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March 21, 2023

The roughly $13.4 billion budget bill that House lawmakers will debate and vote on in an all-day floor session Wednesday features language to send 120 state inmates to a private prison in Arizona, an amendment added in the House Appropriations Committee last week. 

The amendment, sponsored by Rep. John Fitzpatrick, R-Anaconda, would authorize about $8 million over the next biennium for a contract with private prison giant CoreCivic, which operates five facilities in Arizona — primarily the Central Arizona Florence Correctional Complex. CoreCivic also operates the Crossroads Correctional Center in Shelby. 

CoreCivic has said it will charge the state $90 per day, per inmate, including travel, though the real sum may be higher because of an amendment that will bring the compensation in line with prevailing wage laws. Lawmakers and state officials have been in ongoing — though not widely discussed — talks with the company in recent months as they search for options to deal with a crowded prison system. 

House Speaker Matt Regier, R-Kalispell, said Tuesday that Republicans are not planning to amend House Bill 2, essentially the state’s budget, on the floor Wednesday. So unless Democrats, who largely have opposed the plan to transfer inmates, are able to gather bipartisan support to remove it, the appropriation is likely to remain in the bill as it heads to the Senate. 

Fitzpatrick last week presented the amendment as an immediate stop-gap to address capacity issues in the state prison and other correctional facilities. Somewhere between 250 and 290 people are held in county jails awaiting placement in either prison or a community corrections facility, a spokesperson for the Montana Department of Corrections said. 

“This amendment is intended to give the department some flexibility to take people out of the [state prison] in Deer Lodge as well as reduce the number of inmates that are currently held in county jails,” Fitzpatrick said. 

“This gets us bed space right now, or as soon as the ink on the bill is dry,” he added. 

All Democrats and two Republicans on the House Appropriations Committee voted against the amendment last week. Critics of the proposal questioned whether it’s necessary to expand the state’s contract with CoreCivic — or possibly ink a new one — when other options may be available in the near future. 

“I don’t think this is the best bang for our buck,” said Rep. Emma Kerr-Carpenter, D-Billings. “I think there are alternatives in state that are better bangs for our buck.”

Several such options exist, though they don’t necessarily have bills to go with them, and most would take a couple years to come to fruition, according to a memo Fitzpatrick circulated with legislative appropriators this month. These include 51 beds in community corrections — programs like pre-release centers that house people on probation or parole — already authorized in the current version of House Bill 2. Another idea is funding at the state prison that would allow for the reopening of the prison’s lower security F Unit, potentially freeing up 62 beds by the end of the year, Fitzpatrick estimated. A plan to fund 32 new low-security beds at the prison’s “low-side” units is included in several bills but would likely take longer. Other plans could bring more beds online in the near future. 

In listing the CoreCivic contract as an option, Fitzpatrick noted that the company requires the purchase of 120 beds at a time, and quoted a per-day rate of $95, as opposed to the $90 mentioned in the amendment.

“Why do we need to send people out of state when we have 110 beds almost immediately available in the next year,” Kerr-Carpenter said in committee.

She also noted that — although Montana State Prison indefinitely ended visitation last year — moving inmates to Arizona will erode their connections with family and community, likely increasing the chances of recidivism.

More broadly, Democrats have pointed to the amendment as an indication of Republican priorities as the budget makes its way through the Legislature. 

“I find it unbelievable again that the Republicans have given away the farm to wealthy, well-connected in some cases, out-of-staters, while turning their backs on everyday Montanans and the businesses that have been here for decades,” said Rep. Mary Caferro, D-Helena, at a press conference Tuesday. “Rather than just invest in solving the problems facing Montana workers and their families, Republicans chose a much different priority, writing checks for nearly $8 million for 150 Montana inmates to a private for-profit prison in Arizona, decreasing their chances of having successful reentry by losing connection with their families.” 

Republicans have countered that the state shouldn’t have to wait to add more beds to the system when the option exists now. The state prison, they note, is chronically understaffed, whether or not new beds are available. 

“This is just a math problem,” Rep. Bill Mercer, R-Billings, who chairs the budget subcommittee that oversees the Corrections Department, said in committee last week. 

Generally, most of the debate has been about logistics. Few have mentioned that CoreCivic, in Arizona and elsewhere, has been dogged by litigation challenging everything from its stock reporting practices to the humanity — or lack thereof — with which it treats the people incarcerated in its facilities. 

“CoreCivic, as a company, our perspective would be that they are taking advantage of weakness within our state government,” said Maggie Bornstein, a lobbyist for the American Civil Liberties Union of Montana, which has taken CoreCivic to court in the past. “And as we’ve seen across the country with the heinous disregard for human rights and the dignity of the individuals they incarcerate, really they are just in the business of profit over people.” 

The company’s revenue is also decreasing, and the Crossroads facility in Shelby lost $4 million in 2022. 

Rep. Llew Jones, R-Conrad, the House Appropriations Committee chair, said last week the state has a “leg up” with CoreCivic due to the existing relationship with the company in Shelby. They weren’t able to increase capacity in Montana, they told lawmakers, but they offered space in Arizona. 

The state first contracted with CoreCivic in 1998 and has repeatedly renewed the agreement. That includes in 2018 when Democratic Gov. Steve Bullock signed a two-year renewal with the company — it had initially asked for a decade — in exchange for the return of $34 million in fees in the midst of a state budget crisis. 

