2. Staff editorial, Wisconsin State Journal. “’Good Time is Good Policy.’”

3. Landay, Jonathan S. United Press International. “Early release from prison a response to overcrowding.” July 4, 1982.

4. Associated Press, “state prisons to release 1st group of inmates early.” Jan. 6, 2010.

5. Regional briefs. Milwaukee Journal Sentinel. Oct. 5, 2005.

A little-publicized provision that changes how Wisconsin treats elderly inmates (defined as age 60 or older) could offer some of our state's most high-profile criminals an early release, according to a WPRI review of the new sentencing law. Under a provision tucked into the budget last year, offenders serving life sentences may now petition for early release based on their age, as opposed to terminal sickness. Furthermore, the power to grant release is vested with a new unelected board, rather than with the court system. Now, bureaucrats are allowed to supercede the authority of judges.

These new provisions could create new uncertainty for victims in some of the state's most high-profile cases, including those involving the killers of law enforcement officers or even cases like that of Steven Avery.

Pursuant to the 2009-11 budget, an appointed commission, run by the governor’s handpicked chairperson and packed with Corrections employees, will decide whether aged inmates get out early, not a sentencing judge. The bottom line? Life without parole is up now to the Earned Release Review Commission that replaced the parole board, even if that’s the sentence a judge ordered. The release is not mandatory.

Furthermore, a new release possibility based on health – which is different from the expanded release based on age only – is now so expansive that Corrections is defining it to mean that inmates could be released at any age based on mental illness, depending on the type and extent .

Previously, inmates needed to show they had a terminal illness – six months or less to live – to get out for health-related reasons . Now, they have to demonstrate “extraordinary health circumstances” – defined in the state law changes as advanced age, infirmity, disability, or need for medical treatment that can’t be properly met in prison. The first inmate released under the new laws was a Milwaukee woman convicted of homicide and released under the health provision for issues Corrections wouldn’t identify.

This new change makes Wisconsin unusual nationwide; in other states, the most serious offenders can’t typically get out of prison early based on their agesand health alone. That used to be the case in Wisconsin too. Not anymore.

Although there was previously a Wisconsin provision allowing for age-related release, in 2009 the state Legislature – acting on a proposal by Gov. Jim Doyle – expanded the age release law so that the state’s worst offenders, including those serving life terms without parole, could qualify.

Wisconsin inmates, even if they are lifers, also don’t have to show that they are physically infirm or sick to qualify for age-based release if they were sentenced after 1999’s truth-in-sentencing reforms, or were sentenced after July 1988 to a life term. They just have to show that they are old and have served enough time, which can be as little as five years.

A memorandum from the Legislative Fiscal Bureau confirms this fact: “Act 28 modified the law to allow inmates serving life sentences or Class B felonies to be eligible for release under these provisions.”

The bottom line: If you’re 60 and have served 10 years, or if you’re 65 and have served 5, and were sentenced after the right years above, you can ask to get out, no matter the offense. Sex offenders also qualify.

The Earned Release Review Commission

Under the changes in Wisconsin, a single human being – the person appointed to oversee the newly named Earned Release Review Commission – has now accrued the power that used to be held by elected judges all over the state.

The Commission’s chairman is appointed by the governor, and subject to state Senate confirmation. The chairman then appoints the other commissioners, who must be from classified state service. The current commission chairman, Alfonso Graham, a Doyle appointee, is a former Milwaukee police commander, and the commissioners are all Corrections employees .

When petitions for early release come before the commission, the commission can consider such factors as the inmate’s conduct, attempts at rehabilitation, educational progress, and whether the reduction in sentence is in the “interest of justice.” The chairman has the final say.

Under Earned Release Review Commission rules, inmates who are eligible for either the health or age related release qualify for public defender representation. In the case of health-related release, an inmate must submit affidavits from two doctors describing the inmate’s condition. If the commission decides that the inmate is eligible for release, the commission holds a hearing. The commission then notifies the victim, prosecutor, inmate’s attorney and others of the hearing. These individuals are permitted to attend the hearing and may give statements.

The commission may review a release plan prepared for the inmate and the inmate’s legal files. A commissioner assigned to the case passes a decision to the commission chairman. The chairperson then decides whether to accept the commissioner’s decision or overturn it. If denied, an inmate may not seek release again for a year. Both the state and inmates have some rights to appeal - the state to circuit court.

The inmate has the burden of demonstrating that his or her release would serve the public interest by the “greater weight of the credible evidence,” according to state statutes.

The rationale

Corrections spokesman John Dipko said the new provisions are flexible and are thus “good for public safety and good for the taxpayer.” Asked about age-based release, he responded by focusing on the cases in which inmates are also ill.

“Some inmates require thousands of dollars a month in medical care in prison, even when they are physically incapable of committing another crime and can be safely monitored under DOC supervision in the community, where specialized care is available,” Dipko said. “Other inmates always pose a threat and should never be released under any circumstances, and the law allows for this as well.”

Dipko said that provisions to allow inmate release “due to infirmity or advanced age” have been on the books for years. He said the new law expansion is not dissimilar to the old parole rules, which allowed release if “extraordinary circumstances (such as anticipated death) were present.” However, the truth-in-sentencing laws that replaced the old parole rules were supposed to provide victims and the public with certainty about how much time offenders would serve.

No inmates have been released in recent years based on age alone, he said.

