By Andrew Graham, WyoFile.com

The Wyoming Senate continues to advance bills that could reduce the state’s ballooning prison population as a long running criminal justice reform effort gathered steam in the 65th Legislature.

“This is very thoughtful, strategic and pointed lawmaking,” Senate Judiciary Committee Chairman Tara Nethercott (R-Cheyenne) said Friday morning. The three measures under consideration this session are “intended to get ahead of the challenges facing the criminal justice system without weakening the force and effect of law.”

But researchers and a Wyoming advocate worried that the effectiveness of one bill that limits the length of probation sentences was undercut by giving too much latitude to judges.

The Senate Judiciary Committee voted unanimously Jan. 11 to advance Senate File 10 Modification of probation and Senate File 38 Limitation on length of probation to the full Senate, which approved them on the first of three votes in that body the same day and a second vote Monday. Bills must pass three floor votes in three consecutive floor sessions to pass the Senate or House.

The state’s prison system is at a crisis point, with prisoners being shipped out of state to a private prison and many more inmates incarcerated in Wyoming county jails which lack the programming of a prison. The Senate bills are the result of a months-long data analysis by outside researchers with the Council of State Governments’ Justice Reinvestment Initiative — which brought federal and private funding to Wyoming.

Senate File 10 allows judges to sentence people to unsupervised probation except when dealing with crimes punishable by death or 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. Judges must consider 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, under the bill. Putting the criteria in statute will give judges and probation officers a tool to use to reduce probation sentences, advocates say.

After an amendment on the Senate floor Monday morning, Senate File 38 places a 36-month maximum on probation terms. The bill passed the Senate Judiciary Committee with a 42-month maximum, but the amendment to 36 months brought by Senate Minority Leader Chris Rothfuss (D-Laramie) better aligns the bill with data compiled by the Council of State Governments (CSG). The provision granting judicial discretion to impose probation for more than three years remains.

In Wyoming, CSG found that two-thirds of probation revocations happen in the first two years and 85 percent happen in the first three years. Placing a limit on the probation terms a judge can apply could keep probation officers from using time and resources on people who have made it through the most vulnerable period of their supervision, the researchers say.

But experts and a reform advocate worried a previous tweak by lawmakers to give judges’ discretion had diluted the effectiveness of SF38.

Prior to the session, lawmakers adjusted the draft legislation to give judges an out. As passed Friday, the bill gave judges the discretion to go past the probation cap if they see “good cause” in the nature of the offender’s crime or criminal history.

“That wide permissiveness will reduce impact” said Jennifer Kisela, a policy analyst with the Council of State Governments. “It will lessen the opportunities for resources to be shifted within the Department of Corrections and limit their ability to provide effective supervision practices.”

Having tracked the impact of the CSG’s work in other states over years, Kisela said, more permissive reform bills don’t lead the judiciary to change. “You just don’t see the shift that you would see from a clear cut policy,” she said.

Representatives of the judicial branch have expressed concern that judges wouldn’t be able to give probation terms they thought some offenders — particularly those with violent offenses or sex offenses — deserve. The amendment to SF38 came after judges’ testimony at a November meeting of the Legislature’s Joint Judiciary Committee.

The judiciary branch is resisting criminal justice reform measures, said Sabrina King, policy director of the ACLU of Wyoming.

“Judges and prosecutors feel like their discretion is being taken away, and they’re fighting to keep it,” King wrote in an email. “The fact is our criminal justice system is over-taxed and long probation periods are part of the problem.”

Prosecutors around the state were split on the probation cap, said former Sheridan County District Attorney Matt Redle, who is lobbying for the Wyoming County & Prosecuting Attorney’s Association.

The CSG’s data has shown that offenders are underserved by Wyoming’s drug, alcohol and mental health services. The state needs to find resources to direct towards those services by “reinvesting” money spent on long probation terms as well as prisons, King said.

“We need the bills moving through the legislature this year to be as effective as possible so we have that money to reinvest,” she said. “In some instances yes, that will mean judicial discretion is taken away.”

Nethercott, the newly named chairman of the Senate Judiciary Committee, said she believes judges know the Legislature wants to see action across the state’s justice system to reduce incarceration rates. “We’ve sent a strong message to the courts,” Nethercott said.

At the November meeting, Nethercott told judges in attendance to get onboard with stemming Wyoming’s prison crisis.

“The reason why we’re all here today is because of a failure of the criminal justice system to properly use probation,” Nethercott said. “So what happens is these problems are solved by the Legislature because the people in charge … aren’t solving the problem.”

No senator suggested amending the judge’s discretion language. Of the five senators on the Judiciary Committee, three are new. If someone offers an amendment on the Senate floor, Nethercott said she would consider it.

If the two bills pass two more Senate votes, by Feb. 6 they’ll head to the Wyoming House.

The Senate bills are two of three significant justice reform bills before the Legislature as a result of the Justice Reinvestment Initiative. House Bill 53 Probation and parole-incentives and sanctions awaits action from the House Judiciary Committee. 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. It is more complex and has seen more scrutiny from lawmakers than the two Senate bills.

On the House Judiciary Committee, three of nine members are new. House Judiciary Chairman Dan Kirkbride (R-Chugwater) has supported reform efforts in the past.

On Friday morning, Speaker of the House Steve Harshman (R-Casper) and Senate President Drew Perkins (R-Casper) endorsed reform efforts, though not bill specifics.

After years of frustration, reform advocates now 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 90 Wyoming prisoners in Mississippi as of Jan. 10, according to Wyoming Department of Corrections spokesman Mark Horan. Another 67 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. Such an increase could cost the state at least $50 million in new contracts or prison capacity or both, lawmakers have said.

The leaders of both chambers acknowledged the problem Friday and said long-running work to solve it is gathering steam.

“I just sense that there’s movement,” Harshman said about criminal justice reform. “These issues take time and I think we’ve moved a lot closer.”

Perkins served on the Senate Judiciary Committee for his first six years in the Legislature, he said. The Legislature has been working for reform a long time, he said. Though neither leader said they’d read the specifics of the bill, Perkins said the goal of developing alternatives to incarceration is a good one, both for fiscal and humanitarian reasons.

“It costs a lot of money to incarcerate people,” he said, “and if there are other ways that we can monitor their actions and help them rehabilitate and go back into society and be productive, then we’re all better off.”

If this year’s efforts pass, lawmakers shouldn’t consider the job completed, the Casper attorney said. “Criminal justice reform is a never-ending thing,” he said.

Before the 2018 Legislative session, Nethercott was the lone member of the Joint Judiciary Committee to vote against legislation to create alternatives to incarceration for parole and probation violators. She later voted for the legislation during last year’s session, and since has become an advocate for reform, she said.

“I was fairly skeptical of the concept of criminal justice reform,” Nethercott said. Like other skeptics of past measures, she said she worried the state did not have the drug, alcohol and mental health services, particularly in rural parts of the state, to treat offenders being placed back into the community.

The data compiled by CSG changed her mind, she said, by offering points of leverage for lawmakers.

The CSG’s 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.

Meanwhile people under supervision aren’t getting the mental health and substance abuse treatment they need at make-or-break points in the process, according to researchers. Only slightly more than half of people on felony probation or parole who needed treatment got it from 2014 to 2017.

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, according to CSG.