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.

Click here for Part One of the Continuing Report

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