“Who would you rather see in a prison cell? One of the many aging, now harmless, lifers or the young gun toting gang member selling crack on a street corner near you? Which one do you have the most to fear from?” asks Harlan Richard, a Wisconsin inmate serving a life prison sentence for murder, who offered the inmates’ perspective on a blog that he publishes called Wisconsin Lifers.

Of course, there are costs to supervising aged inmates in the community too. Who will pay for medical costs for the inmates out on community supervision, such as nursing home care? Federal SSI benefits are among the options, Corrections says.

And, although it’s true that inmates could ask for age-based release before, as noted, that possibility didn’t apply to the worst offenders, such as lifers – until now. That change came in 2009. The law clearly states that inmates need to only meet one condition to be eligible for release – the age provisions OR the health provisions, not both.

Furthermore, advanced age is ALSO part of the health-release language, meaning that some older inmates might be able to get out even if they don’t have the 5 or 10 years in.

Many of the state’s elderly inmates are serving sentences that date before truth-in-sentencing, meaning they are already eligible for parole. A random check of offenses for older inmates currently in the system shows that many appear to be serving lengthy sentences for serious offenses, such as homicide and sexual offenses.

In the past, the lower-level inmates seeking such age-based release petitioned to a program review committee at their prison. If the release was granted, the sentencing court was notified and held a hearing.

Now, in the other key change, though, the inmates seeking age-based release go before the Earned Release Review Commission, which replaced the Parole Commission, not a sentencing judge.

While moving early release decisions from the courts to an unelected board may seem to be a bureaucratic shift, it could mark a dramatic change in how elderly criminals are handled.  For one, the incentives between the court system and the Department of Corrections are often very different – and may often be at odds.  In many cases, the court system’s interest may lay in keeping an inmate behind bars until their death – but that may conflict with Corrections’ interest in cutting costs and maintaining a budget.  In these cases, an unelected board chair at Corrections will have the final say. 

 

The provisions could create new uncertainty for victims in some of the state’s most high-profile cases.

As a demonstration of how the new framework could function, take the case of Curtis Walker. On Sept. 7, 1994, he was lying in wait with a rifle as Milwaukee police officer William Robertson checked out gang activity in a patrol van. Walker, then 17, shot and killed Robertson, who left behind a wife pregnant with twins. Two years later, in a case that drew intense public attention, a judge gave Walker a life term without parole eligibility in 75 years.

At the time, then-District Attorney E. Michael McCann told the news media it was “pretty clear he will never be released” as Walker would be 94 when he reached his parole eligibility date.¹ In a column at the time, the officer’s widow said, “"The bottom line is that this defendant won't be eligible for parole until 2071."²

But now, due to the 2009 law change, Walker could ask to walk the streets again as a relatively young man, at age 60 – after serving just a little over half of his sentence.

And then there’s Jeffrey Dahmer’s killer, Christopher Scarver. He’s murdered three people – first a job program worker he shot in the head multiple times over a robbery that netted him $15, then Dahmer and wife killer Jesse Anderson. But now Scarver has a chance to walk out of prison at age 65.

The same is true of Steven Avery, who was convicted in the strangulation and stabbing murder of photographer Teresa Halbach, whose body he burned in a fire pit . At age 65, he could ask to be a free man.

Avery is 47 and, since 2007, he has been serving 2 sentences for homicide (a life term) and firearm possession . Corrections confirmed that an inmate must serve the 5 or 10 years for each consecutive offense (that would stop some criminals from ever reaching eligibility to seek release based on the age provision if they were convicted of multiple offenses. Dahmer, for example, was convicted of so many life sentences he could never have asked to get out if he lived based on age – unless, of course, he had asked to get out under the new health expansion, which doesn’t require a certain number of years served and also now applies to lifers).

By age 65, Avery will have served at least 5 years of each sentence and could ask for release. Dahmer’s killer, Scarver, is now 40 and has been behind bars for 19 years. Even though he’s serving time for five offenses, including three homicides, he could ask to get out at age 65.

Kenosha County sheriff’s deputy Frank Fabiano Jr. was shot and killed during a traffic stop in 2007. His killer, Ezequiel Lopez-Quintara, got a life term in 2008. He’s 47 and was convicted of 2 charges. At age 65, he could ask to get out after serving 18 years behind bars.

In 2006, Andrew Krnak, now known as Derek Anderson, was sentenced to a life term for his father’s homicide after the disappearance of his family. At the time of his sentencing, the judge called the crime “one of the most brutal, premeditated crimes that I've ever seen” and said that, in another state, Anderson would get the death penalty.³ Now, Anderson could ask to get out at age 60. Total time behind bars? 23 years.

Furthermore, some sex offenders, killers, and other felons who are not as notorious could ask to get out now or soon. Want to get out of prison early in Wisconsin? Commit a crime at an older age in the first place. If any person decides to murder someone at age 60, or commits any other crime, they could ask to get out in just 5 years. At age 50? In 10, no matter the sentence or offense.

While, admittedly, it’s tough to imagine anyone releasing some of the most high-profile killers or child molesters, like Avery, Walker or Scarver, the new chance for age based release provides lingering uncertainty for victims who thought “life” meant “life” or parole eligibility at age 94 meant just that. And the former head of the state Parole Commission did come under fire for releasing two men a few years back who killed an off duty police officer, so the passage of time can sometimes weaken notoriety, especially when the decisions are not made by judges who must face the electorate .

