Turning Back the Clock on Early Release

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In January 2009, the Wisconsin Legislative Council established the Special Committee on Justice Reinvestment Oversight, a bipartisan, bicameral, and inter-branch advisory group. Working with research and analysis produced by experts from the Pew Public Safety Initiative, the Special Committee forwarded recommendations to the Wisconsin legislature.

Within a few months, lawmakers passed, and then-Gov. James Doyle signed into law, reforms designed to control incarceration and save taxpayer money without increasing public risk. Key provisions permitted reductions in time served by 15%-33% for about 3,000 of the state’s 22,000 inmates over several years.

Some Wisconsin politicians opposed “earned early release” from the start. Now, with a new governor and a shift in control in the legislature, the state’s lawmakers on June 8 approved a bill repealing Early Release. Gov. Scott Walker was expected to sign the bill shortly thereafter.

Wisconsin policymakers?and taxpayers?will now have to cope with the consequences. And if the experience of Illinois?Wisconsin’s neighbor to the south?is any guide, those consequences will be unsettling.

Lessons from Illinois

In September 2009 the Illinois Department of Corrections ended a longstanding “custom” of delaying the award of good time credits to inmates until they had served 60 days in the Department. This small policy change resulted in reducing time served for some 1,750 prisoners by an average of 37 days in a system from which about 39,000 inmates exit each year. The goal was to save tax payer money by reducing time served for prisoners going home anyway.

Dubbed by the media as a “early release program”?and a “secret” one besides?(it was neither) and poorly handled from a public relations point of view, the modest Illinois reform blew up in Gov. Pat Quinn’s face, nearly costing him a primary and general election, and forcing him to end both the modest reform and the larger 30-year-old “good time credit” program.

The state is now experiencing the consequences. In both states, opponents of “early release” repeatedly equated any shortening of time served with a threat to public safety:

o Gov. Quinn’s Democratic opponent in the primary and his Republican opponent in the general election bolstered their campaigns with claims that Quinn’s “secret” plan put the pubic at risk by letting prisoners out “early.”

o In Wisconsin Republicans have been attacking Democrats with the claim that their plan is releasing “dangerous criminals … into our communities before they serve their sentences.”

Politicians in Wisconsin and Illinois are hardly alone in their adherence to the notion that public safety depends upon the convicted criminal serving every day of a prison sentence.

Supreme Court Justice Anthony Kennedy’s May 23, 2011 majority opinion in Brown v. Plata upheld findings of a three-judge panel that California could safely reduce its prison population by some 37,000 prisoners over two years by expanding good time credits, diverting low risk offenders to community programs including drug treatment and electronic monitoring, and reducing the number of technical parole violators returned to prison.

Not so, declared dissenting Justices Scalia and Alito: despite their having heard days of expert testimony supported by research and national experience the three judge panel’s ruling turned not on “fact finding” but on “their own beliefs about penology and recidivism” and should have been reversed for being contrary to the “reasonable policy view” that releasing prisoners short of the original term “represent[s] an inherent risk to the safety of the public.”

No ‘Magic’ About Length of Sentence

But nothing could be farther from the truth. There is nothing magical or scientific about the length of a sentence imposed on any one convicted defendant, and for two reasons:

First, the laws legislatures pass to set sentence ranges for judges to use aren’t based on objective studies or research showing what is necessary to punish or change an offender or what sentence length will adequately protect the public.

They can’t be; there isn’t any such research.

Legislators write sentence length into law according to their own values or sense of past practices, or to an emotional reaction to “the crime of the hour” and often to appear “tough on crime.”

The arbitrary character of sentencing laws is revealed when the laws of one state allow probation or a short prison term for an offense that if committed in the next state incurs a mandatory or much longer prison term. This is often the case.

Second, the sentences a judge imposes, applying these arbitrary sentencing laws, are seldom based on any kind of fine line determination of what is necessary to protect the public.

Offenders who commit serious or repeat crimes usually get longer sentences and minor offenders often get lower sentences, but not always and not with any precision. Factors that control sentence length, even in a guidelines state, include criteria that have nothing to do with public safety: whether the defendant goes to trial or pleads guilty; strength of the evidence and witnesses against the defendant; value, if any, of the defendant’s information or testimony to the prosecutor; personality of the judge; attitudes and strengths of the attorneys on both sides, and even the extent to which a court’s docket is crowded.

