DECEMBER 2016 R EVOCATIONS IN WISCONSIN
IMPACTS OF LOCKING PEOPLE UPWITHOUT A NEW CONVICTION
Excessive Revocations: The Health Impacts of Locking People Up Without a New Conviction in Wisconsin
Full Project Report www.sentback.org
By Human Impact Partners With the partnership of: WISDOM EX-Prisoners Organizing
Authored By: Sara Satinsky Logan Harris Lili Farhang Gus Alexander
Suggested Citation: Human Impact Partners. December 2016. Excessive Revocations: The Health Impacts of Locking People Up Without a New Conviction in Wisconsin. Oakland, CA.
For More Information, Contact: Sara Satinsky
Human Impact Partners email@example.com www.humanimpact.org 510-452-9442, ext. 104
The work in this report was made possible by the generous funding of The W.K. Kellogg Foundation and the UW School of Medicine and Public Health from the Wisconsin Partnership Program.
THE HEALTH IMPACTS OF LOCKING PEOPLE UP WITHOUT A NEW CONVICTION
R EVOCATIONS IN WISCONSIN EXECUTIVE SUMMARY
“I was suicidal. I was depressed—and I got revoked on an accusation. I had no hope because I lost my opportunity to go to school and with three decades of a felony record, education was my only opportunity to get a job that's decent. It affected me mentally…I ended up diabetic and I was affected with this last incarceration a lot. ”- Kenosha focus group participant
Revocation —being incarcerated for breaking the rules of a supervision arrangement (like parole, probation, or extended supervision)— feeds the mass incarceration cycle in the United States . Estimates suggest that across the U.S., half of the people in jails and more than one-third of the people entering prison are locked up for a revocation. A large number of people are incarcerated for breaking the rules of supervision, but do not commit a new crime. In Wisconsin, the Department of Corrections (DOC) put about 3,000 people in prison in 2015 alone for what DOC calls a “revocation without a new offense,” meaning there was not a new criminal conviction. These people will serve an average of 1.5 years in prison without being convicted of a new crime—and cost Wisconsin $147.5 million dollars in the process. The increase in incarceration over time is a significant public health issue. This report reviews the revocations process in Wisconsin, describes related consequences to health and the factors that drive it, and recommends changes in managing people on supervision.
The Department of Corrections suggests that some of the 3,000 people may have broken the law. However, no charges were brought against them, and Department data on this is incomplete. Until clear data is available, people should not be assumed to have commited a crime unless charged and convicted.
Two out of every five people put in prison for a revocation without a new criminal conviction in 2015 identified as Black (40%)—yet only 6.6% of the Wisconsin population identifies as Black. Similarly, nearly half of people put in prison for a revocation without a new criminal conviction have a mental health condition (44%)—when Wisconsin has an18% prevalence of mental health conditions. In a state with too few rehabilitative program as alternatives to incarceration, these inequities contribute to significant barriers for people to reach their full health and human potential. Revocation affects employment and housing. Employment and housing are particularly important for people’s successful re-entry after release from incarceration. For people on supervision, time incarcerated while the state investigates and decides on an allegation or revocation means time away from work. This can lead to loss of income, making it harder to pay for basic needs like housing or childcare. It can even mean losing jobs—a challenge for people that evidence shows already face considerable barriers in getting a job. Ironically, employment and stable housing are often part of the rules of supervision. A person may risk a revocation if they don’t have steady employment or stable housing.
5 The full report includes action steps for Department of Corrections, the State Legislature, and other groups with the power to address the changes described above. Visit sentback.org to read the full report. The stress and stigma of incarceration and supervision affect health. It can damage health when stressful situations consistently overwhelm a person’s ability to cope—particularly when a person feels they have little control over these situations. Imprisonment is an acute stressor, as a major disruption in a person’s life. It is also a chronic stressor that may involve daily exposure to violence or threats, hostile relationships with guards and other incarcerated people, overcrowding, and a lack of privacy and control. After release from incarceration, people remain marked by the stigma of a conviction and can face secondary stressors as they work towards rehabilitation—including the constant threat of revocation. When a parent is incarcerated, families pay a price. Nearly half of people put in prison for a revocation without a new criminal conviction in 2015 were parents (48%). The impacts of incarceration extend beyond the people locked up, and are associated with wide ranging detrimental effects on children and families 7he report finds that incarcerating people for reYocation Zithout being conYicted of a neZ crime in 2015 put an estimated 2,700 kids at increased risk of poverty with a father’s incarceration, and 1,600 kids in Wisconsin may have lost primary financial support with any parent’s incarceration. Revocation processes are applied inconsistently in Wisconsin. The Department of Corrections has yet to clearly implement the state law calling on it to create short-term responses for people who break the rules of supervision and to determine how to reward people under supervision for compliance. Current practice is inconsistent and there is too little training, lack of written policy, and opportunity to improve Department data collection. Incarcerating people for breaking the rules of supervision doesn’t improve public safety. Research shows that violating what are known as technical rules of supervision is not a R ECOMMENDATIONS 1. Remove incarceration as a response to non-compliance for non-criminal violations of the rules of parole, probation or extended supervision. 2. As an alternative measure to revocation for people on parole, probation, or extended supervision: continue to build on the partially implemented steps of the “short-term sanctions” law, by ensuring a consistent and racially equitable response to non-compliance and the granting of rewards for compliance that is transparently documented, through policy development, clear matrices, and workforce development that includes annual trainings. 3. Consistently track, evaluate at regular intervals, and annually disseminate the outcomes on the use of alternative measures to revocation for people on parole, probation or extended supervision to build community trust. 4. As an alternative to revocation, provide access and navigation into rehabilitative programs and assure successful graduation for people on parole, probation or extended supervision. 5. Reduce the number of people and length of time people across races/ethnicities are placed on probation or extended supervision, which will in turn reduce agency caseloads. 6. Apply greater due process rights for people in revocations investigations and proceedings, such as right to bail and a higher standard of evidence. good indicator of new crime, and that incarcerating people for technical rule violations may increase recidivism—making the possibility of a person committing a future crime more likely.