Other states

As the prison population ages, the soaring costs of prison healthcare is placing pressure on Corrections’ systems in many states. Just over five percent of the nation’s inmates were over age 55 in 2006, and the numbers are growing. The cost of housing an older inmate can be three times that of a younger prisoner. Tougher sentencing laws have resulted in a graying prison population and contributed to inadequate medical care.

Wisconsin is one of 10 states to create or expand geriatric or medical release since 2008. Some 37 states allow it, but they often require the inmates to be both elderly and ill, according to the National Conference of State Legislatures, in a 2008 report. The report stated that, in 2008, NO states allowed geriatric release for the most violent or sexual offenders.

For example, in Virginia, geriatric inmates are released under the same guidelines as Wisconsin – except the release doesn’t apply to the top tier of felons. Age release provisions range from 50 to 65 in other states, according to NCSL. States that offer medical parole typically require the inmates to be incapacitated and no threat to public safety and don’t allow the most serious offenders to apply.

As of 2008, only three states (Georgia, Virginia, and Wisconsin) had age release provisions. In Georgia, at age 62, an inmate can be let out based on age.

But some reporters have found flaws in the medical release systems in other states. California’s prison system is unique as it is in federal receivership; in 2008, the state asked the receiver office to identify prisoners who might qualify for medical release.
In California, medically incapacitated inmates eligible for early release are often anything but incapable of criminality. They are often three strikes you’re out inmates, lifers, and some are able to walk.⁴

In Wisconsin, unlike other states, the age and health release laws work differently from most other states in 2 ways: Ill health is not a precondition of age-related release, although, oddly, advanced age is included as an element for health-related release; and the most serious offenders now qualify.

Less high-profile cases:

Granted, the Averys and Scarvers of the world are outliers. To see what offenses other older inmates are in prison for who meet the new criteria, WPRI requested the Corrections database with name, date of birth, and offense. However, DOC’s public inmate database file (PIDF) does not include offense information.

“The most recent PIDF you received was an interim file that did not contain statute information due to the ongoing conversion of our offender information system,” explained Dipko. “A new PIDF has been under development for several months and different systems need to be linked in order for the statute information to be listed with the right incarceration ‘episode’ for each inmate. We are hoping to have a new PIDF created during this quarter.”

However, WPRI was able to pull case examples from the file by comparing them with information in court records. Examples include:

(Note: all pictures are from the state sex offender registry site)

• Keith Beauchamp of Eau Claire. In 2003, he received a life term for first-degree sexual assault of a child without parole . He’s 62. Thus, in three years, he will be eligible to ask for release after serving 10 years.

 

 

• Chavis Sheriff of Fond du Lac is 65. In 2005, he was convicted of two counts of repeated first-degree sexual assault of the same child. He was sentenced to 50 years in prison. He could petition for release in 6 more years after serving 1/5th of his time.

 

 

• Earl Mohme of Milwaukee is 71 and a registered sex offender. In 2001, he was sentenced to 20 years for incest. He could ask for release now, after having served 8 years.

 

 

 

• Walter Fudge, 60, was convicted of homicide in Dane County in 2006. A judge set extended supervision eligibility in 24 years - in 2030. Now, he could ask to get out at age 65 – in 2015 or less than one half of his time. Fudge shot and killed his former girlfriend, Tina Campbell.⁵

• Lawrence Gould is a registered sex offender who is 64. He was sentenced to 10 years confinement in prison in 2002 for child enticement out of Green Lake County . But in August, he turns 65 and can ask to get out two years early.

 

 

• In 2004, Jerry Fry, a registered sex offender, was sentenced to 12 ½ years in prison for first degree sexual assault of a child in Walworth County. Another charge was run concurrently. He’s 64. One more year, and he hits age 65 with 5 years in and can ask to get out after serving only about half his time.

 

 

• Myron Soman is 75 and a registered sex offender. He was convicted of sexual assault of a child in 2006 and ordered to serve 9 years in prison. A second offense was run concurrently. He could ask to get out after serving 5 years of his sentence, or just over half of the time.

 

 

• Ramiro Vargas is 61 and a registered sex offender. He was convicted of second-degree sexual assault by force and substantial battery in Kenosha in 2001 and given 20 years in prison . Thus, at age 65 he could ask to get out short of his sentence.

 

 

• Daniel Mattison, 61, was convicted of homicide in 2003. A judge gave him a life term and said he shouldn’t be considered for release for 20 years. But, now, he’s eligible to ask to get out at age 65, when he will have served a little more than half that time.

• Sam Gwin, 58, of Milwaukee, was convicted of homicide and a weapons offense in 2006. A store security guard, he killed a suspected shoplifter. At age 65, he should have enough time in to ask to get out. The judge didn’t want release considered for 25 years. If granted release, he’d serve less than half that.

End Notes:

1. Kissinger, Meg. Milwaukee Journal Sentinel. Jan. 24, 1996. “After the sentencing.”

2.Janz, William. Milwaukee Journal Sentinel. “Judge’s Sympathy Worried Widow.” Jan. 24, 1996.

3. Erickson, Doug. Wisconsin State Journal. “Anderson gets the maximum.” April 29, 2006.

4. Dutton, Sen. Bob. Inland Valley Daily Bulletin. “Those 80-year-old paraplegic prisoners are just phantoms” Sept. 9, 2009.