A low-level repeat drug offender may go down for heavy time. A participant in a homicide who can help the prosecution convict a dangerous co-defendant may get a short sentence. That’s the way it is.

Wisconsin policymakers had what Illinois did not: a carefully researched and reasoned plan to release less serious offenders from an overcrowded system while subjecting them to enhanced supervision.

Still, they pursued policy based on myth after an election almost as vigorously as did their Illinois colleagues in the run-ups to two close elections.

In both states, the rhetorical weapons of choice were sensationalized, inaccurate anecdotes.

In Illinois, news reports and partisan press releases by politicians claimed that the “secret” policy was responsible for incredibly short sentences for serious crimes, at least one murder, and a veritable crime spree by released inmates. These claims proved to be almost completely false (the murder claim was completely false).

In Wisconsin, politicians are deploying the same kind of sensational anecdotes and exaggerated assertions. For example, James J. Socha gained “poster child” status when he was arrested for what became a 12th conviction for an OWI (“operating while intoxicated”) in December 2008.

One political broadside credits Socha’s release in February 2008 after serving more than three years of a total eight year prison sentence imposed for his 10th and 11th OWI convictions to his ability to “avoid nearly 12 years of prison time” through “former Governor Jim Doyle’s failed Early Release program.”

But Socha’s time in prison was reduced under laws enacted in 2002-2003 to alleviate severe overcrowding following the state’s adoption of determinate sentencing, not the additional reforms enacted in 2009.

As an anecdote told to gin up opposition to “early release,” Socha’s story overrode consideration of the merits or comparative success of the 2009 reforms. In fact, while opponents of “early release” complained that after two years 29 of 545 released prisoners had been returned to prison, supporters argued correctly but with less effect that these numbers represented a 5.3% recidivism rate, better by far than recidivism for Wisconsin’s general prison population.

What’s At Stake

In both states much more than the end of one small contentious program is at stake.

In Illinois, the controversial Department of Corrections policy change had only a small impact on the corrections’ budget. But the governor’s suspension of the larger merit good time credit program in reaction to the controversy led to an increase in the prison population of more than 3,400, or 7.6% over 14 months, leading to overcrowding and bound to cost corrections more than $85.9 million a year.

This number may rise because, having preempted corrections officials’ discretion in managing good time, the legislature ended its term on May 31, 2011 unable to agree on legislation that would reinstate some form of the larger merit good time program.

In Wisconsin, the Director of the Department of Corrections has said that because Gov. Doyle’s early release program had released only 545 prisoners in two years (somewhat contradicting the image of dangerous released felons flooding the streets) ending the program will have little fiscal impact.

Gov. Scott Walker is reported to believe that increases in incarceration caused by longer sentences will be more than offset by a decrease resulting from falling crime rates.

Perhaps so, but if the last 40 years in criminal justice have proven anything, it is that policies, not crime rates, drive prison incarceration.

Consider Mr. Socha again: if politicians or political appointees continue to reverse or restrict the good time credit programs under which he was released “early”?not the 2009 reforms alone but programs in place since 2002?than the overcrowding that these laws and policies helped to reduce during the last decade is likely to return.

And if the politicians’ tough, angry rhetoric about locking up more drunk drivers for longer sets the tone for decisions made by police, prosecutors, sentencing judges and corrections officials in even a small fraction of the 40,000 OWI cases initiated by arrests for OWI in Wisconsin each year, the state’s prison population could mushroom.

Nor does sending more drinking drivers to prison necessarily protect the public. Research shows that putting the money into police patrols, sobriety check points and ignition interlocks are more effective at reducing drunk driving than long prison sentences.

If Walker is wrong, of course, it will be the taxpayers and Wisconsin highway users, not him, who pay the price.

Malcolm C. Young is the Soros Senior Justice Fellow and Director of the Program for Prison Reentry Strategies at Bluhm Legal Clinic, at Northwestern University School of Law. He founded and directed (1986-2005) The Sentencing Project in Washington, DC. He welcomes comments from readers.

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