The Consequences of Excessive Revocations in Wisconsin
revocation noun | /r ɛ v əˈ ke ɪʃ ( ə )n/ Incarcerating a person for violation(s) of their supervision arrangement (meaning parole, probation, or extended supervision.)
People can be revoked— imprisoned—for breaking RULES of their supervision arrangement that doesn’t break the law In Wisconsin, this is referred to as a revocation without a new conviction.
$ 2,954 people in wisconsin were put in prison for a revocation without a new conviction. imprisoned for an average of 1.5 years costing the state $147M IN 2015
Though only 1%of the Wisconsin population
Though only 6.6% of Wisconsinites identify as Black, 40% of people sent to prison due to revocation without new conviction are Black.
identifies as American Indian or Alaska Native, 5% of people sent to prison due to
revocation without new conviction are American Indian or Alaska Native.
People on supervision are at higher risk of housing instability. A recent study showed that people on parole experience on average 2.6 moves per year
People on supervision experience chronic stress, which can lead to worse health outcomes. In focus groups across Wisconsin, people consistently described deep stress to themselves and their families and experiences of “living in fear at all times” that revocation could happen at any time.
that would mean moving about every 4 months .
Though only 18% of Wisconsinites suffer from mental illness, 44% of people revoked without a new conviction are living with a mental illness.
- Milwaukee EXPO Leader
It is estimated that 3,000 children under age 18 in Wisconsin had a parent sent to prison for a revocation without being convicted of a new crime in 2015.
Want to learn more? Visit sentback.org to read the full research report by Human Impact Partners, WISDOM, and EX-Prisoners Organizing. Visit rocwisconsin.org to get involved in ending mass incarceration in Wisconsin.
Acknowledgments This report is dedicated to the honor and legacy of John Stedman. Learn more about the John Stedman Fund at www.rocwisconsin.org. Deep thanks to a committed and thoughtful Advisory Committee (alphabetical by last name): Jennifer Bias, Wisconsin Public Defender’s Office Jerome Dillard, EX-Prisoners Organizing Victoria Faust, Thrive Wisconsin Health Equity Alliance Liz Feder, University of Wisconsin Population Health Institute Earlean Gilmer, NAACP, retired from Wisconsin Department of Corrections Cynthia Johnson, Kenosha County Health Department David Liners, WISDOM Christina Pacheco, Great Lakes Inter-Tribal Epidemiology Center Nicole Porter, The Sentencing Project Mark Rice, EX-Prisoners Organizing, MICAH John Stedman, JONAH Geoffrey R. Swain, University of Wisconsin School of Medicine & Public Health, Wisconsin Center for Health Equity Ken Taylor, Wisconsin Council on Children and Families Paula Tran Inzeo, University of Wisconsin-Extension, Thrive Wisconsin Health Equity Alliance For various conversations and contributions, thank you to the following people. (Note: The information in this report does not necessarily represent their opinions. Names are alphabetical by last name, and organizational affiliations are for identification purposes only.) Focus group participants, key interview participants, and staff at the Wisconsin Department of Corrections who remain anonymous; Augusta Alexander, Human Impact Partners; Holly Avey, Human Impact Partners; Giselle de la Rosa Berrio, University of Wisconsin School of Medicine and Public Health; Isaiah Brokenleg, Great Lakes Inter-Tribal Council; Zakkary Chybowski, website designer; Frank Davis, EX-Prisoners Organizing; Sarah Ferber, EX-Prisoners Organizing; Marjory Givens, University of Wisconsin–Madison; Michael Massoglia, University of Wisconsin; Matt Mellon, consultant; Todd Pieper, University of Wisconsin–Milwaukee; Julie Poehlmann-Tynan, University of Wisconsin–Madison; Ethen Pollard, University of Wisconsin–Madison; Lois Quinn, University of Wisconsin–Milwaukee; Brenda Reinke, Wisconsin Department of Administration; Guy Reiter, EX-Prisoners Organizing; Nicole Robinson, University of Wisconsin–Milwaukee; Nino Rodriguez, Madison Organizing in Strength, Equality and Solidarity (MOSES, an affiliate of the WISDOM Network); Gretchen Schuldt, Wisconsin Justice Initiative; Ana Tellez, Human Impact Partners; Jeremiah Wayman, theinfluence.org; Janna White, Janna R. White Content and Editing; Erica Winship, theinfluence.org; Eric Wodahl, University of Wyoming.
