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Who killed criminal justice reform? The final blows

In January of 1991, Wyoming was one year shy of carrying out its last execution to date. The state had sentenced Mark Hopkinson, a football player turned criminal mastermind, to death for orchestrating a murder.

With the execution date approaching and a legislative session underway, three Democratic lawmakers proposed a constitutional amendment to ban executions in Wyoming. If passed, the question of state executions, and thus Hopkinson’s life, would have been left to voters.

Rep. Doug Chamberlain, a Republican from agrarian La Grange, was the Majority Floor Leader in the House of Representatives then. A Vietnam war veteran, he had served in the House since 1977.

While the Speaker of the House and Senate President decide whether a bill will be introduced at all, the floor leader determines the order in which it will be debated. It’s a powerful prerogative, particularly as time winds down on short legislative sessions and the bills stack up.

Before the deadline for bills to move off the House floor, Chamberlain called a press conference. He told reporters he planned to hold 14 bills and let them die — including the Democrat’s resolution.

“I don’t know Mike Hopkinson or his case,” Chamberlain told the press, according to an Associated Press article at the time. “I am concerned that if we consider and debate the death penalty, we have changed the rules, the level of the playing field when a resolution of the Hopkinson case is still in balance,” he said.

The House Judiciary Committee unanimously passed a watered-down version of the amendment, which allowed the governor to commute a death sentence to life imprisonment. The House’s secretary was getting hundreds of calls a day asking for the bill to reach the floor, Chamberlain recalled.

“I realize I have opened myself up to abuse,” he told reporters. “But I feel the general public needs to know how these decisions were arrived at so they can contact their legislators. And I will not be the least bit offended if the majority of the House overrules me, because it is their prerogative if they so see fit.”

The overruling vote never came. Gov. Mike Sullivan did not intervene. Hopkinson was executed on Jan. 22, 1992.

“The sanctity of the process exceeded any personal feeling I might’ve had one way or another,” Chamberlain told WyoFile recently. Once the Legislature starts interfering with the courts and the justice system based on the emotions of the day, he said, “there’s no end to it.”

Chamberlain would go on to serve three more years in the Legislature, including a stint as speaker of the house.

A quarter century later, in early 2017, Chamberlain was serving on the Wyoming Board of Parole as a bill to reform the criminal justice system moved through the Legislature. His lawmaking days were behind him, but Chamberlain’s convictions again led him to take a stand against a piece of legislation.

Chamberlain denies having lobbied against HB 94: Criminal justice reform. He only sought to inform lawmakers of his concerns, he said. But his conversations with leading legislators contributed to the doubt surrounding the bill. Though once hailed by lawmakers for its broad-based support, HB 94 was doomed to die by procedural fiat.

Board of parole

Today, Chamberlain serves on the parole board, and has since 2014. He is also treasurer of the Wyoming Republican Party — which holds the vast majority of elected offices in the state. Now 75 years old, he drives a truck for work, carrying hazardous materials in and out of Cheyenne.

In June of 2016, then Board of Parole Director Daniel Fetsco asked Chamberlain and the rest of the parole board to consider the criminal justice reform bill at its quarterly public meeting.

The bill proposed changes in probation, parole and sentencing to reduce the number of people entering Wyoming’s prisons and hasten releases. With a focus on providing supervision and treatment for substance abuse instead of incarceration, the idea behind the reform was that non-violent criminal offenders could be kept in the community with better outcomes for both them and the state. Part 1 of this story explained the bill’s history, and tracked it through the first part of the 2017 general session of the Wyoming Legislature.

Fetsco presented the bill to the parole board, according to the minutes, along with Wyoming Department of Corrections Director Bob Lampert and Deputy Director Steve Lindly, both of whom had worked on reform efforts for years. To reach its goals, the bill restricted some of the board’s decision-making powers. It suggested limits on the time the board could reincarcerate someone for “technical violations” such as a failed drug test.

