Treatment Instead of Prisons

A Roadmap for Sentencing and
Correctional Policy Reform in Wisconsin

January 2006

Commissioned by the Drug Policy Alliance

About Justice Strategies
Justice Strategies is an organization founded by veteran researchers
Judith Greene and Kevin Pranis. Our mission is
to provide high quality “action research” to advocates and
policymakers pursuing more humane and cost-effective
approaches to criminal justice and immigration detention.

About the authors
Judith Greene is a criminal justice policy analyst. She is a research
associate of the Justice Policy Institute and the Women’s Prison Association. Over the past decade she has received a Soros Senior Justice Fellowship from the Open Society Institute, served as a research
associate for the RAND Corporation, as a senior research fellow at
the University of Minnesota Law School, and as director
of the State-Centered Program for the Edna McConnell Clark Foundation. From 1985 to 1993 she was Director of Court Programs at
the Vera Institute of Justice.
Ms. Greene’s articles on criminal sentencing issues, police practices, and correctional policy have appeared in numerous publications, including The American Prospect, Corrections Today, Crime and
Delinquency, Current Issues in Criminal Justice, The Federal Sentencing Reporter, The Index on Censorship, Judicature, The Justice Systems
Journal, Overcrowded Times, Prison Legal News, The Rutgers Law
Journal, and The Wake Forest Law Review.
Kevin Pranis is a criminal justice policy analyst and a campaign
strategist. A past Soros Justice Fellow, Mr. Pranis has produced
educational materials, training manuals, reports and white papers on
topics that include corporate accountability, municipal bond finance,
political educations, prison privatization and sentencing policy.
His work has been covered in numerous publications, including
the New York Times and the Wall Street Journal.

Contents
3

Preface

4

Acknowledgments

5

Executive Summary

11

Introduction

13

Methodology

15

History of sentencing and correctional policy

25

Prison population and key trends

38

Substance abuse, addiction and crime

43

What judges say

53

Program interventions and innovations

58

Positive national trends and public opinion

63

What “TIP” could mean for Wisconsin

71

Recommendations

Preface
or over 30 years, the United States has been
waging a war on drugs, and in this time the
country has come to an almost universal—if
often unspoken—conclusion: that this war hasn’t
worked. Nationwide, hundreds of billions of tax
dollars have been spent on this war, yet we are
nowhere near winning it. Drug use and abuse continue almost unabated, and heroin, cocaine,
methamphetamine and other illicit drugs are
cheaper, purer and easier to get than ever before.
Nearly half a million people are behind bars on drug
charges. To appreciate the gravity of this number,
consider this: the number of people behind bars in
the United States for drug offenses is greater than
the number of people who are incarcerated in Western Europe for all offenses—and Western Europe
has a bigger population. Perhaps most troubling is
that our drug policies, under even the most casual
scrutiny, reflect embarrassing racial disparities unfit
for any nation, especially a democratic one. In short,
the war on drugs, whatever its stated intent, has become a war on families, a war on public health and
a war on our constitutional rights. Indeed, there is
perhaps no other public policy in the United States
which continues to be funded at ever higher levels
despite a track record of failures. But if the drug war
has failed, then what is our exit strategy? What is the
effective alternative?
As states across the country wrestle with devastating budget shortfalls, policy-makers from every
political persuasion are asking these questions with
greater urgency. The Drug Policy Alliance has become the nation’s leader in answering such calls
with sensible policy recommendations that not only
address the collateral damages of the failed war on
drugs, but that set a new standard for evaluating existing drug policies. Through rigorous research, information sharing, and capacity building, the Alliance is sharply focused on creating a new bottom
line, whereby drug polices are measured by their

F

ability to promote public safety, reduce substance
abuse, and save lives – all while saving limited tax
dollars. The Alliance has been at the forefront of
some of the most effective drug policy reforms in
the country, including but not limited to Proposition 36 in California, Treatment Not Incarceration
in Maryland and Rockefeller Drug Law reform in
New York. Here, we turn our attention to Wisconsin, a state whose over-use of incarceration for
African-American, nonviolent and first-time offenders has alarmed advocates and policy analysts nation-wide. In an effort to examine why this disturbing trend exists, and what we can do about it, the
Drug Policy Alliance has commissioned this important study.
We understand that in order for Wisconsin to
move from an excessive punitive standard of practice to a public health approach in dealing with substance abuse, there must be a foundation of sound,
evidence-based research and ideas for realistic alternatives. Toward that end, the Alliance has enlisted
the expertise of Justice Strategies to produce this report. The study that follows examines the current
sentencing and corrections practices in the state of
Wisconsin, providing an in-depth look at the drug
policy terrain and laying a comprehensive road map
for effective recovery.
With a concrete plan of action, informed by evidence-based research, Wisconsin can reduce the
death, disease, harm and suffering that is inherent in
the war on drugs and create effective drug policies
based in reason, compassion, and justice. The release of TREATMENT INSTEAD OF PRISONS is
just one of the constructive contributions the Drug
Policy Alliance is making to this effort.

JUSTICE STRATEGIES

Asha Bandele
Deputy Director of Public Policy
Drug Policy Alliance

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Acknowledgments
his report would not have been possible without the assistance of many people, organizations and state and local agencies. We want to
begin by thanking State Sen. Carol Roessler and
Rep. Gary Bies for their unwavering commitment to
finding better solutions to the problems of crime and
addiction, as well as the encouragement they provided to our research efforts. We also want to acknowledge Gov. Jim Doyle, Department of Corrections Secretary Matt Frank and the DOC staff, without whose help production of this report would not
have been possible. We are particularly grateful for
the assistance of DOC Policy Initiatives Advisor Anthony Streveler, who went well above and beyond
the call of duty to provide us with information and
insights into the workings of the state’s criminal justice system. Finally, we want to express our appreciation to Chief Justice Shirley S. Abrahamson and Director of State Courts John Voelker for the contributions they and other members of the state’s judiciary made to our understanding of sentencing and
correctional policy and practice in Wisconsin.
In addition to the DOC, Justice Strategies received assistance from the staff of other state agencies, including the Department of Health and Family Services and its Bureau of Mental Health and
Substance Abuse Services; the Office of Justice Assistance and OJA’s Statistical Analysis Center; and
the State Public Defender. Special thanks are owed
to Michael Connelly, Director of the Wisconsin Sentencing Commission along with Deputy Director
Kristi Waits and the commission’s chair Dr. Susan
Steingass. In addition to organizing a groundbreaking series of judicial focus groups, the Sentencing
Commission staff provided information and feedback that proved critical to our investigations. Our
appreciation is also extended to Chief Judge Joseph
Troy of the Eighth Judicial District and Chief Judge
Edward Brunner of the Tenth Judicial District for facilitating the convening of judicial focus groups in
their respective districts.
In Milwaukee, Justice Strategies received extraordinary cooperation from a wide range of criminal
justice stakeholders. District Attorney E. Michael
McCann provided not only his time and that of
deputies Carol White and Steve Licata, but also ac-

T

4

cess to his office’s drug case database. The Milwaukee Courts were equally generous with the time of
members of the judiciary and their staff, including
Chief Judge Kitty Brennan, former Chief Judge
Michael Sullivan, Judge Marshall Murray, Judge
Timothy Dugan, Pretrial Services Coordinator Holly
Szablewski and the judges who participated in the
Sentencing Commission focus group. Thanks are
also due to the Milwaukee Police Department, the
Milwaukee office of the State Public Defender, Milwaukee County’s Behavioral Health Division, and
the nonprofit agencies that provide services to courtinvolved individuals in the county – including Justice
2000 and Wisconsin Community Services.
Acknowledgments are due to the people and organizations that were the impetus for our report.
The list includes community-based nonprofits like
The Benedict Center and grassroots advocacy organizations such as WISDOM and Money, Education and Prisons, who were raising important questions about the humanity and effectiveness of the
state’s sentencing policies long before it was fashionable to do so. The list also includes the staff of the
Drug Policy Alliance – especially Executive Director
Ethan Nadelmann, and Asha Bandele and Gabriel
Sayegh of DPA’s Office of Public Policy – who work
tirelessly to educate the public about the costs of,
and alternatives to, the war on drugs. Finally, the list
would be incomplete without two University of Wisconsin scholars – Professor Walter Dickey and Dr.
Pamela Oliver – whose critiques of current sentencing and correctional policy and resulting racial disparity informed our own research.
Last, but not least, we want to express our appreciation for the financial assistance of the Open Society Institute, which underwrote our research, and
offer our thanks to the OSI staff – especially Raquiba
LaBrie, Susan Tucker, Nidia Vasquez, William Johnston, Nicole Kief and Christina Voight – for their
hard work and moral support.