The state’s current contract with CoreCivic is in effect until June of this year. The total length of the contract, including renewals, is not to exceed 30 years, it stipulates.

CoreCivic, which is represented at the Capitol by influential lobbyist Mark Baker, has also spent about $21,000 this session on lobbying, all on House Bill 2, according to reports filed with the Montana Commissioner of Political Practices. 

Mercer said lawmakers heard of the option at a previous tour of the facility in Shelby. Carolynn Bright, the communications director at the Montana Department of Corrections, said the “DOC has conducted exploratory conversations with CoreCivic to determine whether it has any available beds for temporary use by the DOC should that need arise.”

The prospect of the CoreCivic transfer first arose at a budget subcommittee meeting on Feb. 9. DOC Director Brian Gootkin and others appeared before the committee to present different ideas to add capacity to the prison system. 

“We are literally full everywhere and then overfilled with the 250 in the county jails,” Gootkin said.

DOC brought three options: the 51 new community corrections beds, adding a 60-bed, pre-release facility in Flathead County, and the addition of a 68-bed treatment unit for sex offenders. Mercer noted that there had been previous discussion of the transfer to Arizona, and he asked Gootkin why it wasn’t included. 

“Speaking with the governor’s office and the budget office, right now we feel that working within our system is the first step to trying to alleviate — especially if we can get these people treatment instead of just housing them, that is a better step, we believe,” Gootkin said.

Gootkin added that the state has had challenges with out-of-state prison transfers. During the administration of Gov. Marc Racicot, the state contracted with a private prison provider to send 258 inmates to a facility in Texas. But the arrangement ended following a breakdown in relations between the company and the state and allegations of poor conditions at the company’s facility. (Some of those 258 inmates were subsequently transferred to a facility in Arizona operated by Corrections Corporation of America, now known as CoreCivic). 

Nevertheless, a department staffer has visited the facility in Arizona, Gootkin said.

Since that hearing, Mercer has asserted the Arizona transfer as a fourth option. As proposed amendments to House Bill 2 went online following the transmittal break, an earlier version of the amendment proposing an ongoing appropriation for a transfer to CoreCiivc was listed. That amendment was taken down and replaced with Fitzpatrick’s.

“Well, it’s a short-term need, and who knows what our capacity might look like as we get into the interim,” Mercer said Monday. 

DOC has yet to fully embrace the plan.

“The DOC’s capacity issues will likely require a multi-pronged solution, and transferring inmates to out-of-state facilities could possibly be part of that,” said DOC’s Bright. 

There’s also a broader policy question: Lawmakers this session have brought bills to increase a number of criminal penalties at a time when sentencing reform has gained traction, even among some Republicans nationwide. 

Mercer, a former U.S. attorney, said he doesn’t view managing crowding in state prisons and tough-on-crime laws as contradictory. 

“In my view, in my professional life, the state has never had adequate prison capacity,” he said. “And the justice system in the state has always sort of veered in the direction of trying to keep people out of incarceration, even short-term.” 

The movement to decarcerate, he said, “waxes and wanes and then it’s very loaded based upon your philosophical views.

“Yeah, that is not my philosophy.”

—Arren Kimbel-Sannit

Bill Report

House Bill 334, sponsored by Rep. Laurie Bishop, D-Livingston, passed its initial vote on the Senate floor Monday, 47-3. The proposal would excuse K-12 students from attending school if they’re experiencing mental health issues — an addition to state law that Bishop argued was critical to ensuring the health and safety of Montana youth. Sen. Keith Regier, R-Kalispell, proposed an amendment on the floor stipulating that those mental health needs be “medically diagnosed.” Bishop spoke in opposition to the change, but it narrowly passed with 26 Republican votes. HB 334 is scheduled for its final Senate vote Wednesday.

Senate Bill 99, sponsored by Sen. John Fuller, R-Kalispell, passed out of the House Judiciary Committee Tuesday, a day after its second hearing. The bill, which broadly bans gender-affirming medical treatments for transgender minors and prohibits the use of public funds for those services, passed the Senate chamber in February by a comfortable margin, despite an outpouring of opposition from transgender Montanans, parents and medical providers. The House Judiciary Committee tacked on two amendments drafted by Rep. Casey Knudsen, R-Malta. The changes clarify the restrictions on public funds and shorten the window of time when a provider could be sued by former patients, their guardians or estates. The bill passed along party lines, 13-6, and now proceeds to the House floor.

Vote Viz

Most Democrats and a split caucus of Republicans in the Montana House of Representatives voted in favor of Senate Bill 30, legislation that repeals the Montana Clean Campaign Act — a 2007 campaign finance reform that a district court judge struck down last year and is now unenforceable. 

Heard in the Halls

“I come up with ideas. I think they’re all great. I talk to my wife, and she reminds me that most of them aren’t. I talk to you guys, and you remind me that some of the other one’s aren’t. But some of them are good ideas. And through that process some of those good ideas get across the finish line.”

Rep. Neil Duram, R-Eureka, in explaining his vote Tuesday against Senate Bill 176, legislation to make most interim policy committees partisan. 

On Background

Montana’s contract with Core Civic for the Crossroads facility

Montana To Move Its Inmates In Texas Prison To Other States: For more on Montana’s first foray with sending incarcerated people to out-of-state private prisons, see this story from the now-retired state capitol hound Bob Anez. (The Associated Press)