Plea bargaining, punishment, and the public interest
This study analyzes the felony sentences of a representative sample of Milwaukee County defendants who were sentenced to the Wisconsin state prison system. Inmates from Milwaukee County comprise almost half of total admissions to state prisons.
We believe the study is the first of its kind in Wisconsin. Its findings address several issues in the current discussion about “truth-in-sentencing.” The study also sheds light on other topics and perceptions in the debate about Wisconsin’s correctional policy.
A lack of accountability
We believe the participants in Milwaukee County’s criminal courts — defense lawyers, prosecutors, judges — tend to be more accountable to each other than to the general public. This is so for several reasons.
First, many judicial and corrections system officials use a nomenclature in which words are disconnected from their normal meaning. Individuals who commit multiple burglaries and traumatize a neighborhood are often described as “low-risk.” Swindlers who exploit the elderly are “non-assaultive.” A five-week crime spree involving seven aggravated holdups is a “single crime episode.” Courtroom discussions occur as to whether a nine-year-old rape victim with vaginal wounds suffered “bodily harm.” A felon’s “criminal history score” can exclude violent juvenile offenses, including sexual assault or robbery.
Second, meaningful public access to information is limited. Much information we reviewed for this study is confidential and not even available for public inspection. In addition, our sponsor incurred substantial expense simply to acquire transcripts of public hearings on plea bargains. Many court files we reviewed were missing key information, such as transcripts from public sentencing hearings. We sought copies of missing sentencing transcripts, but in some cases it took weeks for them to be filed. We asked for, but were unable to secure, copies of “offer letters” that prosecutors had presented defendants at the start of the plea bargaining process. The cumulative effect of such problems is that the voting public is flying blind when it seeks to evaluate the performance of elected judges and prosecutors.
Third, the structure of a “prison sentence” often defies clear explanation — except to those who are part of the system. As Milwaukee Judge John DiMotto explained in giving long-time drug dealer Karl Freeman a 10-year prison sentence: “. . .You know ten years doesn’t mean ten years. You’ve been in the system long enough to know that.” The definitions at the end of this Section highlight the complexity that characterizes the system.
Overall, felony sentences are lenient
We analyzed the structure and severity of sentences using a variety of measures. Among our findings:
- While judges have considerable discretion in sentencing felons, other participants in the criminal justice system have the effective authority to limit or even reverse the impact of a judge’s sentence. As one example, while judges statewide increased sentence lengths between 1990 and 1995, early release practices of the State Parole Commission offset many of those judicial decisions.
- Few offenders receive “maximum” sentences, even though most in our study were repeat criminals. A majority received sentences that were less than half of the maximum possible.
- Several factors combine to produce relatively lenient criminal sentences. The most important include: plea bargaining; the use of overlapping (“concurrent”) sentences for more than one crime; judicial substitution by defendants; and the impact of prison crowding on early release practices.
- Plea bargaining cut maximum prison exposure by an average of about 42%, or 12.4 years per defendant.
- For felons convicted of more than one crime, concurrent sentences cut overall sentence exposure by about 43%, compared with back-to-back (“consecutive”) sentences.
- Two “sentencing reforms” authorized by the Wisconsin Legislature have been eliminated, in one case, and sharply curtailed in another. The Wisconsin Sentencing Commission was abolished in 1995. The Intensive Sanctions program was scaled back in 1997. The Legislature will need to consider the shortcomings in each as it debates new sentencing policies.
The impact of truth-in-sentencing
We did not specifically examine what impact truth-in-sentencing legislation might have had on sentence lengths or prison populations. However, our study suggests that truth-in-sentencing will increase prison populations only if judges modify their current motives in issuing sentences. Judges clearly understand that a “prison sentence” now does not equal the amount of time an offender actually will be incarcerated. Judges often estimate the likelihood of early release and impose a longer sentence, in order to achieve a certain period of actual incarceration.
Whatever impact truth-in-sentencing has on sentence lengths, bills now pending in the state Legislature should greatly clarify much of the complexity and ambiguity that now limits accountability.