JUSTICE STRATEGIES

Executive Summary
broad-based movement is building to overhaul Wisconsin’s sentencing practices. The
Treatment Instead of Prison (TIP) campaign
– a dynamic statewide coalition of 24 organizations
– has launched a coordinated effort to call attention
to the many benefits of using substance abuse treatment as an alternative to incarceration for people
charged with low-level, nonviolent offenses.
Many of Wisconsin’s leading policymakers indicate they are ready to consider new approaches. As
he signed a record $1 billion corrections budget for
fiscal years 2003-2005, Gov. Jim Doyle promised
that no further prison expansions would take place
on his watch. The Republican leadership of the legislature also signaled that it is ready to take the state
in a new direction by establishing a grant program
for counties seeking to treat, rather than incarcerate,
nonviolent substance abusers.
At the request of legislative leaders, the Justice
Strategies research team examined the potential impact of expanding the availability of quality treatment, supervision and “wrap-around” services. We
determined that such an initiative could, if fully
funded, reduce the nonviolent prison population by
as many as 1,500 prisoners and generate annual savings of up to $43 million. Absent a major investment of tax dollars in treatment services, however,
we found that the state is likely to face mounting
prison populations pressures in coming years due to
growth in nonviolent admissions and revocations of
post-release supervision.

A

Sentencing and correctional
policy trends in Wisconsin
Wisconsin’s prison population has grown fivefold in the space of a single generation and doubled
– from 11,000 to nearly 23,000 – during the past
decade. In recent years, this trend has been driven
by growth in the number of people incarcerated for
nonviolent offenses, which far outpaced the rise in
the number serving time for violent or sex offenses
over the last five years.
The rapid rise in incarceration has imposed enormous fiscal and social burdens on state residents – a
problem that has been exacerbated by poor planning and a haphazard approach to sentencing and

correctional policy. Since 1994, Wisconsin has acquired nine new prisons and added hundreds of
beds to existing facilities. State officials have paid to
guard empty facilities while housing thousands of
prisoners outside Wisconsin; bailed out a private
prison developer by purchasing a facility built on
speculation; and spent tens of millions of dollars on
a “supermax” prison that has been the subject of
multiple lawsuits.
The common wisdom is that Wisconsin’s prison
population has risen as a consequence of the elimination of parole and “good time” credits, together
with dramatic increases in maximum sentences that
accompanied truth in sentencing (TIS). However
our analysis found that, after an initial spike, the
length of time prisoners are expected to serve before
their first release has returned to pre-TIS levels. Instead, it appears that other factors such as declining
use of probation and a rising tide of admissions for
drug- and alcohol-related offenses are driving population growth.

The drug war drives up correctional
costs and racial disparity
Much of the sharp increase in the use of incarceration can be attributed to the “war on drugs”
which has packed state prisons with individuals convicted of selling or possessing very small quantities
of a controlled substance. Nowhere is this more
true than in Milwaukee. The number of nonviolent
prisoners sentenced for a drug offense in the Milwaukee Circuit Court grew ten-fold between 1990
and 2004, from 200 to nearly 2,000.
While Milwaukee’s drug prisoner population continues to rise at a breakneck pace, increasing by 50
percent during the past five years, the number of
drug prisoners sentenced in counties with fewer than
100,000 residents doubled over the five-year period.
Overall, the number of drug prisoners sentenced
outside Milwaukee doubled over a ten-year period,
from under 700 in 1994 to around 1,500 in 2004.
Wisconsin is not the only state to confront an exploding drug prisoner population. But the state is unusual in the high proportion of drug prisoners who
have little to no prior criminal history: close to half of
the prisoners serving time for nonviolent drug of-

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

fenses in Wisconsin have no prior felony record.
The war on drugs has contributed to unusually
high rates of racial and ethnic disparity in Wisconsin. African Americans – who are incarcerated at a
higher rate in Wisconsin than in any other state –
are imprisoned at nearly forty times the rate of nonHispanic whites for nonviolent drug offenses. Latinos are nine times more likely than non-Hispanic
whites to be serving time for a drug offense, while
the risk for Native Americans is four times greater.

Substance abuse, addiction and crime
Much of the behavior that packs Wisconsin’s
prisons is rooted in drug and alcohol abuse. As one
judge put it, “Drugs drive all our crime, the whole
caseload. The economics of the whole criminal justice system here is driven by addiction.”
The data support this contention. Substance-related crimes (drunk driving included) account for
three of the top four commitment offenses and fully
60 percent of the growth in the prison prison population over the past five years. And DOC records
indicate that 83 percent of state prisoners need substance abuse treatment.
Viewed from both an economic and public safety
standpoint, substance abuse treatment is clearly the
preferred response to nonviolent drug- and alcoholrelated crime. A landmark RAND Corporation
study estimated that money spent on treatment for
people prosecuted on federal cocaine charges
should reduce serious crimes about 15 times more
effectively than incarceration.
A U.S. Department of Health and Human Services evaluation of clients in publicly-funded treatment programs found that the proportion of selling
drugs dropped by 78 percent and the proportion arrested on any charge dropped by 64 percent. Other
studies have shown that outpatient treatment can be
effective for methamphetamine users, and that even
“hard-core” addicts with long criminal histories are
much less likely to re-offend if treated.
Yet, while spending to confine individuals convicted
of nonviolent drug offenses has skyrocketed, funding
for Wisconsin’s substance abuse treatment infrastructure falls far short of meeting the needs of state residents. For years, resources for combating substance
abuse have been invested disproportionately in law enforcement, generating thousands of arrests and prison
admissions without addressing the root problem.
6

Total treatment expenditures in Wisconsin
amount to just a tenth of the $1 billion annual
DOC budget. Further, growth in nonviolent drug
prisoner admissions, which shot up 20 percent between 1998 and 2003, has far exceeded growth in
the use of treatment, which crept up by less than
two percent over the same period.

Community corrections in crisis
Overuse of prison for substance abusers is also a
direct result of underinvestment in community corrections. Wisconsin has fallen into a vicious cycle in
which declining confidence in probation leads
judges to sentence more people to prison, driving
up correctional costs and squeezing the budget for
community supervision even harder.
The problem has reached crisis proportions in
Milwaukee, where probation is underused because
judges lack confidence in the system. Outside Milwaukee, two-thirds of felony cases result in probation compared to less than half of felony cases sentenced in Milwaukee – a picture that has worsened
in recent years. As a consequence, those prosecuted
in Milwaukee for nonviolent offenses face a substantially greater likelihood of prison than those
prosecuted elsewhere. People convicted of selling or
possessing small amounts of cocaine who had no
prior Wisconsin felony convictions were nearly three
times more likely to be sentenced to prison if the
crime was committed in Milwaukee.
Under-utilization of community corrections is a
growing problem elsewhere as well according to judges
who say that community resources for addressing
problems like drunk driving and methamphetamine
use are scarce. The shift from probation to prison sentences is especially tragic because, despite high caseloads and funding limitations, most nonviolent felons
placed on probation succeed. Examination of case
records for individuals who were placed on felony probation for low-level drug, property and drunk-driving
offenses found that 60 to 70 percent were not revoked
or sentenced to prison for a subsequent conviction during an average four-year period following sentencing.

The extended supervision “time-bomb”
Declining confidence in community corrections
and untreated addictions are not the only factors exerting pressure on the state’s prison population. It
is likely that Wisconsin’s taxpayers will soon have to

JUSTICE STRATEGIES

carry an increased burden due as the full effect of
the lengthening of post-release supervision under
truth in sentencing is realized. Since 1999, the
amount of time prisoners are expected to spend on
supervision after release has ballooned from 31
months to 55 months – a 77-percent increase.
Preliminary analysis of extended supervision outcomes shows a disturbing pattern that could have a
tremendous impact on the state’s prison population.
Among the cases examined, 40 percent of individuals released to extended supervision were revoked
before completing their sentences.
If the pattern holds, one in five incarcerated
under truth in sentencing will spend their entire extended supervision term behind bars, and another
one in five will serve close to half of the time behind
bars. Because no credit is awarded for time served
in the community prior to revocation, these long
terms of post-release supervision and high failure
rates could push prison populations and supervision
caseloads to the breaking point.

What judges say about the problem
In February and March of 2005 the Justice
Strategies research team assisted the Wisconsin Sentencing Commission in designing, conducting and
documenting a series of focus groups involving
judges representing three different regions of the
state. The focus groups were convened at the request of Sen. Carol Roessler (R – Oshkosh).
The judges represented a broad cross-section of
views and experience, yet they expressed substantial
agreement on three points:
• A greater number of effective substance abuse
treatment options are needed and would be well
utilized by Wisconsin’s judges;
• Provision of more treatment options must go
hand-in-hand with efforts to build more systematic
and comprehensive approaches to identify defendants with substance abuse problems and provide
them with more effective supervision in the community; and
• Increasing the supply of treatment options
and upgrading community supervision could substantially reduce correctional costs and enhance
community safety.
Judges in all three focus groups expressed frustration with the limited options now available to
them. Most expressed a conviction that incarcera-

tion is not the most constructive route to address
the substance abuse that underlies the relatively
low-level criminal behavior they see in their courts.
Judges in every group said that Wisconsin’s community supervision capacity is overwhelmed, and
needs to be bolstered with additional resources – especially in Milwaukee. Feedback from judges also
made clear that a system for screening defendants
for treatment needs and supplying judges with
timely information about appropriate, available
treatment options should be established up-front so
that assessments are conducted as early as possible –
avoiding delays in the initiation of treatment and reducing the risk of more offending.