The bill also encouraged the board to grant “street time.” Parolees’ days spent in compliance — “street time” — can be credited against their original sentences if they are reincarcerated for a violation. When street time is not granted, violating parole can lead to a cumulatively longer sentence than originally given. This possibility leads some offenders to waive parole hearings and stay in prison, where they can complete their time away from the temptations of the street. Ultimately, however, the bill left such decisions up to the board.

Chamberlain opposed what he saw as a loss of the board’s power over those who violate parole. He had wanted the parole board removed from the legislation altogether, he told WyoFile shortly after the session ended.  The parole board is deliberately separated from the Department of Corrections to give it independence from agency bureaucracy, he said. Chamberlain believes the governor appoints board members who will make sound decisions on public safety when weighing parole applicants and violators.

“We’re supposed to represent the general public,” Chamberlain said. “And I, in every decision I make, am representative of the people I know.”

Chamberlain is not deaf to the arguments made by reform advocates. Incarcerating people for small drug possession cases isn’t a good use of taxpayer money, he said, nor is it constructive. Substance abuse and counseling programs WDOC provides within the prison system are successful, he said. Those programs have seen budget cuts over the last two years, however.

But Chamberlain doesn’t yet see a clear way around high rates of incarceration. There are other more fundamental explanations for the U.S.’s high incarceration rate compared to other countries, he said.  

“What you have to keep in mind is we’re the most affluent,” he said, “we have the most freedom, we have Second Amendment rights, our whole society allows the opportunity to get in trouble and reasons to do so… I wish we had a magic wand we could wave to stop that”

Toward the meeting’s end, the board was asked if it “generally supports [the bill] as it works its way through the legislative process.” The vote was to determine whether the parole board would convey to the Legislature that it supported the bill, according to Fetsco. Communicating that support, or lack thereof, would largely fall to him, as he had become a regular attendee at Judiciary Committee meetings.

The board voted 4 to 1 to support it. Chamberlain was the lone dissenter.

Bill enters House floor

On Jan. 27, as the 2017 legislative session approached its halfway point, the bill had advanced from the House Judiciary Committee with the committee’s unanimous endorsement — despite many members’ frustrations over late changes made in closed-door meetings with two prominent prosecutors.

Read part one to learn more

The impact of the closed-door bill rewrite was yet to be fully realized. But criminal justice reform supporters remained committed and ready to push the bill through to the Senate.

“It was such a good bill I think that it still would’ve done some good,” said Anthony Vibbard, at the time a lobbyist working on the bill for the Wyoming Liberty Group.

Fetsco agreed. “Everybody was gung-ho,” he said. “It was like let’s get this thing going.”  

From Judiciary, the bill moved to the Appropriations Committee. The state’s fiscal watchdogs were looking to trim every dollar they could as the Legislature grappled with a growing budget deficit and slumping revenues. Appropriations cut two WDOC administrative positions the bill would have created to manage the new programs.

No matter, said WDOC director Lampert. “We would’ve made it work.”

On Feb. 2 the bill hit the House floor. Rep. Jared Olsen, a freshman lawmaker who told the Judiciary Committee he would “fight like crazy” to get the bill through the House, introduced it. Olsen walked the representatives through the changes made by the prosecutors, and some of the committee’s subsequent deletions. Now, he said, “we have everybody on board and we still have the grand compromise that is criminal justice reform.”  

House Bill 94 passed it’s first of three House tests by a voice vote. There was little discussion. Few, if any, “no” votes are audible on the chamber recording.

Rep. Bob Nicholas (R-Cheyenne), the Chairman of the House Appropriations Committee, at his desk during the most recent legislative session. (Andrew Graham/WyoFile)

On Feb. 3, a Friday, the bill came up on second reading. Rep. Bob Nicholas, chairman of the Appropriations Committee, took the podium. A former defense attorney, he proposed amending a section that required a prosecutor’s consent for putting an offender on probation.

In Nicholas’ experience, prosecutors regularly blocked judges from granting probation, he told lawmakers. His amendment took away prosecutor’s power and left it solely with the court.

