BEFORE THE Department of CORRECTIONS
OF THE STATE OF MONTANA
In the matter of the adoption of New Rule I pertaining to inmate trust accounts
NOTICE OF ADOPTION
TO: All Concerned Persons
1. On September 23, 2016, the Department of Corrections published MAR Notice No. 20-12-61 pertaining to the public hearing on the proposed adoption of the above-stated rule at page 1628 of the 2016 Montana Administrative Register, Issue Number 18.
2. The department has adopted the above-stated rule as proposed: New Rule I (20.13.102).
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 objected to either the legality of being ordered by a court to pay restitution or the process by which that occurred.
RESPONSE #1: No response is necessary or appropriate because the legality of an inmate's sentence and due process issues related to sentencing are outside the purpose and scope of the administrative rule-making process.
COMMENT #2: Some commenters objected to the substantive provisions of 53-1-107(2), MCA, concerning use of an inmate's funds to pay the inmate's obligations identified in that statute.
RESPONSE #2: Statutes can only be amended or repealed through the legislative process. Accordingly, no department response is necessary or appropriate.
COMMENT #3: Numerous commenters objected to application of funds sent to them by family members to pay down their court-ordered restitution obligations.
RESPONSE #3: Section 53-1-107, MCA states that funds in the inmate's account from any source are subject to being applied by the department to the inmate's court-ordered restitution obligation.
COMMENT #4: One commenter demanded an accounting of all funds provided by family members and applied to a court-ordered restitution obligation.
RESPONSE #4: Inmates receive a monthly written accounting of all transactions involving their account in the prison inmate trust account system administered by the department.
COMMENT #5: Several commenters stated inmates could more readily pay their obligations if they were paroled and could get jobs.
RESPONSE #5: Parole issues are outside the scope of MAR Notice No. 20-12-61. Therefore, no response is necessary.
COMMENT #6: 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 and 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 #6: 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 and ARM 20.12.106. The rule adopted in 2003 allows the department to take up to 50% of money that enters an inmate's prison account to satisfy the offender's restitution obligation. Available remaining funds not applied to other obligations specified in 53-1-107(2), MCA, 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 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% workers' savings deduction under 53-1-107(4), MCA and New Rule I (20.13.103) in MAR Notice No. 20-12-60. Any portion of the inmate's remaining earnings from work assignments may also be sent by the inmate to approved recipients.
The rules apply to all inmates alike and do not favor or prejudice anyone.
COMMENT #7: An inmate commented that he is opposed to new law 53-1-107, MCA, (although he realizes it is already the law). He objected to there being no stated limit on the amount or percentage of the inmate's funds that may be used by the department to apply toward the inmate's obligations under 53-1-107(2), MCA.
RESPONSE #7: Under ARM 20.12.106 adopted in 2003, the department may take up to 50% of money that enters an inmate's prison account to satisfy the offender's restitution obligation.
COMMENT #8: One inmate commented that he was given credit against his sentence for 434 days in jail but there was no commensurate adjustment to the amount he was assessed for costs of incarceration payable from his inmate trust account under 53-1-107(2), (3), and (5), MCA.
The commenter also stated that New Rule I (20.13.102) in MAR Notice No. 20-12-61 tries to legitimize the fact that money has been taken for years and applied on the obligations in 53-1-107(2), MCA. The commenter stated that the rule notice was not published in the newspaper and requested that someone meet with inmates at Crossroads Correctional Center who cannot attend the rule hearing in Helena.
Lastly, the inmate stated that an inmate trust account should be interest bearing.
RESPONSE #8: Credit given against the term of a person's sentence for jail time served is entirely independent of the assessment of the costs of incarceration. An inmate is not entitled under law to a commensurate reduction in assessed costs of incarceration when credit is given against the term of the sentence for jail time served while awaiting trial or transport. Costs of incarceration are incurred during that period irrespective of the credit subsequently given against the term of the inmate's sentence for jail time served.
Section 53-1-107(2), (3), and (5), MCA, authorize the department to use funds in inmates' trust accounts to pay the inmates' financial obligations identified in subsection (2) of the statute. ARM 20.12.106 which became effective October 31, 2003, authorized the department to use up to 50% of the money that enters the inmate's prison account to satisfy the inmate's restitution obligation.
DOC Policy 1.2.6 pertaining to the inmate trust accounting system provides that the account is non-interest bearing. Interest on the small balance in an inmate's account would amount to fractions of a cent and the costs of administering an interest-bearing system would be prohibitive. Although 53-1-107, MCA, states that the department may charge an inmate a minimum fee not to exceed $2 each month to administer the inmate's account, the department has not historically charged any fee. A $2 per month fee would far exceed the amount of the accrued interest on an inmate's trust account in that period of time.
Rulemaking follows a procedure set in the Montana Administrative Procedure Act. There is no requirement for publication of rule notices in newspapers. Rule notices are published in the Montana Administrative Register (MAR) administered by the Montana Secretary of State's Office as required by law. There is no statutory requirement that the department be physically present at each location where persons interested in the rule might be located. Rather, hearings were held at the designated times and places stated in MAR Notice No. 20-12-60 and MAR Notice No. 20-12-61. The statutorily required comment period was afforded and 26 persons from around the state submitted comments including three persons in attendance at the hearings in Helena.
COMMENT #9: A commenter stated the department should only be able to deduct funds to be applied to restitution obligations or to set aside in savings subaccounts but not both.
RESPONSE #9: 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 #10: An elderly couple commented that they live on Social Security and struggle to send a small amount of money to their son who is in prison. It is not fair that the department takes the money that they send him 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 just to have it taken by the department.
RESPONSE #10: 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 inmate workers' earnings from work assignments, education assignments, or treatment assignments payable by the department. Funds sent to the inmate by family members are not be subject to the savings deduction.
COMMENT #11: Several commenters asked what amount in an inmate trust account triggers indigent status. One of those commenters also stated that inmates should be able to name a beneficiary.
RESPONSE #11: Under DOC Policy 4.1.4, if an inmate's trust account balance drops below $15 and the inmate is not otherwise disqualified under IV.A.2.b of the policy, the inmate is considered indigent. Inmates may make wills directing the disposition of their property upon death. In addition, inmates may designate beneficiaries by decedent warrants for the disposition of their inmate trust account balances upon death.
COMMENT #12: A member of the public commented that the inmate worker 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 #12: Once money is provided to an inmate by approved family members or friends, the money is subject to deductions to pay obligations as mandated by 53-1-107(2), MCA.
COMMENT #13: A commenter residing in the community and having a friend in prison questioned whether someone is trying to get a law passed to require inmates to pay for their own medical care; she would be opposed to such a law.
RESPONSE #13: The requirement in 53-1-107(2), MCA, that inmates pay the costs of their medical care (and other health care services), has been in effect since 2003 and legislative action would be required to amend the statute.
/s/ Colleen E. Ambrose /s/ Loraine Wodnik
Attorney Interim Director
Rule Reviewer Department of Corrections
Certified to the Secretary of State February 27, 2017.