Administrative Rules of the State of Montana

BEFORE THE Department of CORRECTIONS

OF THE STATE OF MONTANA

In the matter of the adoption of New Rule I pertaining to inmate worker savings subaccount

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NOTICE OF ADOPTION

TO: All Concerned Persons

1. On September 23, 2016, the Department of Corrections published MAR Notice No. 20-12-60 pertaining to the public hearing on the proposed adoption of the above-stated rule at page 1623 of the 2016 Montana Administrative Register, Issue Number 18.

2. The department adopts the above-stated rule as proposed: New Rule I (20.13.103).

3. 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: Several commenters who are in the department's custody in Montana under the Interstate Corrections Compact (ICC), stated that ICC inmates should be exempt from the mandatory worker savings subaccount provisions of 53-1-107(4), MCA. Some of the ICC inmates stated that as an alternative to exempting ICC inmates from the savings program, the department should cap the mandatory savings at, for example, $200, and make no further deductions from their earnings after that amount has accumulated in their inmate worker savings subaccount.

Numerous other inmates also suggested a cap on mandatory savings without regard to ICC status. One commenter suggested it is impossible to know if the proposed percentage of earnings to be set aside in an inmate worker savings subaccount to help meet reentry expenses upon release is fair unless the department defines "reentry expenses."

RESPONSE #1: The legislature did not exempt ICC inmates from the mandatory savings program established under 53-1-107(4), MCA. When construing a statute, the department may not insert what the legislature omitted or omit what the legislature inserted. Nor may the department engraft onto a statute, through rulemaking, provisions that are consistent with statute but which the legislature did not contemplate. The legislature mandated deductions from monthly earnings be set aside in savings and disbursed to the inmate upon release. There is no evidence that the legislature intended that the monthly savings deduction cease at any time before the inmate's release from prison.

The department declines to define "reentry expenses" to include certain expenses and exclude others. Every inmate's reentry expenses will be different. A $200 cap, for example, on the total amount that must be saved, ignores the reality that $200 will not cover a fraction of actual reentry expenses. Many inmates will not have families and households to return to upon release and will need more savings to re-establish themselves in society. The department believes that savings should be sufficient to sustain inmates in the community until they have stable employment and have met the initial substantial reentry expenses including, but not limited to, housing, transportation, utilities, food, treatment services, insurance, and reinstatement of driver licenses. All inmates, irrespective of their actual reentry expenses will receive the balance of their inmate worker savings subaccount upon release.

COMMENT #2: Numerous commenters objected to the hardship that the requirement for mandatory inmate worker savings will cause them in terms of their ability to buy telephone time or to purchase stamped envelopes, paper, personal hygiene items, etc.

RESPONSE #2: The inmate worker savings program under 53-1-107(4), MCA, was mandated by the legislature and the department must implement that law. New Rule I (20.13.103) has a safety net. If the 20% savings deduction would render the inmate indigent under DOC Policy 4.1.4 then the department will not deduct any savings that month.

COMMENT #3: A commenter serving a life sentence without parole stated he should be exempt from the mandatory inmate worker savings program.

RESPONSE #3: An inmate serving a sentence of life without parole is exempt from the inmate worker savings program. The purpose of the savings program is that funds be available to the inmate upon release to meet reentry expenses. An inmate serving a life sentence without parole will not be released so the savings deduction could not have been intended to apply in that circumstance.

COMMENT #4: Several inmates serving very long sentences, but who will technically be parole-eligible at some point, commented that they should also be exempt from the mandatory inmate worker savings program as are inmates serving life sentences without parole. One commenter objected to the fact that the funds deducted from his earnings will accumulate in his savings subaccount but will never be accessible to him because he has a 144-year sentence and believes he will die before he is released.

RESPONSE #4: The department declines to create an exemption from the savings requirement for inmates serving very long sentences because there is no clear legislative authority to do so.

COMMENT #5: An inmate stated she makes $1.25 per day and after restitution is deducted, she has $24/month to spend at the commissary for necessities (e.g., personal hygiene items, stamped envelopes). The commenter stated if the department takes another 20% for mandatory inmate worker savings, she won't be able to buy what she needs. She also stated if she lives another 6 years to release, her reentry expenses will be minimal because family will pay for her transportation home and she will be living with her son. She asked the department to reconsider forced savings and cap the amount for people over 60 years of age and who make as little as she.

