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  • March 01, 2017

    Mass and Disparate Incarceration in Wisconsin: It's Our Problem

    Mass and disparate incarceration continues to plague our communities, especially Milwaukee. What can we do? The State Bar is taking steps to spark the conversation.

    Joe Forward

    young african-american male in handcuffs

    March 1, 2017 – Tackling the continuing problem of mass and disparate incarceration in Wisconsin will necessarily take a collaborative and widescale effort among key partners in the criminal justice system, including the state’s community of lawyers and judges.

    State Bar President Fran Deisinger, spearheading the effort, recently called on judges, prosecutors, defense attorneys, law professors, and other stakeholders in the criminal justice system to facilitate the conversation on the State Bar’s role in addressing mass and disparate incarceration, issues that have long plagued Wisconsin.

    More than 30 individuals met for a symposium Feb. 18 at the State Bar Center in Madison, listening to presentations before a robust discussion on a potential path forward. What emerged was a palpable commitment to continue the conversation.

    The issue of mass and disparate incarceration is one of the most important justice issues in our state.

    “The issue of mass and disparate incarceration is one of the most important justice issues in our state,” President Deisinger said. “We can take these ideas and keep them on the front burner, move them forward, and see if there are things that lawyers and judges can do in the system to help change things in a positive way.”

    Rock County District Attorney David O’Leary, one of four panelists that provided a foundation for discussion among the group, noted that the State Bar alone cannot solve a problem like mass and disparate incarceration, but it can play a key role.

    “The State Bar alone can’t solve it. The DA’s can’t solve it. Law professors and judges can’t solve it. It will take every player in the system to work on this,” said O’Leary, a member of the state’s Criminal Justice Coordinating Council. “But it’s important to take the lead and get the important players involved to help us make those decisions.”

    Disparate and Mass Incarceration in Wisconsin

    It’s no secret that Wisconsin has a disparate incarceration problem. In recent years, disparities in the state’s confinement of African-American and Native American men have been well-documented and highly publicized as the highest in the country.1

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    But that disparate incarceration problem has existed as far back as the 1970s, when African-Americans, about 3 percent of the state’s general population at the time, accounted for about 30 percent of the state’s prison population of 2,500 inmates.

    As of 2016, black men account for 40 percent of the state’s approximately 22,000 inmates, despite a 6 to 7 percent African-American population in Wisconsin.

    “You see remarkable disparities going back 50 years in Wisconsin,” said Marquette University Law Professor Michael O’Hear, who studies sentencing and punishment and provided a foundational background on the state’s disparate incarceration rates.

    “It’s remarkable because 1970 was a completely different world from a criminal justice standpoint. Parole was in routine use, it was before the war on drugs, no truth-in-sentencing, virtually no mandatory minimum sentences in the state, and so forth. To me, it suggests that whatever the forces driving disparities, they are deeply rooted.”

    You see remarkable disparities going back 50 years in Wisconsin.

    The corrections data also suggests another related problem, not unique to Wisconsin: mass incarceration. Starting in the early 1990s, the state’s prison population jumped drastically, from approximately 10,000 around 1994 to about 20,000 by 1998.

    O’Hear said the state’s prison population reached its peak around 2004, and at that time, the African-American prison population neared 50 percent. In the mid-1990s, Milwaukee was dedicated to tough-on-drugs practices, O’Hear noted, and nearly 75 percent of the state’s African-American population resides in Milwaukee County.

    “What’s happening in Milwaukee County with respect to crime, policing, prosecuting, sentencing, and community supervision has a huge impact on racial disparity numbers,” said O’Hear, who recently published a book on mass incarceration in Wisconsin.

    O’Hear said Wisconsin’s “imprisonment boom” tracks closely with increases nationally during the same time period, and Wisconsin’s overall imprisonment rate is below the national average. Thus, the rise in incarceration rates is not unique to Wisconsin.

    But O’Hear noted an interesting comparison with Minnesota, a state with comparable demographics. Since about 1980, Wisconsin’s imprisonment rate has been about twice Minnesota’s imprisonment rate, yet the states’ violent crime rates are similar.

    “That is very clearly a reflection of differences in criminal justice policy and practice,” O’Hear noted. “Minnesota is emphasizing probationary sentences, and Wisconsin is emphasizing sentences of imprisonment. It is curious that despite very different approaches, there seems to be little dramatic difference in public safety outcomes.”

    O’Hear debunked the common misperception that mass incarceration is a function of the war on drugs, noting that drug offenders remain a small portion of the overall prison population, and those numbers have actually dipped in recent years. Individuals in prison on revocations, which would include revocations for violating probation, constitute the single largest category of prisoners, at about one-third of the prison population.

    O’Hear offered no concrete solutions. But he said the social costs of mass and disparate incarceration, not to mention the great expense, raises the concern that over the long run, incarceration today will breed more crime and incarceration in the future.

