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Felony drug possession charges are way up in Yellowstone County, making up at least a third of the more than 1,600 criminal cases filed last year.

Most of those drug cases involved meth.

That hasn’t gone unnoticed by the Billings Police Department.

Last fall, as homicides in Billings rose toward record levels, Chief Rich St. John said, “There’s a common denominator, and it’s usually methamphetamine.”

The chief insisted the city remains a safe community, saying most of the homicides involved people who knew each other.

But it isn’t just murders that have law enforcement officials concerned. It’s also the number of drug-related property crimes, such as break-ins, thefts and robberies, that often harm innocent victims.

That’s much of the reason why officials have been cracking down so hard on drug possession. Felony drug possession charges have increased in Yellowstone County from 171 in 2011, to at least 540 last year.

And drug users don’t even have to be caught with much to land a felony. There have been plenty of convictions for “trace” amounts, like the residue left in a meth pipe or drug syringe. In fact, about one third of the drug cases sent from Yellowstone County to the Montana State Crime Lab for analysis were for "trace" or what's called "no weight" amounts, said the lab's Administrator Phil Kinsey.

Getting drug users off the street, and hopefully into a successful treatment program, helps to prevent future crimes, said Yellowstone County Attorney Scott Twito.

But, even as more drug possession cases go through the courts, other crime rates have remained fairly steady. Aggravated assault filings decreased from 54 cases in 2011 to 39 in 2015. And filings for theft and burglary dipped as well, but by much less.

Easier to prosecute

Compared with property crimes like burglary or violent crime cases, possession charges are relatively easy to charge and get a conviction. In many criminal cases, investigators must hunt for evidence and suspects and then persuade a jury. With drug possession, the case starts with the evidence and the suspect in hand.

"Drug possessions are easy cases that land in the lap of law enforcement," said Yellowstone County’s Chief Public Defender David Duke. "And that's not a criticism. But the crime is dependent on evidence."

The spike in drug charges also got a boost last year when the County Attorney’s Office hired interns to sort through a stack of backlogged cases, some of them two or three years old, Duke said. The statute of limitations on such cases is five years.

The County Attorney's office has the discretion to determine which cases are a priority, Twito said. He said there are stacks of uncharged drug cases in his office.

Stressing the cops, courts

A drug possession case frequently begins with a traffic violation or after someone is arrested on a warrant. This makes the cases an almost daily occurrence for the Billings Police department and the volume of possession charges puts a drain on resources.

The court system, where the consensus among judges is early treatment over incarceration, still only has limited courts to help get offenders out of the revolving door of the criminal justice system. Many of the people charged in Yellowstone County weren't new offenders, but the same offender being charged again.

Last year, the Billings Police Department responded to at least 83,000 calls for help, said Police Lt. Casey Hafner. During most of 2015 the police department was short-staffed down nine police officers, Hafner said.

The volume of calls is not decreasing at the same rate as the number officers. This leads to less proactive policing and less help in investigating more complicated cases, Hafner said.

In 2014, at least 700 of the 11,000 crimes the department considered more serious, were for drug possession.

A public safety mill levy proposed to voters in 2014 would have raised $117.6 million over 10 years to increase the number of police officers. A little more than half of voters said no.

"People don't want their taxes to go up, and that's not a bad thing," Hafner said. The City Council did have enough money in 2015 to hire one new officer, he said.

The police cannot ignore a crime when it happens, Hafner said.

Handling drug addicts

Nearly everyone in the Yellowstone County court system — from police, to prosecutors, defense attorneys and judges — seems to agree that treatment is better than incarceration for many drug offenders.

With that in mind, the county has two courts to deal specifically with drug users and treatment, with the goal of getting the person out of the courts forever and back to their family and their job.

District Judge Gregory Todd said he was skeptical of treatment courts before taking over the Yellowstone County Family Drug Court.