RESPONSE #5: The legislature made the inmate worker savings program mandatory under 53-1-107(4), MCA. The department has no authority to adopt rules that would conflict with that statute or engraft onto the statute provisions that the legislature did not contemplate such as a cap on mandatory savings. The inmate worker savings program and the rules implementing it cannot be tailored to the circumstances and anticipated reentry expenses of each individual inmate but must be applied to all inmates alike. The balance in the commenter's inmate worker savings subaccount will be disbursed to the inmate upon release.

COMMENT #6: Several persons commented that the inmate worker savings program is a disincentive for inmates to work because they cannot use the money unless or until released from custody.

RESPONSE #6: Under the proposed rule, the percentage of inmate earnings set aside in the inmate worker savings subaccount is 20%, leaving for the inmate's use the remaining balance of their monthly earning from work, education, or treatment assignments. In addition, the inmate has use of the balance of funds from other sources after deductions are taken to meet the inmate's obligations in 53-1-107(2), MCA. The funds applied to those obligations directly benefit the inmate by reducing or retiring their debt before release.

COMMENT #7: A commenter serving a life sentence without parole stated he has restitution taken out of his inmate trust account and will soon have a child support obligation. He stated that mandatory savings is an added financial burden on his family. The commenter added that he has pertinent education and would like to teach finance and accounting on the high-side of the prison so inmates understand what the savings account is for and how to use it as an opportunity to increase their chances of success upon release.

RESPONSE #7: As an inmate serving a life sentence without parole, the commenter is exempt from the mandatory inmate worker savings program under 53-1-107(4), MCA. (See detailed response related to that issue in Response # 3). Child support and restitution are deducted pursuant to 53-1-107(2), MCA. The restitution obligations of inmates would not exist but for the financial harm caused to the inmates' crime victims. The commenter may use the intra-facility OSR system to notify the director of education of his interest in teaching finance to other inmates.

COMMENT #8: A commenter stated that mandatory worker savings is not practical unless the inmate makes at least $100/month and that a 20% deduction for savings will cause more poverty by impacting the inmate's ability to help support family. The commenter stated he makes $2.50 per day and 15% of that is deducted for court fines and fees. He noted that most inmates make less than $50 per month and their expenses include the cost of phone calls, stamped envelopes, and other commissary items. The commenter said he must choose who to call or write and that in order to send a birthday present out he must choose to go without food, toothpaste, shampoo, etc. The commenter went on to say that the prison and taxpayers profit from the poverty of inmate workers who do labor at the prison that would cost hundreds of thousands of dollars per year if the facility had to use staff or contract workers to perform the work.

RESPONSE #8: Inmates do not need to choose between food and other items or privileges. Inmates are not required to pay for the three meals per day that they are served. Funds in an inmate's regular trust account that are not required to be applied each month on the obligations identified in 53-1-107(2), MCA, are available for the inmate's use. After the 20% savings deduction is made from an inmate's earnings derived from work, education, and treatment assignments under 53-1-107(4), MCA, the remaining earnings are available for the inmate's use. The department deems the 20% savings deduction to be reasonable and the rule provides that the deduction will not be made if it renders the inmate indigent. The use of inmate labor is expressly authorized by statutes including 53-1-207, 53-30-131, and 53-30-151, MCA.

COMMENT #9: The commenter echoed other comments to the effect that the exemption from mandatory savings for persons serving life sentences without parole should be extended to all inmates with life sentences because some will die before serving 33 years and becoming parole eligible; moreover, parole eligibility does not assure they will be paroled.

The commenter also stated that: a) each inmate should choose their preferred percentage deduction for mandatory saving; b) the savings deduction should be optional; c) inmates should be exempt from mandatory savings if they make less than $50 per month so they have funds with which to make purchases of personal hygiene items and other items at the commissary; and/or d) other deductions should not be taken off the top before the 20% savings deduction is taken.

The commenter stated that the 20% savings will unethically motivate staff to manipulate inmate income for personal gain.

Lastly, the commenter stated that inmates need access to money in the worker savings subaccount before release to obtain a driver license or to have a driver license reinstated.

RESPONSE #9: See Response #4 addressing the comment that inmates serving life sentences but who may become parole eligible should be exempt from the inmate worker savings deduction under 53-1-107(4), MCA. The inmate worker savings program is mandatory and the legislature directed the department to establish a percentage savings deduction by rule. The department has no authority to allow inmate workers to opt out of the savings program or to allow each individual inmate to choose what percentage they want to have deducted for savings. No deduction for savings will be made under this rule if the deduction would render the inmate indigent and unable to purchase necessities at the commissary.

