The Myth of Easy Prison Reform

Green Bay Correctional Institution. Photo from the Department of Corrections.

During the three decades I have followed Wisconsin prison policy, public discussion has been hobbled by half-truths about who’s in prison and how they got there.

A predictable pattern recurs, one that now is playing out again. The result is unrealistic expectations about the potential for reducing incarceration, a situation magnified when the sitting governor is in the forefront of reinforcing those expectations.

Consider the narrative of misinformation Wisconsin is now experiencing on this issue, with poorly researched news reports of “mass incarceration.”  A second element is an affinity for pandering by candidates for elected office. Thus, in the most recent iteration, a credulous media reported prominently that candidate Tony Evers and other Democrats pledged to reduce the prison population by as much as half. The stories predictably were short on serious explanation of how that might occur.

The magical thinking common to an election campaign often is followed by a measure of post-election reality. Consider, for example, a June 30 dispatch from Wisconsin Watch under the headline: “Hard road ahead for Gov. Tony Evers’ promise to slash Wisconsin prison population.”  (Wisconsin Watch is the online news outlet for Wisconsin Center for Investigative Journalism.)

In a lengthy accompanying piece, reporter Isabela Zaluska relates an interview with Evers in which he “expressed optimism…about his ability to accomplish a major campaign promise: to reduce by 50 percent the state’s prison population.” Her article then presents a variety of reasons why the goal might be hard to meet.

In truth, there is no way it will be met, a fact about which Evers seems oblivious. Doing so would entail public policy decisions that neither Evers nor the Legislature will make. (Zaluska says Evers “has avoided setting a deadline for halving the inmate numbers.” She writes that in a separate interview, Evers’ designated Corrections Secretary, Kevin Carr, “avoided endorsing a specific number.” She quotes Carr as instead saying his goal is to “lower the population as low as reasonably possible and still keep the public safe.”)

Noting that Evers’ “own 2019-21 budget proposal calls for increasing prison beds,” Zaluske says Wisdom, a statewide coalition of faith-based groups, called Evers’ budget “extremely disappointing in its treatment of criminal justice issues,” noting that it “funds a growth in the prison system” rather than a reduction.  A section of Wisdom’s statement is titled “Negatives and Broken Promises.”

Two themes — one longstanding, the other more recent — buttress the claims of those seeking to reverse “mass incarceration.”

A time-honored myth involves supposedly excessive incarceration of non-violent offenders. While this myth has been refuted on multiple occasions, the news media generally don’t hold to account those who advance the idea.

Two separate recent reports from credible, non-partisan sources address the issue directly. For example, according to the Legislative Fiscal Bureau:

The predominant offenses by [male inmates] are sexual offenses, murder/homicide, robbery, assaults, and burglary. The most common by women are murder/homicide, theft, assault, operating while intoxicated, and robbery.

Then there is the non-profit Wisconsin Policy Forum, which reported earlier this year on “a rising share of inmates serving time for violent crimes.” Commenting on the idea that “most inmates are nonviolent drug offenders who do not require incarceration,” WPF then observes: “Corrections data do not appear to bear that out.”

More recently, some have proffered a new explanation, namely that a large portion of inmates have committed no crime at all. While highly misleading, this has the allure of suggesting there is an easy answer. According to Zaluska’s story, David Liners, executive director of Wisdom, believes “the prison population could be reduced by at least 8,000 in two years by ending crimeless revocations, boosting paroles and expanding diversion programs. That would bring the prison population to around 15,700 — the same level it was in 1997” (emphasis added). Liners has an important ally in this regard. Reflecting a startling ignorance of the idea’s implications, Evers told Wisconsin Watch “he wants to end these so-called crimeless revocations.”

This rhetoric of non violent and/or crimeless offenses reflects a fundamental misconception of how an offender becomes an inmate.

In the simplest terms, it’s hard to get into prison. Following a felony conviction, a judge in one of Wisconsin’s 72 counties receives a detailed sentencing report prepared by the Department of Corrections. The judge evaluates that information and actual evidence presented at trial or in a plea bargain recommended by a local district attorney. With exceptions, a judge has discretion to make the final call, that is, to impose a prison sentence or probation.

The fact that about three in four offenders in the state correctional system are NOT in prison is testimony to the fact that prosecutors and judges limit incarceration to the most serious offenders. It is pure myth to suggest that the Wisconsin judiciary is dominated by unduly tough judges.