What “treatment instead of prisons”
could mean for Wisconsin
At the request of Senator Roessler, the Justice
Strategies research team also conducted an analysis
of DOC prison population and case data – supplemented by interviews with criminal justice professionals – to determine how many prison-bound defendants could be redirected to community-based
treatment and supervision without compromising
public safety.
Our analysis found that Wisconsin’s prisons hold
roughly 2,900 prisoners serving time for low-level,
nonviolent offenses who have limited criminal histories and substance abuse programming needs.
This population can be said to consume $83 million
a year in correctional resources, based on average
annual costs of $28,622 per prisoner.
For an estimated cost of $6,100 per person, Wisconsin could provide quality substance abuse treatment, case management and supportive services to
individuals whose criminal behavior is driven by addiction. Even when the annual cost of probation supervision – currently below $2,000 per person – is
included, community-based treatment is far more
economical than incarceration.
Judges indicate that if more substance abuse
treatment and wrap-around services were available,
they would be eager to use them as a sentencing option for nonviolent defendants, including many who
are currently being sentenced to prison. Community-based treatment could also serve as an alternative to revocation for probationers and parolees
whose substance abuse problems have put them at
risk of being revoked. Finally, expanding access to

JUSTICE STRATEGIES

7

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

treatment would improve the success rates of those
currently on probation and parole, and reduce recidivism overall, bringing down both revocations
and new prison commitments over the long-term.
Based on our research, we determined that the
state could substantially improve outcomes and
eventually reduce annual prison expenditures by an
estimated $30 million to $40 million if roughly $10
million were dedicated each year to providing comprehensive, community-based substance abuse
treatment and supervision for individuals who
would otherwise have been incarcerated.
Extending treatment services to a larger pool of
defendants would benefit not only prison-bound individuals but also many who are currently being
sentenced to probation as well as terms in county
jail. If services were extended to cover half of the
more than 5,000 individuals sentenced to felony
probation each year for low-level drug, property
and drunk-driving offenses, the annual cost of the
program would reach $22 million in the first years,
while the eventual savings would grow to between
$33 million and $43 million annually.

Recommendations
Wisconsin already has many of the tools that are
needed to enhance public safety and improve outcomes. With support from the state, Milwaukee
could not only sustain and expand models such as
the Community Justice Resource Center but also
revive pioneering pretrial release and diversion projects that – years ago – made Milwaukee a national
model of criminal justice innovation. Similarly, programs such as Dane County’s successful drug treatment court could also be expanded and replicated
in other counties if state funds were available.
Wisconsin should invest in high-quality, community-based substance abuse and mental health treatment for the criminal justice population. There is
growing recognition that the state’s current approach does little to reduce substance use or to enhance public safety because it asks the impossible of
law enforcement and corrections: compel addicts to
clean up without offering them adequate treatment.
Last year, the legislature adopted a proposal by
Sen. Roessler and Rep. Gary Bies (R – Sister Bay)
and established a grant program to enable counties
and regional consortia to expand treatment-based
alternatives to incarceration. Unfortunately, law8

makers declined to put any general fund revenues in
the grant pot, relying instead on surcharges imposed on people convicted of drug and property offenses. An infusion of tax dollars will be required if
the program is have a meaningful impact on addiction, crime and correctional costs.
Wisconsin lawmakers should increase funding for
community-based substance abuse treatment by
$22 million annually. Such an investment would
allow the state to make quality treatment available
to 3,000 people convicted of felony drug, property
and drunk-driving offenses each year, including
over 1,100 who would otherwise be prison-bound.
The funds would allow counties to establish or expand problem-solving courts, probation review hearing programs and other initiatives designed to improve supervision and delivery of treatment to individuals with severe drug, alcohol and/or mental
health problems. The savings that could result from
an anticipated 1,150- to 1,500-person reduction in
the state’s prison population would be significant, permitting the initiative to not only fund itself but also
generate millions of dollars in savings for taxpayers.
Policymakers and judges should be provided the
information needed to deliver better, more cost-effective outcomes for defendants, victims and communities. Wisconsin’s courts need an Early Case Assessment and Referral system that puts information
regarding defendants’ need for treatment and associated services – along with referrals to appropriate
programs – in the hands of judges, prosecutors, defenders and correctional officials at the earliest possible point in the criminal justice process.
State policymakers also need better information
about sentencing outcomes. Improving data collection at all levels of the criminal justice system and
expanding the Sentencing Commission’s capacity to
conduct research on sentencing and correctional
trends would ensure the most effective and efficient
use of correctional resources. Such research might
illuminate how several populous counties – Dane,
Kenosha, Racine and Rock – have managed to buck
the statewide trend by reducing their use of prison
beds for nonviolent offenses.
Fiscal incentives should be created to support
local innovations that enhance public safety while
reducing costly reliance on incarceration. The current system of criminal justice funding encourages
local jurisdictions to send people to prison and let

JUSTICE STRATEGIES

the state pick up the tab, rather than spend limited
local funds on effective alternatives that would do
more to protect public safety over the long term.
A “community justice incentive” should be created to spur community-based alternatives to incarceration. Policymakers should consider a cost-sharing program designed to improve community supervision and expand program services. Counties
that volunteer to participate could be reimbursed in
proportion to the number of cases they keep in the
community and out of state institutions. The rate of
payment could be set to reflect a substantial share of
the cost of maintaining prisoners in state custody.
Lawmakers should adjust sentencing statutes and
correctional policies that have the potential to impose huge costs on the state with little benefit to the
public. Solving these problems does not require repeal of truth in sentencing. Lawmakers could defuse
the extended supervision “time bomb” by limiting
terms to no more than 50 percent of the term of
confinement, encouraging judges to reward compliance with early discharge and allowing credit for
any time successfully served in the community prior
to revocation. Such steps could generate bed-savings and cut caseloads in half, permitting more effective community supervision.
The state could also free up correctional resources and improve outcomes by allowing prisoners sentenced under truth in sentencing to accrue a
modest amount of “good-time” credits; restructuring release criteria and reentry policies to facilitate
parole of “old-law” prisoners; and reducing penalties for first-time distribution of very small amounts
of cocaine by individuals with no prior felony convictions.
Policymakers should redesign sentencing and
correctional policies to facilitate and reward success
rather than simply punishing failure. One judge described Wisconsin’s current practice succinctly:
“Between the felony-level convictions, the suspension of driving privileges, and the various the
mandatory rules we’ve attached to drug offenses,
we’re creating a whole class of social outcasts. They
need to give us some room to deal more constructively with folks like this: Let us allow people to
drive if they need to. Help them with employment… with housing. Let us expunge their conviction record if they succeed.”Policymakers could
start by lowering some of the barriers to success that

confront individuals with drug and other felony
convictions in areas such as employment, education
and housing. The practice of suspending of the driving privileges of individuals convicted of drug offenses, which is seen as wasteful and counterproductive by most court officials, should be ended.
State officials should take pro-active steps to open
up employment and educational opportunities that
court-involved individuals need in order to become
law-abiding, tax-paying state residents. The state
should enforce laws barring unwarranted employment discrimination against individuals with criminal convictions, take other steps to improve employment prospects for those with criminal and
prison records, and expand educational opportunities for prisoners and court-involved youth.
Finally, legislators should encourage court officials to reduce the number of individuals with misdemeanor and felony conviction records. This could
be done by diverting cases from prosecution. They
should amend the offense code to reduce minor
criminal offenses to civil offenses, and permit deserving individuals to have their conviction records
expunged.

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9

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Introduction
broad-based movement is building in Wisconsin for overhauling the state’s sentencing
and correctional system. With support from
the Drug Policy Alliance, the Treatment Instead of
Prison (TIP) campaign – a dynamic statewide coalition of 24 organizations – has launched a coordinated effort to call attention to the many benefits of
redirecting people charged with low-level, nonviolent offenses from costly imprisonment to effective
treatment alternatives.
Over-reliance on imprisonment has placed a
huge burden on Wisconsin taxpayers. On average,
spending on adult corrections increased by more
than ten percent each year between 1992 and 2005,
with the number of people incarcerated for nonviolent offenses rising more quickly than the number
incarcerated for violent and sex offenses.
Much of the nonviolent prison population
growth can be attributed to the “war on drugs.”
This is particularly true in Milwaukee, where people
convicted of nonviolent drug offenses account for
over a third of recent growth of the city’s share of
the state prison population. While spending to confine individuals convicted of nonviolent drug offenses has skyrocketed, funding for Wisconsin’s substance abuse treatment infrastructure falls far short
of meeting the needs of state residents.
Yet from both an economic and public safety
standpoint, the advantages of employing substanceabuse treatment instead of prison for such cases are
clear. A research team at the RAND Corporation
has estimated that treatment of cocaine addicts reduces serious crime 15 times more effectively than
imprisonment. A U.S. Department of Health and
Human Services study of clients in publicly-funded
programs found very significant decreases in drug
use, drug sales and arrests for other crimes following
completion of treatment.
Expansion of funding for effective substance
abuse treatment would be welcomed by Wisconsin
judges. In focus groups conducted in 2005 by staff
of the Wisconsin Sentencing Commission, judges
from diverse areas of the state said that drug and alcohol abuse underlies most of the low-level nonviolent offense behavior they deal with in court every
day. In all three focus groups, judges indicated that