Drug courts specialize in cases involving people who are addicted to alcohol or other drugs. Drug courts were first developed in Florida in 1989 to decrease a backlog in drug-related court cases and reduce recidivism and substance abuse among participants.

Participants receive intensive alcohol and drug abuse treatment, mandatory and frequent drug testing, accountability through use of appropriate and quick sanctions for noncompliant behavior. There are also incentives and recognition for hard work, continuous judicial oversight and employment and other services needed in order to enter long-term recovery and become productive members of society.

Tougher laws may work for violent or repeat drug offenders, Todd said, but many people, especially young or first-time offenders, can be helped by treatment courts.

“The growing number of drug related offenses in our society doesn't seem to be going down with tougher laws," the judge said.

Twito said people charged with possession are, by statute, given a deferred sentence if it is a first-offense charge. A deferred sentence means the charge can stay off the person's record if they comply with the conditions of the sentence and stay out of trouble.

Of the 250 or so possession cases that resulted in conviction during 2015, just fewer than half resulted in a deferred sentence.

More common was some type of Montana Department of Corrections commitment. This could include a suspended sentence, partially suspended sentence or full commitment to the Corrections Department.

Drug addicts as felons

Ingrid Gustafson is Yellowstone County’s chief district judge and runs one of the district's two felony drug courts.

She would prefer that in some cases first-time drug offenders be sent to treatment before being charged. If the treatment is successful, then no charges would be filed, she said.

Meth addicts are especially susceptible to relapse and the revolving door of jails and prisons, she said. Without proper treatment, recovering meth addicts have been shown to relapse within six months.

Drug addiction is a disease, Gustafson said. While she has seen addicts kick meth for a short time while on pretrial monitoring, true addicts will almost always use, even when wearing a court-ordered drug-monitoring patch.

“It is not uncommon when a defendant is charged with a probation violation, that defendant is also charged with a new felony,” she said.

And that often leads to jail or prison, where treatment options are vastly diminished.

"When dealing with defendants with drug addiction, although prison seems to have a good incapacitation effect, data suggests it doesn’t have a significant effect on recidivism," the judge said.

This is another benefit of Gustafson's drug court. The drug court contract states that the results of any drug testing done while a person is participating in the drug court cannot be used for purposes or evidence in criminal prosecution. Drug testing and any statements related to continued addictive behavior can be made by the participant during participation in the drug court and will not be used to file new charges. If a participant is terminated from drug court, the participant generally has their sentence revoked and is brought back before a judge.

Gustafson sits on the Montana Legislature's Sentencing Commission, which studies, among many issues, the options for sentencing drug addicts. So far the commission is still in a "fact-finding" phase.

Duke, the county’s chief public defender, agrees that felonies can over penalize a drug addict. For young offenders, a felony record is especially hard to overcome.

“I do see some young people give up," Duke said. With a felony conviction, their hopes of higher education, of a job, of a nice place to live, usually go down. Many resign themselves to being criminals, he said.

It would be worth exploring the possibility of a felony being dropped from someone’s record after a certain number of law-abiding years, he said.

Felonies as an incentive

Twito, the county prosecutor, also supports treatment over incarceration for many drug addicts. He defends his practice of charging drug possessions as a felony, saying the increase in possible penalties adds an extra incentive for addicts with a suspended sentence to succeed in treatment.

Some addicts need to be locked up, he said. He pointed to incidents in which addicts land in court five or six times and the state needs to acknowledge the person "can't stop doing this. (They) can't stop getting in trouble."

By the time someone reaches the criminal justice system, Twito said, the person already is in pretty bad shape.

However, he acknowledges the current criminal justice system isn’t ideal for treatment. There should be more of an initiative in the community for the families of addicts to help them before they get incarcerated.

Speeding up the process may be more important than changing how the offenders are sentenced.

This is part of the reason Twito pushed for the new Montana State Crime Satellite lab to be in Billings, so toxicology reports would come back faster, meaning less back log in cases.

"Get them pled, and get them help right away," Twito said.

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