montana Administrative Register, Issue Number 23. On February 14, 2008, the Department of Corrections published MAR Notice No. 20-7-39 pertaining to the second public hearing and extension of comment period of the above-stated rules at page 273 of the 2008 Montana Administrative Register, Issue Number 3.
2. The department amends ARM 20.7.1102 as proposed.
3. The department amends ARM 20.7.1101 as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
20.7.1101 CONDITIONS ON PROBATION OR PAROLE
(1) through (5) remain as proposed.
(6) The offender must obtain permission from his/her supervising officer before engaging in a business, purchasing real
or personal property, purchasing an automobile, or incurring a debt.
(7) and (8) remain as proposed.
(9) The offender is prohibited from using or possessing alcoholic beverages and illegal drugs
, including marijuana, regardless of whether the offender has received a registry identification card from the Department of Public Health and Human Services pursuant to Title 50, chapter 46, part 1, MCA. The offender is required to submit to bodily fluid testing for drugs or alcohol on a random or routine basis and without reasonable suspicion.
(10) and (11) remain as proposed.
(12) The Montana Board of Pardons and Parole and the sentencing court have the authority to order the offender to abide by additional conditions and such conditions must be contained in the judgment or parole decision.
The Department of Corrections may require an offender committed to the department to abide by additional conditions for the privilege of serving the offender's sentence in the community instead of in a correctional facility, prerelease center, or other correctional facility.
4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: The following individuals objected to the department's proposal to prohibit offenders on probation and parole from using marijuana, regardless of whether an offender has received a medical marijuana card from the Department of Public Health and Human Services:
At hearings: Jim Wheelis, Joslyn Hunt, Greg Hood, Ed Sheehy Jr., Tom Daubert, Angela Goodhope, Elizabeth Griffing, D. Steven Cape, David Michaud, Eric Billings, James Gustafson, Scott Hubeny, and Scott Day.
Written comments: Edwin L. Stickney, John Masterson, Elizabeth Griffing, Jeanne Farnworth, Norm Stamper, Tamara Carnival, Brian Moody, Richard Mabee, Carol E. Maurer, Mitchell "Mitch" Ronshaugen, Kevin Tewey, Paul Befumo, Cole Moeller, Shawn Heren, D. Steven Cape, Zane Hurst, Prairie Wolf, Tom Daubert, Nancy Mills, David and Medina Kinney, Edward Rudd, Bruce Scharf, Colin Stephens, Cole Moeller, James Wolfe, Steve Guettermann, Donald Morley, Frank Gary, and Patricia J. Sewell.
Ron Alsbury, Probation and Parole Bureau Chief, Pam Bunke, Administrator of the Adult Community Corrections Division, and Probation and Parole Supervisors Kim Christensen and Amy Gault spoke in favor of restricting marijuana use among the offender population.
RESPONSE #1: Based on information presented, the Department of Corrections has considered these comments and is withdrawing its proposal relative to medical marijuana.
COMMENT #2: The following individuals objected to proposed rules restricting alcohol and gambling and cited the case of State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620: Jim Wheelis, Joslyn Hunt, Greg Hood, Ed Sheehy Jr., and Elizabeth Griffing. Additionally, others objected to the restrictions on gambling and alcohol use on other grounds.
The following individuals spoke in favor of the alcohol and gambling restrictions: Pam Bunke, Ron Alsbury, Amy Gault, Kim Christensen, Mike Boston, Alex Vukovich, and Leo Gallagher.
RESPONSE #2: Since the first hearing on these proposed rules changes, the Montana Supreme Court decided the cases of State v. Ashby, 2008 MT 83, and State v. Winkel, 2008 MT 89, which significantly altered the legal landscape with respect to probation and parole conditions. While Ommundson restricted courts in imposing such conditions to conditions that relate to the offender's crime, Ashby and Winkel expanded the authority to impose conditions that relate to the underlying crime or the offender and his or her characteristics and history.
The department believes that every offender should be precluded from drinking, frequenting bars and casinos, and gambling while on probation. The alcohol and gambling restrictions, the department believes, will enhance public safety, allow offenders to more readily engage in self improvement efforts, make restitution payments to victims, and improve officer safety. The department believes that such conditions should be a normal part of probation and that they coincide with its mission for public safety and offender accountability. Bars and casinos are not conducive to positive offender behavior. Offenders who are allowed to frequent places where alcohol is the chief item of sale are legitimately in an environment that is frequently detrimental to their rehabilitation, detrimental to positive behavior, and is often detrimental to successful completion of community supervision. The department believes that restricting alcohol use serves the same purposes as the standard conditions: it ensures the offender is living in a healthy, structured environment; it provides a measure of security to probation officers when they visit offenders at home as a part of their supervisory duties; and it provides an effective tool for overall supervision of offenders.