5. Treleven, Ed. Wisconsin State Journal. “Minimum sentence for wife murderer.” Feb. 5, 2009.

In previous installments of this ongoing report, WPRI has documented the backgrounds of some of the supposed "nonviolent" criminals being let out of prison pursuant to a law change by the Wisconsin Governor and Legislature in 2009. A closer look at many of these criminals sheds more light on who may being coming back to a neighborhood near you.

One of the inmates released early by the Department of Corrections, Robert Morris, has a violent and weapons criminal history, including convictions for endangering safety by conduct regardless of life, battery, and firearm possession, a WPRI review of circuit court files found.

Just one year ago, Corrections argued to keep him incarcerated, noting, “Confinement in a structured correctional setting is necessary to protect the community from further criminal behavior by the offender.” He’d already had his supervision revoked 6 times and been incarcerated 9 times.

This January, Corrections let Morris, of Milwaukee, out early, as part of the first wave of prison inmates released through a series of sentencing changes.

Another inmate released early by Corrections, Derrick Parnell, had at least 30 prison conduct violations, his court file revealed. Three years ago, a Milwaukee judge told him, “You can’t be supervised in the community.” Four years ago, Corrections agreed, calling Parnell “a serious risk and danger to public safety.”

Another inmate released early from prison time, this time by a state commission, is an illegal immigrant who served 85% of his time. Jose Avalos was caught with what the judge deemed a “very substantial” amount of cocaine and a 100,000-watt stun gun. While in prison, the state paid for him to complete financial literacy and employment training. He’s now on a federal immigration hold.

The prosecutor told the judge at sentencing: “This was ¼ kilo of cocaine. The amount of families that it can destroy is amazing.”

On the other end of the spectrum are inmates like Russel Lesperance, a sickly 85-year-old World War II veteran with little record who was convicted of financial fraud.

These are the details behind some of the 22 cases of state prison inmates released first as part of 2009’s sweeping sentencing modifications, which allow inmates numerous new avenues to seek early release.

WPRI reviewed a sampling of court files, focusing, due to logistics, on Milwaukee County cases.

Using online court records, WPRI reported previously that the 22 inmates together have been convicted of at least 150 crimes and that, in nearly 70% of the cases, judges earlier denied their requests for early release. The circuit court files reveal that, in some cases, the inmates’ misbehavior is even more extensive.

WPRI also obtained additional information about a Kenosha inmate, Gary Brown, called by his prosecutor a “career criminal” serving a “life term on the installment plan.”

Prosecutorial concerns

A top Milwaukee prosecutor, the office spokesman, tells WPRI that the DA’s office didn’t find out about the Milwaukee County releases (including a homicide offender, Paula Harris) until the inmates were already out.

“We learned after the fact,” said Chief Deputy DA Kent Lovern. “I think the public would want to have their law enforcement representatives have the ability to have some input.”

Statutes show that, in the case of Harris, the Earned Release Review Commission, which replaced the parole board, was supposed to notify the prosecution, defense attorney and victim. Harris was released for health. Avalos was released early from his Wisconsin sentence by ERRC for good behavior, a separate provision which includes a chance for judicial review. However, the judge decided not to hold a review. Statutes say Corrections is supposed to notify the prosecutor’s office in the other 20 cases, called CER (certain early release), as it has the sole release power.

Previously, judges decided cases where inmates sought release under narrower provisions.

“Input from victims is given strong consideration in the decision-making process,” explained John Dipko, Corrections spokesman. “The courts are familiar with the offender and charges at the time of sentencing, but the Department of Corrections is with that offender 24/7 while incarcerated. DOC is in the best position to make a determination whether or not the offender has earned an early release…”

Lovern said his office is concerned because it is not clear what standard Corrections is using. “The whole process is fairly ambiguous,” he said.

The law provides some benchmarks: In the CER releases, the inmates had to be serving time for class F to I felonies, and Corrections had to believe they won’t engage in assaultive behavior. The inmates can’t be more than 1 year away from release from prison (those released under other provisions, like Avalos and Harris, qualify for more time off and can be released for more serious violent felonies).

Although the inmates’ records are extremely convoluted, it appears some were already scheduled for release in a few months. Although this gives them less time to re-offend, it also lowers any savings. It could mean that some inmates can get out after serving only 50% of their time.

Lovern said he is not sure whether notices did not reach the DA’s office or weren’t sent. “Overall, we are concerned,” he said.

DA John Chisholm is considering taking a position in his short-staffed office to monitor early releases of people the office already helped send to prison.

“It’s clear that the certainty that once existed with truth-in-sentencing doesn’t exist,” said Lovern.

Kenosha prosecutor Richard Ginkowski went one step further. “It’s déjà vu all over again. … There is no truth in sentencing anymore.”

Ginkowski prosecuted the case of Gary Brown, a repeat burglar. He argued against Brown’s early release previously. A judge concurred. Corrections let him out anyway.

Brown’s record includes two battery convictions and three prior supervision revocations.

“With little interruption, he’s been in the adult and juvenile system for 22 years,” said the veteran prosecutor of Brown, 38.

Some of the Milwaukee cases are even more tangled, court files show:

Robert Leroy Morris

Morris’ extended supervision AND parole (for different cases, the most recent a burglary) were both revoked in 2008. Corrections noted that he had started doing drugs “within a week of his release. Mr. Morris has…the incapacity to follow directions while on supervision.”

While on supervision, he used cocaine, used PCP, ran from the police, and acted in a “disrespectful, aggressive, and intimidating manner toward the agent.” He walked toward his agent with a clenched jaw.