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10

expanding access to treatment would substantially
reduce recidivism, and many indicated that they
would redirect prison-bound defendants to probation if quality treatment and supervision were more
widely available.
Currently, however, problems with access to
treatment are endemic. Treatment programs have
long waiting lists for admission, and there is no coordinated system for assessing defendants’ treatment needs or for placing them in appropriate treatment programs. Further, judges say many defendants need not just treatment but also more effective community supervision and “wrap-around”
services such as basic education and job training.
Many of Wisconsin’s top policymakers have
shown they are ready to consider new approaches
that can safeguard the public while reigning in correctional costs. At the request of legislative leaders,
the Justice Strategies research team conducted an
analysis of the prison population. Supplemented by
interviews with criminal justice professionals and
focus-group research, we determined how many
prison-bound defendants could be redirected to
community-based treatment and supervision without compromising public safety.
Our analysis found that there are roughly 2,900
prisoners with limited criminal histories and substance abuse programming needs who are serving
time for low-level, nonviolent offenses. This population can be said to consume $83 million a year in
correctional resources, based on average annual
costs of $28,622 per prisoner.
We also found that expanding Wisconsin’s network of substance abuse treatment programs, as
well as other services designed to stabilize offenders
in the community, would make a significant impact
on the willingness of judges to redirect “prisonbound” defendants to treatment, and would improve the success rates of those normally placed on
probation. Finally, we estimate that each dollar invested in treatment and supervision for these defendants would return roughly four dollars in corrections cost-savings.
With these findings in hand, legislative leaders
took an important step toward a more humane and
cost-effective criminal justice system by establishing

JUSTICE STRATEGIES

a state funding mechanism for counties seeking to
expand the use of treatment as an alternative to incarceration. The proposal – which was put forward
by Sen. Carol Roessler (R – Oshkosh) and Rep.
Gary Bies (R – Sister Bay) and enacted during the
2005 legislative session – created a grant program
administered by the state Office of Justice Assistance that can be used by local officials to launch
programs designed to redirect defendants from
county jails and state prisons into community-based
substance abuse and mental health treatment.
Unfortunately, despite the potential of the program to generate significant correctional savings,
the legislature declined to appropriate general fund
revenues, leaving the initiative dependent on the
collection of surcharges tacked onto existing fines
and fees levied on those convicted of drug and
property offenses. Without additional funding from
the legislature, it is unclear whether the surcharge
revenue will be sufficient to seed effective local programs. As a consequence, advocates of “treatment
instead of prison” have begun to call on their
elected representatives to put tax dollars in the treatment grant pot so the state can begin to reap the rewards of a more enlightened approach to combating addiction.
Our report describes the research that underlies
our conclusions and makes the case for fully funding substance abuse treatment as an alternative to

incarceration as well as other changes that would
enhance the effectiveness of the state’s criminal justice system. In Chapter I we have examined the
evolution of Wisconsin’s sentencing laws and correctional policies, evaluating their impact on prison
population levels and state budgets. Chapter II
gives findings from our analysis of prison data and
identifies the key factors that will shape future correctional trends. Chapter III describes the current
system of treatment services and the “treatment
gap” that results in over-reliance on incarceration,
and includes a review of recent research on treatment efficacy. Chapter IV presents results from the
judicial focus groups. Chapter V describes programs and innovations in Milwaukee and across the
state that provide services to people processed
through the criminal justice system. Chapter VI reports on national trends in sentencing and correctional policy reform and public opinion, detailing
recent developments in three states where expanded
use of treatment and community-based corrections
options is producing very positive results. Chapter
VII makes the case that investments made to expand access to treatment for the offender population would yield very significant correctional cost
savings. The final chapter summarizes our conclusions and makes recommendations for pragmatic reforms that can bring prison population growth
under control while enhancing public safety.

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11

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Methodology
Data
To better understand the use of incarceration
in Wisconsin, Justice Strategies requested data on
both the prison population and case disposition
from the state Department of Corrections
(DOC). DOC staff generously provided two
datasets: a prison episodes file for all prisoners incarcerated between January 1, 1990 and June 30,
2004 (the Prison Information Data File); and a
file of cases sentenced to prison or probation between January 1, 1990 and December 7, 2004
(the Cases at Admission Data File).
Each record in the Public Information Data
File (PIDF) begins at admission (or the file begindate for episodes that were ongoing on January 1,
1990) and ends at release (or the file end-date for
episodes that were ongoing on June 30, 2004).
The records contain a wealth of information on
Wisconsin prisoners, including data on personal
characteristics (birthdate, gender, race, ethnicity,
substance abuse and educational programming
needs), criminal record (number of prior felonies,
number of past prison commitments), current
convictions (offense, statute and court of commitment), sentences (length, parole eligibility, expected release dates) and other facts related to the
episode of incarceration (admission date and type,
release date and type, parole status). Separate
fields record data on current convictions, sentences, admission and parole status at the time of
release (or the file end-date) which permits identification of any changes that have taken place in
the prisoner’s status since admission.
Records in the Cases at Admission Data File
(CADF) contain information on felony cases sentenced between January 1, 1990 and December
7, 2004, along with misdemeanor cases sentenced
to probation during the same period. Like the
prison episodes records, each case record contains
information on personal characteristics, criminal
record, current convictions and sentences, however there are some differences. CADF records
contain more detailed criminal record information
(i.e. misdemeanor convictions and past probation

12

sentences) but include only Wisconsin convictions. Further, CADF records contain total sentence length, but do not break out confinement
and extended supervision terms.
Except where noted, admissions, release and
standing population figures – along with average
prison and extended supervision terms – were derived from the prison episodes file. Except where
noted, figures on case disposition and probation
terms were derived from the case disposition file.
A unique identifier assigned to each person admitted to probation or prison allowed individual
records to be matched within and between the
two data files. This made it possible to link the
data files to track success and failure rates for probation and extended supervision, and to determine what proportion of those serving time for
nonviolent offenses had prior violent felony convictions.
Analysis of DOC data was supplemented with
data from other sources. The Milwaukee District
Attorney’s office provided a data file on felony
drug cases filed between April 30, 1990 and
March 3, 2005. The Milwaukee DA’s data was
used to fill gaps (i.e. comparison of initial and
final charges, complete information on drug
weights) and test findings from DOC data. The
Wisconsin Statistical Analysis Center provided
data on arrests – broken down by jurisdiction, offense and race – between 2001 and 2003 that was
used to examine drug enforcement activity.
Where possible, quantitative findings derived
from DOC and other data were checked against
qualitative feedback from criminal justice professionals as well as related research and reports. Justice Strategies researchers also drew on the expertise of Tony Streveler and other DOC staff,
who generously took time from their busy schedules to discuss the DOC data and proposed
methods of analysis.

Focus groups and interviews
In February and March of 2005 the Justice
Strategies research team assisted the Wisconsin

JUSTICE STRATEGIES

Sentencing Commission in designing, conducting and documenting a series of focus groups involving judges representing three different regions of the state. The focus groups were convened at the request of Senator Carol Roessler,
who sought the commission’s help in determining “the size of a pool of potential candidates
who, if diverted from incarceration to treatment,
would free up a significant number of prison
beds, thereby providing fiscal savings that can be
used to fund the expansion of treatment services.”
The focus groups were convened at locations
within three diverse areas of the state: in Appleton, to draw from courts in Judicial District
Eight, located in the Fox River Valley area; in
Milwaukee, to draw from District One, the state’s
largest urban court; and in Barron, to draw from
courts in District Ten, the mostly rural northwestern and west-central part of the state. Sentencing Commission staff requested that district
court officials ensure that participants reflect the
range of experience and philosophical approaches
to sentencing within the jurisdiction. Each session involved ten judges, including the district

chief judge from that jurisdiction. The Barron
group was joined by the district chief judge from
neighboring District Seven.
The 90-minute sessions were structured with
a set of specific pre-determined questions, although the discussions were allowed to evolve as
judges raised issues and posed questions to each
other. The sessions were not tape-recorded, but
detailed notes were taken by at least two non-participant observers in all three groups, and by
three in two of the groups. The notes were transcribed and compared for concurrence among
Sentencing Commission staff and Justice Strategies researchers.
In order to supplement the data analysis and
focus groups, and gain a better understanding of
the day-to-day functioning of the state’s criminal
justice system, Justice Strategies researchers also
interviewed more than 30 Wisconsin criminal justice and other professionals – including judges,
prosecutors, defense attorneys, law enforcement
and corrections officials, legal scholars, academics and researchers. Finally, we conducted a survey of relevant national and state-specific academic and policy literature.

