A Tale of Three States, Pt. 3: Harsh Hoosiers

In the first post in this series, I explored the large gap between the incarceration rates of Minnesota and Wisconsin.  In the second, I discussed racial disparities in the incarcerated populations of the two states.  The disparities in both states are wide, although Wisconsin’s are somewhat larger.  In this entry, I add a third state, Indiana, to the statistical comparisons.  As another medium-sized midwestern state, one might expect that Indiana would have criminal-justice numbers that are similar to Minnesota’s and Wisconsin’s.  Indiana’s numbers, however, point to a criminal-justice sustem that is much larger and harsher than those of its northern neighbors.

As detailed in the table that appears after the jump, Indiana’s imprisonment rate (about 460 per 100,000) easily outstrips Wisconsin’s (387) and dwarfs Minnesota’s (178).  Perhaps even more surprisingly, Indiana’s probation population also exceeds Minnesota’s.  My Minnesota-Wisconsin comparison suggested that Wisconsin imprisons many defendants who would get probation in Minnesota, leading to a much smaller probation population in the former than the latter.  But Indiana seems to incarcerate the same way that Wisconsin does, without any accompanying reduction in the probation numbers.

For that reason, Indiana’s total supervised population of 167,872 is the largest of the three states (although Minnesota, with the smallest overall population of three, still has a somewhat larger per capita supervised population, thanks to its enormous per capita probation number).

Indiana also leads the way in crime.

Continue reading “A Tale of Three States, Pt. 3: Harsh Hoosiers”

A Tale of Three States, Pt. I

In this post from a few months ago, I offered a preliminary assessment of the wide disparity in incarceration rates between Wisconsin and Minnesota.  I had just enough data then to raise some interesting questions.  Now, with the capable help of a research assistant, Garrett Soberalski, I’ve assembled a much more extensive body of data, which I expect to analyze in a series of posts.  Among other things, I thought it would be helpful to add a third state to the mix, so Indiana will also be included in the comparison.  Another medium-sized midwestern state, Indiana has incarceration numbers that are even higher than Wisconsin’s.

In this initial post, though, I will focus just on the basics of the Wisconsin-Minnesota comparison.

So, here’s the essential story (as detailed in the chart that appears after the jump): Wisconsin incarcerates many more people than Minnesota, while Minnesota puts many more individuals on probation.  The two states have about equal levels of crime, and Minnesota actually has a larger percentage of its population under supervision (that is, either incarcerated or on probation or parole release).  However, because incarceration is so much more expensive than community supervision, Minnesota’s corrections budget is much smaller than Wisconsin’s (about $99 per resident, versus Wisconsin’s $234 per resident).  Given the similarity of the two states’ crime rates, it appears that Minnesota’s probation-based strategy is delivering more bang for the buck than Wisconsin’s.

Continue reading “A Tale of Three States, Pt. I”

SCOWIS to Consider Required Notice for Mandatory Minimum

Late last month, the Wisconsin Supreme Court agreed to decide whether a defendant’s conviction should be set aside when he was not informed either by the complaint or by his lawyer that he would be subject to a twenty-five-year mandatory minimum if convicted.  The unpublished Court of Appeals opinion in State v. Thompson is here, courtesy of On Point.

Thompson apparently went to trial on a sex assault charge without realizing that he faced the long minimum sentence.  Although this seems like a rather big thing to spring on a defendant only after he has been convicted, it is not at all clear there is a viable legal theory to support post-conviction relief on this basis.

The court will consider three possibilities:

Continue reading “SCOWIS to Consider Required Notice for Mandatory Minimum”

SCOWIS Approves LWOP for 14-Year-Old Killers

Today, in State v. Ninham, 2011 WI 33, the Wisconsin Supreme Court approved the sentence of life without possibility of parole for fourteen-year-olds who are convicted of first-degree intentional homicide.  The decision rests on a narrow reading of the U.S. Supreme Court’s landmark holding last year in Graham v. Florida, in which the Court outlawed LWOP for juveniles convicted of nonhomicide crimes.  Since Graham, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.

Ninham’s challenge was framed as a categorical challenge to the use of LWOP against fourteen-year-olds.  As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of Graham, (1) determining whether there is a national consensus against the challenged practice, and (2) exercising independent judgment as to whether the practice constitutes an unconstitutionally severe punishment.

As to the first prong, although a large majority of states authorize LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed:

Continue reading “SCOWIS Approves LWOP for 14-Year-Old Killers”

Wisconsin v. Minnesota

Given the many demographic and cultural similarities between these midwestern neighbors, I’ve long been intrigued by how dramatically different the incarceration rates are in Wisconsin and Minnesota.  How is it that Wisconsin’s per capita incarceration is twice Minnesota’s?  My diligent research assistant Joe Gorndt has gathered some data to try to shed light on this problem.  First, here is the basic demographic data:


Minnesota Wisconsin
Population (2009) 5.3 mm 5.7 mm
Age under 18 24.3% 23.6%
Age over 65 12.4% 13.2%
Over 25, HS diploma 91.1% 89.0%
Bachelor degree 31.2% 25.5%
Below poverty line 10.0% 11.1%
Foreign born 5.3% 3.6%
Unemployment 5.8% 6.1%

Not much to distinguish the states here.  The most notable difference seems to be the higher percentage of adults with college degrees in Minnesota, but this is hardly a dramatic difference and doesn’t seem likely to explain the imprisonment disparity.