Additional thanks to Dane County Cooperative Extension and Milwaukee County Cooperative Extension for providing space to hold Advisory Committee meetings.
ACKNOWLEDGMENTS ABOUT THIS REPORT Notes about Language
FROM MASS INCARCERATION TO MASS SUPERVISION AND BACK TO MASS INCARCERATION
There Is a Strong Relationship between Health and Incarceration
OVERVIEW OF WISCONSIN SUPERVISION LEGISLATION WHO IS INCARCERATED WITHOUT CONVICTION IN WISCONSIN? Pronounced Disparities in Whom Wisconsin Incarcerates on Supervision
THE RULES OF SUPERVISION
Wisconsin Enforces at Least 18 Rules of Supervision Justice-Involved Individuals Must Pay Supervision Fees Is the Purpose of Supervision Rehabilitation or Surveillance? What Counts as Failing to Meet Supervision Rules?
19 21 21 22
INABILITY TO FOLLOW RULES OF SUPERVISION DOES NOT PREDICT NEW CRIME People Incarcerated for Technical Violations Are Less Likely to Engage in Prison Misconduct Different Risk Factors for Recidivism and Technical Violations Incarcerating People for Technical Violations Does Not Prevent Future Crimes Recidivism Decreases with Reduced Incarceration Time for Technical Violations SUPERVISION AND REVOCATION PROCESSES ARE APPLIED INCONSISTENTLY Tools to Increase Consistency and Predictability of Supervision in Wisconsin Fraternization Policy among Possible Barriers to Agents Using Rewards for Compliance Not Enough Alternative Rehabilitative Programs in Wisconsin LOWER STANDARD OF DUE PROCESS IN REVOCATIONS PROCEEDINGS 30 WISCONSIN SPENDS MILLIONS TO INCARCERATE PEOPLE FOR BREAKING RULES OF SUPERVISION 33 IMMEDIATE CONSEQUENCES: EFFECTS TO EMPLOYMENT AND HOUSING 33 Employment and Housing Are Key to Successful Re-entry 33 Employment and Housing Are Interwoven 33 Multiple Barriers to Employment for Justice-Involved People 34 Navigating Supervision Can Compound Struggles with Employment 35 The Criminal Justice System Is a Key Player in Housing Instability 37 Circular Relationship between Housing Instability and Responses to Non-compliance or Revocations 38 Risk of Revocation Is Greater in Housing Where People Are Watched More Closely 38 23 23 23 23 24 25 26 28 29 WIDE DISCRETION IN REVOCATIONS PROCEEDINGS 30
INCARCERATION IS ASSOCIATED WITH MULTIPLE HEALTH PROBLEMS Physical Health Problems Include Chronic Conditions Stress and Stigma May Be Crucial Links between Incarceration and Poor Health Supervision and the Fear of Revocation Are Additional Stressors Incarceration Can Literally Take Years Off of Peoples’ Lives Some Severe Mental Health Conditions May Be Caused by Incarceration Interruptions in Care Hurt People with History of Mental Health Conditions Wisconsin Terminates—Not Suspends—Benefits for People Who Are Incarcerated or Revoked
39 39 40 40 41 42 42
WHEN A PARENT IS INCARCERATED, FAMILIES PAY A PRICE
Incarceration Strains Family Bonds Kids’ Academic Performance Worsens . . . . . . And Behavior Problems Increase
45 Kids’ Struggles with Mental Health and Substance Abuse May Increase with Multiple Parental Incarcerations 46 Family Financial Stability Suffers 46 Other Family Members Are Also Affected 46 How Many Children in Wisconsin Are Affected by Their Parents’ Incarceration for Violating Supervision Rules without Being Convicted of a New Crime? 46 EFFECTIVE RESPONSES ARE PART OF A REHABILITATION FRAMEWORK 48 Growing Evidence That Effective Responses Improve Supervision Outcomes 48 HOW TO IMPROVE CURRENT PRACTICE IN WISCONSIN 50 Recommendations 51 How to Take Action on Report Recommendations 52 REFERENCES 58 APPENDICES
About This Report This report examines what happens to individual and family health under the current system in Wisconsin of incarcerating people who do not meet the rules of their supervision. It reviews evidence of how this takes place, describe its consequences, and recommends changes grounded in the lived experiences of focus group participants, the expertise of key practitioners that work daily with justice-involved individuals and families, and research in public health and criminology. The framework of Health Impact Assessment (HIA) is used in this report to guide the overall research process. As defined by the National Academy of Sciences, HIA is “a combination of procedures, methods, and tools that systematically judges the potential, and sometimes unintended, effects of a policy, plan or project on the health of a population and the distribution of those effects within the population. HIA identifies actions to manage those effects.” 1 The fundamental purpose of HIA is to inform decision-makers before they decide on a proposal and to involve stakeholders directly affected by a decision. (See Appendix B for more information on how different stakeholders participated in this report process.) The findings described in this report derive from a range of methods: • Review of research literature • Data gathering from the Wisconsin Department of Corrections • Phone and email communications with staff at the Wisconsin Department of Corrections • Facilitating 5 focus groups and 8 interviews (see Appendix C for more information on focus group and interview methods) Notes about Language This report strives to use the language of ‘response’ and ‘effective responses to non-compliance,’ instead of ‘sanctions’ and ‘graduated sanctions.’ This reflects changes suggested by experts who design what are known as ‘sanctions and rewards’ programs. Experts describe that the shift is more than semantic and gets at the heart of what shapes behavior: • A response to a violation does not need to be punitive to be effective, so use ‘response’ instead of ‘sanction.’ 2 • A different approach—rather than a more severe one—may positively shape behavior where a previous response failed, so use ‘effective responses to non-compliance’ instead of ‘graduated sanctions.’ 2 Separately, this report uses ‘justice-involved person’ instead of ‘offender’ or ‘convict’ to refer to a person who has spent time in jail or prison, unless it is a direct quote or citation for specific research. The intent is to avoid defining people permanently by past experiences. The Wisconsin Department of Corrections aims to successfully transition people off of supervision and into society, while simultaneously ensuring public safety. Although the Department is continuously improving toward that end, too many people still experience extensive challenges, resulting in what this report’s title refers to as ‘excessive revocations’, which can have compounding health effects beyond incarceration itself.
