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ON THE DEFENSIVE: The case for ‘good time’ on extended supervision

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

For more than 15 years, Wisconsin courts have operated under the “truth in sentencing” model.

This system abolished parole and was designed to be rigid, fixed and certain. Prison behavior and rehabilitation promptly became irrelevant for purposes of sentence reductions. If a judge imposed a prison sentence, the inmate knew that he or she would serve every day of that time.

Under truth in sentencing, judges were required to split prison sentences between a period of incarceration and a period of community supervision known as extended supervision. Again, there would be no credit for good behavior. Inmates who were found to have violated the terms of their extended supervision would face revocation proceedings and be sent back to prison for part of their extended supervision.

Situations like the following soon became common: A judge imposes a sentence, bifurcated between three years in prison and five years of extended supervision. The inmate serves all three years in prison, and is successful on extended supervision for four years.

During the last year, though, the person violates a rule of the supervision, and is revoked. The four years spent on extended supervision will count for nothing. An administrative law judge can then send the defendant back to prison for five years.

Yet, many times supervision would be revoked for only a small part of that time. In such cases, any time a person had served in prison would be subtracted from the five years of extended supervision and no credit would be given for the previous four years on supervision. Rule violations at any point during that term could again result in revocation, and the whole process could repeat itself a number of times. Although the total length of time a person could spend in prison wouldn’t increase, the inmate could nonetheless spend decades under the control of the Department of Corrections.

Those working in the criminal justice system have witnessed firsthand how that system has punished blacks more harshly than whites. A study released in 2013 by the University of Wisconsin-Milwaukee looked at Wisconsin’s incarceration rates and found they were the highest in the country for black men.

The study found that roughly half of all black men in their 30s or early 40s in Milwaukee County had spent time in the state’s correctional system. Milwaukee County District Attorney John Chisholm noted the obvious: “Our incarceration rate is high not necessarily because of the number of offenses and the number of prosecutions — what’s driving our incarceration rate is failure under supervision.”

Policymakers should respond to this problem by reducing the maximum time a person can be placed on extended supervision and by permitting those on supervision to receive credit for time spent in the community. The Department of Corrections should not be permitted to transform a five- or 10-year period of extended supervision into two decades of monitoring. The time that someone has spent being supervised in the community should be subtracted from the overall amount of time available for reconfinement. Such a modification would be consistent with the intention and attitudes of most sentencing judges, as well.

No judge expects, or even wants, a defendant to serve a disproportionate amount of time in prison for mere violations of probationary rules that fall short of any sort of new criminal conduct.

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