“Confinement in a structured correctional setting is necessary to protect the community from further criminal behavior by the offender,” stated Corrections.

In 1987, he was convicted of endangering safety by conduct regardless of life and escape (a firearm charge was read in). Between 1993 and 1996, he was convicted of possession of a firearm by a felon, intimidating a victim, and battery. His convictions continue to a 2004 burglary.

“There were 10 other cases not issued,” the prosecutor, Terry Magowan, told the judge in a 2004 burglary sentencing. “Most of them were battery cases.”

Morris’ police contact sheet is five pages long, the prosecutor said. He had, at that time, 32 adult arrests, 5 known aliases, and 4 different dates of birth. A homicide notation appeared in error, the prosecutor and defense attorney said.

In 2006, Judge Dennis Moroney denied Morris’ request for sentence modification, saying it was not in the public interest. 

Morris told the judge, “I now can see all the positives of working, and all the negatives of drugs, alcohol, and criminal activity.” However, from 2000-2005, Morris had 9 violations of prison conduct rules.

Derrick Parnell

In 2003, Parnell was sentenced for a burglary. The prosecutor, Doug Simpson, told the court Parnell’s MO was to break into people’s homes through windows, stealing “quick resale property” such as jewelry.

Parnell blamed his latest burglary offense on Corrections releasing him too early before. It took only a few weeks for Parnell to re-offend on parole.

“He perceived himself in need of certain things as he called it to survive. … To do that within 50 days, 5-0 days, of being paroled is just shocking,” Simpson said.

Parnell needed to go back to prison to give the “community a moratorium from his behavior,” Simpson said.

Jolie Semancik, Parnell’s attorney, told the judge that he had been incarcerated since 1994 for yet another burglary. “He did not know how to handle himself on the outside.”

The attorney said Parnell was serving a revocation on another sentence when paroled and that Parnell had completed an associate’s degree and alcohol and drug programming.

Parnell told the judge, “DOC did somewhat let me down by not putting me gradually back into society… It’s easier to find a bag of dope than to find a job.”

Parnell’s conviction record included 7 counts of burglary in 1994, and three revocations of supervision.

“Burglary seems to become a way of life to you,” said Judge Karen Christenson. She called his risk to the community high “because I don’t know what it’s going to take … to get you to the point where you are not a danger to others in the community.”

In one burglary, a man was sleeping in his home bedroom. He awoke to find Parnell, a stranger, standing there.

“We are average income people who worked very hard to accumulate what little we have,” one victim told the court. “We feel like prisoners in our own home.”

Parnell stole a necklace that contained a diamond from a wedding ring given to her by her deceased husband.

Parnell was released on supervision in 2005 for that burglary, but messed up yet again.

His violations on supervision included: Consuming cocaine, failing to attend treatment, absconding, consuming marijuana, fleeing from police, possession of a drug pipe, and paying a prostitute. He had a pending criminal charge for drug paraphernalia.

In 2006, Corrections argued Parnell should be sent back to prison “in order to protect the community from further criminal behavior by this offender…Mr. Parnell’s continuous criminal activity makes his behavior highly unpredictable and therefore a serious risk and danger to public safety.”

Parnell was ordered imprisoned for four years.

In 2007, Judge Timothy Dugan denied his motion for release, saying, “You can’t be supervised in the community.”

In 2009, another judge denied his release too, stating: “It would unduly depreciate the seriousness of the offenses if the defendant did not serve 100 percent of the confinement time as ordered by the court.”

Parnell had 30 violations in prison from 1995 through 2007 for offenses like disruptive conduct, disobeying orders, and fighting. He also completed Bible study and other programs.

Rubben Burton

Judge Paul Van Grunsven denied the 49-year-old Burton’s petition for release in July 2009, ruling it was not in the public interest.

Burton had 1 conduct violation in his recent incarceration. He was baptized, completed a forklift and custodian course and expressed regret.

“I’ve cleansed my heart. I’m a true Christian now,” Burton wrote, but the judge said, “the full time designated for initial confinement at sentencing is necessary to punish and deter the defendant.”

In 2007, Burton was convicted of three felonies for setting up a U.S. postal mailbox and forging strangers’ names to have their mail forwarded to it. He used the victims’ personal information to make purchases. Some identities were stolen from a Boy Scout troop leader. Victims lost more than $50,000.

Burton’s 12-offense criminal history includes a 1995 battery conviction.

Russel Lesperance

The 85-year-old Lesperance worked for a non-profit that was supposed to help people get affordable homes. A veteran of WWII, he was treated for dementia, hearing loss, chronic kidney disease, obesity, and other ailments.

The victim was told by Lesperance that the group would locate a property for her that needed repair. She would buy properties; they would do the repairs. They didn’t.

The court system could find no prior record. “Maybe there was a long time ago,” Lesperance told the court. The online court records system shows, though, that he was convicted of three misdemeanors in 1996.

After being sent to prison for three years on May 30, 2007, Lesperance filed rambling pro se motions with the judge.

Lesperance’s wife pleaded with the judge, “Why did you give my ailing husband of 55 years such a harsh sentence at his age? Russel is a very kind, lovable, very humble workaholic ...”

Jose Avalos

Avalos, 29, was released to the immigration hold via a provision dubbed “positive adjustment time” (the provision gives some inmates 1 day shaved off their sentences for every three for good behavior).  

ERRC found that Avalos had “served sufficient time for punishment” with “satisfactory” institutional conduct.