From Mass Incarceration to Mass Supervision and Back to Mass Incarceration We are living in fear at all times. All it takes is an allegation for us. And the reality of that—all it takes is an allegation for everything to be snatched out from under your feet, all your success and everything . . . To lock me up for one day . . . it would ruin our lives. – Madison focus group participant Supervision—including parole and probation—has become incorrectly viewed as an method to help reduce the numbers of people incarcerated, particularly in light of the many costs of incarceration and overburdened corrections systems. Some experts refer to this as “mass incarceration” giving way to “mass probation” and “mass parole.” 3 This is reflected in the vast numbers of people currently on supervision: about 2/3 of people under the supervision of correctional systems nationwide and in Wisconsin were on probation or parole (including extended supervision in Wisconsin) in 2014. 4 ,
Figure 1: Breakdown of Correctional Populations, 2014
56% 13% 34%
Note: Graphs may total more than 100% due to rounding. Sources: Bureau of Justice Statistics, Annual Survey of Parole 2014, Annual Survey of Probation 2014. Legal experts describe supervision as a prolonging of eventual incarceration—a tool that cycles people into jail or prison for failing to meet the rules of their release. 5 People on supervision are required to follow a series of rules dictating their behavior, and can have their supervision revoked and be incarcerated for breaking these rules. One of the rules is not to commit a new crime. However, there are many other rules, which become reasons a person can be revoked and incarcerated without committing a new crime. A report written by criminal justice experts about probation revocation articulates how a system that intended to be an alternative to incarceration instead can feed this cycle and be “punitive, demoralizing, and can work to increase crime rather than furthering public safety”: 3
“Probationers who struggle with intrusive sentence conditions, for example, may have difficulty holding a job. Required meetings with a probation officer can make it hard to keep regular hours at work—especially if the probation department is far away, public transportation is lacking, etc. (A probation officer who shows up at a client’s place of work may not be much better.)” 3
1 See the Glossary in Appendix A for explanations of key terms in the report, such as ‘probation’ or ‘parole’.
Estimates suggest that across the U.S., half of the people in jails and more than 1/3 of those entering prison are locked up as a result of revocation. 5 Often, the revocation is the result of breaking rules of supervision, not a result of a new criminal conviction. The same is true in Wisconsin, where nearly 1/3 of all people put in prison in 2015 for revocation were there without a new criminal conviction. This means that approximately 3,000 people were incarcerated without a new criminal conviction—and on average, they will spend approximately a 1.5 years in prison. This is happening to large proportions of people of color: 6,7 • 7% of Wisconsin residents identify as Black, yet 40% of people put in prison for revo cation without a new criminal conviction in 2015 identify as Black. • 1% of Wisconsin residents identify as American Indian / Alaska Native, yet 5% of people put in prison for revocation without a new criminal conviction in 2015 identify as American Indian / Alaska Native. There Is a Strong Relationship between Health and Incarceration From a health perspective, the increase in incarceration rates over the past several decades has impacted the social and economic fabric of communities, through reduced opportunities in education, employment, and housing for people who have been incarcerated.
These opportunities are part of what in the health field is known as the social determinants of health, meaning the social and economic conditions that shape the policies and places people need to live healthy lives. Although individual health behaviors and access to quality health care undoubtedly influence a person’s well-being, it is estimated that more than 50% of a person’s health is actually determined by social and environmental conditions. 8 These conditions are, in turn, shaped by economic and social policies, which can either help build healthier communities or harm them. 9 Being incarcerated can impact an individual’s health in profound ways, and social policies that lead to mass incarceration can impact the health of entire groups. 10,11 The policies leading to mass incarceration have
What are the social determinants of health? People’s life circumstances—for example, the conditions in which people live, work, play, grow, and age as well as social conditions like racism, sexism, and other forms of discrimination, political conditions like the distribution of power, and public policy choices that affect different groups of people differently–are known in the public health community as the social determinants of health. What is health equity? Health equity means that everyone has a fair opportunity to live a long, healthy life—and that health should not be disadvantaged because of a person’s race, income, neighborhood, gender, or other social or policy factor.