JUSTICE STRATEGIES

13

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

14

JUSTICE STRATEGIES

History of sentencing and correctional
policy in Wisconsin
ith incarceration rates at an all-time high,
and with state budgets facing severe constraints, policymakers across the U.S.
have been re-thinking many of the costly “tough on
crime” measures that were embraced in the last
quarter of the 20th Century. Legislators in many
states have voted to roll back harsh sentencing laws
and to revise standards for responding to minor
technical violations of probation and parole, reducing reliance on incarceration and increasing diversion to treatment instead of prison. Recently policymakers in Wisconsin have also begun to look seriously at the roots of the state’s prison crisis, which
include historic underinvestment in community corrections and a failed “war on drugs.”
The state’s prison population has grown from
less than 4,000 to over 23,000 in the space of a single generation. The rapid rise in incarceration has
imposed enormous fiscal and social costs on state
residents. These costs, which include the near-quadrupling of corrections spending over the last 15
years, have been exacerbated by poor planning and
a haphazard approach to sentencing and correctional policy.
At a time when many state policymakers were beginning to reconsider the wisdom of harsh sentencing laws, Wisconsin’s elected officials enacted one of
the nation’s toughest “truth in sentencing” statutes
and then failed to agree on criminal code reforms
that were supposed to accompany the new system.
Judges were left without guidance on how to implement the law for three years and sentences shot
up across the board.
On the corrections side, Wisconsin has paid to
guard empty facilities while housing thousands of
prisoners outside the state; bailed out a private
prison developer by purchasing a facility built on
speculation; and spent tens of millions of dollars on
a “supermax” prison that remains partly empty and

W

must be retrofitted with air conditioning. Meanwhile, the state has allowed the probation and parole
system to become more and more overburdened.

The prison population boom
Over the last 25 years, Wisconsin’s prison population has grown by leaps and bounds. In 1980,
Wisconsin incarcerated fewer than 4,000 people.
Today the figure stands at nearly 23,000. 1 Wisconsin’s incarceration rate has grown from just 85 prisoners for every 100,000 state residents in 1980 to
390 per 100,000 at the end of 2004, a nearly fivefold increase. 2
Wisconsin’s growth in incarceration ranked 10th
in the nation during the 1980s and 1990s according
to Bureau of Justice Statistics data compiled by
Mother Jones magazine.3 During the late 1990s the
rise in Wisconsin’s incarceration rate far-outstripped
neighboring states as well as the nation as a whole. 4
Wisconsin saw the fastest prison population
growth at the end of the 1990s and its prison population has continued to rise, albeit more slowly,
since 2000. Between June 30, 1994 and June 30,
2004, the number of prisoners more than doubled,
while the number of state residents increased by less
than 10 percent.5
The prison population rose by 19 percent between 1999 and 2004. Close to half of the growth
took place in the first year of the period, when the
number of prisoners shot up by seven percent. Over
the next three years – from mid-year 2000 to midyear 2003 – the prison population increased by an
average of two-and-a-half percent per year. And between 2003 and 2004, the sentenced prison population actually fell by one percent, although the total
number of prisoners grew due to an increase in the
number of probationers and parolees detained in
DOC facilities on holds.6

JUSTICE STRATEGIES

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Rent, build, buy
Wisconsin’s correctional managers have struggled to accommodate the exploding prison population. For many years, the state led the nation in the
practice of “exporting” prisoners to out-of-state
prison beds. Since 1994, Wisconsin has built eight
new prisons, purchased a ninth and added hundreds
of beds to existing facilities, all at a tremendous cost
to taxpayers. But it was not until 2004 that the state
added enough prison capacity to bring all but a
handful of its prisoners home.
In the mid- to late-1990s, the state’s prison
building program could not keep pace with population growth. By 1998, DOC was shipping prisoners
to private prison beds operated by the Corrections
Corporation of America (CCA) in other states. At
the high water mark, there were over 4,300 Wisconsin prisoners housed in CCA facilities, accounting for roughly half of all prisoners housed in outof-state private prisons nationwide.
The state’s foray into exporting prisoners is
widely viewed as a failed experiment. Civil rights
and community groups objected to the conditions
in CCA prisons and the burden the practice placed

The Wisconsin Secure Program Facility (WSPF) in
Boscobel, originally known as the “Supermax”
prison, is a perfect example of the kind of costly mistake that has plagued the state as it has sought to
handle growth in the prison population. Opened in
1999, the facility – a structure of windowless concrete cells where prisoners spend most of their days
in isolation – was designed to hold the system’s
“most dangerous and disruptive inmates.”
The $47 million prison has been the object of
controversy since it opened. In 2002, the DOC settled a class action lawsuit by prisoners by agreeing
to cut back on the use of total isolation and allow
some face-to-face visits. The following year, the
courts ruled that the facility must be retrofitted
with air conditioning so prisoners would not be exposed to dangerous temperatures that could reach
as high as 125 degrees Fahrenheit. In 2004, a prisoner won a $1.25 million jury award after being denied food for nine days at WSPF for refusing to comply with institution rules that required him to wear
pants, keep his cell light on and stand near the cell
window when his meals were delivered.

16

on families. Others expressed concerned over the
flow of tax dollars out of the state.
After truth in sentencing was enacted, the administration of former Governor Tommy Thompson (R)
turned up the volume on its multi-year prison expansion program. While the DOC built new public
prisons in Boscobel and Redgranite, the Dominion
Venture Group, a private prison construction outfit
based in Edmund, Oklahoma, built a 1,500-bed private prison in Stanley on speculation.
Even though Wisconsin law did not authorize
private operation of prisons, Dominion executives
said they thought they had a go-ahead agreement
with the governor’s staff. Construction work on the
Stanley prison was completed in April 2000, but
legislators resisted efforts to enact authorization for
private prison operation.
In 2001, after the company had invested more
than $145,000 in lobbying and campaign contributions, state officials agreed to buy the empty prison
from Dominion for $82.5 million. But as state revenues began to sink, officials discovered that prison
construction had out-paced the capacity to fund operation of new prison beds. Once the facility was

Along with problems over unconstitutional conditions, it has become clear that there were never
enough highly “dangerous and disruptive” prisoners in the state system to justify the cost of building
and operating a 500-bed supermaximum-security
prison. In a deposition given during the “Supermax”
conditions lawsuit, former Corrections Secretary
Michael J. Sullivan testified that the legislature’s decision to build the Boscobel facility began with a request by corrections officials for just 200 additional
segregation beds spread among the four major
maximum security prisons. According to the most recent institutional population report available on the
DOC website, on January 6, 2006, there were just
335 prisoners housed in the facility, which was built
to hold 500.
The legislature approved language, vetoed by
then-Governor Scott McCallum (R) which would
have authorized a study of alternative uses for the
facility. Shortly after he was elected, Governor Doyle
suggested that he might consider turning WSPF into
a standard maximum-security prison.

JUSTICE STRATEGIES

purchased, the state spent $352,000 each month to
keep it mothballed. The Stanley prison eventually
opened in 2002 but was not funded to operate at
full capacity until May 2003.
Construction of a $48.2 million, 750-bed
medium-security prison at New Lisbon was completed in February 2002 but activation delayed to
January 2004. New Lisbon’s 1,500 residents footed
a bill for more than $2.2 million to buy land and extend utilities to the prison site. Once built, the
empty prison acquired a skeleton crew to guard it
and flush the toilets once a week to keep the plumbing working.
Local officials in New Lisbon were furious that
the legislature bought the Stanley facility while leaving their prison in the lurch, and they clamored for
funds to activate it. Instead, at the beginning of
2003, lawmakers approved a new CCA contract
worth $56 million a year to house up to 5,500 prisoners out of state.
Finally, in its 2003-2005 corrections budget, the
joint finance committee authorized the activation of
new prisons in New Lisbon and Chippewa Falls.
They also authorized expansion of Redgranite Correctional Institution from 750 to 990 beds. The
final corrections budget signed by the Governor included some 1,400 new public prison beds and
brought total corrections spending up to $1 billion
– 270 percent above fiscal year 1991-92 levels.7

Truth in sentencing
In 2000, policymakers in many states – motivated largely by budget shortfalls – began taking
steps to reign in uncontrolled prison growth and restore balance to sentencing and corrections policy.
Wisconsin was headed in the opposite direction as
one of the nation’s most punitive “truth-in-sentencing” laws took effect.
Wisconsin’s truth-in-sentencing statute had been
enacted two years earlier, in 1998. The measure was
a response to concerns that prisoners were being
paroled after completing just a fraction of their sentences, often as a means to ease prison crowding. In
other states, truth-in-sentencing statutes typically
required that prisoners convicted of serious offenses
serve 85 percent of their sentences behind bars before release.
Wisconsin went further by requiring all prisoners whose offenses were committed after December

30, 1999 to serve 100 percent of their prison terms
behind bars. Discretionary parole release was abolished for prisoners sentenced under truth in sentencing. In place of awarding “good time” for good
conduct in prison, correctional officials now hand
out “bad time” for violations of prison rules.
The notion that prisoners would no longer be
“released early” was politically appealing, but there
was a catch. Requiring prisoners to serve their entire
sentence before release would have meant discharging thousands each year with no supervision at all.
This problem was resolved with some sleight-ofhand: lawmakers required that individuals sentenced
under truth in sentencing receive a “bifurcated”
sentence including both a “term of confinement”
and a term of “extended supervision”. The entire
bifurcated sentence was defined as a “term of imprisonment” in order to permit the courts to put an
individual back in prison for failing to comply with
extended supervision conditions, and to permit
DOC to hold a prisoner beyond his or her term of
confinement for violating prison rules. Statutory
maximum sentences were raised in order to accommodate the term of extended supervision, which
could not be less than 25 percent of the term of
confinement.
In order to address concerns that truth in sentencing would unduly lengthen sentences and exacerbate existing inequities in the criminal code, a
code-revision companion bill was to be provided to
help guide judges’ sentencing decisions under the
new system. Truth in sentencing was scheduled to
go into effect at the end of 1999, in order to give a
Criminal Penalties Study Committee (CPSC) established under the bill time to reclassify the criminal
code and to develop temporary advisory sentencing
guidelines for approval by the legislature. The bill
also authorized establishment of a permanent sentencing commission to develop more comprehensive advisory sentencing guidelines.
But members of the Wisconsin legislature failed to
agree on how the new sentencing provisions should
be structured. Truth in sentencing took effect in
2000 without any guidelines, and legislators remained deadlocked in partisan wrangling over their
differences for the next three years. Many policymakers assumed that even without guidelines judges
would adjust sentences down to account for the
change, but this did not happen with any consistency.

