Small crime, big time: Missoula justice system grapples with homeless burglary charges (2024)

Kenneth Grable walked into Yoke's Fresh Market in June 2023. In the deli area, he stuffed a sandwich down his pants. It wasn’t his first time stealing from Yoke’s. He stole from there a month prior, when he was formally banned from the store, according to court documents.

Grable, a homeless man, accrued 29 misdemeanor citations in municipal court from 2022 to 2023, mostly dealing with theft and prior notices that he was barred from Yoke’s property, court documents show. Employees witnessed the sandwich theft in June 2023 and called police. By the time officers arrived, Grable had eaten the sandwich.

Officers then charged Grable with burglary, a felony in Montana. Because Grable was previously told to stay off Yoke’s property, the burglary charge was applicable under state law.

In February, a Missoula County judge sentenced Grable to three years with the Department of Corrections in the case. The judge recommended Grable get placed in a substance abuse treatment program, but now he is in the general prison population.

For the last several months, criminal justice advocates, including staff at the Missoula Public Defender’s Office, have raised concerns over a rising trend of suspects getting felony burglary charges for stealing cheap products like beer or food from retailers.

How people accused of low-level theft crimes in Missoula— almost all of whom are homeless— are handled in the criminal justice system has also shown a divide between the city’s three municipal court judges and the Missoula County attorney.

Missoula's municipal court and the county attorney’s office operate independently from one another in Missoula’s criminal justice system. But decisions made by either department can have reverberating effects for people accused of high- and low-level crimes.

Missoula’s interim County Attorney Matt Jennings says there is a small group of repeat offenders instilling a sense of “lawlessness” who need to be held accountable. Missoula’s city judges caution that handing out jail time and steep fines for petty theft drives more people into an overburdened criminal justice system.

“We aren’t holding people in jail just to resolve cases,” Missoula Municipal Judge Jennifer Streano said.

The accusation that repeat offenders are going unchecked in city court is inaccurate, Streano and fellow municipal judges Eli Parker and Jacob Coolidge contended. The three won seats in Missoula Municipal Court in 2021 on a campaign of judicial reform.

Small crime to big time

As the Missoula Police Department and county attorney have cautioned the public about increasing property crime rates in the city, people familiar with Missoula’s criminal justice system have questioned a string of recent felony burglary cases charged against houseless individuals.

It’s not clear to the average person reading Montana’s burglary law that stealing small-dollar merchandise might constitute a felony burglary charge,Missoula Public Defender Managing Attorneys Jeavon Lang and Hailey Forcella said in an email.

A felony burglary charge requires a prior crime to happen in a business or home where someone isn’t legally entitled to be. A criminal trespass, for example, can be court-ordered or given via a notice by a business or law enforcement— and it checks the box that turns a misdemeanor crime into a felony.

The Missoula County Attorney’s Office filed at least eight felony burglary cases between January and March of 2024. Specifics of each case vary, but they share similar patterns to Grable’s. Case documents reviewed by the Missoulian show the burglary charges followed incidents at businesses around town, often at larger stores, including both Walmart locations, Scheels and Yoke’s Fresh Market.

Each individual had prior or pending misdemeanor theft cases out of municipal court, and many had been “trespassed,” or prohibited from returning to the businesses they'd stolen from. It’s a term that appears frequently in the charging affidavits for the burglary cases filed this winter. Some suspects had more than 20 cases, court filings show.

Three of the defendants were arrested at the city's two Walmarts, where they'd been previously cited for theft from the retailer and subsequently prohibited from returning. One man stole a four-pack of Steel Reserve beer, valued at less than $10.

Walmart recorded the man leaving the store without incident and shared the tape with law enforcement. He was later charged with felony burglary, according to the court documents.

One woman was confronted by police as she left the store and was accused of stealing about $72 in unspecified merchandise. Another woman stole $16 worth of products. Both were charged with felony burglary. There is no minimum amount of money needed for a burglary charge.

At the time he stole the sandwich from Yoke’s Fresh Market, Grable had 29 municipal court cases against him. More than 20 were criminal trespass. Some alleged theft. He committed a single simple assault in February 2023, court documents show.

“Grable is an example of a minor-but-straightforward burglary,” Jennings told the Missoulian in an email. “Grable had been permanently trespassed from Yokes on multiple occasions. He kept returning to the store to steal things.”

Despite having no other felony history in Montana, Grable was given a three-year plea deal at his first hearing after his arrest. Jennings said the deal included a recommendation for the substance abuse treatment program, but a Department of Corrections “override” landed the man in prison.

County District Court Judge Jason Marks, who sentenced Grable, said the override was because of Grable’s behavior while in custody. He is expected to get out of prison in 2026.

Another man was charged in February with two different counts of burglary for separate incidents at Walmart and Yoke’s Fresh Market, where he was stealing alcohol and food. Jennings wrote in charging documents that previous efforts failed to address that man’s crimes in municipal court.