Now take a look at the crime and criminal-justice statistics, courtesy of the National Institute of Corrections.

Continue reading “Wisconsin v. Minnesota”

SCOWIS Clarifies Standards for Sentence Modification

“Second-look sentencing” is a topic of growing interest to sentencing scholars and policymakers.  Particularly in light of the elimination or scaling back of parole in most states in the past generation, as well as the reality that executive clemency is extremely unlikely in most cases except perhaps in the final days of a lame-duck administration, there is a real need for alternative mechanisms to reconsider sentences based on facts not known to (or perhaps inadequately considered by) the sentencing judge.

Wisconsin law has long recognized that circuit courts have the inherent authority to modify sentences based on new factors, but judicial interpretations of this authority have hardly been generous.  However, this week’s Wisconsin Supreme Court decision in State v. Harbor, 2011 WI 28, offers a clarification and modest loosening of the requirements for modification.

Here is what the court had to say about the requirements:

Continue reading “SCOWIS Clarifies Standards for Sentence Modification”

Greater Clarity? You Be the Judge

This continues my series of posts on recent criminal cases decided by the Wisconsin Supreme Court.  In its opinion in State v. Carter, 2010 WI 77, the Wisconsin Supreme Court expressed its “hope” that the opinion would provide “greater clarity in awarding sentence credit in a case involving concurrent sentences.” (¶ 6)  Whether it succeeded is at least debatable.

Under Wis. Stat. 973.155(1)(a),

A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, “actual days spent in custody” includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs: 1. While the offender is awaiting trial . . . .

Carter dealt with the application of this provision to a defendant held in Illinois on both a Wisconsin and an Illinois charge.   Continue reading “Greater Clarity? You Be the Judge”

Kleser on Evidence, Self-Incrimination, and Appellate Review of Offense Seriousness

This continues my discussion from yesterday’s post on State v. Kleser, 2010 WI 88.  The Wisconsin Supreme Court held that the trial judge erroneously exercised her discretion in three respects in connection with her decision to transfer Kleser’s case to juvenile court.

First, Kleser’s expert witness, Dr. Beyer, was permitted to recount Kleser’s version of the offense, even though Kleser himself did not testify and was not subject to cross-examination.  The court held “that Dr. Beyer’s testimony regarding the facts of offense constituted impermissible hearsay and that the circuit court improperly relied on it” (¶ 86).  The difficulty, however, is that  Wis. Stat. § 907.03 permitted Beyer to offer an opinion based on hearsay.   Continue reading “Kleser on Evidence, Self-Incrimination, and Appellate Review of Offense Seriousness”

Kleser: Giving to Juveniles With One Hand and Taking With the Other

I am busily preparing for a couple of presentations later this fall on the last term of the Wisconsin Supreme Court.  As a result, I expect to focus most of my posts over the next week or two on recent SCOWIS decisions in criminal cases.

Today’s case is State v. Kleser, 2010 WI 88.  For juvenile defendants in adult court who are seeking a “reverse waiver” to juvenile court, the case is a mixed bag.  On the one hand, the court held that defendants may present mitigating evidence regarding the charged offense in support of a transfer to juvenile court.  On the other hand, other aspects of the court’s decision will make it difficult in many cases for defendants to present such evidence without surrendering their privilege against self-incrimination.   Continue reading “Kleser: Giving to Juveniles With One Hand and Taking With the Other”

Wisconsin Supreme Court on Extraneous Comments at Sentencing

In reviewing the Wisconsin Supreme Court’s opinion in State v. Harris for a talk I am giving later this fall, I was immediately struck by the similarities with United States v. Figueroa, the Seventh Circuit case I blogged about yesterday.  In both cases, the sentencing judge made numerous “colorful” comments at the sentencing hearing that suggested the judge may have been taking various irrelevant considerations into account.

In Harris, the sentencing judge seemed to be passing judgment on the defendant’s lifestyle.  He made a big deal of Harris’s domestic arrangements, which involved Harris staying home with his daughter while the daughter’s mother worked and attended college.  He also focused on Harris’s marijuana use (Harris’s conviction, though, was for possession with intent to deliver cocaine).  The judge then contrasted Harris’s lifestyle with the more laudable choices made by others: “People Mr. Harris’s age [are] enlisting in the Marines and Army and National Guard, putting their lives at stake while Mr. Harris sits at home, gets high while his baby mama works and goes to school.”  The judge also found it “appalling” that the twenty-one-year-old Harris lacked any employment history.

More generally, comparing Harris and Figueroa, one gets the sense that both judges were viewing the defendants as representives of particular social groups (Mexican immigrants in one case, and dissolute young men supported by their girlfriends in the other), and were using the sentencing hearing as an occasion to express critical judgments on the groups.

Why, then, did Figueroa win and Harris lose?  Continue reading “Wisconsin Supreme Court on Extraneous Comments at Sentencing”