JUSTICE STRATEGIES

17

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

with intent to deliver, possession of marijuana
with intent to deliver, robbery, and theft. Judges
are asked to place a defendant into one of nine
grid boxes that recommend sentence ranges based
on an assessment of offense severity and risk of reoffending.
The sentencing guidelines worksheets require
judges to consider a wide range of factors relevant
to deciding whether incarceration is necessary for
the protection of public safety. However, when it
comes to choosing whether a defendant convicted
of a nonviolent offense should be incarcerated or
placed on probation, the grids provide relatively little guidance. Most drug, property and public order
cases covered by the guidelines land in cells where
the recommended sentences range from probation
to short prison terms. As a consequence, it is possible for judges to take the same set of cases, consider
the same set of factors and, using the guidelines,
produce very different results.
In his 2003-2005 budget, Gov. Doyle had proposed that mandatory sentencing guidelines be developed to govern sentencing if the new advisory
guidelines are found to be inadequate. But the idea
of mandatory sentencing guidelines immediately
met opposition. State Supreme Court justice Shirley
S. Abrahamson said that judges were gravely concerned at the prospect. The state bar’s criminal justice section indicated strong opposition from prosecutors and defenders alike. The provision was
dropped from the budget bill.

“TIS II”
The deadlock finally broke in 2002 when the
state’s fiscal crisis forced legislators to come to terms
with rising correctional costs by adopting many of
the CPSC recommendations. Most statutes restricting judicial discretion were repealed, and many
penalty enhancements were recast as aggravating
factors to be considered in sentencing.8 The legislature also repealed statutes establishing minimum
sentences or mandatory consecutive sentences, leaving only those that applied to Class A felonies, violations of the “two-strikes” and “three-strikes” laws,
or repeat drunk-driving offenses.
The existing felony classification scheme, which
pre-dated truth in sentencing, was replaced with a
new system commonly known as “TIS II.” The
maximum sentences and terms of confinement established under TIS II were substantially shorter, in
most cases, than those imposed under “TIS I.” TIS
II also capped extended supervision at roughly half
to a third of the maximum total “term of imprisonment” as shown on the chart below. 9

Sentencing guidelines
Temporary advisory guidelines developed by
the CPSC to give judges guidance in imposing the
new sentences went into effect on February 1,
2003. The guidelines structure covered 11 major
crimes that consume 72 percent of correctional
resources: burglary, first-degree sexual assault of a
child, second-degree sexual assault of a child,
armed robbery, forgery, possession of cocaine

Maximum penalties under TIS II
(crimes committed on or after February 1, 2003)
Felony class

Maximum
term of confinement

Maximum
extended supervision

A

Life

Eligibility date set by sentencing court

Life

B

40 years

20 years

60 years

C

25 years

15 years

40 years

D

15 years

10 years

25 years

E

10 years

5 years

15 years

F

7.5 years

5 years

12.5 years

G

5 years

5 years

10 years

H

3 years

3 years

6 years

I

1.5 years

2 years

3.5 years

SOURCE: “TIS Act 109.” Wisconsin Department of Corrections. February 1, 2003.

18

JUSTICE STRATEGIES

Maximum
term of imprisonment

Safety valves
Aside from reclassifying felonies and lowering
penalties for many offenses, lawmakers have also
taken other steps to curtail the impact of truth in
sentencing on the state’s prison population. As part
of the revisions to truth in sentencing, the legislature created a mechanism for prisoners who have
served the better part of their confinement time –
75 percent for Class F to I felonies or 85 percent for
Class C to E felonies – to petition the sentencing
court for an adjustment of the sentence. If the petition is successful, the petitioner’s confinement term
is shortened and the extra time is added to his or her
term of extended supervision.
Grounds for a petition may include efforts and
progress at rehabilitation, education and treatment;
changes in law or procedure that would have resulted in a shorter term of confinement; and the interests of justice. The impact of this provision is limited, however, by the fact that district attorneys have
the power to block any prisoner’s petition and do so
routinely according to many who work in the system.10
The legislature has also authorized DOC to operate two programs that provide some prisoners an
opportunity to “earn” their way out of prison. The
first, the Challenge Incarceration Program (CIP) or
“boot camp,” is designed for young prisoner not
convicted of serious violent offenses or offenses
against children. Those who complete the demanding program are eligible for early release to extended supervision.
The second, the Earned Release Program, is designed for prisoners in need of substance abuse
treatment. A 244-bed program housed at DOC’s
Drug Abuse Correctional Center in Winnebago and
a 24-bed female program at the Robert E.
Ellsworth Correctional Center were approved by
the legislature as part of the 2003-2005 budget.
Under TIS II, eligible individuals must be designated by the judge at sentencing. However DOC
personnel make a further determination of which
prisoners are suitable for the program based on offense, criminal history and other relevant criteria.
Those who graduate from six months of “high-intensity, evidence-based residential alcohol and drug
treatment” earn release to extended supervision,
which is lengthened to make up for any portion of
the term of confinement not served.

TIS prisoners sentenced before the effective date of
the Earned Release Act (July 26, 2003) are eligible for
the program if they successfully petition the court, as
are “old law” prisoners who are parole-eligible. Those
convicted of serious violent offenses or crimes against
children are ineligible by statute. Prisoners must have
served 25 percent of their TIS confinement time before entering the program. Priority is given to those
with confinement terms up to five years.
According to an April 2005 program report, 324
prisoners entered the Earned Release Program in its
first year.11 Three-fourths of those who had left the
program completed it successfully (114), while one
in four failed (36). DOC estimates that graduates
were released to extended supervision 264 days
early, on average. The typical waiting period to
enter the program was just under nine months.
Most participants were sentenced to prison for
felony drunk driving or drug distribution.

Increased use of prison for people
convicted of nonviolent offenses
As Wisconsin’s policymakers struggled with sentencing policy reform issues, the state’s prison population increased. Over the past decade, the number
of individuals incarcerated for nonviolent offenses
rose more quickly than the number incarcerated for
violent and sex offenses.12 This trend has accelerated
in the last five years, when the number of prisoners
serving a sentence for a violent or sex offense increased by 10 percent, while the number serving
time for drug, property and public order offenses
grew by 24 percent.
As a consequence, the proportion of prison space
devoted to housing those convicted of violent and

Prison population growth: 1999 to 2004
30%
25%
24%

20%
15%
10%

10%

5%
0%
Violent

Nonviolent

SOURCE: DOC Public Information Data File

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

sex offenses fell from 70 percent in 1994 to 65 percent today. Individuals convicted of nonviolent offenses have also risen as a proportion of new prison
admissions: from 51 percent in 1994 to 57 percent
in 2003.13

The drug war drives up the population,
increasing costs
The rise in the number incarcerated for nonviolent offenses is largely a product of the “war on
drugs,” which has been waged fiercely in Milwaukee. Milwaukee’s drug war began in earnest in
1990, when the District Attorney’s office created a
special unit to focus solely on drug prosecutions.
Defense attorneys in Milwaukee say that prior to
the early 1990s it was common for individuals convicted of small, first-time drug sales to be convicted
of misdemeanors and placed on probation. When
the drug unit was formed, there were around 200
prisoners under DOC supervision who had been
sentenced in Milwaukee Circuit Courts for nonviolent drug offenses. Four years later, however, the
number had doubled to nearly 400.
By 1998, when Milwaukee joined the Justice Department’s High Intensity Drug Trafficking Area
(HIDTA) program, the population had doubled
again to more than 800. With increased federal resources, the number of new drug cases and prison
admissions continued to grow at a break-neck pace.
On October 24, 1999, the Milwaukee JournalSentinel reported that the county’s “drug court” (a
special docket set up to streamline disposition of
drug cases – not a therapeutic drug treatment
court) was inundated with defendants in their late
teens or early 20s charged with selling less than a
gram of cocaine.14 Defenders interviewed by the reporter questioned the wisdom of throwing hundreds of young user/sellers in prison but Assistant
DA Patrick J. Kenney, who headed the drug unit,
defended his office’s approach: “Our office takes
the position that there is no such thing as the nonviolent, small-time drug dealer”.
By mid-year 2002, there were more people
locked up for nonviolent drug offenses prosecuted
in Milwaukee (1,520) than the remaining 71 counties combined (1,370). On June 30, 2004, the
number of Milwaukee drug prisoners reached a
high-water mark of 1,962 – nearly five times the
1994 total and ten times the 1990 total. Judges and
20

