Unlike rumblings at the federal level that mandatory-minimum sentencing runs afoul of the Constitution, truth-in-sentencing in Wisconsin has not faced major legal fights.
“Unless you’re talking about life sentence or a super-long sentence of years, I just don’t see a viable constitutional challenge to truth-in-sentencing,” said Michael O’Hear, a professor at Marquette University Law School.
Still, there are some people in and around the state’s legal community who are building a case against the law. Groups of attorneys, prisoners’ advocates and scholars have chipped away at the practical theories behind truth-in-sentencing for several years.
Their main arguments are based on the idea that abolishing the law would save the state money.
Working the numbers
The opposition’s argument starts with basic numbers. Reinstating some version of parole or sentence reduction for good behavior could reduce the state’s inmate population, state Rep. Evan Goyke, D-Milwaukee, said.
That population was at 22,472 as of Nov. 14, according to the state Department of Corrections.
While crime rates have declined statewide in recent years, the inmate population has not, O’Hear said. Instead, the numbers have gone up, according to a presentation he gave in 2013, from 2,046 inmates in 1973.
“It meant,” O’Hear said, “that we did not reap dividends from the state from declining crime rates.”
If the population goes down, so too could the DOC’s budget, Goyke said. The department’s budget for the 2013-15 biennium is nearly $2.6 billion, and the DOC is asking for $57 million more for the next one.
The numbers at least should support adding some flexibility to the state’s truth-in-sentencing law, said Goyke, a former attorney in the State Public Defender’s Office.
“The groundwork is being done,” he said, “so when we are able to find exactly what that policy change is … and we have a coalition built. The obstacles will not present themselves.”
Reinstating parole or a similar system also could have a secondary, long-term effect on the population and budget numbers, criminal defense attorney Ray Dall’Osto said, because prisoners would be less likely to be hardened by long sentences.
“[Inmates] do not quickly become recidivists under the parole system,” said Dall’Osto, an attorney with Gimbel, Reilly, Guerin & Brown LLP, Milwaukee. “You had to have together a parole plan … [now] you don’t have that segue way or transition. That doesn’t make any sense whatsoever.”
Eastern District of Wisconsin Judge Lynn Adelman is among those who argue for more flexibility within truth-in-sentencing. He recently wrote an article about the subject for Valparaiso University Law School in Indiana.
“It’s very important,” Adelman said, “to give people who are sentenced an incentive to do well.”
Still, the odds are long that truth-in-sentencing will undergo changes in the state’s next legislative session. According to an email attributed to Kit Beyer, spokeswoman for Assembly Speaker Robin Vos, R-Rochester, changing the law is not part of the agenda.
Furthermore, Gov. Scott Walker not only favors the law, but he also helped usher it into the state. According to an emailed statement from Walker’s office, the governor has championed truth-in-sentencing because “victims deserve to know at the time of sentencing how long a felon will serve in prison.”
A July 2013 Marquette Law School poll showed that Walker is not alone in his support of the law. Of the Wisconsin residents surveyed, 66 percent said truth-in-sentencing should continue to be the law in the state.
The original law was passed in 1998. Walker, then a state representative from Wauwatosa, shepherded the bill through his house, and then-Gov. Tommy Thompson signed it.
In 2002, though, then-Gov. Scott McCallum signed a bill reorganizing the state’s criminal code and the sentencing guidelines for certain crimes. That action gave judge’s discretion over early release, provided that an inmate petitioned for it and had served between 75 and 85 percent of the sentence, depending on the crime.
In 2009, then-Gov. Jim Doyle signed into law a bill that established the Earned Release Review Commission to give inmates relief after serving a set amount of time.
But in 2011, Walker and a new Republican-led Legislature did away with the commission.
“I suspect,” O’Hear said, “that even the Republican government that we’ve had since 2011 … might have been a little more open to the flexibility of prison releases but for the fact that Scott Walker may have been the main proponent for truth-in-sentencing in the 1990s.”
By about 2000, 42 states had adopted truth-in-sentencing laws, O’Hear said, but 36 have made changes since then. Wisconsin is in that group, he said, because of its 2009 changes.
“It’s a little bit of a pendulum effect,” O’Hear said.
Nationwide, state lawmakers passed their versions of truth-in-sentencing in the 1980s and 1990s, when a “tough on crime” mentality was pervasive. Since then, states have considered alternatives or at least giving judges more discretion.
The changes to truth-in-sentencing in some ways have mirrored challenges to mandatory-minimums, a separate but related set of laws, because many of the same arguments apply to both.
In December 2013, Eastern District Judge J.P. Stadtmueller handed down a 12-year prison sentence to Jamie Moody, a 40-year-old Milwaukee man convicted of possession of a firearm by a felon. Under the federal Armed Criminal Career Act, which mandates longer sentences for defendants with more than two violent or serious drug convictions, Moody was required to receive a mandatory 15 years in prison.
The 7th U.S. Circuit Court of Appeals on Oct. 21 overturned Stadtmueller’s sentence. According to the appellate court, Stadtmueller said at sentencing that one of Moody’s convictions was “technically scored as a violent felony” but that Stadtmueller reasoned using that conviction to enhance the sentence would cause a “miscarriage of fundamental justice.”
Adam Stevenson, a clinical associate professor at the University of Wisconsin Law School, said there are growing concerns, such as those expressed by Stadtmueller, over how sentencing laws are contributing to growing prison populations.
“There’s sort of this conversation going on back and forth,” Stevenson said, “with judges having problems but are duty bound by the law.”
Some common ground
The 2013 Marquette poll, while showing residents support truth-in-sentencing, also reflected, to some degree, the back and forth over sentencing. The poll included this statement: “Once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.” According to the responses, 13.9 percent strongly agreed, and 40.6 percent somewhat agreed.
Saving money represents a point at which all sides can agree.
In summer, the state’s Legislative Council assembled a committee made up of judges, attorneys, legislators and others to draft a proposal that would expand the state’s treatment-courts system.
The idea behind the proposal, which is expected to be introduced in the next legislative session, was to save money.
Expanding that system could reduce costs because it would keep people out prison, but abolishing truth-in-sentencing would save more money, said Goyke, the committee’s co-chairman.
“Treatment court is great,” he said, “but if you’re not addressing the front of the system, again, it’s treating the symptoms, not the cause.”Follow @eheisigWLJ