Excessive Sentencing Project - Montana

Policies and rulings on lengthy imprisonment terms in Montana.

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  • Montana allows for parole
  • Montana has divided legal and equitable review of sentences into two separate appellate tracks
  • State law gives prosecutors discretion to charge minors as young as 12 as adults if they find probable cause to believe they have committed (1) sexual intercourse without consent, (2) deliberate homicide, (3) mitigated deliberate homicide, (4) assault on a peace or judicial officer, or (5) attempted deliberate or mitigated homicide. MCA 41-5-206. The state requires a hearing within 30 days of after leave to file an information in district court on whether it would be in the best interests of the juvenile and the community to transfer the matter back to juvenile court. MCA 41-5-206(3).
    • The bindover hearing satisfies due process. State v. McKee, 330 Mont. 249, 254 (2006).

State Constitution

Art. II, § 22. Excessive Sanctions: -- Excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted.

Art. II, § 28. Criminal Justice Policy – Rights of the Convicted:

  1. Laws for the punishment of crime shall be founded on the principles of prevention, reformation, public safety, and restitution for victims.
  2. Full rights are restored by termination of state supervision for any offense against the state.

Sentencing Statutes

Montana has a sentencing scheme that generally gives trial courts discretion to sentence within what are generally wide guideline ranges, although the state mandates life without parole for certain offenders. The state has created a separate track for appealing sentences on equity grounds.

Mandatory life in prison without parole (“two-strikes” and “three-strikes” laws)

The legislature has mandated life without parole sentences when an individual who has been previously convicted of (1) deliberate homicide, (2) aggravated kidnapping, (3) sexual intercourse without consent, (4) sexual abuse of a child, or (5) ritual abuse of a minor (except in cases of animal abuse or sacrifice in the presence of a minor) is subsequently convicted of any one of the aforementioned crimes and the death penalty is not imposed. MCA §46-18-219(1)(a).

The legislature mandates life without parole sentences when any offender who has been twice convicted of any of the following offenses (or any combination of the offenses on this list and the list of offenses in MCA §46-18-219(1)(a)) is again convicted of any one of them: (1) mitigated deliberate homicide, (2) aggravated assault, (3) kidnapping, (4) robbery, (5) aggravated promotion of prostitution. MCA §46-18-219(1)(b).

Exceptions to mandatory minimums

Mandatory minimums do not apply if (1) the offender was less than 18 years old at the time of the offense; (2) the offender’s mental capacity was “significantly impaired, although not so impaired as to constitute a defense to the prosecution” at the time the offense was committed; (3) the offender was acting under “unusual and substantial duress, although not such duress as would constitute a defense to the prosecution;” (4) the offender was an accomplice, the conduct constituting the offense was principally the conduct of another, and the offender’s participation was relatively minor; (5) in cases in which threat of bodily injury or actual infliction of bodily injury is an element of the crime, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense; or (6) the judge finds, based on the findings in a valid sex offender evaluation report, that the offender stands a better chance at rehabilitation, and society will be better protected, if ordered to sex offender treatment program. MCA §46-18-222.

Sentence appeals

The Montana Legislature has created a separate appellate track for challenging the fairness of a sentence. Defendants may have sentences reviewed for equity by the Sentence Review Division as long as they were sentenced to more than one year of incarceration. MCA §46-18-903.

Case Law


The Montana Supreme Court reviews sentences for legality, while the Sentence Review Division reviews sentences for equity. Jordan v. State, 346 Mont. 193, 198 (2008). In order for an individual to appeal a sentence review decision, he must seek extraordinary review from the Supreme Court of Montana. Jordan, 346 Mont. at 199.

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The standard of review on appeal to the Sentence Review Division is “clearly inadequate or excessive,” with the trial court’s sentence being presumptively correct. The state supreme court has rejected the notion that it has given the division de novo authority to review sentences. Driver v. Sentence Review Div., 355 Mont. 273, 279 (2010).

Neither the Sentence Review Division, nor the trial courts, have endeavored to create a database that would help officials evaluate whether the division is meeting its goal of ensuring equity in sentencing. Driver, 355 Mont. at 285-86 (Nelson, J., dissenting).


The general rule is that a sentence that is within the statutory guidelines does not violate the prohibition against cruel and unusual punishment. State v. Shults, 332 Mont. 130, 138 (2006). The only recognized exception to the general rule is when a “sentence is so disproportionate to the crime that it shocks the conscience and outrages the moral sense of the community or of justice.” Shults, 332 Mont. at 138.

The nature of the crime is a “weighty factor” in the shocks the conscious analysis. State v. Bruns, 213 Mont. 372, 377 (1984)(upholding 10-month sentence for drunk driving against a proportionality challenge due to the fact that drunk drivers “have cut a wide swath of death and destruction nationwide” and the defendant had a lengthy record of DUI convictions).

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The likelihood that a defendant will reoffend is also a factor to be used in the shocks the conscious analysis. State v. Webb, 325 Mont. 317, 327 (2005) (upholding, against a proportionality challenge, a sentence of life without parole for a man with a history of mental problems convicted of his second rape on the grounds that he was likely to reoffend if released).

In non-death penalty cases, the Supreme Court of Montana defers further proportionality analysis to the state Sentence Review Division. State v. Rickman, 343 Mont. 120, 123 (2008).

Severe Sentences 

A 23-year-old convicted of felony murder was sentenced to life in prison without the possibility of parole for 55 years. The defendant punched and tripped the victim during a robbery; his accomplice stabbed the man to death. Both men received identical sentences. The 23-year-old’s sentence was not cruel and unusual punishment as a matter of law. State v. Rickman, 343 Mont. 120 (2008).

Court upheld mandatory life without parole sentence for man convicted of his second rape; statutory exception to life sentence (defendant acting under unusual, substantial duress) did not apply because although the defendant had struggled with psychological problems for much of his life, he was not laboring under any specific diagnosis at the time of the second offense. State v. Webb, 325 Mont. 317, 320-22 (2005).