Those sentenced to prison know upfront that an integral part of their sentence is a period of “community supervision” after release from the initial, prison portion of the sentence. Offenders also know that violating conditions of community supervision — even when that does not include a new crime — could mean a return to prison for the remainder of their sentence. These are “crimeless” sentences only to those who want to parse and ignore the terms of the sentence and the crime or crimes for which the offender was convicted.

Ending “crimeless” or “technical” revocations that mean a return to prison, would make the role of a probation agent meaningless. Offenders would know that the community supervision portion of his/her sentence carries with it no element of accountability.

And just what are these innocuous violations that result in more prison time? Don’t hold your breath waiting for news reports that might answer that question.

Unwittingly, Republican State Rep. Patrick Snyder provided an anecdotal example during a recent interview on Wisconsin Public Radio. He cited a constituent who “came out of jail” and violated a restraining order by contacting his wife. In Snyder’s words, “he violated [the restraining order] and he got 45 days in jail, lost his job…on a technical.” If violating a spousal restraining order is “a technical,” what would Rep. Snyder consider serious?

The Badger Institute, a conservative think tank that has urged legislators to study changes to the community supervision regime, recently issued an important study. “Ex-offenders Under Watch” provides to my knowledge the only available information on who actually gets revoked and why. Writes Badger Institute President Mike Nichols: “Revocation is often justified and necessary, and we should avoid overly simplistic initiatives to, for instance, eradicate all ‘crimeless’ revocations. Still, the system is ripe for scrutiny and reform.”

The report itself, authored by University of Wisconsin Law School Professor Cecelia Klingele, includes the following:

When invoked properly, revocation can protect the public and ensure the legitimacy of the community sentence. In the study sample, 42% of revocations involved alleged physical assaults and other non-assaultive crimes of violence, such as armed robbery. In many of these cases, victims of assault were hospitalized with serious injuries. In other cases, those on supervision were revoked for dealing drugs while armed, stealing, and having threatening contact with their former victims in violation of court-ordered no contact orders.

Using revocation to hold people accountable in these cases can prevent further harm to members of the community and to the [offenders] themselves. Additionally, when a person is unwilling to make reasonable efforts to be supervised at all and community-based sanctions fail to motivate compliance, a custodial sentence may be the only way to end the case.

Professor Klingele’s important study differs starkly from the sound-bite rhetoric of those who suggest simple fixes are at hand. In clear English, she illustrates the day-to-day complexity of the community supervision world in which offenders and probation agents operate. She correctly identifies areas of possible reform that warrant more study.

Rep. Snyder, a member of the Assembly committee with jurisdiction over corrections legislation, illustrates how the belief in a simple fix crowds out serious discussion. Explaining to the WPR reporter that he favored giving people a “second chance,” he said (emphasis added): “T]here could be some type of training, education or career service where [inmates] could, in their last year or two of being incarcerated, get trained. Then they’ll pop out of the system and hopefully be able to have that career that will keep them away from the environment that they were in.

Professor Klingele’s study provides a wake-up call for the simplistic notion that there’s a straightforward path to helping inmates “pop out” of prison ready for a career. As she writes, “it [is] clear that people on supervision had widely varied employability, educational attainment, mental functioning, familial support, and physical and psychological stability.”

Last year the Tommy G. Thompson Center On Public Leadership at the University of Wisconsin announced support for research projects on the longstanding challenge of reducing criminal recidivism. This is a substantive effort to examine the seemingly intractable challenge of integrating released prison offenders into society. Thompson Center research projects, to be undertaken by UW-Madison scholars, include: “Can Second Chances for Inmates Work for Wisconsin?”; ““Jobs. Skills and the Prison-to-Work Transition”; and “An Assessment of a Vocational Training Program to Prepare Wisconsin’s Prison Population for Skilled Employment.”

On the positive side, the Badger Institute study and research advanced by the Thompson Center offer the prospect of providing serious information and recommendations.

Regrettably, there is a key missing ingredient — gubernatorial leadership.  No issue of this complexity gets addressed without sustained and well-informed involvement of the governor. The pie-in-the-sky comments by Governor Evers in the Wisconsin Watch article offers little hope that is imminent.

George Mitchell was project manager for a team that designed and built the Milwaukee County Jail and Criminal Justice Center. He later managed a team of corrections architects and specialists who prepared the 1990 Wisconsin Correctional System Master Plan. He has authored numerous reports on the state’s criminal justice system.