For the poorest incarcerated people, early release is often out of reach.
By Christopher (MaCI) (Ohio)
& Jennifer (TCI) (Wisconsin)
Forward
There are two types of sentencing laws in this country. The first involve so-called indefinite sentences, for they have a minimum and a maximum possible term. Release consideration is often made by parole board decision. In some states release consideration may also be made by court action. The second involve definite sentences, so called because they stipulate mandatory periods of incarceration and remove the release discretion of parole boards and courts before mandatory period is served.
Truth In Sentencing (TIS) laws are intended to ensure those convicted of crime serve predetermined definitive time. Once sentenced, incarcerated people may, at some point, become eligible for “early” release consideration.
The process to request consideration for early release is often complex. It disproportionately impacts the poorest incarcerated people — those with no financial means or grasp of the law — and we will explain why shortly. This results in longer actual time served for this subgroup within an already vulnerable population.
In Ohio it costs taxpayers $30,558.00 per year to incarcerate one person in the state’s prisons according to the National Institute of Corrections. By way of comparison, 2023 tuition, room and board for one year at the Ohio State University, amounts to $23,549.00. It’s a shocking comparison when we think about it. Ohio taxpayers pay more to incarcerate someone for one year than is paid for a year of higher education. The longer the sentence, the greater the drain on public coffers. Definite sentences ensure longer periods of incarceration.
Hidden within this fact, long sentences create disincentives to using one’s time in prison to rehabilitate — contrary to public opinion. Incarcerated people desiring to use their time to rehabilitate discover that institutional programs, higher education and trade classes are closed off to them due to “time remaining” on their sentence. This creates a vicious feedback loop within this idled, disenfranchised group encouraging reversion to old behavior, and to view the path of change through a jaded lens. These authors have witnessed this first-hand.
Corrections departments wrongly conclude that the bulk of trade, education and rehabilitative programs should be solely focused on the “short time” crowd, those incarcerated people whose release dates are nearest. This crowd mostly consists of nonviolent, nonserious, nonsexual offenses, what the Justice Policy Initiative’s report Defining Violence labels as the “non, non, nons.” Yet, a full 40% of those incarcerated are serving time for a “violent” offense and from 1980 to 2016 there was a near 500% jump in those incarcerated serving lengthy periods for violent crime Bureau of Justice Statistics data show. To exclude this crowd from trade, education, and rehabilitative programs on the auspice of one’s release date is akin to ignoring nearly half of America’s incarcerated people. TIS laws exacerbate this problem for these incarcerated people are the least likely to be considered for early release, and a full 70% hail from poor backgrounds.
It seems to us that the only population satisfied with TIS laws are politicians playing upon the fearful emotions of an uninformed public. It’s a truth reliable enough that politicians fall back upon it every election cycle time and again for easy votes.
TIS birthed in 1984 during the “tough on crime” era. One year after the passing of the federal Crime Act of 1994, 11 states had enacted laws mandating definite terms of punishment.
We’d like to point out that if measured by recidivism rates in states having enacted TIS laws, these policies have failed dismally. Changes in recidivism rates have been minimal as to be statistically non- meaningful. Curiously, the rearrest rate for those convicted of violent crime for committing another violent crime is far below the national recidivism rate (65%) for all reoffending.
Wisconsin’s TIS Failure
Wisconsin is a standard example of how TIS policies have failed to show meaningful results. We’ve chosen Wisconsin to illustrate the complexity incarcerated people face filing for early release, and how this disproportionately impacts the poorest incarcerated people. By no means is Wisconsin unique. Incarcerated people face similar complexities nationwide.
Wisconsin’s TIS laws stipulate definite prison terms. They’re designed to ensure mandatory periods of incarceration before a judge may consider an “early release” petition. TIS removes the release authority of the parole board while also preventing incarcerated people from earning good time credit.
Under this design incarcerated people serve 75-85% of one’s sentence before being able to petition the sentencing court for early release, which is a form of sentence adjustment. Not everyone is eligible. The class of felony determines eligibility and nearly all of Wisconsin’s crimes classed as “violent” disqualify outright.