Nicholas told his colleagues he was returning the bill to its original form, before the prosecutors had tinkered with it, but he was mistaken. In fact, removing prosecutorial consent for probation had not been considered in the original bill or its subsequent markups.

No one contested Nicholas, however, and the amendment passed with another voice vote. Again, few if any no votes are audible on the recording.

Fetsco was listening to the live audio from the chamber at the parole board office, less than a mile from the temporary capitol building.

“That shocked the hell out of me,” he said, recalling Nicholas’ amendment. “At the time I thought it was just a big F-you to the prosecutors,” he said. It seemed as though HB 94 had gained a powerful new supporter in Nicholas. “Then I kind of made the mistake … I thought I had a loyal board on hand.”

Fetsco emailed the parole board members an update on the change and who had brought it, as he had at other times throughout the legislative process.

Third reading

On Feb. 7, the last day possible, the bill came back for its final vote in the House. Fetsco was listening in his office. Vibbard stood in “the fishbowl” — the glassed-in viewing gallery where lobbyists, reporters and the general public are sequestered while observing floor proceedings. Vibbard, technically, was no longer a lobbyist.

The Wyoming Liberty Group had let several of its lobbyists and policy analysts go mid-session, including Vibbard. Fired one day before the final House vote, Vibbard said he was never given a good explanation for why. Via email, Liberty Group CEO Jonathan Downing declined to comment on former employees, but said the group remained committed to criminal justice reform. Speaking on condition of anonymity, another former employee confirmed Vibbard had been let go at that time, along with other policy staff.  

Vibbard, who had moved to Cheyenne from his home state of Missouri for the job, decided to push the bill on his own. “I was committed to this thing, so I said f— it,” he said. “I’ll just go in as a citizen.”

Lobbyists in the Senate “fishbowl” — the glassed-in viewing gallery where lobbyists, reporters and the general public sit while observing floor proceedings. (Andrew Graham/WyoFile)

Nicholas again took the floor and again shocked Fetsco and Vibbard. He proposed deleting the bill’s enacting clause — meaning it would never become law. Lawmakers use such amendments to force debate on a bill.

Nicholas, who just days before had made an amendment that bill proponents thought signalled support for HB 94, now wanted it dead.

“I just can’t let a sleeping dog lie here ladies and gentlemen,” he said, and began to try and convince the House to vote down the bill. Nicholas noted that the substitute bill had been introduced late in the session. Few legislators had time to read and digest its impact, he said.

He also argued that the expense of increasing substance abuse treatment for offenders would go far higher than was being estimated.

“It’s not ready for prime time,” he said of the legislation.

Members of the Judiciary Committee argued back as debate over the bill broke out.

“I, too, was frustrated by the last-minute changes,” Rep. Charles Pelkey, a Democrat on the Judiciary Committee told the House. “But the meat of the effort is still there, and I think it’s a significant step in the proper direction.”

Rep. Nathan Winters, another member of the Judiciary Committee, agreed with Pelkey. “The caution of the good chairman [Nicholas] demonstrates the reason why this issue has been talked about since 2003 and little has happened,” he said. All the parties in the criminal justice system were giving up something to make the bill work, he said.

Debate focused on the bill’s history, and whether it had resulted in a flawed piece of legislation. The question was whether to pass the bill as an imperfect compromise worth pursuing and give the Senate a chance to discuss it, or to kill it on the House floor. Few technical aspects of the bill were discussed.

When Nicholas returned to the podium for a second time, he echoed some of the concerns made by prosecutor Mike Blonigen, in saying the bill had the potential to cycle people — particularly addicts — in and out of jails, parole, and treatment programs without effecting real change in their behavior.

Nicholas called the bill “a blow gun at the wall to see what’s gonna stick.” It was not well-vetted, he said. Then he added something else. “I had two calls from folks who currently serve on the board of [parole],” Nicholas said. “They’re against it, they think it takes away their authority and their power.”

Fetsco was caught off guard; “dumbfounded,” he said. Months after the session, though, he had an explanation. “It’s pretty obvious Doug [Chamberlain] read my email and called Nicholas and said, ‘well, I’m totally opposed to this,’” Fetsco said.