Nonviolent drug prisoners
by county of commitment
2,500
2,000
1,500
1,000
500
0
Milwaukee

Non-Milwaukee

1994

398

692

1999

1,301

1,238

2004

1,962

1,476

SOURCE: DOC Public Information Data File

other court officials say that the overwhelming majority of cases involve low-level street sales or “possession with intent” (PWI),15 and that virtually all
major drug trafficking cases are prosecuted in the
federal court.
The impact of the drug war on prison populations is not limited to Milwaukee, although it has
been prosecuted more vigorously there than elsewhere in Wisconsin. The number of drug prisoners
sentenced in the rest of the state has doubled, from
692 at mid-year 1994 to 1,476 on June 30, 2004.
Nonviolent drug prisoners account for more
than a fifth of the growth in the sentenced prison
population over the last ten years, and close to a
third of the growth of prisoners coming from Milwaukee. Yet the state has little to show for its investment when it comes to reducing illegal drug
use. In his dissent to the report of the Criminal
Penalties Study Committee, Walter Dickey, Director of the Remington Center for Research, Education and Service in Criminal Justice at the University of Wisconsin Law School, pointed out that years
of “tough” drug law enforcement have failed to
achieve the desired results:
Testimony to this committee from the dedicated public servant who has long had responsibility for drug prosecutions in Milwaukee made it clear that, despite years of effort
and thousands of prison sentences, the price
of crack continues to fall.16
Illegal drug use actually appears to have gone up

JUSTICE STRATEGIES

in the state over the past decade. For example, according to national survey data from the Center for
Disease Control and Prevention, between 1993 and
2003, the percentage of Wisconsin students who
said they used marijuana in the previous 30 days
doubled from 11% to 22%.17

Overuse of prisons, underuse of
community corrections
Wisconsin is not the only state to confront an exploding drug prisoner population. But Wisconsin is
unusual in the high proportion of drug prisoners
who have little to no prior criminal history. In New
York, Maryland, and even “tough-on-crime” Arizona, it is uncommon for those convicted of low-

level drug sales to be sent to prison unless they have
a prior felony conviction.
In Wisconsin, however, close to half of the prisoners serving time for nonviolent drug offenses
have no prior felony record. The overwhelming
majority of their cases involved very small
amounts of drugs. Further, nearly half of drug sale
cases involving individuals that were facing their
first Wisconsin felony convictions resulted in
prison sentences.18
The Milwaukee Probation Problem
When the case data are examined by jurisdiction,
it becomes clear that the great majority of those incarcerated for first-time, nonviolent drug felonies

Wrong place, wrong time
Individuals convicted of drug felonies in Milwaukee
are far more likely to be sentenced to prison than those
prosecuted for the same charges elsewhere, even after
controlling for offense seriousness and the offender’s
prior record. Between July 1, 2003, and June 30, 2004,
1,403 cases were disposed in which the major offense
was delivery of – or possession with intent to deliver –
five grams or less of cocaine. Roughly two-thirds of the
cases were sentenced in Milwaukee (892 cases), while
the remainder were sentenced in other jurisdictions
(511 cases).
Analysis of the cases shows that individuals convicted of selling or possessing small amounts of cocaine
were more than twice as likely to be sentenced to
prison if the crime was committed in Milwaukee. Of the
cases sentenced in Milwaukee, 71 percent (631) resulted
in a prison sentence. Elsewhere, the opposite was true:
69 percent (350) of the cases sentenced outside Milwaukee resulted in a probation sentence.
The disparity is even more pronounced for individuals with no prior Wisconsin felony convictions, who account for the majority of the cases in question (856
cases). These offenders are nearly three times more likely
to be incarcerated by Milwaukee courts than similarly
situated individuals sentenced elsewhere. More than
half (55 percent) of Milwaukee cocaine delivery/PWI
cases involving five grams or less resulted in a prison sentence, while in other jurisdictions fewer than one in five
such cases (19 percent) resulted in incarceration.21
Although the disparity is greatest for individuals
with no prior felony convictions, it also remains significant for those with short criminal records. Outside of
Milwaukee, for example, just under half (49 percent) of
all delivery/PWI cases (any substance) involving individuals with one prior felony conviction resulted in a prison

sentence; in Milwaukee, 90 percent of such cases were
sentenced to prison.
Disparity in use of incarceration is not limited to
drug cases. In nearly every category, those prosecuted in
Milwaukee for nonviolent offenses face a substantially
greater likelihood of prison than those prosecuted elsewhere. For example, over half of Milwaukee burglary
cases result in a prison sentence, including nearly a third
of cases in which the offender has no prior felony
record. Elsewhere, under a third of all burglary cases,
and one in six cases involving individuals with no prior
felonies, result in prison.

Proportion of cocaine distribution cases
sentenced to prison (up to five grams)
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%

0

1

2+

Prior felony convictions (Wisconsin only)
Milwaukee

Non-Milwaukee

SOURCE: DOC Cases At Admission Data File

JUSTICE STRATEGIES

21

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

were sentenced in the Milwaukee courts. Wisconsin
policymakers have long been aware that probation
is underused in Milwaukee, in part because judges
lack confidence that individuals placed on probation
will receive adequate supervision and services. In
fact, the CPSC devoted a section of its final report
to “The Milwaukee Probation Problem”:
The issue of prison overcrowding is intertwined with another topic of much discussion
– lack of confidence in probation supervision,
especially in Milwaukee… After the Committee’s study, it strongly concludes that an important element in reducing the increase in
flow of prisoners into the prison system is to
strengthen the effectiveness of probation and
parole services in the Milwaukee area.19
In January of 2000, a task force appointed to address the problem reported that reasons for the lack
of confidence in probation included the absence of
familiar relationships between judges and the
county’s 370 probation-parole agents; high agent
turnover; high rates of absconding; and limited
funds for substance abuse treatment. Judge Elsa
Lamelas, a task force member, told the Milwaukee
Journal-Sentinel that, “My perception of it (drug
treatment for probationers) is it’s kind of catch as
catch can.” 20
The problem may have worsened since the task
force completed its work. Wisconsin Department of
Corrections (DOC) data show that, in 1999, Milwaukee judges sentenced 49 percent of felony cases
to probation, compared to a rate of 70 percent in
the rest of the state. By 2003, judges outside Milwaukee were still sending 68 percent of their cases
to probation, but the proportion of Milwaukee
cases resulting in probation had fallen to just 41
percent. The difference is greatest for drug offenses:
76 percent of felony drug cases sentenced outside
Milwaukee result in probation compared to just 38
percent of those sentenced in the county.
Community corrections in crisis
Although under-utilization of community corrections is starkly visible in Milwaukee, it has become a growing problem elsewhere. As will be described later in this report, Fox River Valley judges
say that they, too, are losing confidence in probation as caseloads climb. The rapid increase in the

22

number of prisoners serving time for felony drunk
driving and the rise in methamphetamine use in the
western part of the state have highlighted the difficulty of supervising and treating individuals with serious substance abuse problems when both staff and
treatment dollars are scarce.
In fiscal year 2004-2005, DOC’s Division of
Community Corrections (DCC) had an annual
budget of just $19 million to pay for services
needed by probationers and parolees – including
housing, day-reporting, transportation, drug testing, substance abuse and other treatment, and educational programs. Halfway houses and transitional-living programs absorbed 70 percent of the
total, leaving DOC with roughly $5.5 million, or
$82 per person under supervision, to fund all
other services. The total DCC budget for substance abuse treatment in fiscal year 2004-05 was
a paltry $1.2 million.
Over the years, community corrections has been
starved to feed the expanding prison budget. In fiscal year 1998-99, a little over half (53.8 percent) of
DOC expenditures went to adult institutions while
18.3 percent went to community corrections.22 By
fiscal year 2004-05, however, adult institutions accounted for 63.6 percent of the total DOC budget,
with community corrections slated to receive just
13.7 percent. 23
The result of underinvestment in community
corrections is a vicious cycle in which declining confidence in probation leads judges to sentence more
people to prison, driving up correctional costs and
squeezing the budget for community supervision
further. By extending post-release supervision, the
truth-in-sentencing statute further taxes the capacity of community corrections and risks diluting the
quality of supervision and services.
Despite high caseloads and funding limitations,
however, there is evidence that a large majority of
those sentenced to probation for low-level, nonviolent felonies succeed. Examination of case records
for 6,420 individuals who were placed on felony
probation in 2000 for low-level drug, property and
drunk-driving offenses found that most had not
been revoked or sentenced to prison for a subsequent conviction during an average four-year period
following sentencing.24 Individuals sentenced to
probation for drug offenses had the highest success
rates (69 percent), while property offenders had the

JUSTICE STRATEGIES

second-highest success rate (63 percent), and those
placed on probation for felony drunk driving had
the lowest (59 percent).
Community corrections capacity will be enhanced in Milwaukee as a result of the “Access to
Recovery” grant that Wisconsin received in March
2004 from the federal Substance Abuse and Mental
Health Services Administration (SAMHSA). The
grant will provide $26 million over three years to
fund Milwaukee’s “Wiser Choice” initiative. Developed by the DOC, the state Department of Health
and Family Services (DHFS) and the Milwaukee
County Behavioral Health Division, Wiser Choice
will significantly expand access to substance abuse
treatment, case management and wraparound services in the county.
The beneficiaries of Wiser Choice will include
people released from prison; probationers and
parolees who risk being sent to prison for violations
of supervision requirements; and the larger substance-addicted population in the county. A newlycentralized case-management system created by the
Milwaukee County Behavioral Health Division
should increase the efficiency with which probationers and parolees are connected to treatment and
other needed services, and could also reduce the
workload of agents, allowing them to focus on providing effective supervision.

