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Analysis: Where does criminal justice reform go from here?

Over the last two weeks, WyoFile told the story of the downfall of a single bill from the 2017 session of the Wyoming Legislature — House Bill 94: criminal justice reform.

At the session’s onset, the bill was hailed by lawmakers on the House Judiciary Committee for broad stakeholder input and an inclusive drafting process that stretched back years. But over the course of January and February, reform proponents watched the bill barely survive the House after prosecutors directed a rewrite behind closed doors. Eventually, Senate President Eli Bebout delivered the coup de grace — holding the bill back from the Senate Judiciary Committee and letting it die on his desk. He was advised in part by a member of the parole board, who went against the will of his colleagues, and possibly the rules, by approaching key lawmakers with his antipathy to the bill.

The rising incarceration rates and resulting pressures on Wyoming’s prison system that drove the bill will continue for now. All involved parties — prosecutors, Wyoming Department of Corrections chiefs, Board of Parole members, lawmakers — agree on one point if not much else. Cuts to Wyoming’s substance abuse and mental health programs, both outside and within the prison walls, will drive more people over legal lines more frequently. With prisons around the state nearing capacity and revenue streams from minerals drying up, it’s clear some change needs to happen. The question is what change, and how to make it politically viable when broad reform efforts have so far failed.

“It doesn’t do any good to point fingers on why a bill died,” said Rep. Charles Pelkey (D-Laramie), a House Judiciary Committee member. “The job is to develop policy, and the only way you’re going to successfully develop policy is by getting everybody involved.”

What makes reform work?

A criminal justice specialist dismissed one stereotype about opposition to reform. Wyoming’s conservative politics aren’t an impediment, said Jake Horowitz, a researcher and policy adviser with the Pew Charitable Trusts.

Horowitz has worked on criminal justice reform in dozens of states, many of them conservative, he said. He’s found that long sentences and bloated prison systems conflict with conservative principles. Besides the fiscal costs, excessive incarceration violates values like limited government, strong families and personal redemption, he said.

A key to successful reform elsewhere has been a mandate from state leaders, whether in a legislature or an executive branch, Horowitz said. “They have to provide a north star to say here is what we’re trying to achieve,” he said, “saying my expectation is we will have an advanced policy package in advance of the coming session.”

Even then, complex legislative packages are vulnerable to failure in busy state legislatures, and that’s particularly true of criminal justice reform, Horowitz said. Stakes are high for politicians, who may fear being labeled as soft-on-crime in their next election. Lawmakers pushing the legislation need to be confident in the package, or their doubts will be picked up on by their colleagues.

“They will get nervous, that anxiety will be felt by others in the Legislature and the clock will run out,” Horowitz said.

Sen. Dave Kinskey, a Sheridan Republican on the Judiciary Committee, highlighted that challenge for his colleagues in April. “The great vulnerability in all of these initiatives is that you get into a certain point in the legislative process and somebody jumps up and says ‘this is just hugs for thugs,’” he said, “and then you watch all your votes evaporate like dew before the morning sun. Just gone.”

“Or you pick up the Casper Star-Tribune and you see that [Natrona County Prosecutor] Mike Blonigen has called a bill a ‘get out of jail free card for criminals,’” he added.

An endorsement from a state’s leadership can force everyone to the table, Horowitz said, even those like Blonigen, one of the bill’s most prominent detractors. If the more reluctant players in the criminal justice system see a well-backed reform effort moving forward without them, they’ll want to get on board to avoid getting left behind.

A strong leader lets stakeholders know that “this is not about you getting what you want, this is about your group agreeing to a policy process,” Horowitz said.  

Though lawmakers on the House Judiciary Committee fought for HB 94, there was no north star from leadership. Bebout ultimately killed the bill because of the questions surrounding it. Speaker of the House Steve Harshman was largely silent on the issue, and voted against the bill on its last vote in the House. Gov. Matt Mead expressed an interest in reform and a concern for the prison system, but his office’s coordination of stakeholder meetings came so late that they were detrimental to lawmaker perceptions of the bill’s integrity.  

A section of barbed wire fence surrounds a now-abandoned part of the Wyoming State Penitentiary in Rawlins. Parts of the prison have been deemed structurally compromised because of shifting soils. (Andrew Graham/WyoFile)

At its first interim meeting after the 2017 session, Blonigen told lawmakers on the Joint Judiciary Committee that HB 94 had been largely driven by the Department of Corrections. It thus prioritized that agency’s goals — easing pressures on prisons — over the goals of others in the criminal justice system, like the prosecutors striving to make sure crime victims receive justice.

Normally measured when speaking to lawmakers, WDOC Director Bob Lampert seemed frustrated when he followed Blonigen in front of the committee. “I happened to be the one driving it because nobody else volunteered,” he told lawmakers.

While no state leader has taken criminal justice reform under its wing, there are signs of increased interest.

Although Bebout ultimately killed HB 94, that doesn’t mean he is set against any reform. The big comprehensive bill should be broken-up and handled in pieces, he told WyoFile. At the end of the session, Senate Judiciary Committee Chairman Leland Christensen spoke with Bebout and they agreed to focus on some smaller reforms for the coming session. Bebout seemed “very interested” in some of the positive outcomes of reform, Christensen said.

Mead has remained neutral since the session, though he continues to express an interest in new ideas. “How big of a [prison] population do we want?” he asked at a July press conference. “Are there alternatives to incarceration?” Mead suggested more of a focus on early intervention programs for juvenile offenders, something Blonigen has also called for.