“Despite his lengthy history, (the defendant) received no jail time, no fine, and no other fees, surcharges, or restitution of any kind, but an explicit condition of the sentence was that the defendant will not return to Walmart and (Yoke’s),” Jennings wrote in the case affidavit. “It was a 12-month suspended sentence.”

After getting charged with burglary, most people take plea deals from the county attorney, some as soon as their first arraignment hearing, Jennings said. Prosecutors offered six to 18-month probation sentences.

Roughly half of those people have already broken their probation and will likely be transferred back to jail and potentially prison, according to jail rosters and Jennings.

Defense attorneys Lang and Forcella said the plea deals seem enticing because of the lack of jail time, and many times they are the best option for defendants. But getting a permanent felony charge on your record leaves people with major barriers to securing housing or a job.

It’s easier to go through the probationary sentence when a person already has housing, a job and a support network, they said. People without that are focused on surviving, making it more likely for them to commit another crime.

“If someone violates the conditions of their sentence, the state can file a petition to revoke their sentence,” the attorneys said. “This means that if the court finds that the defendant violated their sentencing conditions, the defendant’s sentence can be revoked and for a deferred sentence can then be sentenced up to the maximum penalty for that charge. A short, deferred sentence could become a 20-year prison sentence.”

Criminal trespass cases from businesses (within city limits) are handled in municipal court, as are first, second and subsequent theft offenses for under $1,500 in goods. Misdemeanor offenses are prosecuted by the Missoula City Attorney’s Office, which operates separately from the county attorney. If someone gets charged with a felony, the case gets transferred to the county attorney’s office and district court.

The stakes for a misdemeanor citation versus a felony conviction are different, too.

If someone gets convicted of misdemeanor theft, they face a possible $500 fine and no jail time (a second theft offense can get county jail time). By contrast, burglary carries a possible maximum penalty of 20 years at the Montana State Prison and a possible $50,000 fine.

Nicole Gomez works as the justice initiative director at Montana Women Vote, a nonprofit that tracks social issues across the state. Gomez said they’re aware of at least six unhoused people with recent felony burglary cases in Missoula. Gomez said many of them are also Indigenous.

“Our concern is that there seems to be a discriminatory pattern at play in which these felony burglary charges are being applied to unhoused individuals for low-level, nonviolent crimes, and we're not seeing the same application to other members of the Missoula community,” she said in an email. “Therefore, while the charges might be legally sufficient, there does seem to be evidence of bias or targeting in the application of those charges.”

Municipal court doesn’t play a role in these cases,Lang and Forcella said.

“These are prosecutor decisions,” they wrote. “There has been talk that the municipal court is not ‘punishing’ misdemeanor thefts enough and that has forced the county to file these felony charges.”

'An alarming uptick’

Matt Jennings became Missoula’s interim county attorney this spring following elected County Attorney Kirsten Pabst’s retirement before her term ended. He is running for the office this fall.

Jennings said there’s been no change in charging practices, policies or patterns. However, he’s noticed an “alarming uptick” with a small handful of people amassing numerous repeat offenses.

“This category of individuals is stopped again and again for stealing, property damage, or assaultive behavior,” he said. “It would have been unheard-of a few years ago for someone to have a dozen or more pending misdemeanors in municipal court without resolution. That is common now. We do not handle those cases.”

He said it’s hard to identify how repeat offenders, like the ones in the burglaries, are being held accountable or rehabilitated before they're charged with felonies. It’s a small portion of people with repeat offenses, Jennings said, but they’re causing more of Missoula’s crime, hurting businesses and “creating a feeling of lawlessness in some areas.”

Shared frustration

Missoula Municipal Court sits just across the Mountain Line Transfer Station from the Missoula County Courthouse. It was redesigned in 2021, expanding from having one judge to three.

That year, Jennifer Streano, Jacob Coolidge and Eli Parkerran as a bloc and won all three gavels. When the three— who come from public defender backgrounds— were campaigning, they shared a frustration that people were being held in jail for nonviolent offenses.

In an interview with the Missoulian, the three judges maintained the perception that municipal court isn’t holding people accountable is misguided.

Judges are limited in what kinds of jail time, if any, they can impose in low-level cases. Streano, Parker and Coolidge said they don’t see jail holds for nonviolent offenses as a good use of community resources.

Streano explained many people recently charged with burglary (who were first seen in her court on misdemeanor cases) struggle with mental health issues. Previous municipal court judges would occasionally hold those people in jail while their cases awaited resolution, she said.

“We have stopped doing that,” Streano said. “If somebody is in jail and they have mental health concerns, we’re not going to keep them in jail if that’s the issue.”

When a case is pending and a person is presumed innocent, Streano explained, there are constraints on what a judge can do while a person waits for a trial. It takes longer to get a case to resolution if a defendant is experiencing mental health issues or houselessness, Streano said, as many are in the recent petty-theft cases.

“What’s new is dealing with misdemeanor offenses by treating them as if they’re felonies at great cost to the public taxpayer,” Parker said.