It is unclear from the comment how inmate income could be manipulated by staff for personal gain. Inmates receive monthly accountings of their trust account activity, there is an inmate grievance procedure in place, and the department is subject to regular financial audits.

Under 53-1-107(4), MCA and this rule, inmates may request that the department disburse funds from the inmate's worker savings subaccount prior to the inmate's release to meet impending reentry expenses such as obtaining a driver license.

COMMENT #10: If the department deducts 20% from earnings, the commenter states he will not have enough money to live on because unlike some inmates, he has no one on the outside who sends him money.

RESPONSE #10: Section 53-1-107(4), MCA requires that the department set in rule a percentage of inmate workers' earnings to be deducted and set aside in the inmate worker savings subaccount. Rules must be applied to all inmates who are subject to them and they cannot be tailored to an individual inmate's specific circumstances.

COMMENT #11: Montana Correctional Enterprises (MCE) workers have a savings plan already. They should be exempt from the mandatory inmate worker savings subaccount rule. The commenter estimated that under the MCE savings plan he will have a total of $3,300 in savings when paroled.

RESPONSE #11: The existing MCE savings plan is not an earnings-based program but a longevity-based program. No deductions are taken from MCE workers' earnings to fund that savings program. The legislature did not exempt MCE workers from the inmate worker mandatory savings program under 51-3-107(4), MCA.

COMMENT #12: One commenter said the inmate worker savings program puts the cart before the horse, i.e., that a financial planning class should be mandatory and that inmates should then be allowed to choose the percentage of earnings to be saved and to open an individual interest-bearing savings account. Alternatively, the commenter stated the department should lower the percentage of the savings deduction and/or cap the savings required.

RESPONSE #12: As to the comment relating to individual interest bearing accounts, department policy 1.2.6 provides that the common inmate trust account is non-interest bearing and 53-1-107, MCA requires inmates to use the prison inmate trust account system administered by the department for their financial transactions. The same statute authorizes the department to use a portion of an inmate's funds in the inmate trust accounting system to apply toward the inmates' obligations identified in 53-1-107(2), MCA, and to set a percentage to be deducted from inmate workers' earnings under 53-1-107(4), MCA, for disbursement to the inmate upon release to meet reentry expenses.

Since at least 2003, inmates have had the ability under 53-1-107(3)(b), MCA, to voluntarily save funds available after deductions for obligations under 53-1-107(2), (3), and (5) MCA, in a savings subaccount in the department's inmate trust accounting system. In 2015, the legislature saw fit to mandate inmate worker savings under 53-1-107(4), MCA for disbursement to the inmates only upon release.

Because the inmate worker savings program is mandatory the department declines to require a financial planning class because it could not effectively enforce such a requirement. The earnings belong to the inmates and must be disbursed to them upon release whether they have completed a financial planning class or not. Stand-alone classes in life skills, business math, and personal finance are available to inmates at the facilities if the inmates choose to avail themselves of that educational opportunity.

COMMENT #13: A commenter residing in the community questioned whether someone is trying to get a law passed to require inmates to pay for their own medical care and stated she would be opposed to such a law.

RESPONSE #13: The 2015 amendment to 53-1-107(4), MCA, being implemented by this rule, did not cover the issue of inmates' medical and other health care expenses. That issue is beyond the scope of MAR Notice No. 20-12-60.

COMMENT #14: Several inmate commenters and members of the public asked whether a person who is exempt from the inmate worker savings program (i.e., an inmate serving a life sentence without parole) must ask every month that the department return to their inmate trust account, the funds deducted from their earnings and credited to their savings subaccount. The commenter asked whether other options are available, such as requesting the return of savings for a certain period or requesting a portion of the deducted savings be returned and the rest be allowed to accumulate in the inmate worker savings subaccount.

RESPONSE #14: At this time, the department is electing not to make the type of changes to the proposed rule that the commenter thoughtfully suggested. The department must carefully consider the implications and possible unintended consequences for business record keeping purposes of allowing different or additional options than requiring inmates serving life sentences without parole to request that the savings deduction be reversed each month and the funds returned to their regular inmate trust account.

