- Wisconsin voters do not favor indiscriminate harshness in the treatment of criminal offenders, but rather believe that the costs and benefits of imprisonment should be carefully weighed in each case. In the July 2013 Marquette Law School Poll, a clear majority of Wisconsin voters (55.3%) expressed support for the idea that “prisons are a government spending program, 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 a lower cost.”
- An overwhelming majority of Wisconsin voters (85%) agree that “criminals who have genuinely turned their lives around deserve a second chance.”
- An overwhelming majority of Wisconsin voters (86%) say that they “feel safe walking alone at night” in their neighborhoods.” Although fear and outrage have sometimes dominated public discussion of criminal justice policies, Wisconsin is ready for a more balanced conversation that considers what policies will deliver the greatest benefits to the state at the least cost over the long run.
Imprisonment and Crime Trends
- Beginning in 1973, Wisconsin’s rate of imprisonment increased literally every year for three decades, resulting in an imprisonment rate nine times greater than it had been in the early 1970’s. Such a period of dramatic, sustained growth in imprisonment has no precedent in the state’s history. Although the imprisonment rate has finally stabilized in the past decade, it remains many times greater than historic norms.
- In 1972, Wisconsin’s imprisonment rate stood just a little higher than that of Minnesota, its demographically similar neighbor to the West. The two states’ criminal-justice statistics had mirrored one another for decades. However, Wisconsin’s imprisonment boom quickly opened a wide gap between the states, which persists to this day. In 2011, Wisconsin’s imprisonment rate (prisoners per 100,000 residents) was almost exactly double Minnesota’s.
- Imprisonment is expensive. Wisconsinites pay a high price for maintaining an imprisonment rate that is twice Minnesota’s. Our state government spent over one billion dollars on corrections in 2010, in comparison with Minnesota’s $439 million. If Wisconsin had Minnesota’s imprisonment rate, hundreds of millions of dollars would be freed up for other valuable purposes, such as tax relief, education, and infrastructure improvement. Savings could also be directed to other purposes that might reduce crime and violence more effectively than institutional warehousing, such as increased funding for community policing, problem-solving courts, and treatment for addiction and chronic mental illness.
- Crime rates cannot explain the gap in the imprisonment rates of Wisconsin and Minnesota. In fact, Minnesota has typically had a higher rate of violent crime than Wisconsin over the past four decades. Although Wisconsin has had the higher rate since 2007, the gap is much smaller than the imprisonment gap. Given the small size and recency of the crime gap, it cannot plausibly account for the very wide, longstanding difference in imprisonment rates. In other words, there is no reason to believe that Wisconsin has more prisoners than Minnesota simply because Wisconsin has more criminals.
- Nor is it likely that maintaining the current, historically high levels of imprisonment in Wisconsin is necessary to keep crime under control. Years of national and international research make clear that crime and imprisonment have a highly complex and often tenuous relationship. With some offenders, there is no question that imprisonment can prevent crime. However, imprisonment can also have adverse effects on individuals, families, and neighborhoods that contribute to crime over the long term. Imprisonment also sucks up resources that might be used in other ways that are more effective in reducing crime. In short, there is little basis for thinking that increasing imprisonment will necessarily reduce crime, or that reducing imprisonment will necessarily increase crime.
- A comparison of the trends discussed above highlights the lack of a direct, reliable connection between imprisonment and crime rates. Imprisonment in Wisconsin increased every single year between 1973 and 1995, but this did not stop violent crime rates from tripling over the same time period. Imprisonment eventually hit an all-time high in 2006 . . . the very same year that Wisconsin recorded its second-highest violent crime total. Then, between 2007 and 2011, imprisonment fell by almost ten percent . . . and violent crime fell even faster, by fourteen percent. If imprisonment rates are cut by another ten percent in the coming years, it is entirely possible (although certainly not assured) that crime will again drop by an equal or greater amount.
Alternatives to Imprisonment
- Reducing imprisonment does not mean that offenders must necessarily escape supervision and accountability. Minnesota has a lower imprisonment rate than Wisconsin not because it lets offenders off the hook, but because it has made the choice to use less expensive forms of punishment, particularly probation. As of the end of 2011, Minnesota had more than twice as many offenders on probation as Wisconsin. In fact, because Minnesota places so much emphasis on probation, which costs a fraction of imprisonment, Minnesota is actually able to keep a much larger number of offenders under supervision than Wisconsin.
- Contrary to popular belief, probation is not an empty punishment, but involves significant restrictions on individual liberty, the stigma of a permanent criminal record, and the ever-present threat of swift revocation and imprisonment if an offender is arrested for a fresh crime or otherwise violates probation rules. Moreover, probation can serve as a vehicle for requiring and overseeing treatment for addiction or other mental health issues.
- In effect, Minnesota and Wisconsin have chosen starkly different criminal justice strategies. Where Minnesota chooses to cast a wide net, bringing large numbers of offenders under criminal justice supervision, Wisconsin has chosen to supervise fewer, but more intensely (and more expensively) in prison. Based on the crime data presented above, it is hard to say that one strategy or the other is more effective in protecting public safety, but it is clear that Minnesota’s approach is much less expensive. Moreover, by deemphasizing imprisonment, with all of its attendant degradations and extreme infringements on fundamental rights, the Minnesota approach is also at least arguably more consistent with traditional American ideals of individual liberty and respect for human dignity.
- Since sentencing in Wisconsin is largely controlled by individual Circuit Court judges, the state’s criminal justice system will probably not shift to a true community corrections orientation until judges have options for community supervision that truly inspire their confidence. During the period of Wisconsin’s great imprisonment boom, judges turned increasingly to imprisonment, at least in part, because they did not trust the quality of community supervision provided by the state’s Department of Corrections.