profoundly affected health and impact large proportions of people of color, particularly Black people, contributing to racial health inequities. In Wisconsin, the health of Black, American Indian, and low-income rural White communities are all impacted by incarceration. 10,11 Across the country, local health departments and community organizations are partnering to address the disproportionate burden of morbidity and premature mortality experienced by low- income people and communities of color. Increasingly, these partnerships are including attention to mass incarceration policies and practices as root causes of health inequity, alongside issues like access to safe and affordable housing, quality education, and employment opportunities. Inequities rooted in incarceration policy have meaningful implications for Wisconsin’s public health system and practice. Addressing mass incarceration is a critical public health issue that is fundamental to achieving the goal of eliminating health inequities.
Overview of Wisconsin Supervision Legislation Key legislative changes over the past 2 decades in Wisconsin have altered the length of time people are on supervision. In 2000, Wisconsin enacted a “Truth in Sentencing” law that is known as one of the most severe in the nation. The law effectively is part of the national trend that extends mass incarceration to mass supervision and back to further mass incarceration, sending more people to prison for longer periods of time. It requires that all people convicted of a crime before 2000 serve their entire sentences without possibility for early release or parole. 12 For people convicted of a crime after 2000, it eliminated the use of parole boards and instead created ‘extended supervision.’ Currently in Wisconsin, a person can be on parole (if conviction pre-dated Truth in Sentencing), probation, or extended supervision. Collectively, this report refers to these as supervision. The law also mandates the amount of time a person who is released must be on supervision: • At least 25% of a person’s prison sentence • As long as 2 to 20 years depending on the initial crime 13 Example responses for non-compliance include (see Appendix F for a full list): 6 • Written assignments • Reprimand • Community service hours • Modified curfews • Program extension • Electronic monitoring • Inpatient or outpatient treatment • Time incarcerated In 2014, Wisconsin then passed a law, which “directs” the Department of Corrections to develop a system of “short-term” responses that are quick, fair, and proportionate, for responding to people who violate rules of parole, probation, or extended supervision. 15 It calls for responses for non- compliance to take into account their effect on a person’s employment and family. In essence, it seeks to limit the time people spend in prison, and the related harms. The law also sets a 90-day limit on using incarceration as a response to non-compliance for a person on supervision who admits to a violation of the rules of supervision, before a person has been revoked. The idea is that “the swiftness and the certainty of the sanction—not the length or severity—changes offender behavior.” 16 Two years later, the Department of Corrections has many people on supervision for long periods of time, despite this law passed by the State Legislature that the Department has yet to clearly implement. The idea of “short-term” responses for non- compliance has not been formally adopted in Department of Corrections practice with clear rules or training, according to conversations with high-level Department administrators and with agents. Separately, Wisconsin legislators recently tried to change revocations procedures. Proposals that failed to pass include: • Setting a 90-day maximum for incarcerating a person on probation or extended supervision after they have been revoked for breaking the rules of supervision so long as it does not involve a new crime, and with some caveats 17 • Ensuring a person cannot be incarcerated for failing to pay a supervision fee 18 • Including time on parole or extended supervision as part of time served, when that parole or supervision is revoked 19
Who Is Incarcerated without Conviction in Wisconsin? One in 3 people put in prison in Wisconsin in 2015—that’s 2,954 people—were there for revocation without being convicted of a new crime. 6 Data shows that people put in prison in Wisconsin for revocation without being convicted of a new crime in 2015 share some characteristics: 6 • 91% of them are men • 48% of them are parents The large majority (86%) of people in prison for revocation without a new conviction are in prison for more than 6 months. This doesn’t include the time a person is incarcerated—on average nearly 2 weeks—while the state figures out if it will pursue additional incarceration time. The Department of Corrections suggests that about 70% of people revoked without a new criminal conviction to prison in 2012, which is the most recent estimate available, may have broken the law. There are estimates but not clear counts of these possible crimes. In conversation with us, Department staff described that they are working on a system to actually count these instances. In the meantime, we turned to interviews with public defenders, prosecutors, and a state representative. Stakeholders expressed that when people are not officially charged it often is because prosecuting the new offense is not viewed as a good use of resources, particularly for low- level offenses, and because there may not be sufficient evidence. There were mixed perspectives on how frequently revocation is used instead of a new criminal charge: • 44% of them have a mental health condition 3 • 46% of them identify as a person of color
It is not an uncommon practice for prosecutors to hold off on prosecuting new charges pending the outcome of revocation proceedings. – State Public Defender’s Office My sense is [the decision of whether or not to pursue a new criminal charge for minor offenses] is not a frequent occurrence. I don’t have a sense of how many times it’s happened. But I would say it’s occasional at best. – District attorney
It is important for the Department of Corrections to have clear counts of confirmed criminal behavior for people who are revoked without a new criminal conviction. Until clear data is available, people should not be assumed to have committed a new crime unless charged and convicted.