Lawmakers on the House Floor of the Jonah Business Center, the temporary Capitol, at the onset of the 2017 General Session of the Wyoming Legislature. (Andrew Graham/WyoFile)

In an interview this month, Nicholas said he couldn’t remember which other parole board member had called him, but he confirmed that one was Chamberlain. WyoFile later sent him a list of the current board members, plus one recent departure. He didn’t identify any of them.

Nicholas had earlier considered bringing his own bill removing the requirement of prosecutors’ consent for parole, he said. What proponents saw as a sudden about face on the bill — from taking more sentencing power away from the prosecutors to asking his colleagues to vote it down — he said was just an attempt to work his own goal into a piece of legislation that might pass. Chamberlain’s concerns echoed his own about the legislation, once he’d had time to digest it, he said.

After roughly 40 minutes of debate on the floor, Nicholas withdrew his amendment. The roll was called, and the bill passed the House 31 to 26, with three representatives excused.

There was no clear ideological split between the ayes and no votes, but many lawmakers who identified as libertarian (or are considered far-right) voted for the bill. Most of the no votes came from more centrist Republicans, along with three Democrats.

HB94 then moved to the Senate, where it landed on the desk of Senate President Eli Bebout, a Republican.

He had 13 working days to assign it to a committee.

Lobbying or not

“If you’re a parole board member and you’re gonna comment, contact a legislator and voice an opinion, you should do it in a public forum,” Fetsco said.

The governor has a handbook for those appointed to state boards, which  includes instructions to refrain from lobbying the Legislature.

Wyoming statute defines lobbying as “an attempt to influence legislation.” The Governor’s board handbook expands the definition to “trying to gain the support of a legislator to vote either yes or no on a bill under consideration; or to gain the support of a legislator on an interim committee to support or speak against a proposal.”

The handbook also says that board members are “permitted, and even required, to provide information to legislators.” Board members should “make every effort” to provide any information to lawmakers only in a public forum, like a committee meeting.

“I was not lobbying and I didn’t intend to,” Chamberlain told WyoFile. He wanted to convey his concerns to the lawmaker, he said, but had not asked Nicholas to oppose the bill — despite what Nicholas said on the floor.

“I think I’m duty bound, any of us, if you have some information that you think other people need to know you have a duty to say something,” Chamberlain said.

Because of the interference from the prosecutors and the governor’s office, the House Judiciary Committee scratched the original bill from its agenda. “Rather than talk to individual legislators I was going to stay within the system, go appear in front of the committee and give them the other perspective,” Chamberlain said. “I never got a chance to.”

He asked to be informed when the bill came up before the committee next, Chamberlain said, but received no notice.

The Judiciary Committee meeting to introduce the substitute bill was announced late in the afternoon the day before, which is not unusual for a legislative session according to LSO staff. There had also been three interim Judiciary Committee meetings since the parole board voted to support the legislation. “If he was that intent on speaking he could’ve found time or a way,” Fetsco said.

Vibbard put it differently. “All these guys,” he said sarcastically, “this late opposition, they come in behind closed doors because they just never got a chance for two years and four months to oppose it.”

Coup de grace

Like everyone around the Capitol who was interested in the bill, Vibbard was waiting for Bebout to assign it to the Senate Judiciary Committee. Sen. Leland Christensen, the chairman of that committee for the last three years, and a former police officer, had expressed strong support for the bill. Vibbard was hopeful it would pass through that committee easily.

As the Senate rapidly approached its deadline for bills to move through committee and onto the House floor, proponents began to worry.

On Feb. 13, Lindly, the WDOC deputy director, wrote an email to Richard Barrett, Special Counsel to Gov. Matt Mead, who had helped facilitate meetings between prosecutors and bill proponents.

“I was curious if you had heard anything from the Senate president, or anyone else, on whether or when the criminal justice reform bill might be referred to a committee?” Lindly wrote.  

“I have been keeping my ear to the ground but have not heard anything whatsoever about the disposition of HB 94,” Barrett responded.

