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Roggensack self-funding sentencing disparity study

By: Eric Heisig//May 29, 2014//

Roggensack self-funding sentencing disparity study

By: Eric Heisig//May 29, 2014//

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Justice Pat Roggensack
Justice Pat Roggensack

Concerned by studies and articles that, she said, seemed to infer judges were sentencing black defendants more harshly than their white counterparts, Wisconsin Supreme Court Justice Pat Roggensack is paying thousands of dollars of her own money to research the potential disparity.

The project, which she has been working on for four years and expects to complete later this year, was sparked, she said, by reports that Wisconsin had the highest incarceration rate for black males in the country.

“There was some implication,” she said, “that maybe our courts were in some way responsible.”

Along with a statistician she hired, Nicholas Keuler of the University of Wisconsin-Madison, Roggensack is crunching data from 2000 to 2012 provided by Wisconsin Circuit Court Access, which is commonly referred to as Consolidated Court Automation Programs, or CCAP.

“If there are things that show up,” she said, such as discrepancies, “we will certainly be recommending that as a court system we look at them very carefully.”

Roggensack said she has paid about $8,700 to the statistician so far. She opted to do it on her own, she said, in part because of the tight court budget and in part because other justices didn’t express interest.

In particular, she said Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley told her “this is your personal project.” Abrahamson and Bradley did not immediately return requests for comment.

The data Roggensack and Keuler are putting together looks at judges’ decisions and the factors that went into those decisions. Other factors, such as decisions made by police and prosecutors during the case, are not being considered in the study, she said.

“That may have something to do with choices that the executive branch makes,” Roggensack said. “[The judges] don’t have any control over that. They only have control over the sentencing.”

The study compares certain defendants with similar charges. She said she has been able to find some white and black defendants who have similar criminal histories to make the comparisons. Much of the data focuses on Milwaukee County, which has the most concentrated population of black residents, though Dane County also plays a large role.

“The more we got into it, the more variables we found,” Roggensack said. “Part of the problem is we don’t collect information that would answer some of the questions I have. Once I write about it more fully, [I will say] there are some things we can’t say one way or the other.”

This is not the first time such a study has been done in Wisconsin. The state’s now-defunct Sentencing Commission, in a study from the early 2000s, found that black defendants were more likely than white ones to be sent to prison for the same drug offense, particularly in less serious cases.

The Commission on Reducing Racial Disparities in the Wisconsin Justice System, which was put together by then-Gov. Jim Doyle, in 2008 put out a report recommending ways the state can reduce the number of incarcerated black men. A 2013 report from the Employment and Training Institute at the University of Wisconsin-Milwaukee made similar findings.

“This has been done over and over again,” Employment and Training Institute Director John Pawasarat said.

And while all the reports showed some disparity, much of the evidence suggests black people are unfairly targeted by police before a judge has a say in the case.

“Most of the action happens on the street,” Pawasarat said. “People get arrested more often than not for various crimes. It all starts there.”

Pamela Oliver, chairwoman of the sociology department at the University of Wisconsin, agreed that the data has shown inequalities occur before a judge sees the case. But Oliver – who was on Doyle’s task force – said past data also has shown that a disparate amount of black defendants are treated harshly when their probation is revoked and they are sent to prison more frequently than white defendants.

“Everybody who’s really worked on these issues found the really high disparities tend to be in particular places for particular offenses,” Oliver said. “But what’s actually happening is quite local and moves over time.”

Marquette Law School Associate Dean Michael O’Hear said focusing on one part of a large issue can distort a larger message. Generally, he said, some reports have found disparities, but they haven’t been large.

“Sentencing is just one part of a big system,” O’Hear said. “I doubt that we would get a report that finds there are big racial disparities in sentencing, but if there are good reports, than that would be doing a real service to highlight that issue.”

Roggensack acknowledged her report won’t tell the full story. There are other factors that can’t be addressed in this study, she said, such as societal issues and a defendant’s upbringing.

“I do think that it will paint an incomplete picture for the rates of incarceration,” she said, “because … it starts out before people even get in trouble with the law.”

But she reiterated that the point of the study is to look at what judges and justices can control.

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