² In 2015, there were 2,964 admissions to prison for revocation without being convicted of a new crime. Ten of those were people admitted more than once in the same year. The number reported here—2.954—reflects that adjustment. 3 See Appendix D for how mental health conditions are measured.
Pronounced Disparities in WhomWisconsin Incarcerates on Supervision Wisconsin incarcerates people of color disproportionately overall, which is reflected in the proportions of people incarcerated for not meeting the rules of their supervision. As Figure 2 shows, in 2015 alone Wisconsin incarcerated Black people at a proportion almost 6 times greater than their share of the state population, and American Indian / Alaska Native people at a proportion 4 times greater than their share of the state population. Figure 2: Wisconsin Population and Percentages of People Revoked without a New Criminal Conviction in 2015
Note: Latinx is counted separately from race, so totals may exceed 100%. Sources: Wisconsin Department of Corrections Prison Point-in-Time Dashboard. U.S. Census Bureau Wisconsin Quick Facts, 2016 Incarceration Rates of Black Men in Wisconsin • Wisconsin incarcerates Black males at the highest rate of any state in the U.S., according to the 2010 U.S. Census. 20 One out of every 8 working-age Black males in Wisconsin is incarcerated—a rate nearly twice the national average. 20 • Milwaukee County, which is home to the vast majority (70%) of Black males in the state, has among the highest overall incarceration rates in the country. Over half of Black males in their 30s in Milwaukee County have served prison sentences, according to a University of Wisconsin–Milwaukee review of state prison records from 1990 to 2012. 20 Incarceration Rates of American Indian / Alaska Native Men in Wisconsin Wisconsin incarcerates 1 out of every 13 working-age Native American males (7%), compared to a national average of 1 in 32 (3%). 20 These numbers are likely undercounts, as American Indian / Alaska Native people are frequently miscounted as another race, such as Latinx or White. 4 Race classific ations by the Department of Corrections are based on self-report by incarcerated people. 5 Latinx is used as a gender-neutral alternative to Latino and Latina and interchangeably with Hispanic. 6 This is based on 2014 data from the Department of Corrections, since Latinx data is not available on the Department Point-in-Time Dashboard. 7 This is likely an undercount. Latinx ethnicity is optional and self-reported by people who are incarcerated, and the vast majority of people incarcerated in Wisconsin for breaking rules of supervision without a new criminal conviction (84%) did not answer a question about Latinx ethnicity in 2015.
The Rules of Supervision
I’m new to working again and I got a second job, but with everything I have to go to for AIM [Alternatives to Incarcerating Mothers] court, for meetings I have to go to, it’s already getting overwhelming. It’s really hard to balance everything and not neglect family and home life. – Eau Claire focus group participant
Supervision is intended to structure surveillance, re-integration, and rehabilitation of a justice- involved person, while protecting public safety. It includes rules for a person to comply with, as part of a comprehensive plan for an individual who was removed from society when incarcerated, and is now returning to a community. However, when used inconsistently or excessively, the rules can instead challenge the rehabilitation and successful re-entry of justice-involved individuals. Wisconsin Enforces at Least 18 Rules of Supervision Across the U.S. there is wide variety in the number and kind of rules of supervision. 5 Even when those rules are reasonable individually, taken together with other requirements of supervision and rehabilitation they can create a system that is very difficult to successfully navigate. This dynamic can be particularly true in places where recommended services or programs may not be reasonably accessible, or may only be available at times that require a person to take time off work, for example. 5 In conversation with us, Department of Corrections staff described that approximately 2.5 years ago, they revised the
number of rules of supervision that could be used, recognizing that the up to 50 restrictions at that time was unrealistic and not helping people or safety. The Department reduced the number of rules and ensured they were relevant to the reason a person was on supervision. For example, a rule prohibiting alcohol should only be used for a person whose conviction and subsequent violation related to alcohol use.
Interpretation of Rules Standard rules can be written in a way that still relies on agents to give them meaning. 35 For example, a rule describing that a person must submit to drug testing ordered by their agent leaves open a wide range of possibilities on how many tests, where to test, when to test, and other terms that individual agents can interpret in different ways. 35
Currently in Wisconsin, a person on standard parole, probation, or extended supervision has at least 18 and as many as 23 rules with which they must comply. 8 Some rules are very specific: for example, rule 11 states a person must get written approval before borrowing money or buying on credit. Other rules leave wide room for interpretation by the agents that enforce supervision. For example, rule 1 describes complying with all laws and avoiding all conduct that “is not in the best interest of the public welfare or your rehabilitation”—a rule that could be interpreted differently across agents. In addition to the 18 standard rules, both the supervising agents and the judge in a sentencing court can create and enforce 5 additional rules for the person on parole or probation, for a total maximum of 23 rules. 5 These additional rules can vary greatly in how clearly they are written or how broad or detailed they are, according to stakeholders interviewed for this report.
8 People on supervision after previous conviction of sexual offenses have more rules of supervision. They’ll have 24 standard rules and up to 10 additional rules, for as many as 34 total.
Wisconsin Rules of Supervision
You shall: 1. Avoid all conduct which is in violation of federal or state statute, municipal or county ordinances, tribal law or which is not in the best interest of the public welfare or your rehabilitation. 2. Report all arrests or police contact to your agent within 72 hours.