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At this point of the session, debate between the House and Senate over how to approach Wyoming’s education funding crisis had consumed the Jonah Building. It was difficult for members to focus on criminal justice reform, lawmakers said later, particularly given the bill’s costs — an estimated $2.5 million a year to support the new programs plus a more than $2 million initial appropriation. That the estimated savings far outstripped those costs — $7.6 million a year plus around $13.5 million in new prison construction — seemed to be lost in the noise. Proponents called those savings estimates conservative.

Vibbard had been talking to senators, and said doubt had spread through that body. What they were hearing was “something screwy happened on the House side and it had all changed,” he said, “so these people that were hardcore backers of it were not as solid behind it as they were before.” HB94 seemed tainted.

Christensen, the Senate Judiciary Chairman, said he didn’t remember whether he had asked Bebout to introduce the bill or not. “It gets to be a bit of a tornado,” he said, and given that the bill had issues on the House side he wasn’t sure if he had pushed for its consideration.

From left to right: Sen. Leland Christensen (R-Alta), Senate President Eli Bebout (R-Riverton) and Sen. Ogden Driskill (R-Devils Tower) converse on the Senate floor. Christensen does not remember whether he asked Bebout to assign the criminal justice reform bill to his committee for public debate. (Andrew Graham/WyoFile)

The bill doesn’t seem to have received any help from the House either. None of the Judiciary Committee members WyoFile spoke to for this article, including Chairman Dan Kirkbride, said they asked Bebout to assign the bill. Rep. Jared Olsen, a fierce proponent on the House floor, said he’d been focused on other things since the bill’s passage in his chamber.

“I don’t want to say I washed my hands of it,” he said, “because I intended to follow it through and speak with Senators … I had no idea the Senate President wouldn’t assign it. I just didn’t even think of that as a possibility.”

“Until it was too late,” he added.

On Feb. 23, one day before bills had to move out of their senate committees, a WyoFile reporter approached Bebout in the hall outside the Senate Chamber. Bebout said he would not assign the bill.

No effort was made to overrule Bebout’s decision. House Bill 94 was dead.

“Bebout just pocketed it,” Fetsco said.

Autopsy

Olsen, the freshman legislator, interviewed in September, took exception with Bebout’s decision.

“The entire House had an opportunity to debate the merits of the language of that bill and the subject of criminal justice reform and that was amazing,” he said. “If the bill needed work or the bill had no merit then it should’ve died in the Senate committee, but it should not have died without being assigned … the people lost their voice when that happened.”

At the time, Bebout told WyoFile he chose not to assign the bill because of the concerns he understood had been raised by the prosecutors, and because of the money involved.

He also said he had been approached by Chamberlain with his concerns of the bill, but that Chamberlain had not done so as a member of the parole board.

The two men had served in the House together in the 1990s — when Chamberlain was Speaker, Bebout, then a Democrat, had been the House Minority Whip.

Fetsco scoffed at the distinction between approaching someone as a board member or a private citizen. “That doesn’t work that way,” he said. “You can’t be like ‘I’m Donald Trump but I’m calling you on my own personal behalf and I don’t want my position as president to affect you on this’ … good old boys, you know?”

Chamberlain said he had approached Bebout only to be sure he would have a chance to testify in front of a Senate committee. “Because of what had happened in the House,” he said. “I chaired the House Judiciary Committee, I chaired a select corrections committee, I have some experience in the legislative sector that others [on the parole board] don’t have.”  

The Senate president had then asked him what he wanted to talk to the committee about, Chamberlain said. He shared his concerns with the senator, he said.

Recollecting his decision to hold the bill, Bebout said a lot of factors came into play. The Senate was locked in debate on education reform, the bill had been replaced by a substitute and the prosecutors and Chamberlain had all expressed their concerns. No prosecutors had spoken to him though, he said.

In his experience, when this much doubt surrounds a piece of legislation, “you ought be patient and revisit it,” Bebout said. Particularly when it came to the criminal justice reform bill, the complexity of it made it particularly vulnerable to problems, and caused him enough concern to just hold the bill back. “It’s harder to say no” when there are so many people invested in the legislation, he said, “but you want to get it right.”

