Recent rulings on probation cases at issue

HELENA - The state could be forced to free hundreds of convicted criminals if the Montana Supreme Court applies two recent rulings to scores of cases where probation was revoked illegally, a Justice Department official says.

The high court decisions concluded that, in instances where a judge has ordered a felon arrested for alleged probation violation, a hearing must be held within 36 hours to determine if there is sufficient reason for revoking probation.

The question is whether the justices ordered that finding to apply to all such revocation cases during the two-year period in which the hearing requirement existed, said Jennifer Anders, chief of the Appellate Services Bureau in the Justice Department.

If so, the court also must decide whether those inmates should get the hearing they never had or be released, she said Wednesday.

"If we have to go back in and redo all these cases, it's going to be an administrative nightmare," she said. "But if the court says we have to turn these people loose, then it becomes an issue of public safety. It all depends on where the court goes from here."

Powell County Attorney Chris Miller, president of the Montana County Attorneys Association, said prosecutors are concerned about what could become an avalanche of new cases as inmates challenge the handling of their revoked probation.

"I couldn't begin to guess how many might be affected statewide and be able to come in and attack their revocation," he said.

Should the Supreme Court apply its ruling retroactively and decide release of affected inmates is the proper remedy, that does not necessarily mean dangerous people will be freed, Miller said. That depends on the original crime committed and violation while on probation, he added.

"It's a matter for some concern, but it's not a matter of panic," Miller said.

The state Corrections Department estimated that the court's decision could affect about 420 inmates who have had their probation revoked on the basis of a judge's warrant but without a hearing.

The state has argued that the April rulings should not be applied to past cases and that no hearings should be ordered because that requirement was removed from the law by the 2001 Legislature.

In abolishing the hearing mandate, lawmakers said the change should apply to all existing cases when the bill was signed last month.

Ed Sheehy Jr., the defense attorney involved in the cases that led to the high court rulings, has urged the court to apply its ruling retroactively and order probation reinstated in those cases.

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