May 18, 2009 – Four legislative proposals incorporating research into Wisconsin’s exploding prison costs received approval May 15 from a special committee representing legislators, county government, judges, prosecutors, public defenders, and other stakeholders in the criminal justice system.

Throughout the winter, the Special Committee on Justice Reinvestment Oversight, chaired by Sen. Lena Taylor (D-Milwaukee),   has considered the findings of the Council of State Government (CSG) Justice Center. The CSG analysts told the committee that almost $2.5 billion of corrections costs over the next decade could be averted with $150 million of investments and changed policies for prisoners on supervised release. The policy recommendations followed the CSG finding that the great percentage of the ballooning prison population are those offenders revoked for failing to comply with conditions of their community supervision, but had not been convicted of committing a new crime.

New cap on extended supervision

The committee voted in favor of a proposal to rework Wis. Stat. Section 973.01(2)(d) to limit the term of extended supervision to no more than 75 percent of the length of the term of confinement in prison, excluding Class B and C felonies and certain sex offenses.

Researchers had found that prolonged periods of extended supervision represent significant resources for the state and increase the odds a supervisee will be returned to the crowded prisons. However, some committee members had commented that the extended supervision period gives the state leverage to compel an offender’s restitution payments. Reflecting those concerns, the proposal included a provision allowing judges to exceed the cap “if the court determines that it is necessary to protect a victim’s rights.”

Although he agreed lengthy extended supervision is an expensive way to oversee restitution, Committee member and Marquette County District Attorney Richard Dufour backed this exception language because he worried that there were no existing good alternatives to ensure repayment.

Public Defender Nicholas Chiarkas warned that an exception from the 75 percent cap would swallow the rule and undermine its purpose of bringing down prison costs and shifting toward an emphasis on community treatment. Of the members present, the committee voted narrowly five-to-four to reject the exception from the draft.

Dufour and other members said they would like to see the creation of a program similar to that established for child support enforcement to oversee restitution repayment separately from the service of a sentence. But this special committee’s mandate did not extend to drafting such legislation.

New revocation procedures

The committee voted for a proposal setting the period of reconfinement in prison following a revocation to either six months or the total length of the remaining sentence, whichever is less. The Department of Corrections (DOC) would be authorized to extend this period up to 90 days for certain offenses such as violating a prison regulation and refusing to participate in required programming or treatment,

Members rejected additional language aimed at reincarcerating a supervisee revoked because of a new felony criminal complaint. First Judicial District Deputy Chief Judge Maxine White raised due process concerns about confining an offender under an earlier sentence for a new criminal complaint. Chiarkas noted that a new criminal charge is properly adjudicated fully and separately from the offense underlying the supervised release.

Community supervision and services

Following a CSG finding that unemployment, mental illness, and substance abuse are major causes for recidivism among those on supervised release, the committee recommended $8 million for services to aid the severely mentally ill at high risk for reoffending, $12 million for a transitional employment program, and $10 million for community services such as alcohol and drug treatment.

The proposal calls for a system of sanctions other than reincarceration and training of supervising agents in the use of alternatives to revocation. Also, the proposal seeks better assessments of offenders' risk to public safety and evaluations of their treatment needs.

Committee members set a goal of reducing the community supervision recidivism rate for persons convicted of a felony by 25 percent between fiscal years 2008 and 2011.

Risk reduction sentencing

The committee proposed legislation authorizing “risk reduction” sentencing when a court determines it is appropriate and the defendant is agreeable to treatment or programming ordered by the DOC based on its risk assessments and needs evaluations. Under this type of sentence, an offender who successfully completes this specified programming and treatment must be placed on extended supervision after 75 percent of term of confinement.

Committee members rejected an amendment offered by the DOC that might potentially authorize an offender’s release after serving 85 percent of the term of confinement, but without completion of the programming or treatment due to lack of DOC resources.

The proposed language provided, “If the department, because resources are unavailable, cannot provide programming and treatment required in order for a person to complete programming and treatment under [this statute] before he or she has served 75 percent of the term of confinement, the department shall release the inmate when he or she has successfully completed the assessment and treatment or programming required or after he or she has served 85 percent of the term of confinement, whichever occurs first.”

Rep. Joel Kleefisch (R-Oconomowoc) objected that this change would undo the committee’s purpose of delivering treatment to offenders. Chiarkas remarked that it is unfair to let the DOC back out of a deal reached between the court and the defendant. Rep. Scott Suder (R- Abbotsford) warned that the public would not embrace a law that gives prisoners early release without asking them to do anything for it.

In an email, Tony Streveler, of the Department of Corrections, explained that the amendment was aimed at simply giving prison officials flexibility in making an assessment of the prisoner’s treatment.

“The language allowed some additional time beyond that of 75 percent and less than 85 percent for a person to complete required treatment/programming to accommodate for those who could not complete treatment within the strict 75 percent timeframe,” Streveler wrote.

“For example, the original language did not allow for anyone who would not complete required treatment by the day of the 75 percent to be released, unless the department determined they had successfully completed required treatment or programming,” Streveler continued. “And, obviously, the department cannot make this determination unless the person has actually completed required treatment/programming. Simply, the original language, as drafted, required the department to determine 'successful completion' at 75 percent whether or not the person completed required treatment/programming – even if the person may be completing treatment/programming within a week [or] two or more beyond that of the person's  75 percent of served confinement time.”

Recommendations head to Legislature

Following the special committee’s votes, these proposals will be taken up by the Joint Legislative Council. They will need to have support from 12 of the committee’s 22 members comprising 11 senators and 11 representatives to be introduced to the full Legislature. The Council is expected to meet Wednesday.

Previous articles on the Justice Reinvestment Committee: