Wisconsin’s criminal justice policies trap people of color in prison system | WiG cover story

Louis Weisberg, Staff writer

The last line of “The Star Spangled Banner” proclaims America to be “the land of the free and the home of the brave.” But the “free” portion of that statement does not apply to a huge swath of the population, particularly people of color.

For decades, the United States has had the world’s largest prison population — by far. In 2013, the most recent year for which WiG could find consistent statistics, the nation’s federal and state prisons, along with its city and county jails, housed 2.2 million people tried as adults. Another 4.7 million adults were on probation or parole. Though just over 4 percent of the world’s population lives in the United States, we account for 22 percent of the world’s prisoners.

Put another way, the nation’s 2013  per capita incarceration rate stood at 716 per 100,000, which compares with a rate of about 100 per 100,000 citizens in most countries. One in 35 Americans is in some way caught up in the criminal justice system — and that involvement is racially suspect.

According the American Civil Liberties Union, while a white male’s chances of ever being jailed are 1 in 17, a Latino male’s odds are 1 in 6, and an African-American male’s astonishing odds are 1 in 3.

In Wisconsin, the racial disparity is even more pronounced: Six percent of Wisconsin’s population is African-American, but half of its prison population is black.

‘SOCIAL EXPERIMENTATION’

Mass incarceration stems to a great extent from the so-called “war on drugs,” an experiment that has been devastating to the U.S. The majority of those jailed in this country are non-violent drug offenders, and prejudice plays a strong role in who gets sent to prison for such offenses. For decades, crack cocaine offenders — mostly black — received far more severe punishments than white people arrested for possessing powder cocaine. A 2010 law reduced that sentencing disparity.

Nonetheless, in 2013, nearly three-fourths of people sentenced for drug offenses in federal court were Hispanic or black, according to federal statistics.

 “There are more blacks in prison (nationally) now than there were living under slavery in 1860,” says David Liners, director of the Wisconsin chapter of WISDOM, a justice reform group composed of faith-based organizations. 

“This is social experimentation on a grand scale,” he continues. “No one has ever experienced this before. Half the African-American community in Milwaukee and other cities is incarcerated and we pay so many prices — the price for kids without dads and people not working.”

The Wisconsin incarceration rate is likely to grow even higher due to recent laws that allow people to be thrown in jail for not paying fees ordered by the criminal justice system, such as traffic fines.

As a measure of how Wisconsin’s incarceration rate affects the whole state, Liners offers this statistic: The cost of corrections in Wisconsin now exceeds the budget for the entire UW system.

ARBITRARY REINCARCERATION

In addition to the failed “war on drugs,” there’s another reason why Wisconsin jails so many of its own: parole revocation for non-violent offenses. Under Wisconsin’s parole system, former inmates are sent back to jail for the entire duration of their sentences due to minor violations of parole. Mark Rice, who chairs WISDOM’s Revocations Workgroup, frequently cites the case of Hector Cubero as an example.

Cubero, 52, served 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery when he was 18 years old. Evidence showed he played no role in the killing, and he had adjusted well to life outside prison.

But after four years on parole, he unwittingly gave a tattoo to a 15-year-old, which is a misdemeanor city ordinance violation. The maximum penalty is 30 days in jail and a $500 fine. Cubero says the teen claimed to be of age, but Cubero still got sent back to  prison — possibly for the rest of his life.

The tattoo was of a cross and a quote from peace activist Marianne Williamson: “Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure.”

Other states, including Alabama, North Carolina, Washington and Hawaii, have put limits on the amount of time that released inmates can be incarcerated for rules violations, which commonly include unauthorized computer or cell phone use, crossing county lines, missing appointments with probation officers and entering a bar. 

Parole revocations account for more than half of the 8,000 people entering Wisconsin prisons each year, and the practice costs Wisconsin taxpayers $100 million annually. 

Probation officers have control over parole revocation, and there are no uniform standards, according to Liners. One parolee might be sent back to prison simply for creating an unauthorized email account, while others are not sent back for more serious violations.

Parolees who are reincarcerated have no right to a lawyer or a trial. There is no requirement for proof beyond a reasonable doubt, even though parole revocation can send inmates back to prison for decades.