3. Make every effort to accept the opportunities and cooperate with counseling offered during supervision to include addressing the identified case plan goals. This includes authorizing the exchange of information between the department and any court ordered or agent directed program for purposes of confirming treatment compliance; and subsequent disclosure to parties deemed necessary by the agent to achieve the purposes of Wisconsin Administrative Code Chapter DOC 328 and Chapter DOC 331. Refusal to authorize the exchange of information and subsequent disclosure shall be considered a violation of this rule. 4. Inform your agent of your whereabouts and activities as he/she directs. 5. Submit a written report monthly and any other such relevant information as directed by DCC staff. 6. Make yourself available for searches including but not limited to residence, property, computer, cell phone, or other electronic device under your control. 7. Make yourself available for tests and comply with ordered tests by your agent including but not limited to urinalysis, breathalyzer, DNA collection and blood samples. 8. Obtain approval from your agent prior to changing residence or employment. In the case of an emergency, notify your agent of the change within 72 hours. 9. Obtain approval and a travel permit from your agent prior to leaving the State of Wisconsin. 10. Obtain written approval from your agent prior to purchasing, trading, selling or operating a motor vehicle. 11. Obtain approval from your agent prior to borrowing money or purchasing on credit. 12. Pay court ordered obligations and monthly supervision fees as directed by your agent per Wisconsin Statutes, and Wisconsin Administrative Code; and comply with any department and/or vendor procedures regarding payment of fees. 13. Obtain permission from your agent prior to purchasing, possessing, owning or carrying a firearm or other weapon, or ammunition, including incapacitating agents. An offender may not be granted permission to possess a firearm if prohibited under federal or state law. 14. Not vote in any federal, state or local election as outlined in Wisconsin Statutes s.6.03(1)(b) if you are a convicted felon, until you have successfully completed the terms and conditions of your felony sentence and your civil rights have been restored. 15. Abide by all rules of any detention or correctional facility in which you may be confined. 16. Provide true, accurate, and complete information in response to inquiries by DOC staff. 17. Report as directed for scheduled and unscheduled appointments. 18. Comply with any court ordered conditions and/or any additional rules established by your agent. The additional rules established by your agent may be modified at any time as appropriate.
Focus group participants described that complying with rules can make it difficult to meet other basic needs like holding a job, finding a place to live, and achieving other daily functions that sup- port rehabilitation and in some cases are part of the rules of supervision. Multiple restrictive rules and responses to non-compliance impact quality of life with collateral impacts to health. People experience tension between trying to meet requirements of supervision, employment needs, and family needs.
I had to report every other week when I got out. So that was every other week that I was late for work . . . And if I didn’t show up they’d be at my house . . . [I’d explain] I didn’t report today because if I don’t go to work I’m out of a job. And he would show up . . . They try to get you. They try to find something to get you, so they can lock you up . . . – Menominee focus group participant
Complying with these rules gets even harder when layering on the potential for additional scrutiny and interaction by law enforcement based on racial profiling. For example, the burden of reporting all stops and arrests to an agent within 72 hours (rule 2) for a person of color may vary widely with that of a White person. Justice-Involved Individuals Must Pay Supervision Fees In the U.S., including in Wisconsin, people on parole, probation, or extended supervision pay fines and fees associated with their supervision. Some examples include the costs associated with in- carceration stays, legal representation and court appearances, electronic monitoring, and other charges related to parole and probation services. In Wisconsin, the justice-involved individual pays a monthly fee for their own supervision: $20, $40, or $60 each month depending on their income. 22 Put differently, a person pays between $240 to $720 dollars for every year they are on state-mandated supervision. These monthly costs do not include other fees for additional rules of supervision, including urine tests or electronic monitoring, and for which costs vary. As an example, electronic monitoring has an initial set-up fee and daily charge: 23 a person in Eau Claire County on electronic monitoring for 4 weeks owes nearly $700 in addition to monthly supervision costs. 23 A 2015 White House Council of Economic Advisers brief explained that across the U.S., the finan- cial obligations associated with parole and probation “are disproportionately borne by the poor . . . [and] can lead to high levels of debt and even incarceration for failure to fulfill a payment.” 24 These costs can include having to make difficult tradeoffs in terms of neglecting other financial needs, “increasing the likelihood of job loss . . . [and] returning to criminal activity to pay off their debts, perversely increasing recidivism.” 24 Is the Purpose of Supervision Rehabilitation or Surveillance? In Wisconsin—on top of the financial burden—failing to pay these fees is a violation of a person’s rules of supervision and among the reasons a person can be incarcerated. Supervision fees raise a question about the mission of supervision in the modern era: Is it rehabilitation or surveillance? States vary widely in their philosophical approach toward putting surveillance or rehabilitation of individuals first. 5 The tension often results in competing demands—between surveillance needs and rehabilitation needs—on limited agent time and financial resources. 5 In conversation with DOC staff, they described being in a position that requires balancing public safety with the rehabilitation of the justice-involved individual.
