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Prosecutors made their case Friday for undoing a change made in 2017 that reduced the mandatory minimum prison term for sexual crimes involving children.

SB 155, carried by Sen. Roger Webb, R-Billings, on behalf of the Montana County Attorneys Association, seeks to restore the mandatory minimum sentence of 25 years in prison for certain sexual crimes in cases with victims aged 12 or younger. Those crimes are sexual intercourse without consent, incest and sexual abuse of children.

The minimum was reduced to 10 years by the 2017 Legislature as one component of a larger sentencing reform bill, with the House passing the bill 90-10 and the Senate passing it 37-12.

Prosecutors and law enforcement members speaking Friday said the change needed to be undone to restore greater protections for victims, who experience lasting consequences of childhood sexual abuse and benefit from having their perpetrators locked up for longer.

Ravalli County Attorney Bill Fulbright said that in working with victims, his prosecutors get asked the same thing each time.

“Their question is: ‘When is he out of prison?’,” he said.

Dan Guzynski, Prosecution Services Bureau Chief for the Montana Attorney General’s Office, said current state law outlines five possible exceptions to the mandatory minimum prison term for sexual crimes against children, and that this bill would not change that. For instance, one exception is available in cases where the perpetrator is younger than 18.

Guzynski and Fulbright both said there is a myth that making penalties more stringent would force more children to testify.

“It’s never been my experience that Jessica’s Law will force kids to testify,” Guzynski said, referencing the name for similar mandatory minimum laws across the U.S. Jessica’s Law was passed in Florida in 2005 in memory of Jessica Lunsford, a 9-year-old who was abducted, sexually assaulted and killed.

Furthermore, Fulbright said children often find it “cathartic” to testify in court and to confront their abuser, provided they are well supported by victim witness specialists.

“For some kids, it actually turns out to be a positive experience as part of their healing,” the Ravalli County attorney said.

Guzynski said there is an idea that “judges know best” and more discretion is better. But, he said, support for the 25-year penalty was strong when it was originally enacted back in 2007. The legislation passed 95-4 in the House and 37-13 in the Senate.

Guzynski also objected to the manner in which the 2017 changes were made. He said the idea of reducing the 25-year minimum for sex crimes against children never came up in discussion during meetings of the Commission on Sentencing, a group of lawmakers, law enforcement, defense attorneys and others that convened in the year before the 2017 Legislature to discuss sentencing reforms. The group’s work was facilitated by the Council on State Governments, which has pushed similar reform packages in other states.

“And in all those meetings, there was never one mention that Jessica’s Law should be reduced,” Guzynski said. 

The 2017 bill in which the change was included, HB 133, contained several changes to the state’s sentencing laws. The provision reducing the Jessica’s Law minimum from 25 years to 10 was added after initial hearings were held.

Sen. Margie MacDonald, D-Billings, who was a member of the Commission on Sentencing, along with Guzynski, said she felt the law was actually strengthened in 2017 because while lawmakers dropped the mandatory minimum, they also removed one of the exceptions available to judges to circumvent that minimum.

That particular exception, Guzynski and MacDonald noted, was used by a Glasgow judge in 2016 to sentence a man to probation for raping his daughter.

Speaking in opposition to SB 155, Kelsen Young, director of the Montana Coalition Against Domestic and Sexual Violence, said her organization has been opposed to mandatory minimums for years. 

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"In general the victim advocate community over the years has had concerns about mandatory minimums of this nature and so we continue to express those, while we have deep respect for the other perspective, as well," Young said. 

In an email after the testimony, Young said most sexual crimes against children are perpetrated by someone the victim knows, including family or family friends. 

"For some survivors, the mandatory minimum is a barrier for coming forward and reporting," Young wrote. They also might "want the violence to stop but they don't want the perpetrator to suffer that level of punishment." 

Young added that mandatory minimums make the case more likely to go to trial "and victims will have to testify." 

Public defenders also predict that the bill, if passed, would result in more cases going to trial. In a fiscal note for the bill, the Office of the Public Defender estimated it would need an additional $90,000 per year, roughly, to fund more attorney hours for the work necessary to prepare for trial. It estimated an additional 50 cases per year would go to trial. In the current fiscal year, OPD is defending 66 cases that the legislation would impact.  

If passed, SB 155 could undo some of the savings promised as a result of criminal justice reforms in 2017. 

The Department of Corrections estimates an increase of $55.8 million for male inmates and $580,000 for female inmates for the first group of people convicted under the proposed change. The estimates are based on current annual incarceration costs of $39,971 for men and $38,675 for women, as well as an average of 94 convictions per year for rape, incest and sexual abuse of children.

The DOC's estimated fiscal impact would not begin to occur until the 11th year of the extended sentence, it noted. 

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