Failing the initial interest of leadership, a strong outside lobbying force, like a citizens group, can help drive reform efforts and keep pressure on lawmakers and stakeholders to get a deal done. This isn’t always necessary, Horowitz said, but in other states he has seen business leaders, faith groups or public-interest organizations all play a role in pushing reform through.

When HB 94 entered the legislature, Anthony Vibbard, a former lobbyist with the Wyoming Liberty Group, was one of few outside interests pushing the bill — meeting with lawmakers and handing them arguments in favor of reform. Representatives of substance abuse treatment organizations, and the ACLU, endorsed the bill, but they didn’t specifically dedicate their lobbying energy toward it as Vibbard did.

Today, Vibbard said he’s concerned that no one outside state government has picked up the torch. He built a website to house information about the bill and reform efforts in general. Thus far he hasn’t found anyone to take it off his hands, he said, and he may allow the subscription for the url to expire.

“To my knowledge there is not one person in Wyoming that is lobbying for criminal justice reform,” Vibbard said.

Sharing the positive outcomes from states that have passed reforms, including continued reductions in crime rates, also is important, said Kevin Ring, the president of a Washington D.C.-based group called Families Against Mandatory Minimums. That awareness can help bolster what he sees as another key component for successful reform efforts — courage.

Sentencing reform gave a Casper woman and her family another chance at life

Prosecutors, tough-on-crime politicians and other opponents of changing correctional systems will counter reform efforts with narratives, Ring said. “They’ll give you the case of the guy that the judge gave a slightly shorter sentence than they would’ve liked to and the [guy] went out and slaughtered a family.”

Informed policy makers or lobbyists can stand up to that narrative. “It takes some courage,” he said. “I don’t think it should because there’s a lot of data and evidence that supports reform, but you have to be willing to stand and push back on a lot of this stuff.”

Current bills

No new comprehensive criminal justice reform legislation is in the works this interim. Instead, the Joint Judiciary Committee has been working on two pieces of legislation derived from the fight over HB 94. One picks up on a topic from the bill by creating a system of rewards and sanctions for parole and probation violators, as opposed to revocation and a prison sentence. Blonigen has expressed interest in such a program.  

Another bill, however, would keep some inmates in prison longer. The Judiciary Committee is considering legislation to end “special good time” awards to prisoners. Today, inmates have two ways they can shorten their sentences with good behavior while incarcerated. “Inmate good time” is awarded by the governor, based on advice from the parole board and WDOC if a prisoner has followed the rules. “Special good time” can come on top of inmate good time, and is awarded solely by the parole board. It requires exemplary conduct by an inmate and is used to reward pursuit of educational opportunities and self-improvement programs within the prison system.

The bill to end special good time arose from Blonigen’s testimony before the Joint Judiciary Committee in May. It is currently being considered as a draft committee bill.

Blonigen called special good time a “secret system” to shorten sentences. The system was dishonest to the public, he said, because it gave the impression longer sentences were being imposed than were being served. Special good time was being overused, he told the committee.

Daniel Fetsco, who was director of the parole board until August, disagreed with Blonigen’s assessment and said the parole board was judicious in its use of special good time. WDOC officials also pushed back, calling the reward system a tool for fostering good prison behavior — protecting both inmates and correctional officers.

Finding common ground

Blonigen has become a regular attendee at Judiciary Committee Meetings since the session. “I’m on the email list,” he jokingly told WyoFile. Christensen said he spoke with Blonigen about the latest Judiciary Committee bills last week. Pelkey, a defense attorney, has consulted the prosecutor on a separate bill, dealing with exonerating a convicted offender if the emergence of new evidence proves them innocent.

The cooperation doesn’t mean the disparate players in the criminal justice system will suddenly begin to get along, however.

“There’s a natural tension between the corrections folk who want to focus on the offender and the prosecutor and police agencies that want to focus on the victims and getting these people off the streets,” Blonigen told lawmakers in April. “And that’s a natural tension it’s not necessarily a bad tension.”

Though Blonigen has said criminal justice reform shouldn’t be looked at strictly as a cost-cutting measure, the potential savings will remain a powerful attractant in cash-strapped Wyoming’s Legislature. It costs taxpayers $122.83 a day to keep someone in prison, according to data from WDOC. Someone on probation or parole costs $5.19 a day. Other incarceration alternatives run between $15 and $60 a day.

Rep. Jared Olsen, a Cheyenne Republican who became a strong proponent for HB 94, pointed out that although the bill failed, the state’s budgeters had approved the costs. Even as the state grappled with an education-funding deficit and plummeting revenues from the mineral industry, the House Appropriations Committee approved a $2.8 million initial appropriation. Perhaps that’s because the savings from the avoided incarceration were estimated at $7.6 million a year, plus another $13.5 million that wouldn’t have to be spent on new prison construction. Reform proponents call those estimates conservative.

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Even with those savings, it may take overcrowded prisons before the Legislature acts, a condition that may be rapidly approaching. “I think that’s gonna happen and it’s gonna hit us at a time when we have all these financial issues in all these other areas,” said House Judiciary Chairman Dan Kirkbride. “I’m not sure [lawmakers] are taking it quite as seriously as we need to.”

Pelkey, the Laramie Democrat, put it differently. “I’m proud we’re one of those states that doesn’t spend more on criminal justice than schools, and I hope that never happens,” he said.

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

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