One focus group participant articulated a perceived imbalance in the system between surveillance and rehabilitation: We have heard this around the table again and again. If the PO [parole/probation officer] clearly said that “I am here to help you find a job, I am here to help you find housing, I am here to help you succeed”—if that was clear then that would REALLY lift the pressure off. But instead you hear . . . that people who have the POs, 90% of them, they’re just [there] to catch you when you’ve done wrong. That’s the law enforcement mentality, not social worker mentality that “I’m here to help you.” That attitude of the PO and whole clearance of who is a PO [who gets the job] and what does it take—you know that’s something that’s got to be addressed as well as this crimeless revocation policy, the two are hand in hand. – Milwaukee focus group participant Spectrum of Experiences with Agents The relationship between a parole/probation agent and justice-involved individual is central to the supervision process. Focus group participants described a range of experiences with agents, ranging from a supportive and reinforcing experience for re-entry to a wholly unsupportive experience, such as below:
Being on parole has been a very big security blanket for me—it keeps me clean knowing that I have to check in every Tuesday. It helps me at least try to maintain and do what I’m supposed to be doing. I asked my agent last week when I’m off papers, can I call you still? The agent has been a person in my life for 3 years and a support system as well. – Kenosha focus group participant I never got any help from my PO in finding a job but it was required that I look for a job and find employment. She helped me with other things, but she never once helped me find a job. I think that Department of Corrections should have more emphasis on counseling and helping people be a success and less emphasis on “You forgot to dot that i we’re going to send you to MSDF [Milwaukee Secure Detention Facility].” It’s an exaggeration, but it’s the truth . . . And if they do send you there, you lose it. – Milwaukee focus group participant
What Counts as Failing to Meet Supervision Rules? Although a person on supervision has up to 23 rules, there are many more reasons why they can be seen as failing to meet rules of supervision. Importantly, a person living in their community on supervision can be incarcerated without breaking the law, for actions for which a member of the general public would never expect to be incarcerated.
You certainly try out alternatives to revocations, or examine if there are some other things we could utilize out in the community or even some institution-based programming like halfway houses, treatment groups . . . electronic monitoring, anything that would still address the violation and help encourage the offender to make some behavioral changes . . . We go through the list of how can we address these violations the best way without going to revocation. Revocation tends to be more of a last resort . . . – Parole/probation agent Parole or probation agents who were interviewed described seeking alternate options and their perspectives of revocation as “a last resort”: Yet, there is a mismatch with the experiences of individuals. People are still incarcerated without necessarily committing a new crime. Focus group participants described their personal experienc- es or experiences of people close to them with revocations for breaking rules of supervision with- out a new criminal conviction. Reasons included monitoring equipment failure, missing appoint- ments, failing to report a change of address, or allegations of breaking the rules.
One time he was put in jail over his GPS system . . . He was put in jail because they said he didn’t use the equipment correctly. And he did not just sit in jail for a couple months . . . They sent him back to prison for 2 years for not knowing how to use the equipment properly. – Madison focus group participant Someone close to me was put into custody for not telling the probation officer he changed his address. He was held for multiple weeks for a change of address. – Kenosha focus group participant
One focus group participant who was formerly incarcerated described feeling hopeless or trapped after unintentionally breaking a rule of supervision by missing an appointment:
Absconding, not going to your appointments—I missed one and I was too scared to face her [agent] . . . I thought it was one day and it was actually the next day. I felt trapped because I knew that no matter what I did I would go to jail . . . – Eau Claire focus group participant
Reasons People Are Held in Custody in Wisconsin for Breaking Rules of Supervision without a New Criminal Conviction (Note: This list excludes criminal reasons a person also can be held for violating supervision, and is in the language provided by the Wisconsin Department of Corrections.) • Changed address without permission • Changed or ended employment without agent’s permission or without advising agent • Driving or owning a vehicle without agent’s permission • Failed to report to agent • Refused to take urine test • Refused a search • Refused to sign an agreement • Failed to report contact with law enforcement or an arrest • Filed a false monthly report • Gave false information to an agent • Failed to report to jail • Refused to inform agent or write statement of whereabouts and activities • Violation of a community service order • Violation of a ‘no contact’ rule, including contact with associates, peers, former accomplices, child, family member, spouse or partner, felon, or victim • Violation of an ‘Alternative to Revocation’ placement or treatment plan, or refusing either of these • Violation of the electronic monitoring program • Violation of the special action release program • Drinking when the person has a ‘no drink’ rule, including: • Entering a tavern when an agent prohibits it • Public drunkenness • Positive Breathalyzer test • Using an inhalant • Possession of open intoxicants (i.e., open container) • Absconding, meaning an agent determines a person’s ‘whereabouts unknown,’ ‘left local area without permission,’ or ‘left state without a travel permit’ • Non-criminal verbal and written threats to other people • Non-criminal traffic rules violations, such as a first conviction of driving while intoxicated, not having a driver’s license, driving a vehicle after revocation, or warrants for this and other non-criminal traffic violations • Violations of halfway house rules, including: • Did not pay restitution, fines, or court obligations • Refused to seek employment or go to work or school
• Program discharge • Curfew violations • Leaving without permission • Not cooperating with treatment • Other community-based program rules violations include: • Discharge • Failing to attend or complete a program • Not cooperating with a program
• Refusing to take prescribed medications • Non-criminal violations of work release
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