In 2003, Avalos, a native of Mexico, was sentenced by Milwaukee Judge Elsa Lamelas to 8 years confinement on a cocaine charge, his first Wisconsin conviction.

A state drug agent said Avalos associated with individuals charged in a major Chicago – south side Milwaukee drug dealing ring. The defense attorney disputed it.

Avalos possessed of 247 grams of cocaine worth about $6,500 street value, a 100,000-watt stun gun, a 1,000 digital scale, and fake IDs. He had multiple identities.

The defense attorney, Martin Pruhs, told the judge that Avalos flew to Milwaukee illegally in 1998 at age 18 and assumed the social security number of another man, using it to work. Pruhs claimed that Avalos had stumbled upon the drugs and had the stun gun for protection.

“I’m not a drug trafficker,” Avalos told the judge

The judge said Avalos’ “presence in our country is in violation of the law.” She added, “This was a very substantial amount of cocaine. … Anybody who becomes involved in these kinds of activities has to be prepared to pay the price.”

Avalos had 6 violations of prison conduct rules from 2004-2008. Corrections defined him as a moderate risk.

In court filings, Avalos argued, “Prison has … made me a better person.” He attached a USA Today article about “why the states should deport illegal immigrants” to reduce prison populations.

Michael Office

A judge denied his petition for sentence adjustment in August 2009, saying it was not in the public interest.

On Jan. 30, 2008, Office was sentenced to 2 years and 6 months confinement time for burglary – breaking into an abandoned home.

In 2004, he was sentenced to three felonies for cocaine dealing. Office, now 39, sold cocaine to an undercover officer in the parking lot of a Milwaukee auto parts store. He ran from sheriff’s deputies, swinging and kicking at officers.

He has been convicted of seven felonies and a misdemeanor. His drug record dates to a 1989 felony, which was already a second offense.

Paula Harris

Harris, 45, was released before serving half her time by the Earned Release Review Commission under new expansive health provisions, which no longer require inmates to demonstrate terminal illness. Corrections’ spokesman has refused to describe Harris’ health problems.

Lovern said the DA’s office also has no idea why Harris was released. He said he believed the public had a right to know.

Court records from Harris’ sentencing in 2006 show she was suffering then from congestive heart failure and had difficulty walking. After receiving medical treatment, though, she was walking independently. Alcohol and crack cocaine abuse had exacerbated her heart problems. She had no history of legal problems but an IQ around 65.

Court documents say Harris stabbed an acquaintance, Felicia Woodley, in the chest, severing her aorta, after they argued in a Milwaukee apartment. Harris called Woodley an expletive.  The knife penetrated 11 centimeters deep.

Woodley’s mother told the court, “I loved her more than any words I can express in this letter and even though she wasn’t perfect in this life, she didn’t deserve to die this way.”

In sentencing Harris to 11 years confinement time in 2006 for homicide, the judge, William Brash, said Milwaukee had now “suffered again the loss of over a hundred lives in homicide related events… we have to do something as a community to turn the tide.”

 

Many in the media have cast 2009’s sentencing reforms as early release for “non-violent offenders.” However, the changes actually give violent felons – including homicide offenders – multiple new chances to get out of prison early and to shorten their state supervision in the community.

Felons who beat up or point guns at cops or who cause a death while fleeing an officer? They can get time shaved off their sentences now. So can those who batter judges, witnesses, and jurors. Those who cause mayhem or subject someone to false imprisonment? Some stalkers? They can get time off too.

Arsonists, hostage takers, carjackers, armed robbers, some homicide offenders, some weapons offenders (such as those who modify firearms to make them into machine guns), some aggravated batterers, some child and elder abusers, some felons who neglect children leading to their deaths, and felons who ask children to participate in gangs?

They are also eligible to get out early.  That’s just for starters. Furthermore, that partial list doesn’t even include those now eligible to get out early based on health problems or age – provisions that apply to everyone who qualifies, no matter the offense. Corrections now interprets “health problems” so expansively that they can mean only mental illness.

What the Legislature has done is render “truth-in-sentencing’s” determinate sentence structure indeterminate. The truth-in-sentencing reforms were passed in 1999 to provide victims and the public with certainty about how much time offenders would serve. Now, the Legislature and governor have weakened both ends of the truth-in-sentencing approach – the confinement time an inmate must serve and the extended supervision in the community – creating a Rube-Goldberg-like system with such complexity that it requires elaborate charts to understand. Furthermore, in some cases, judges no longer get to decide whether to release an inmate. Although supporters say the changes will reduce prison costs, Wisconsin’s Corrections budget is one of the few in the country on the rise.

A WPRI review of the sentencing changes found that:

• Nine homicide offenses qualify for different sentencing modifications (for example, drunken driving-related homicides and homicide by negligent handling of a dangerous weapon fall under release provisions). And that doesn’t even count the age or health-related release avenues, which apply to all offenders sentenced under truth-in-sentencing, even lifers in prison for the state’s worst homicide offenses. (See WPRI’s earlier article exploring age and health-related release here.


• More than 90 percent of the state’s hundreds of class B to I felonies now fall under some release provision. For example, inmates can ask to get out early for good behavior if they commit first-degree recklessly endangering safety, reckless injury, or other violent crimes. See the full list here.