The judges noted the vast majority of thefts processed in municipal court are first offenses, which don’t include jail time as a possible punishment. It’s a small handful of people with multiple cases who’ve stacked up, they said.

It’s also not uncommon for Streano, Parker and Coolidge to see people who ask judges to send them to county jail because they don’t have other options for shelter.

If someone is indigent, meaning a defendant doesn’t have the money to pay a fine, Coolidge said judges are barred from imposing a fine. Broadly, Coolidge said, that’s most people they see in municipal court. The judges acknowledged limited space at the Missoula jail. If people were jailed on misdemeanor thefts, that takes up cells, and other inmates with parole and probation violations in turn might be released.

Misdemeanor theft shouldn’t be ignored, but holding accused people in jail without addressing underlying causes isn’t the solution, Streano said.

"Holding (people) in jail for a significant period of time does not solve the problem, it only costs us an enormous amount of money to no benefit," she said.

Charging pattern shift

Ward 6 Councilor Kristen Jordan alluded to the cases at a March urban camping workshop hosted by city officials. She disagreed with the notion that unhoused Missoulians aren’t being held accountable for criminal activity.

Jordan, a first-term city councilor, previously worked as the director of the Criminal Justice Coordinating Council, a county department separate from the attorney's office. She managed grant oversight, data and administrative support to the county.

In a recent interview with the Missoulian, Jordan said the recent charging pattern is a shift, and she believes the county attorney’s office is choosing to charge people with felonies to circumvent the municipal court system.

“This is a change,” Jordan said.

Other organizations are objecting to the rising number of property crimes. In May, the Missoula Chamber of Commerce brought together business leaders and the county attorney to “share experiences, identify potential solutions and chart a path forward” on property crimes.

“From homeless encampments leaving behind hazardous waste to shoplifting incidents escalating into felony offenses, the community voiced a shared sense of frustration and urgency for action,” the news release said.

Recent data and crime trends for Missoula, like everywhere, are skewed by numbers during the COVID-19 pandemic. In municipal court, theft cases increased by 14% from 2019 to 2023. From 2022 to 2023, the increase was 9%, according to city data.

Coolidge noted that for a growing community like Missoula, an uptick in the number of cases isn’t necessarily a reflection of growing crime rates.

According to data from the Missoula Police Department, city property crimes were up about 6% in 2023. The U.S. Census Bureau estimates Missoula has grown from 74,394 people in 2020 to 79,516 in 2024, a 6.88% increase.

'The most difficult step'

The implications of getting swept up in the criminal justice system are far-reaching, especially for people with limited resources.

According to a 2023 report by Prison Policy Initiative, stable housing is one of the best options to end mass incarceration.

But it’s hard to find housing when rental and housing prices continue to climb. According to the Missoula Organization of Realtors, the median cost of rent in Missoula rose from $772 a month in 2017 to $1044 a month in 2022, a 35% increase. In that same time period, the median home sales price rose from $262,000 to $520,000, a 94% increase.

And a felony record puts up a barrier for people to procure housing and jobs.

"Any rehabilitative measure is housing," Coolidge said. "I think we're all on the same page that housing is the first step and it's the most difficult step."

Lang and Forcella said studies show keeping people in jail isn’t an effective tool to reduce re-offense rates.

“In other words, charging someone with a felony for a low-level, non-violent offense doesn’t stop those kinds of crimes — it only criminalizes poverty,” they wrote. "Until the underlying causes of the behaviors are addressed and people are able to meet their basic needs, shoplifting will not stop."

When asked if the recent slate of burglary cases is an example of the Missoula County Attorney’s Office criminalizing homelessness, Jennings said it’s not illegal to be homeless and no agency in the county targets someone over their housing status.

“People that are housing-insecure deserve the same dignity and respect as anyone else,” he said. “The vast majority of homeless people are simply down on their luck trying to get by, and law-abiding. But there are a small portion of career criminals and predators that victimize other homeless people and our community.”

He said the county attorney’s office will continue to prosecute that smaller group to the fullest extent of the law.

Jennings said many of the repeat offenders have mental illnesses or chemical dependency, which he argues is better handled by the felony system. He said the criminal justice system can be a tool to get people connected with services.

“Without intervention of some sort, there is no change,” he said. “It would be great if local leaders solved our housing crisis, built hundreds of beds for the mentally ill in our community and participated more in bringing chemical dependency treatment providers to our community. However, until that occurs, the criminal justice system is often the only trigger for change for many individuals. We must use the tools we have until there are other options.”

On May 22, Missoula police picked up a 36-year-old woman at Walmart on Mullan Road after a loss prevention officer recognized the woman as someone previously banned from the store.

It’s suspected she stole alcohol and an energy drink, charging documents show. Officers read six reports involving previous incidents where the woman stole and was trespassed from businesses around town.

She was charged with burglary on May 23 and is now part of Missoula’s felony system.