COMMENT #15: One commenter stated there is a minimum wage in place for inmate workers at the Montana Women's Prison (MWP) but not at Montana State Prison (MSP) and that inmates at MSP need to make more or the department needs to deduct less for the mandatory inmate worker savings program.

RESPONSE #15: All department-owned facilities and facilities under contract to the department have a uniform pay structure for inmate workers' pay.

COMMENT #16: A member of the public commented that a family member will not be parole eligible until 2050 and by then the inmate will have 34 years of accumulated savings. In the meantime, the savings deduction will reduce the funds available to the inmate to sustain whatever semblance of a lifestyle is possible inside the prison. The commenter stated that the family member needs his earnings to buy things including work boots.

RESPONSE #16: Inmates are provided with standard prison-issue shoes at no cost and work shoes and boots needed by some inmates in certain work programs must be purchased through the facility's commissary using their own funds. Many inmate workers earn very modest sums of money from work assignments. The amount that will have accumulated in their worker savings subaccounts will not be unreasonably or unnecessarily large at the time of their release even after 34+ years of incarceration.

COMMENT #17: One commenter stated he is Native American and that the inmate worker savings subaccount program prejudices Native Americans because a portion of the per capita money that Native American inmates receive is applied by the department to restitution, fines, and fees. The inmates are unable to send money home to family and friends when they desire to do so. The commenter also stated he should not need department approval to send money out of the facility.

RESPONSE #17: The department is authorized to use a portion of inmates' funds derived from any source to apply towards restitution under 53-1-107(2), (3), and (5), MCA. Available remaining funds in the inmate's regular trust account that are not needed by the inmate to purchase necessities such as personal hygiene items at the commissary, may be sent by the inmate to approved recipients. The department has an obligation under 53-1-107(5), MCA, to inhibit an inmate's ability to deal in contraband or engage in illegal acts within or outside the state prison, e.g., to inhibit criminal enterprises operating from within the prison through persons on the outside. Therefore, inmates may only send money to and receive money from department-approved recipients.

Native Americans' per capita monies are not earnings payable to an inmate worker by the department and are therefore not additionally subject to the 20% worker savings deduction under 53-1-107(4), MCA and New Rule I (20.13.103). Any portion of the inmate's remaining earnings from work assignments may also be sent by the inmate to approved recipients.

The state laws and administrative rules relating to funds that are subject to 53-1-107(2), MCA, apply to all inmates alike.

COMMENT #18: A commenter stated that the department should be allowed to deduct money to apply toward the obligations under 53-1-107(2), MCA, or to deduct money to be credited to the inmate worker savings subaccount under 53-1-107(4), MCA, but it should not be allowed to do both.

RESPONSE #18: Section 53-1-107(2), (3), and (5), MCA require deduction of inmate funds to be applied toward the obligations identified in subsection (2) of the statute including restitution. Section 53-1-107(4), MCA requires that a percentage not to exceed 25% be deducted from inmate worker earnings and set aside for the inmate in an inmate worker savings subaccount to help meet reentry expenses upon release. The department must implement both mandates of the legislature.

COMMENT #19: One couple commented that they live on Social Security and struggle to send a small amount of money each month to their son in prison and it is not fair that the department takes the money that they send him and uses it for all the things that the law demands. The commenters stated that if the inmate worker savings law passes, they will no longer be able to send him money only to have it taken by the department.

RESPONSE #19: The law requiring the use of inmate funds for the purposes identified in 53-1-107(2), (3), (4), and (5), MCA, is already in effect. The department's rules must implement what the legislature mandated. The only source of funds subject to the savings deduction is the inmate worker's earnings from work assignments, education assignments, or treatment assignments payable by the department. Funds sent to the inmate by family members such as the couple who commented will not be subject to the savings deduction.

COMMENT #20: A member of the public commented that the inmate workers' savings subaccount is a very good idea because the source of the savings is the inmates' own earnings. The commenter disagreed, however, with applying funds sent to the inmate by family or friends on the inmate's obligations in 53-1-107(2), MCA.

RESPONSE #20: Once money is provided to an inmate by approved family members or friends, the money belongs to the inmate and is subject to deductions to pay down obligations in 53-1-107(2), MCA.

/s/ Colleen E. Ambrose /s/ Loraine Wodnik

Attorney Interim Director

Rule Reviewer Department of Corrections

Certified to the Secretary of State February 27, 2017.