All of the standard rules for probation and parole serve to provide consistency and structure for offenders who often times have lived in chaotic circumstances and provide effective tools for probation and parole officers with which to supervise offenders. All of the standard conditions including prohibitions on alcohol, bars and casinos, and gambling allow the department to fulfill its mission and operate a system of probation and parole.
If an offender wishes to consume alcohol or gamble while on probation, the offender may request the district court remove that condition. After careful consideration, the department is keeping this provision of the rule amendments.
COMMENT #3: Elizabeth Griffing asserted that the Department of Corrections does not have rulemaking authority.
RESPONSE #3: The Department of Corrections has explicit authority to adopt rules for the conduct of persons placed on parole or probation. This provision is found at 46-23-1002(3), MCA. Reference is also made to 53-1-203(1)(a), 2-4-201, and 46-18-801, MCA.
COMMENT #4: Ed Sheehy Jr. objected to the proposal that would require offenders to first obtain permission from their supervising officer before taking up residence in a location.
RESPONSE #4: The Department of Corrections believes it is important for the supervising officer to inspect the offender's proposed residence and approve or deny the residence based on public safety, officer safety, and the offender's rehabilitation. In order to supervise the offender, the officer will conduct home visits and, when necessary, searching the residence. In the interest of officer safety, it is important to know the general layout of the residence.
COMMENT #5: The following individuals objected to the provision requiring offenders to notify their employers of their status on probation or parole: Ed Sheehy Jr., D. Steven Cape, Scott Hubeny, B.F. "Chris" Christiaens, and Jerry McKinney.
RESPONSE #5: The Department of Corrections believes this provision is essential to its mission of public safety. Montana law requires probationers and parolees convicted of theft from an employer to notify subsequent employers of their crime. The Department of Corrections considers this a minimum requirement set forth by law and does not preclude the department from promulgating rules that obligate all offenders, regardless of their crimes, to notify their employers and others deemed necessary to protect the public. The Department of Corrections is particularly concerned about sex offenders and views it essential that employers know of the crime that their employee was convicted of committing. This is especially important when offenders are employed in the trades and go into residences to perform work. Given the risks involved, it is the department's position that an employer must know of an employee's conviction.
Some individuals commented that such requirement would inhibit an offender's ability to obtain employment. Pam Bunke, Administrator of Adult Community Corrections Division, stated that the department believes it has a duty to the public and Montana employers to ensure they are aware of the criminal history of their employees. Additionally, Probation and Parole Supervisor Amy Gault stated that she had a 99 percent employment rate among her offenders in Kalispell who were required to notify their employer. She reiterated the department's obligation to protect the public and specifically cited the risk posed by sex offenders.
COMMENT #6: Ed Sheehy Jr. objected to the final sentence in (12), under special conditions, which provides that the department may impose additional conditions on offenders committed to the department.
RESPONSE #6: The Department of Corrections agrees with Mr. Sheehy's comment and withdraws this sentence from the rule proposal.
COMMENT #7: D. Steven Cape, James Gustufson, Dawn King, Scott Hubeny, and B.F. "Chris" Christiaens objected to the provision that requires an offender to obtain permission from his supervising officer before engaging in a business or incurring a debt. Additionally, a commenter stated that requiring prior permission to purchase personal property is unreasonably restrictive.
RESPONSE #7: This comment refers to (6), which proposes to add "incurring a debt" to the list of financial activities that requires prior approval from the supervising officer. Probation and parole officers are charged with assisting offenders in rehabilitating themselves, and paying restitution to victims is a primary means of rehabilitation. Starting a business, purchasing an automobile, or incurring a debt involve significant financial obligations and should be undertaken only after a careful consideration of the offender's obligation to the victim.
The comment regarding personal property is well taken and the department withdraws that language.
/s/ Colleen A. White /s/ Mike Ferriter
Colleen A. White Mike Ferriter
Rule Reviewer Director
Department of Corrections
Certified to the Secretary of State June 2, 2008