Liners says that revocation of parole is so commonly ordered by some probation officers that inmates released under their supervision don’t even try to avoid it. They assume they’ll be sent back no matter what they do, Liners says.

The subjectivity of the process allows personal prejudice to play a role, and African-Americans are disproportionately targeted, just as they are in policing. Half of parolees sent back to prison are African American.

HOW DID WE GET HERE?

A driving force behind the nation’s prison statistics is the American Legislative Exchange Council. ALEC, which represents wealthy corporate interests, presents model-legislation templates to state representatives to take home to their Legislatures in exchange for campaign donations. During the 1980s and ’90s, ALEC began promoting laws to establish private, for-profit prisons and commercial bail-bonding companies, which corporate leaders saw as potentially lucrative new revenue sources. ALEC also pushed forward laws that would increase the prison population. 

Wisconsin has thus far declined to adopt either private bail bondsmen or private prisons.

Conditions in private prisons are notoriously worse than public ones and produce greater recidivism. 

“For-profit prisons are by their nature not consistent with any sort of rehabilitative goals,” says John Stedman, an organizer for Jonah, an ecumenical organization for justice issues in the Chippewa Valley. “I think the profit motive gets in the way of what justice and rehabilitation are about.” 

In June, Wisconsin Assembly Speaker Robin Vos squeezed an 11th-hour provision into the 2015–17 biennial budget that would have allowed for-profit bail bondsmen in the state, but Gov. Scott Walker vetoed it, saying that it needed public discussion. Vos, who reportedly hopes to take Walker’s place in the governor’s mansion, has vowed to introduce the measure for a full hearing in the near future.

But as an assemblyman, Walker was instrumental in setting the stage for Wisconsin’s mass-incarceration problem. Seeking to make a name for himself as a “tough on crime” leader, he introduced dozens of laws to lengthen criminal penalties for everything from perjury to intoxicated boating, according to a report published by The Nation in February.

In 1995, Walker spearheaded the shipping of Wisconsin inmates to out-of-state, for-profit prisons run by the Corrections Corporation of America, one of his major campaign donors. CCA was the recipient not only of Wisconsin inmates, but also about $45 million of Wisconsin taxpayers’ money before Gov. Tommy Thompson increased in-state capacity and ended the practice, according to Liners.

In the 1997–98 legislative session, Walker championed “truth-in-sentencing” laws, which eliminated the possibility of early release for good behavior or rehabilitation. In total, he sponsored or co-sponsored 27 different bills that expanded the definition of crimes and increased mandatory minimum sentences.

Prior to truth-in-sentencing, convicts who’d cooperated in prison were released after serving 67 percent of their sentences and completed their sentences under supervision.

Correction workers liked that policy, because it gave them a carrot and a stick to work with: If prisoners did as they were told, they could be released early, and if not they’d serve their entire sentences behind bars. 

Now the only stick correction officers have is solitary confinement, which is often needed just to house prisoners in overcrowded facilities. 

Under truth in sentencing, parole is meted out separately. Because so many harsh sentences were handed down to non-violent offenders, including people caught with small amounts of marijuana, that prisons quickly became overcrowded.  

Truth in sentencing has been particularly devastating in African-American communities. For example, despite similar rates of marijuana usage among blacks and whites, five times as many African-Americans in Milwaukee are arrested for marijuana possession as whites.

To alleviate prison overcrowding, Gov. Jim Doyle adopted a law allowing for early release of eligible prisoners. The American Civil Liberties Union of Wisconsin praised the move.

But Walker restored truth in sentencing in 2011, noting that getting rid of the policy had only affected 479 inmates and produced “limited” savings. As a result of his action, the number of inmates paroled annually dropped precipitously. In 2008, 440 prisoners were paroled. But by 2013, that number had shrunk to 152. 

Walker’s union-busting Act 10 exacerbated the problem of prison overcrowding by causing a shortage of prison workers. As it did for teachers and other public workers, Act 10 took away correction officers’ rights to collective bargaining and increased by 18 percent their contributions for health and pension benefits. Many decided the job was too dangerous for the money and either retired or quit.

Now the state faces a critical shortage of qualified people willing to work in the prisons. And the challenges of Wisconsin’s prisons don’t stop there. As Liners puts it, “The Department of Corrections has a world of problems.”

As of April, 8 percent of positions for correction officers and sergeants in the state were unfilled — four times the rate of April 2010. As a result, overtime pay has spiked and personnel shortages have become so problematic at one facility that the state is paying mileage and hotel costs for guards who agree to work there on a temporary basis, according to a report compiled by the Daily Kos.

SOLUTIONS ARE POSSIBLE

WISDOM wants to set limits on how long a parolee can be reincarcerated for minor parole violations and to end lengthy sentences for non-violent offenses, including drug possession. Liners says that addicts, alcoholics and people suffering from mental disorders belong in treatment rather than jail.

Reforming the nation’s sentencing laws and incarceration policies has bipartisan support. High-profile conservative leaders who support prison reform include anti-tax activist Grover Norquist, conservative pundit Bill Bennett and former House Speaker Newt Gingrich. They agree with liberals that the current system is unnecessarily expensive, both to taxpayers and society. 

Norquist, who’s famous for asking political candidates to sign a “no new taxes” pledge, came to Madison in April to urge Wisconsin’s GOP lawmakers to end the state’s truth in sentencing laws.

According to madison.com, Norquist told his audience that prison reforms in Texas not only reduced incarceration rates, but also failed to create a voter backlash against the elected officials who supported them. Fear of being branded “soft on crime” prevents many elected officials, particularly on the political right, from getting behind prison reform.

In 2013, WISDOM launched a campaign in Wisconsin to cut the state’s 22,000 prison population in half. Given that each prisoner costs taxpayers about $35,000 per year, reducing the prison population by 11,000 would save $38.5 million annually, although there would have to be increased funding for counseling and supervision.

WIDSOM’s campaign, titled “11 x 15,” sought to bring Wisconsin’s prison population closer to that of Minnesota, which is demographically very similar to Wisconsin, but which had a prison population of 10,289 in 2013.

Although WISDOM failed to achieve its goal, Stedman says it raised awareness of the problem of ridiculously long sentences for non-violent offenders. Prison reform groups this year won a budget increase of from $1 million to $2.5 million annually for drug treatment programs — a small step in the right direction, but a step forward nonetheless, Stedman says. 

WISDOM is also promoting Treatment Alternative Diversion programs as a substitute for imprisoning non-violent drug offenders. TAD programs take people who are coming into or returning to the criminal justice system and divert them into community-based treatment programs for alcoholism, drug addiction and mental illness. A model program in Eau Claire features four treatment courts — Drug, Alternatives to Incarcerating Mothers, Mental Health and Chippewa Valley Veterans — “as a diversion alternative for individuals facing jail or prison time as a result of pending charges or potential probation revocation,” according to the Eau Claire County website.

Stedman says the approach uses a spectrum of evidence-based strategies, and it has kept families together and reduced recidivism rates, among other benefits.

“If we could fully fund TADS, the impact would be huge,” Stedman says.

Taking 17-year-olds out of the adult prison population and putting them into juvenile detention facilities would also ease the pressure on Wisconsin prisons, according to WISDOM. A robust transitional jobs program would help reduce the reincarceration rate by supporting ex-inmates in successfully re-entering society.

State Rep. Mandela Barnes, D-11th District, introduced a bill on April 20 that would decriminalize possession of marijuana in amounts of 25 grams or less. People caught with small amounts of the drug would be fined as opposed to imprisoned. 

Several Democratic legislators are working on a bill that would reduce the amount of time parolees can be reincarcerated for minor rule violations.

“It’s something that we all agree we have to delve into but the actual bill has not been introduced,” says state Rep. David Bowen, D-10th District. “Things are just getting underway. We’ll attempt to standardize (the revocation process), but we want to have some flexibility. You have so many moving parts.”

State Rep. Chris Taylor, D-76th District, says, “There seems to be some momentum on both sides of the aisle to do something” to end mass incarceration in the state. She said a recent motion would have brought in people from the Department of Corrections to give a presentation on people who are eligible for parole but it hasn’t yet happened.

Taylor says of the many correction reforms lawmakers are looking at, there’s one in particular that stands out.

“They have to look at the racial disparity,” she says. “People of color do not do more drugs and they’re policed more for drugs. We need to look at the policies that treat people unfairly, and it starts with the drug crimes.”