When seeking early release the incarcerated person must file a separate petition for each count of conviction. It does not matter if these counts were imposed consecutively (one after the other) or concurrently (together).
If released “early” the remainder of one’s sentence is added to their extended supervision time, which is, in essence the equivalent of parole. The individual has a probation officer, rules to follow or face returning to prison.
We’ve found that the process to file a petition for early release is arduous. Wisconsin’s incarcerated must file a petition in the county they were sentenced in and along with the petition, have the prison send a Verification of Time Served and — at the incarcerated person’s expense — a copy of their Behavioral Conduct Report. The incarcerated person is allowed to include a letter to the judge along with copies of supporting documents. Finally, included is a copy of the incarcerated person’s Judgement of Conviction or (JOC).
Wisconsin allows a handful of valid reasons for early release:
*Health concerns
*Commitment in another state
*Facing deportation
*Changes in law or parole
or, as most filers tend to do, check the box that they have worked toward rehabilitation
Once gathered together the petition and supporting documents are sent to the Clerk of Courts. The judge and District Attorney (DA) are notified, and for certain crimes the victim is then notified of the petitioner’s intent. The DA files an opinion brief with the Clerk of Courts, and a judge renders decision to grant or deny the petition.
We found that common reasons for denial are chosen from a standard form:
*Having previously filed
*Not in the public interest
*Written reasons attached
*Other (Which often entails boilerplate response like:) “After considering any relevant factors including the nature of the crime, the character of the inmate, the protection of the public, the position of the state and the victim and the inmate’s institutional conduct including the inmate’s effort at the progress of rehabilitation, or lack thereof, or the inmate’s participation and progress, or lack thereof in education, treatment and corrections programs”
An author of this essay was sentenced 11 years ago. The sentencing judge reviewed her petition and supporting documents. This was a person who had never heard of her prior to her conviction and who saw her once thereafter in an unrelated hearing after she was sentenced. And like all other incarcerated people who file early release petitions, knew nothing of her character or efforts over the past decade.
The DA that reviewed her petition and supporting documents, an individual that was not in office at the time of her conviction, knew nothing about her, but would have a meaningful say in her life. People who don’t known petitioners or the effort incarcerated people put into rehabilitation decide their lives. What happens when incarcerated people petition only to discover that a new judge or DA is in office? How is it possible to meaningfully decide upon the merits of a petition if you know nothing about the individual save for legal proceedings and boxes checked on standard forms by prison officials? With a parole board we are afforded the opportunity to state facts in person and answer questions directly. It is a meaningful personal experience. In Wisconsin, with the parole board victim(s) have opportunity to be present.
The poor and least educated are harmed the most.
In this new format it’s about one’s ability to convey in writing to a judge why an early release should be considered. We ask two questions to readers here, How good are you at expressing yourself in writing? What if your formal education does not include completion of high school? This is the reality for more than half of America’s incarcerated.
Add to this most incarcerated people have no money save for what is “earned” at a prison job. According to a study by the Prison Policy Initiative, monthly average earnings by incarcerated people nationwide amount to $20.16. A handful of States pay zero dollars monthly to incarcerated people for prison jobs. In Wisconsin, as in most states, incarcerated people are expected to pay for forms, photocopies, postage and related expenses when filing a petition for early release. An author of this essay paid $3.42 for postage and $7.20 for copies of supporting documents. These figures don’t account for other expenses involved. Since multiple copies of the petition were needed, her total expenditures were $21.60 which she was able to pay on her own. Because of her financial ability to file she will always have the possibility of release.
What happens when incarcerated people don’t have the financial means to file? It’s difficult enough that incarcerated people are at the mercy of elected officials that don’t even know them. The poorest among us bear the heaviest burden and serve the most time.
*Jennifer is incarcerated in Wisconsin at Taycheedah Correctional Institution.
*Christopher is incarcerated in Ohio at Madison Correctional Institution.
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