Earned Release From Prison: Judges Not Necessarily the Best Deciders

In 2009, Wisconsin expanded release opportunities for prisoners and established a new Earned Release Review Commission to handle the petitions.  But, just two years later, the legislature reversed course, largely repealing the 2009 reforms and abolishing the ERRC. The 2011 revisions effectively returned authority over “early” release to judges. Critics of the ERRC, an appointed body, maintained that it was more appropriate to give release authority to elected judges.

However, last month’s Marquette Law School Poll indicates that Wisconsin voters would actually prefer to put early release into the hands of a statewide commission of experts rather than the original sentencing judge.

Among the 713 randomly selected Wisconsin voters who participated, a 52% majority stated that release decisions should be made by a commission of experts, as opposed to only about 31% who favored judges. An additional 13% stated that both options were equally good. The Poll’s margin of error was 3.7%.

We asked several questions to try to identify more specifically the perceived strengths and weaknesses of both options.  

In the six different areas of competence we explored, judges were said to be better in only one: evaluating the seriousness of the prisoner’s crime. Even in that area, the judges’ lead was hardly decisive: 37.3% to 31.3%, with nearly as many respondents (29.3%) indicating that a judge and a commission would be equally good.

The commission won in each of the five remaining areas: taking into account the needs and values of the community, taking into account the needs and wishes of victims, using the latest scientific knowledge on rehabilitation and risk, ensuring fair and equal treatment for all Wisconsin prisoners, and not giving into political pressures.

Perhaps most surprising in these tallies was the commission’s wide margin of victory (41.0% to 22.3%) in taking into account the needs and values of the community. I would have thought this to be one of the most important strengths of sentencing judges, who are locally based and electorally accountable on a local level. Indeed, I have argued in print that their knowledge of local needs and values is the single most persuasive reason for appellate judges to defer to the sentencing decisions of their lower-court colleagues. Yet, our survey respondents seemed rather unimpressed with the community connectedness of judges.

I was also surprised that the commission won when it came to taking into account the needs and wishes of victims, although that result was within the Poll’s margin of error (33.1% to 32.3%).

The commission’s biggest perceived advantage was in using the latest scientific knowledge on rehabilitation and risk (58.7% to 12.5%). No surprise there.

We also asked a series of questions to explore the different factors that might be taken into account in deciding whether to release a prisoner.

As I discussed in my earlier post on last month’s poll, 54.4% of the respondents expressed agreement with the idea that a prisoner should be released after he has served half of his term if he can demonstrate that he is no longer a threat to society.

On its face, this seems to indicate majority support for a rather dramatic break from the state’s prevailing “truth in sentencing” policy. However, the responses to this question leave open the possibility that voters would narrowly restrict release to prisoners who are physically incapable of harming others. To address this possibility, we asked whether “early release” should “generally be restricted to prisoners who are elderly, terminally ill, or severely physically disabled.” Although there was substantial support for this proposition (42.5%), a majority of respondents (51.9%) rejected it.

So, if release is not simply a matter of physical incapacity, what else should be taken into account?

Our respondents indicated that the single most important consideration should be whether the prisoner has completed treatment for any addiction or mental illness. An overwhelming majority of 71.8% called this “very important” in making release decisions, and only 6.8% said it was “not important.” This result may help to explain how the commission’s perceived expertise on rehabilitation translated into an overall preference in favor of having a commission make release decisions. The result also dovetails nicely with a finding from last year’s survey that two-thirds of voters support awarding credits toward early release to recognize prisoners’ rehabilitative accomplishments.

Close behind treatment as a factor in release decisions was whether the prisoner has accepted responsibility for his crime (67.7% said “very important,” and only 7.5% said “not important”).

The remaining four factors had substantially weaker support, but a solid majority nonetheless ranked each as at least “somewhat important.”

Heading these secondary factors was the prisoner’s record of good behavior in prison (49.5% “very important” and only 11.0% “not important”). I’ll take this as some vindication of my recent article on “good time” credits, subtitled “Why Following the Rules Should Get You Out of Prison Early.”

Opinion was more divided or equivocal on the remaining three factors. 44.8% said it was “very important” whether a prisoner has marketable skills and good employment prospects, but 16.6% characterized this as “not important.” Post-release employment obviously reduces recidivism risk, but perhaps some of the ambivalence about this factor results from the belief that prisoners with good employment prospects likely come from relatively advantaged backgrounds (e.g., white-collar criminals); giving them an additional break through early release may be seen as unfair to the great many prisoners who have had to deal with more troubled upbringings.

There was a bit less support for taking into account whether the prisoner has obtained a GED or completed other educational programs in prison, although 81.2% still characterized this as at least “somewhat important.” Similar numbers were posted for whether the prisoner’s victim opposes release.

Among other things, the Poll results suggest that if the state wishes to reduce its costly prison population through early releases, and to do so in ways that have credibility with the public, it is necessary for the state to supply good treatment and educational opportunities to prisoners. This may mean increasing expenditures in the short run in order to reap long-run benefits.

The overall picture of public opinion that one gets from the Poll is nuanced and pragmatic, not absolutist or ideological.

We explored these tendencies more directly through another question, asking respondents to choose between two competing perspectives on the criminal justice system. One option was “Prisons are government spending programs, and just like any other government program, they should be put to the cost-benefit test. States should analyze their prison populations and figure out if there are offenders in expensive prison cells who can be safely and effectively supervised in the community at lower cost.” The other was “People who commit crimes belong behind bars, end of story. It may cost a lot of money to run prisons, but it would cost society more in the long run if more criminals were on the street.”

The first option won handily, 55.3% to 39.6%.

Again, this helps to illuminate the commission-judge results. Judges are seen as having one particular strength, which is assessing the seriousness of a crime. While this is undoubtedly an important factor in deciding how long an offender should spend in prison, it is not the only consideration the public deems important. In particular, we want a corrections system that protects public safety in a cost-effective way and distinguishes between those offenders who are truly dangerous and those who can be safely supervised in the community. Properly structured, an expert commission seems best suited to making such distinctions.

To be clear, none of this establishes that the legislature got it right in 2009 from the standpoint of public opinion, or got it wrong in 2011. In the Poll, we asked about an abstract commission of experts making hypothetical release decisions. It may be that the real-life ERRC did not in some important way conform to the ideal of an expert commission, or that the 2009 legislation structured release decisions in ways that were otherwise out of step with public opinion.  (For more on the real-life ERRC, see Nicole Murphy’s excellent article on the compassionate release provisions of the 2009 law.)

Whatever the merits of the specifics of the 2009 reforms, our poll results suggest that Wisconsin voters may be open to expanded release opportunities for prisoners, overseen by an expert commission making use of the latest advances in the fields of offender rehabilitation and risk assessment.