Wisconsin should work to end mass incarceration and restore procedural justice to the legal system by eliminating mandatory minimums in sentencing, restoring judicial discretion in sentencing and the community control of parole, curtailing prosecutorial abuse of discretion in charging and plea decisions, ending cash bail and court fees that turn local jails into debtors prisons, making expungement of non-violent criminal offenses accessible to all who’ve completed their sentences, and supporting effective re-entry, starting with an explicit discharge policy requiring that those released before completion of their sentence have verified availability of housing, health care, and employment when they get out.
What’s the Problem Addressed?
The number of people incarcerated in Wisconsin’s jails and prisons has more than doubled since 1990, as has the state’s per-capita incarceration rate. This is not the result of changed behavior, but increasingly punitive, and often racist, policy. 1 Wisconsin’s incarceration rates for African American and Native American men are more than twice the national average. 2
While Wisconsin’s harsh “truth-in-sentencing” sentencing laws accelerated growth of the incarcerated population, our felony crime rate only got worse. In 1994 Wisconsin had 13,748 violet crimes. Minnesota with a population 10% smaller, had 16,397 violent crimes 3, 33% more. Today, Wisconsin’s federal and state prison population is about 23,000 versus 10,000 in Minnesota and the violent crime rate has flip-flopped: ours is now 26.1%% higher at 305.9 per 10,000 versus 242.6.4
A slight dip in the prison population from 2006 to 2010, was reversed by Scott Walker and we now face record levels of incarceration. 5 This resulted from eliminating parole while continuing punitive sentencing. The county jail system that feeds state prisons has also swollen, with more than half of its inmates – another first under Walker – detained without conviction, 6 almost all because they cannot meet the terms of for-profit cash bail. Overall, Wisconsin has 34,800 people incarcerated at an annual cost of $1.495 billion, 7 more per capita than any of our neighboring states. 8
Mass incarceration drags down our economy and drives up our taxes. Wisconsin spends more on prisons than we spend on post-secondary education in the UW system. 9 Along with incarceration itself, the extraordinary number of people with effectively permanent criminal records — often for minor nonviolent offenses– and the high incidence of suspended or revoked driver’s licenses are major factors in denying workers access to job and educational opportunities. 10
How OWR’s Proposal Addresses It
First, Wisconsin’s police officers and judges need to get back some of the discretion denied them by misguided truth in sentencing laws. They also need effective support and guidance in using this discretion. Reform starts by giving communities, working with the police and the judiciary, the power to determine the best way to guard public safety and promote flourishing communities. These reforms will cost money, but nowhere near the amount we now spend on unwarranted and often discriminatory punishment.
At the arrest stage, we should foster partnerships among police, social service providers, and the local community to expand response options and enable officers to use public services when they are appropriate. For example, instead of booking someone into jail for drug or prostitution offenses, officers should be able to divert offenders into community-based wrap-around services overseen by a case manager. Particularly for juvenile offenders, we must do our best to close off the “school to prison pipeline.” We should maximize diversion from arrest and jail to social service providers, systematize such diversion under the care of well-trained and compensated case managers, and encourage volunteer mentorship programs in all communities in the state, using locally-based non-profits.
At the charging and pre-trial detention phase, we should minimize reliance on cash bail and vastly expand prosecutorial discretion, working with the police, to maintain public safety standards without allowing an individual’s bad mistake to become a bad life. Most people arrested in Wisconsin must post a cash bond to be released from jail before their trial. If they cannot pay, they are incarcerated even though they have not been convicted of any crime. Inability to post bond results in pretrial incarceration which often costs taxpayers far more than the amount of the bond. Worse yet, those who cannot pay their bail usually cannot afford to miss work or pay for childcare while they await trial. Some are forced to accept plea bargains – resulting in a criminal conviction on their record– not because they are guilty but simply because they are poor. We should allow local DA offices to assign low-risk offenders community-based programming and treatment in lieu of pretrial detention and make sure that those who meet such terms are not stigmatized with a criminal record. For medium or high-risk offenders, we should encourage a guilty plea to a lesser charge and agreement to a specific treatment/rehabilitation/restitution plan that uses the principles of restorative justice to help make the victim and the community whole – with completion again minimizing the effect on their permanent criminal record.
At the sentencing and post-sentencing phase, we should repeal our dysfunctional truth in sentencing laws and re-establish parole boards. This will empower judges to use discretion and consider the facts of the case in sentencing, rather than being bound to pass arbitrary sentences inappropriate for the crime. Restoring parole boards will empower members of the community to weigh the costs and benefits of keeping individuals incarcerated and determine if they are ready for re-integration. They could expunge records of minor non-violent crimes and establish restitution to victims in lieu of further incarceration.
In ending mass incarceration, keeping people out of jail who do not belong there is one part of the solution; keeping those who have been released from returning is equally important. Nationally 57% of those released re-offend within a year, 68% within 3 years and nearly 77% within 5 years.11 Post-release it is essential that former inmates get the support they need: a real job, continued counseling and education as well as supervision, health care insurance, and stable housing. We propose an explicit discharge policy that rigorously addresses the issues that most commonly lead to recidivism while focusing primarily on those at high risk for offending: sex offenders; those with a history of substance use and mental disorders; those without a real job or the skills to secure one; those without adequate housing; those who cannot read to an 8th grade level.
Who Else is Doing This?
Other states and cities have implemented these recommendations with positive results for public safety often accompanied by significant reductions in the size of incarcerated populations, Minnesota being one example.13 And even in Wisconsin, promising efforts have been made in local communities, such as the City of Madison which has significantly reduced the juvenile arrest and incarceration rate. What none of these sensible reforms have had is support from the Wisconsin state government.
Why Not Wisconsin?
Many thoughtful Republicans and Democrats in Wisconsin understand that we cannot incarcerate our way to better society, and there are serious social and economic costs when trying to do so. But this awareness is not yet reflected in state policy even though incarceration levels far in excess of what is needed to assure public safety are so pervasive and deeply destructive of our social fabric. A government with the will to address the problem could make significant improvements. The next Wisconsin government should immediately revive parole and the state discharge policy suggested above. At the same time, with urgency, it should commence a 360-degree review of existing practices and alternatives. It should then fund pilot programs to test reforms in promising areas of proven success elsewhere. Results should be carefully monitored and publicly reported. An overall goal might be to return to the total incarceration levels of the early 1990s before the destructive era of mass incarceration began.