Legal Differences
Rural Justice Initiative Studies Pretrial Release Decision-Making in Montana Courts
By Phil Stempin
Criminal justice reform initiatives in the U.S. focus primarily on urban jurisdictions. Rarely do they include or mention rural and Indigenous communities or populations.
The Rural Justice Initiative at UM’s Alexander Blewett III School of Law focuses on this largely overlooked demographic in criminal justice law and policy. Launched in 2020, RJI collaborates with local, state and Tribal stakeholders to support evidence-based criminal justice policy that integrates the needs and experiences of rural and Indigenous communities.
Law Professor Jordan Gross, the RJI director, says the initiative does this in two ways. It hires and trains graduate student research assistants to work on projects with community stakeholders, and it offers a graduate public-policy course — Interdisciplinary Criminal Justice Reform — which enrolls students from a wide range of disciplines on campus. Gross co-supervises RJI research assistants and teaches the course with Dr. Laura Kirsch, a forensic psychologist and adjunct professor in the UM Department of Psychology.
RJI’s inaugural research project looked at pretrial release and detention decision making and the use of algorithmic pretrial risk assessment tools in Montana courts.
“We are currently collecting data and analyzing the results of a study of Montana judges’ practices and opinions regarding pretrial decision-making and the use of pretrial risk assessment tools,” says Tori Hill, a third-year law student and research assistant. “These data are important because research shows that whether a defendant is released before their trial can have a huge impact on the outcome of their case. Counties in rural areas with smaller budgets also have a budgetary interest in keeping their jail population low.”
Pretrial risk-assessment tools are based on algorithms and are designed to provide objective, empirical evidence to help judges decide if someone accused of a crime should be detained in jail or released into the community pending their trial, and, if released, what conditions a trial court should order to increase the likelihood a released defendant will show up for trial and protect public safety. Gross explained that risk-assessment tools have been around for a while in the U.S. criminal justice system.
“There is a perception that risk-assessment tools — a centerpiece of a lot of contemporary bail reform — are a new idea,” she says. “The reality is that actuarial tools have been used as an aid in judicial decision-making in the U.S. since at least the 1920s, and the basic approach of the most commonly used tools today has not changed a lot.”
The intent behind risk-assessment tools is a good one, according to Gross and Kirsch. Relying more on data and less on human discretion should, in theory, yield more uniform and less-biased decision making.
The problem, Kirsch says, is “the assessment tools currently in use were developed using data from large urban areas — not data from rural areas or jurisdictions with large Indigenous populations — and to be considered validated, a tool needs to be informed by data from the population where it will be used.”
One of RJI’s survey questions is whether current tools are useful or even accurate in jurisdictions with significant Indigenous populations. Further, Gross noted, unless courts and individual judges are using the tools accurately and consistently, the rationale behind privileging data over judicial discretion — namely, uniform decision making for similarly situated people — is undermined.
Going into the project, RJI knew that pretrial risk assessment tools were being used in Montana primarily in trial courts in urban or urban-adjacent areas. RJI wanted to understand why the tools hadn’t caught on in more rural parts of the state.
A survey and follow-up interviews conducted by RJI revealed a mixed bag. Some judges weren’t familiar with risk assessment tools and requested more information and training. Others questioned the reliability of a tool that has not been validated for Montana’s demographics. Others opined that the tools were of marginal value in small communities where judges already have a great deal of information about the individuals who appear before them.
Significantly, RJI found that Montana judges who routinely use a risk-assessment tool often deviate from the tool’s recommendations. These survey results are important because they allow the court system to target training and other resources to different needs and attitudes of urban and rural judges in Montana.
The other centerpiece of RJI’s work — Interdisciplinary Criminal Justice Reform — is a graduate level course that Gross and Kirsch co-teach. The course enrolls students from multiple departments across campus, including history, law, public administration and policy, psychology, public health, social work and sociology.
Gross and Kirsch routinely invite guest instructors into the classroom to enhance and inform the student learning experience.
“Learning firsthand from criminal justice professionals who work together every day in this space is key to becoming effective in this area of public policy,” Gross says.
The course benefits from regular appearances by Dr. Jackson Bunch, a UM sociology faculty member, who teaches students about the overlap between victims and offenders in criminal justice systems. Recent instructors included Missoula County Attorney Kirsten Pabst and Brian C. Smith, trial division administrator for the Office of the State Public Defender. Together, they conducted a mock voir dire to help the ICJR class learn first-hand about jury selection in Montana courts.
Like RJI’s research assistants, ICJR students solve problems in interdisciplinary collaborative teams.
“The idea is to give students an opportunity to conduct criminal justice research and form collaborative relationships with students in other disciplines as part of their graduate education” Kirsch says. “Jordan and I have different skillsets and experiences within the criminal justice arena. When we co-teach, we show students different perspectives that highlight how interdisciplinary the criminal justice system really is. This also shows students how to connect with other professionals with different backgrounds and areas of expertise and learn to work together in a team environment.”
“I’ve learned to see and approach issues pertaining to social injustice from different perspectives through my involvement with RJI,” says Gabriella Ji, a fourth-year clinical psychology doctorate student. “This experience has been invaluable for me to become a more clinically and culturally competent and humble scientist-practitioner in the future.”
RJI’s signature approach to everything it does — research, teaching and learning — is collaborative interdisciplinary problem-solving, Gross says.
“What we’re doing is an example of how faculty can work across disciplines and how universities can train students across disciplines to tackle society’s most pressing social issues,” she says.
RJI is sponsored by the Angora Ridge Foundation. Based in Whitefish, the Foundation supports causes such as justice, recreation, environmental, education and conservation.
What’s next for the initiative? In collaboration with stakeholders and leveraging the time and talents of students in the fall 2022 ICJR class, RJI is taking a deep dive into jury selection in Montana courts.
“We know that Indigenous people are grossly overrepresented as defendants in criminal cases and severely underrepresented on criminal juries in Montana,” Gross says.
The question she and Kirsch seek to answer is what changes can be made in our jury selection laws and policies to ensure all Montanans enjoy a right to a jury of their peers.
RJI is on the job and expects to provide a report on these issues to stakeholders this year. •