Bebout does not regret the decision to hold the bill. “It wasn’t prime-time ready,” he said. “People disagree with me and that’s the process.”

Moving on

The Judiciary Committee is not looking at comprehensive criminal justice reform again this interim period, though it is considering some smaller measures.

“I think we just didn’t quite have the heart to reproduce that bill,” said Kirkbride, the House chairman. The state is approaching a budget session in February, which is shorter and during which bills that don’t deal with the state’s budget have to be introduced by a two-thirds vote in either the House or Senate.

Blonigen, the Natrona County prosecutor whose opposition to the legislation helped create the substitute bill, has become a regular attendee at Judiciary Committee meetings. At the first meeting after the session, he warned lawmakers against pursuing reform too aggressively, often with anecdotes from his time as a prosecutor.

“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,” he said. It’s not a bad thing, he told the committee, but he worried what could happen if the pendulum swung too far the other way. “A lot of serial killers have a background in burglary,” he said.

Rep. Jared Olsen (R-Cheyenne) speaks on the House floor. Olsen, a freshman lawmaker, would like to see comprehensive criminal justice reform revisited. (Andrew Graham/WyoFile)

Of the 2017 bill’s failure, he said, “it reminds me of the three blind men and the elephant, everybody who was in the room has a different description of what happened and how.”

Fetsco left the Board of Parole in August, and is now teaching criminal justice at the University of Wyoming. He would like to write a research paper to support reform efforts, and says he doesn’t miss the politics of his last job.

“I was born and raised in Wyoming and I’ll probably stay here forever,” he said. “I love it for a lot of different reasons. But my experience with the State Legislature … is frustrating.” He said he worries the seeming futility of reform efforts could start to take a toll at WDOC.

Director Lampert continues to remind lawmakers of the impending prison crowding crisis whenever he comes before interim committees.

Olsen remains committed to bringing reform, he said. If criminal justice reform is not a topic assigned to the Judiciary Committee next interim, he will consider bringing the bill himself. The Cheyenne Republican said if so he would attempt to build a new coalition around the legislation.

“You can bet I would be on the phone with Blonigen, I would be on the phone with Jeremiah Sandberg [a Cheyenne prosecutor], I would be on the phone with our Department of Corrections, our parole board, and just try to have as comprehensive a conversation as we can,” he said.

He also noted that one thing will have changed by next general session. It’s a Wyoming tradition that Senate presidents, and speakers of the House, step down after a term of leadership. “Maybe the people will be tired of bills being stuffed into drawers,” he said.

Vibbard has left the state and is now a public defender in Kansas City. Losing the battle over criminal justice reform without a Senate vote was difficult to take, he said, and left him with a fixed impression of Wyoming politics.

“It’s a small state with a citizen legislature and they’re guarded about the decisions they make,” he said. “And I don’t think they trust outsiders who they haven’t known for a long period of time very quickly.” Influencing policy without good connections is tough, he said, regardless of how firmly you research your points.

“That’s kind of what I figured out,” he said. “There’s a lot more to it than just being right.”

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About the Author

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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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2 Responses to Who killed criminal justice reform? The final blows

  1. Linda Anderson October 14, 2017 at 9:01 pm #

    This two part series is excellent and well researched journalism. I very much appreciate the education about a change to the criminal justic system that we obviously need. One in 244 residents incarcerated? That is outrageous. But it left me even more pessimistic than ever about the ability of the legislature to confront the problems our state faces. Whatever the reasons, our state needs and deserves better.

    Chugwater, Wyoming

  2. Stephen Dechert October 4, 2017 at 6:21 am #

    The level of research and journalism behind this series is something I cannot recall ever seeing from a Wyoming media source. Thank you for rekindling my faith in investigative journalism and taking the time to craft an easy to read yet meaty article. I will keep coming back to WyoFile in hopes of finding more pieces such as this one.

    Pavillion, Wyoming

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