• The media have largely focused on one provision for early release (called bifurcated sentence modification or “certain early release” by Corrections) that ostensibly does not allow violent offenders to qualify. However, CER does allow offenders to get out early who have committed serious crimes that lay people might define as having a violent context. Examples: Those who intentionally abuse vulnerable adults, batter city employees, sell weapons, endanger safety by pointing guns at cops, cause injury by negligent handling of a dangerous weapon, and cause death of a child by leaving the child unattended in a childcare vehicle. Almost all inmates released thus far under the changes have been CER releases.


• The new, and different, provision for good behavior time off could be even more significant than the CER releases, as it applies to some violent felons and more inmates overall. According to the Legislative Fiscal Bureau, 53 violent felony offenses qualify for release based on good behavior behind bars.


• Some felons released so far have violent convictions in their pasts. For example, Corrections released Jeremy Wallace, a drug dealer from Milwaukee County, early this in January as part of a second wave of releases (WPRI obtained the names through another open records request). Wallace was previously convicted of armed robbery and carrying a concealed weapon, a WPRI review of his record found .

Furthermore, some violent offenders can now ask to be discharged from supervision in the community early, even those who are supposed to be under supervision for life. The Corrections can discharge an inmate from extended supervision after 2 years, even if a judge ordered a lengthy supervision.

Even Class B felons now qualify for reduced supervision time, including those convicted of first-degree reckless homicide, second-degree reckless homicide, first-degree sexual assault, and numerous other sexual offenses.

“Non-violent offender”

Since Gov. Doyle first proposed releasing inmates early, the media have repeatedly referred to the felons who would qualify as non-violent offenders. In December 2009, the Milwaukee Journal Sentinel reported that, “More than five months after Gov. Jim Doyle signed a budget that granted some nonviolent felons early release from prison, not a single inmate has been released …”

Other examples:

Associated Press: Jan. 6, 2010. “… The Department of Corrections has spent the past three months reviewing hundreds of nonviolent offenders eligible for early parole in exchange for good behavior.”

Milwaukee Journal Sentinel, Oct. 26, 2009: “…Gov. Jim Doyle has said only non- violent prisoners would be released…”

Milwaukee Journal Sentinel, Feb. 22, 2009. “We generally support the governor's call to allow non-violent offenders - those who also have no prior violent offenses - to earn their way to early release from prison as a cost-cutting move...”

Milwaukee Journal Sentinel, May 27, 2009. “Lawmakers were also slated to take up Doyle's controversial proposal to allow the Department of Corrections to release some non-violent offenders early to help shore up the state budget.”

Wisconsin State Journal, March 28, 2009, editorial. “Gov. Jim Doyle's state budget proposal includes a reasonable "good time" provision for non-violent offenders.”

Wisconsin State Journal, guest column, June 14, 2009, “The governor's early release proposal could cut 15 percent to 33 percent off the prison sentences of an estimated 3,000 non-violent offenders…”

Associated Press: “A prison reform plan that would allow some nonviolent felons to get out early and ease monitoring of sex offenders and others won approval early Friday ….”

Capital Times editorial:  “Gov. Jim Doyle's proposal to allow some nonviolent felons to earn early release from the prison system -- and the legislative Joint Finance Committee's decision to back the move -- needs to be seen in this context.”

Wisconsin State Journal, June 19, 2009.”Doyle's plan and the Legislature's also prohibit the most violent offenders, including murderers and rapists, from being eligible for early release.”

Who qualifies?

These statements about “nonviolent offenders” are misleading. As noted, even the state’s worst offenders placed in prison under truth-in-sentencing laws – class A felons convicted of homicide – now have the ability to petition for early release providing they are age 60 or older and have already served 10 years in prison or are age 65 and have served 5 years of their confinement time.

And all offenders – no matter how serious their crimes - qualify for the expanded health release provision.

Although the multiple other new methods for early release exclude class A felons – the worst offenders – from qualifying, only 54 of the hundreds of class B to I felonies – or about 9 percent - provide no mechanism for an inmate’s potential release under the host of new changes (not counting age and health).

In some cases, the media have made it sound as if there is one plan to release felons early from Wisconsin prisons. In reality, the sentencing modifications provide multiple ways that inmates can get out of prison early. In some cases, those methods already existed but were expanded by the Legislature. They are:

• Positive adjustment time for felons sentenced after Dec. 31, 1999. Felons can earn time off their prison sentences by behaving in prison. Some offenders don’t qualify, but certain nonviolent, low risk offenders can get one day of positive adjustment time for every two days of good behavior – potentially tantamount to a one-third sentence reduction. Even those convicted of violent class F to I felonies – subject to certain exceptions – may request to get one day of positive adjustment time for every three days served. With, once again some exceptions, even certain felons convicted of Class C through E felonies can earn one day of positive adjustment time for every 5.7 days of good behavior.  Although the adjustment for qualifying low risk, nonviolent offenders appears to be automatic, the Earned Release Review Commission, which replaced the parole board, must determine whether positive adjustment for violent offenders or those deemed to be at high risk of re-offending is in the interest of justice, considering factors including conduct, efforts at and progress in rehabilitation, completion of rehabilitation and education programs and whether the felon is in the country illegally. In all of these cases, the sentencing court is notified and can choose to, but does not have to, hold a hearing.



• Risk reduction. Inmates convicted after Oct. 1, 2009 may have 25 percent of their sentences shaved off if they complete a risk reduction plan including treatment and maintaining good conduct. Judges must approve this plan at sentencing time. Risk reduction inmates also qualify for further reduction from, say positive adjustment time, in addition.