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    Mass and disparate incarceration continues to plague our communities. But what can Wisconsin do to improve the system? Speakers share their ideas for tackling one of the most important justice issues in our state.

    Exploring Options

    While O’Hear addressed the scope of the disparate and mass incarceration problem, U.W. Law Professor Cecelia Klingele addressed the types of areas that states have explored in examining sentencing and incarceration policies and reform.

    Klingele, who focuses her research on criminal justice administration and community supervision, said our country’s sense of scale is drastic compared to other countries.

    More than 2.2 million people are in prison in the U.S, more than any other country.2 While the U.S. accounts for just 4 percent of the global population, it holds about 20 percent of the world’s prison population.3 Klingele said the U.S. incarceration rate remained constant through much of the 20th century, but “when it soared, we lost scale.”

    Klingele noted that in many countries, the maximum penalty for any crime, including homicide, is 15 years in prison. Communities need to be protected, she said, but research suggests that longer sentences may not do anything to reduce crime rates.

    De-escalating maximum penalties was politically unthinkable at one time.

    “Our own state’s penalty for Class B felonies has tripled in the last 35 years,” Klingele said. “But nothing has changed besides the statute. We have been trained to think of sentences for violent crimes in 20- or 40-year increments. But think about what you may lose for one year in prison. A year is a really long time, especially for young offenders.”

    Klingele said one of the fastest ways to change the scale of incarceration is to change the number of people going into prison, and the period of time they are there.

    “De-escalating maximum penalties was politically unthinkable at one time,” she said. “But some states are doing it for certain crime categories. It’s most sustainable in small increments over time, allowing the public to acclimate to a different sense of scale.”

    Aside from back-end reforms that shave the length of prison sentences or decriminalize certain behaviors, Klingele says front-end reforms can be more palatable. Those include things like pre-charge diversion programs, which allow people to avoid criminal charges if agreeing to pay restitution to victims or follow through on other conditions.

    In addition, Klingele said thinking strategically about community supervision also makes sense, given the number of inmates in prison for violating community supervision.

    “We know that most people who fail in community supervision will do so in the first three years of supervision, most within the first six months. So why are we supervising them five, 10, and 15 years? Probation imposes a number of restrictions on individuals that serve to limit their ability to fully reintegrate into the community,” Klingele said.

    Klingele also discussed micro-level changes, such as risk assessment tools aimed at identifying an individual’s risk for reoffending, and the challenges of getting that right.

    “I hope all of us together will monitor whatever changes we promote to look for unanticipated ways in which we may be creating new problems so we can problem solve around them,” Klingele said. “If we are alert to that, we’ll be much quicker to act before we see the emergence of problems, like the disparity rates we see today.”

    Take a Look

    See photos from the Symposium on Disparate Incarceration in Wisconsin on our Facebook page, or click here.

    Continuing the Conversation

    District Attorney O’Leary discussed the work that the state’s Criminal Justice Coordinating Council is doing to address problems in Wisconsin’s criminal justice system, and noted that many counties have their own coordinating councils.

    Counties and local municipalities are doing self-assessments to reexamine policies and procedures, such as the use of jail time to compel payment of fines and forfeitures.

    O’Leary, past president of the Wisconsin District Attorneys Association, said there are opportunities for change at key decision points as individuals make their way through the criminal justice system, starting with the point of arrest.

    We can change this.

    “People are willing to make changes and to improve the system if you can show the research and provide the basis for doing so,” said O’Leary, who helped start Rock County’s Criminal Justice Coordinating Council before joining the state’s council.

    Milwaukee County Circuit Court Judge Joseph Donald, another panelist, said the only way to address the problem is to start talking about it, to develop the language and defined terms that help people communicate on issues that can be hard to discuss, including racial inequalities and implicit bias in the criminal justice system.

    “We can change this,” Judge Donald said. “We’ve developed the models and the processes. We understand the research, the numbers are clear, the evidence is there. This is not someone else’s problem. This isn’t someone else’s community. This is ours, and as soon as we own it, I think we can start making some headway on addressing it.”

    State Bar President Deisinger explained that this is a justice issue, not a political one, and judges and lawyers can facilitate the conversation to build momentum.

    “We can’t solve it on our own,” Deisinger said. “But even moving the needle a little bit would have profound human consequences. Our community of lawyers and judges can focus attention on this issue and perhaps identify responses to move the needle.”


    1 John Pawasarat and Lois M. Quinn, Wisconsin’s Mass Incarceration of African-American Males: Workforce Challenges for 2013, Employment Training Institute, U.W-Milwaukee (2013).

    2 Roy Walmsley, World Prison Population List (Tenth Edition), International Centre for Prison Studies (2013).

    3 Id.

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