- A very hopeful development in the past decade has been the proliferation across the state of bottom-up, locally led initiatives intended to provide improved treatment and supervision options for offenders in the community and thereby reduce reliance on incarceration. These initiatives include community justice councils, drug treatment courts, and other problem-solving courts. The state has provided some support and encouragement for such initiatives through the Treatment Alternatives and Diversion (TAD) program. The state should consider expanding its support for locally led, evidence-based initiatives that provide judges and prosecutors with effective alternatives to incarceration.
- In seeking to strengthen community supervision alternatives, Wisconsin might look to the model of Minnesota’s Community Corrections Act. Adopted in 1973, the CCA gives counties the option of assuming full responsibility for community supervision in lieu of the centralized state corrections bureaucracy. Funding comes from a mix of state subsidies and county tax dollars. As of 2012, thirty-two Minnesota counties had opted into the CCA program, with another twenty-seven in a hybrid program that splits supervision responsibility between state and local authorities. It may be no coincidence that the very year Minnesota adopted the CCA, the long-similar imprisonment rates of Minnesota and Wisconsin began their dramatic divergence.
- Reforms that seek to divert offenders from ever entering prison are often referred to as “front-end” reforms. “Back-end” reforms, by contrast, seek to move inmates out of prison and into less costly community supervision when it is safe to do so. Between 2000 and 2010, at least thirty-six states adopted back-end reforms in an effort to get corrections budgets under control. Because sentencing judges cannot foresee how the character and circumstances of an offender will change over a period of many years in prison, some flexibility on the back end is necessary in order to ensure that costly prison space is being reserved for those offenders who still truly pose a threat to the community. Such flexibility also helps to ensure that there are adequate incentives for prison inmates to participate in rehabilitative programs, comply with institutional rules, and otherwise develop positive records while they are behind bars.
- Back-end flexibility is not necessarily contrary to the policy of “truth in sentencing,” which Wisconsin adopted in 1998. TIS eliminated the old system of discretionary parole, in which the Parole Board could release prison inmates at any point in their sentences from one-quarter to two-thirds. That system was criticized for a perceived lack of transparency and accountability. However, there seems nothing intrinsically “untruthful” about a system in which a prisoner’s release date depends in part on the prisoner’s performance while incarcerated, so long as the criteria, parameters, and procedures are made clear to everyone concerned. Critical to the legitimacy of an “early” or “earned” release program is that offenders must in all cases serve a substantial portion of their prison terms; public safety must be a central focus, taking into account the best available methods of risk and needs assessment; and any decisionmaking procedures must be open and transparent, especially in relation to victims.
- Wisconsin should consider restoring “good time” credits, which permit inmates to obtain early release on the basis of good behavior in prison. As of 2011, twenty-nine states offered good time. Although the good time programs vary widely in their specifics, most offer somewhere in the range of ten to twenty days of credit per month of good behavior, which might reduce confinement by as much as twenty-five to forty percent. Even the federal government, which is known for having an extraordinarily harsh sentencing system and which has been an important advocate for truth in sentencing, permits sentences to be reduced by as much as fifteen percent through good time credits. In short, good time constitutes a modest, but not entirely insignificant, form of back-end flexibility that has achieved widespread acceptance elsewhere across the United States for many decades.
- Wisconsin law already recognizes a variety of other types of back-end flexibility, such as compassionate release and sentence adjustment, but the eligibility criteria tend to be highly restrictive and the opportunities seldom utilized. Results from the Marquette Law School Poll suggest that Wisconsin voters might be supportive of more robust early release programs. Most notably, in both the July 2012 and July 2013 polls, about 55% of Wisconsin voters agreed that “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.” Additionally, an even more lopsided majority of 67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.” To return to a key observation made at the start of this post, Wisconsin voters do not support “lock ‘em up and throw away the key” approaches to criminal justice, but instead favor strategies that are more nuanced and cost-effective.
 This was a poll of 713 registered Wisconsin voters, with a margin of error of 3.7 percentage points (https://law.marquette.edu/poll/wp-content/uploads/2013/07/MLSP17Toplines.pdf).
 By contrast, fewer than 40% of respondents agreed that “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.”
 Data from the July 2012 Marquette Law School Poll of 698 Wisconsin voters (https://law.marquette.edu/poll/wp-content/uploads/2012/07/MLSP8_Toplines.pdf).
 Data from the July 2013 Marquette Law School Poll.
 Data are from the U.S. Department of Justice’s Bureau of Justice Statistics (http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4679). These numbers reflect state-level spending only. If corrections spending by local government is also included, Wisconsin spent over $1.5 billion in 2010, in comparison with Minnesota’s $861 million.
 Data are from the Federal Bureau of Investigation (http://www.ucrdatatool.gov/Search/Crime/State/StatebyState.cfm). “Violent crime” here refers to homicide, aggravated assault, rape, and robbery.
 For a more extended discussion of this point, see Franklin E. Zimring, The Great American Crime Decline, pp. 46-56.
 Minnesota Department of Corrections, Backgrounder: Minnesota Correctional Delivery Systems (http://www.doc.state.mn.us/publications/backgrounders/documents/Deliverysystemsbackgrounder.pdf).
 Michael M. O’Hear, Beyond Rehabilitation: A New Theory of Indeterminate Sentencing, 48 American Criminal Law Review 1247 (http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1606&context=facpub).
 Michael M. O’Hear, Solving the Good-Time Puzzle: Why Following the Rules Should Get You Out of Prison Early, 2012 Wisconsin Law Review 195 (http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1561&context=facpub).
 This result is from the July 2012 poll; the question was not asked in July 2013.