• Bifurcated sentencing reduction. Inmates convicted after Oct. 1, 2009 (and inmates convicted before it – it’s their choice whether to petition under the new or old rules) can petition for release if they are serving time for misdemeanors or for certain (called “non-violent”) class F to I felonies, if it’s believed they won’t engage in assaultive actions, and if they aren’t more than 1 year away from release from prison.  But – and this is key - now the Department of Corrections decides, not the sentencing court, thanks to a veto by the governor. Although the sentencing court and prosecuting district attorney must be notified, there is no provision for judicial review. That can be significant.


• Release for age or health reasons. Under previous law, inmates age 60 or older could ask for release if they had served at least 10 years OR had a “terminal” illness. The release could be granted by either a program review committee or a sentencing court. Under the new modifications, these provisions now apply to the state’s most serious offenders – those serving life prison terms (Class A felons), and convicted of Class B felonies. Those qualifying for release due to age do not have to show they have health problems. The program has also been extended to younger inmates who can show “extraordinary health circumstances.” It’s the Earned Release Review Commission that can now let the inmate out.  There is no judicial review. The inmate has the burden of proving by the greater weight of the credible evidence that a reduction in sentence “would serve the public interest.” Either the inmate or government (if it opposes release) may seek judicial review, but that review is limited to determining whether the ERRC “erroneously exercised its discretion” -  a traditionally deferential standard.



• Earned release and challenge incarceration program. Once only a substance abuse treatment program, the law expanded the earned release program to a “rehabilitation program.” Furthermore the boot camp program – CIP - was expanded beyond inmates with substance abuse treatment needs to those with other treatment needs. The CIP program was created in 1990 for inmates under 30 with substance abuse problems and other met conditions. The Parole Commission had to release the inmates who completed it. Earned release, created in 2003, was designed to encourage inmates to complete drug and alcohol treatment. Some charges didn’t qualify, and the sentencing judge had to approve the program.

Violent offenders

Showing the type of offenders who qualify for some release mechanisms, the Legislative Fiscal Bureau compiled a chart listing what the LFB labeled “violent” felony offenses that now qualify for positive adjustment time reductions of 1 day for every 3 days served (if different conditions are met). They are:

1. Second-degree reckless injury
2. Abuse and neglect of patients and residents (intentional abuse or neglect that causes great bodily harm)
3. Endangering safety by intentionally discharging a firearm from a vehicle while on a highway or public parking lot
4. Modifying a firearm to make it a machine gun
5. First-degree recklessly endangering safety
6. Causing great bodily harm by tampering with household products
7. Assault by prisoners
8. Failure by a person responsible for the welfare of a child to prevent great bodily harm to a child
9. Homicide by negligent handling of a dangerous weapon, explosives or fire
10. Homicide by negligent operation of a vehicle
11.  Abuse and neglect or patients and residents (intentional abuse or neglect that is likely to cause great bodily harm)
12. Felony intimidation of a witness
13. Felony intimidation of a victim
14. Endangering safety (by discharging firearm into a vehicle or building or setting a spring gun)
15. Second-degree recklessly endangering safety
16. Physical abuse of a child (recklessly causing great bodily harm)
17. Aggravated battery
18. Aggravated battery to an unborn child
19. Battery by prisoners
20. Battery by persons committed to institutional care for sexually violent persons
21. Battery to law enforcement officers, fire fighters and commission wardens
22. Battery to probation and parole agents and aftercare agents
23. Battery to jurors
24. Battery to an emergency department worker, an emergency medical technician, a first responder or an ambulance driver
25. Battery or threat to witnesses
26. Battery or threat to a judge
27. Intentionally abusing or neglecting patients or residents of certain facilities under circumstances that cause bodily harm
28. Reckless or negligent abuse or neglect of patients or residents of certain facilities
29. Selling, possessing, using or transporting a machine gun
30. Sale or commercial transportation of a tear gas device
31. Using a tear gas device to cause bodily harm or bodily discomfort to a peace officer
32. Using or threatening to use a tear gas or pepper spray device during commission of a crime to cause bodily harm or bodily discomfort to another
33. Using pepper spray device to cause bodily harm or bodily discomfort to a peace officer
34. Creating a high probability of great bodily harm to another by tampering with household products
35. Arson with intent to defraud
36. Possession, manufacture or transfer of a fire bomb
37. Threats to injure or accuse of a crime (extortion)
38. Physical abuse of a child (intentionally causing bodily harm)
39. Physical abuse of a child (recklessly causing bodily harm to a child by conduct which creates a high probability of great bodily harm)
40. Battery by a person subject to certain injunctions
41. Battery to public officers
42. Battery to a technical college district or school district officer or employee
43. Battery to a public transit vehicle operator or passenger
44. Intentionally abusing or neglecting patients of residents of certain facilities, under circumstances that are likely to cause great bodily harm
45. Reckless or negligent abuse or neglect of patients or residents of certain facilities under circumstances that are likely to cause great bodily harm
46. Tampering with household products
47. False information concerning an act that constitutes tampering with household products
48. Damage to certain property
49. Damage or threat to damage property of a witness
50. Criminal damage to property of a judge
51. Throwing or expelling blood, semen, vomit, saliva, urine, feces or other bodily substance at or toward an officer, employee or visitor of the prison or facility or another prisoner of the prison or facility by a prisoner under certain circumstances
52. Bomb scares
53. Physical abuse of a child (recklessly causing bodily harm)