Part 4 in a 4 part series.

 

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)

This is part 4 of a 4 part series. Other entries:

Part 1

Part 2

Part 3