To say that Governor Scott Walker’s proposed biennial budget has gotten a little attention is a huge understatement. But little attention has focused on the immediate impact it will have on inmates serving sentences in Wisconsin prisons.
The governor’s budget seeks to undo many of the provisions enacted by 2009 Wis. Act 28, which expanded early release provisions to inmates serving sentences for certain convictions. In the long run, the governor’s plan will end up costing Wisconsinites more than maintaining the current programs in existence and it fails to offer any further public safety benefits. What it will do is open the floodgates to post-conviction litigation as everyone involved in the criminal justice system — from the Department of Corrections to defense lawyers and district attorneys to the courts — figure out what to do with people sentenced in reliance on the existence of the Act 28 provisions.
Not only do I oppose it, but so does the Wisconsin Association of Criminal Defense Attorneys, on whose board I sit. But frankly, criminal defense attorneys should not be the only ones voicing opposition. This legislation will increase the strain on a system already bursting at the seams and do nothing but cost more money and increase an inmate population that, thanks to other provisions of the governor’s bill, fewer and fewer DOC employees will be available to manage.
One of Act 28’s main purposes was to direct highly sought-after DOC resources to the people who needed them the most. It created positive adjustment time for inmates with qualifying convictions to earn their way onto extended supervision early by having excellent conduct and good adjustment to prison. It expanded the earned release and challenge incarceration programs to inmates who did not have substance abuse problems, while maintaining strict criteria for admission to the program, which included meeting 15 factors and undergoing an objective assessment. It also created a mechanism for people who were succeeding on extended supervision to terminate supervision early.
None of the provisions are a get-out-of-jail free pass. In order to qualify for positive adjustment time, for example, not only does the inmate have to a qualifying conviction and meet strict criteria, but the Earned Release Review Commission (formerly known as the Parole Commission) has to approve it. Upon approval, the ERRC informs the circuit court of its approval, and the circuit court can step in and reverse the ERRC decision.
Gov. Walker’s plan seeks to eliminate positive adjustment time and the earned release program completely and return the challenge incarceration program to substance abusers only. To inmates who successfully complete the substance-abuse-only challenge incarceration program, it also adds a more intensive supervision plan for substances abusers.
Even if we look past the obvious fiscal problems associated with a plan that keeps more inmates in prison for longer at an increasingly higher per annual rate and takes money away from programs that could desperately use it, it creates several post-conviction problems.
One problem common to the elimination or change in these programs is what to do in cases where the circuit court sentenced a defendant in a particular way based on the existence of one or all of the Act 28 provisions. If the circuit court relied on the existence of, for example, positive adjustment time, to determine the least amount of time custody necessary to meet the goals of sentencing, then the defendant would be entitled to a modification of his sentence given the elimination of positive adjustment time. There will likely be hundreds of cases like this across the state, in which the circuit court relied on a particular provision of Act 28 in crafting the appropriate sentence. Repairing those sentences, which were transformed from legal to illegal by the enactment of the governor’s legislation, begs the question of how.
The easiest way to accomplish a change in a sentence would be through a direct appeal. But this resolution will apply only to the few inmates who were sentenced within a few months of the enactment of the governor’s budget bill. Through a direct appeal, an inmate could seek either a new sentencing hearing or a modification of his sentence based on a new factor.
But the larger problem will be the majority of inmates who were sentenced and did not appeal or had no merit appeals because at the time of their direct appeal, their sentences were legally valid. Those inmates will have to seek relief either by way of a motion to modify their sentence based on a new factor or possibly by a post-conviction motion pursuant to WIS. STAT. §974.06. (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=974.0) Both motions would fall into the general category of a collateral attack, and in the past, the Office of the State Public Defender has only appointed counsel in those types of cases on a discretionary basis. (As I understand the policy, the SPD will not appoint counsel for someone to seek a modification of his sentence, but has the discretion to appoint counsel in a §974.06 case).
This, of course, leaves open the unanswered question of what to do with the inmates who qualified for the earned release or challenge incarceration programs before the legislation modified the criteria for admission. Surely those inmates would also be entitled to modification of their sentences, as well.
This legislation creates more problems than it solves and it will ultimately end up keeping the circuit and appellate courts busy for the foreseeable future.