Sentencing and corrections reform in Wisconsin: Looking back, looking ahead

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After about three decades of nearly continuous growth, Wisconsin’s prison population has stabilized over the past dozen years at about 22,000 to 23,000 inmates.

This stabilization has made corrections-related budgetary pressures seem more manageable and diminished the force of calls for fundamental sentencing and corrections reform. From a political and fiscal standpoint, the current prison population may well be sustainable indefinitely, despite its extraordinary size compared with historic norms.

It is quite possible, though, that the Legislature’s adoption of tougher drunken driving sentences in its last session will upset the new equilibrium. Chronically overcrowded facilities cannot easily absorb hundreds of additional inmates. If the state confronts the need to build a new prison, sentencing and corrections reform will again take center stage in discussions of public policy.

In my new book, “Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway,” I trace the tension between two competing impulses in the body politic over a period of nearly a half-century. First, there is the desire to respond to social problems — especially those receiving intense media attention — through criminal law, either by creating new crimes or by strengthening sentences for existing crimes. Often, it is doubtful whether such enactments will actually help to resolve the underlying problems, but the tough-sounding legislative responses do at least seem to provide a short-term cathartic benefit.

Second, there is the desire to minimize growth in the corrections budget. Reducing the budget has not seemed nearly so much a priority, but increasing the budget tends over the long run to require the politically unpalatable choice of either increasing taxes or reducing spending on other programs.

If the past is any guide, future attempts to limit growth in the prison population will concentrate on the development of more appealing non-prison alternatives for sentencing judges and on greater flexibility for the release of prisoners who can be safely supervised in the community. For instance, when former-Gov. Tommy Thompson proposed massive prison-construction plans in 1991, the Legislature responded by creating the Intensive Sanctions Program — which was envisioned as a sort of probation on steroids.

The ISP could be used by judges as a sentence in its own right, or by the Department of Corrections as a mechanism for early release. The ISP ran into various political and administrative difficulties and was largely phased out by the end of the decade, but that hardly marked the end of efforts to restrain imprisonment growth.

More recently, for instance, the Legislature created the Treatment Alternatives Diversion program, also known as TAD, which supports drug-treatment courts and other initiatives intended to keep lower-level offenders out of jail and prison cells. However, despite significant budget increases during the Walker era, the TAD budget remains a tiny fraction of total corrections spending in the state.

Over the years, reformers have done less to squarely deal with the basic impulse to respond to social problems by adding to, or otherwise toughening, the criminal code. The phenomenon is neither new nor limited to Wisconsin. Two and a half centuries ago, Sir William Blackstone criticized legislatures for “giving a lasting efficacy to sanctions that were intended to be temporary and made . . . merely upon the spur of the occasion” and “too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence.”

To the extent that Wisconsin policymakers wish to restrain imprisonment growth, the development of improved alternatives to incarceration and the implementation of more flexible release policies should continue to be priorities. But the code should also get some attention. The code determines which individuals must bear the dread label “felon.”

Once a person carries this label, there is a tendency to see nonincarcerative penalties as a slap on the wrist or an undeserved act of grace. The code also determines the maximum sentencing exposure that an offender faces. Although few offenders get the maximum, the top of the sentencing range inevitably affects the sense of prosecutors, judges, corrections officials, victims, and the public at large about what level of punishment is appropriate.

In some cases, the code also dictates a minimum level of permissible punishment. Thus, if the code is unnecessarily severe, other sorts of reforms that simply create new options for criminal-justice officials may have limited practical effects.

Nearly two decades ago, the code benefited from a top-to-bottom reexamination by the Criminal Penalties Studies Committee, which received a charge from the Legislature to adapt the code to the new system of truth in sentencing. In so doing, the Committee brought greater coherence to the code and restructured a multitude of mandatory minimums and sentence enhancers in helpful ways. However, after many years of subsequent ad hoc enactments, a fresh reexamination of the code may be in order.

Additionally, a new committee might be given a clearer mandate than the old to guard against the excessive use of incarceration.

Even with a good, retrospective cleaning up of the code, there remains the challenge of avoiding future rounds of ill-advised ad hoc enactments. There may be some hope, though, in the Legislature’s balanced, multifaceted approach thus far to our opioid epidemic. As I discuss in the book, the current story contrasts markedly with legislative responses to the cocaine problem in the 1980s and 1990s, which included wave after wave of increasingly punitive drug-sentencing laws.

To be sure, there are some who think that the different approach to opioids reflects the different racial composition of the relevant offender populations. That may be true to some extent, but I hope that the different approach also to some extent indicates a more realistic understanding of the costs and benefits of using the blunt instrument of criminal law to deal with complex social problems.