Positive steps to reign in prison
population growth
Clearly the state’s current elected leaders are
looking for ways to gain more control over the
state’s growing prison population and spiraling correctional costs. As he signed the 2003-2005 $1 billion biennial corrections budget, Gov. Doyle promised that no further prison expansions would take
place on his watch. These sentiments were echoed
in 2005 by DOC deputy secretary Rick Raemisch,
who told legislators, “Let’s stop building our way
out of this problem, because we can’t.”25
The Republican leadership of the legislature also
signaled that it was ready to consider sensible approaches that ensure public safety without bankrupting the state or increasing the burden on taxpayers. There was little enthusiasm among Republicans last session for the suggestion made by one of
their colleagues that the state should consider building another prison. Dean Kaufert (R – Neenah),

who co-chairs the Joint Finance Committee, described the idea as “probably a pretty big leap for
me right now.”26
Gov. Doyle’s proposed 2005-2007 budget
would have added 200 slots to the Earned Release
Program – which currently has a waiting list of over
600 prisoners – and allowed DOC to implement the
program at any correctional facility. The proposed
budget also provided funding for community-based
alternatives to revocation – including halfway
houses, day reporting centers and electronic monitoring – as well as re-entry services for mentally ill
prisoners in order to increase the odds of successful
transitions back into the community. Finally, the
Governor proposed directing the Wisconsin Sentencing Commission to review sentences imposed
on individuals convicted of nonviolent offenses and
recommend possible alternatives to incarceration,
and he proposed limiting misdemeanor probation
terms to one year.
Republican legislators, often at odds with the
Governor, gave his criminal justice proposals a
measured response. Rep. Gary Bies told the Wisconsin State Journal, “I would take a real good, hard
look at these and see if we can make them work...
because we just can’t keep building prisons.”27 In
the end, the legislature went along with some, but
not all, of the Governor’s proposals, including the
establishment of three new day-reporting centers
for probationers and parolees; funding re-entry
planning and services to the tune of nearly $1 million a year; raising the amount allocated for treating
substance-addicted supervisees by $1 million annually; expanding the availability of prison-based treatment; and reducing the maximum misdemeanor
probation term from two years to one year.
Lawmakers did not approve the governor’s request to expand the Earned Release Program, indicating that they first wanted more information
about program outcomes. They also stripped the
provision directing the Sentencing Commission to
review sentencing of individuals convicted of nonviolent offenses from the budget bill.
The legislature put forward its own initiative to
reduce correctional costs while improving outcomes. The legislation, which was introduced by
Sen. Roessler and Rep. Bies created a grant program
administered by the state Office of Justice Assistance that can be used by local officials to launch

JUSTICE STRATEGIES

23

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

programs designed to redirect defendants from
county jails and state prisons into community-based
substance abuse and mental health treatment.
The Roessler-Bies initiative represents an important step toward a more humane and cost-effective criminal justice system. Unfortunately, the
legislature declined to put any general fund revenues in the grant pot, leaving just the revenues
collected from surcharges imposed on individuals
convicted of drug and property offenses to fund
the local programs. Advocates of “treatment instead of prison” have begun to call on their
elected representatives to fully fund the program
so the state and its residents can begin to reap the
rewards of a more enlightened approach to combating addiction.

24

JUSTICE STRATEGIES

The current prison population and key trends
Demographic disparity
African Americans and other people of color are
incarcerated at disproportionate rates relative to
their share of the Wisconsin state population.28
African Americans make up just six percent of Wisconsin residents but nearly half (47 percent) of the
state’s prisoners and close to two-thirds (64 percent) of those incarcerated for drug offenses. Whites
make up 89 percent of state residents but only half
of state prisoners.
When ethnicity is factored in, non-Hispanic
whites make up 87 percent of residents and just 43
percent of prisoners. Latinos, who account for five
percent of the state population, make up eight per-

Race/ethnicity of Wisconsin prisoners
June 30, 2004

White (non-Hispanic)
Black
Latino
Native American
Asian

SOURCE: DOC Public Information Data File

Race/ethnicity of Wisconsin residents
June 30, 2004

White (non-Hispanic)
Black
Latino
Asian
Other

SOURCE: U.S. Census Bureau

cent of all sentenced prisoners and 12 percent of
drug prisoners.
African Americans are more likely than whites to
be arrested for drug offenses, but the difference is
not enough to account for the disparity in incarceration rates. Arrest data collected by the Office of
Justice Assistance’s Statistical Analysis Center (SAC)
show that African Americans accounted for 27 percent of all drug arrests in 2003 and 48 percent of
drug sale arrests.
A 2004 report by The Sentencing Project found
that Wisconsin ranked sixth in a national index of
racial disparity in incarceration.29 The report also
found that Wisconsin had the nation’s highest
prison and jail incarceration rate for African Americans – 4,058 per 100,000 residents.
According to the Bureau of Justice Statistics, on
December 31, 2004, Wisconsin imprisoned 390
people for every 100,000 residents.30 However, the
state’s current incarceration rates – excluding jail
populations – vary widely by race and ethnicity.31
On the bottom are non-Hispanic whites, who
are imprisoned at a rate of 196 per 100,000; on the
top are Latinos, Native Americans and African
Americans who are incarcerated at rates of 647 per
100,000, 1,251 per 100,000 and 3,012 per
100,000, respectively.32 African Americans in Wisconsin are fifteen times more likely to be incarcerated than non-Hispanic whites.
The disparity is even greater among those serving time for nonviolent drug offenses. Non-Hispanic whites are incarcerated for nonviolent drug
offenses at a rate of just 17 per 100,000. The odds
of being incarcerated grow four-fold for Native
Americans, who are incarcerated at a rate of 69 per
100,000. They increase nine-fold for Latinos, who
are incarcerated for drug offenses at a rate of 157
per 100,000. Finally, the odds of being incarcerated
grow nearly forty-fold for African Americans, who
are imprisoned for drug offenses at a rate of 663 per

JUSTICE STRATEGIES

25

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Prisoners per 100,000 state residents

Incarceration rates for nonviolent drug
offenses by race/ethnicity: June 30, 2004
700
663

600
500
400
300
200
100
17

18

69

157

Native
American

Latino

0
White
Asian
(non-hispanic)

Black

SOURCE: DOC Public Information Data File, US Census

100,000. Close to one percent of the state’s African
American population is currently serving time in
prison for a nonviolent drug offense.
University of Wisconsin sociologist Pamela
Oliver has done extensive research on the issue of
racial disparity in incarceration. Oliver found that
the rate of prison admissions for blacks in the state
climbed rapidly during the 1990s – from 600 per
100,000 residents to over 1,200 per 100,000 –
while the rate of white prison admissions climbed
only slightly.33 According to Oliver, racial disparity
in incarceration is not being driven primarily by serious offenses, but by the war on drugs.
Women make up six percent of the total prison
population, but eight percent of drug prisoners and
11 percent of those incarcerated for property and
public order offenses. Women account for one in
seven prisoners serving time for theft (15 percent)
and over a quarter (28 percent) of those incarcerated for forgery. Just 42 percent of women were
serving time for a violent or sex offense compared
to 65 percent of men.

Sentenced prison population by county
of commitment: June 30, 2004

Washington

Other
counties

Marathon
Sheboygan

Milwaukee

LaCrosse
Winnebago
Outagamie
Rock
Brown
Waukesha
Racine
Kenosha

Dane

SOURCE: DOC Public Information Data File

Jurisdictional differences
Milwaukee County, which contains the state’s
largest city, accounted for more than 40 percent of
the total prison population on June 30, 2004
(9,224 prisoners). Between 1999 and 2004, the
number of Milwaukee-sentenced prisoners grew at
a slightly higher rate than the number sentenced
elsewhere (16 percent and 14 percent, respectively).
Another 25 percent (5,847) of the state’s prison
population comes from a handful of populous mid-

26

urban counties (Dane, Kenosha, Racine, Waukesha,
Brown and Rock). Just one in five prisoners (4,717)
was committed from one of the 59 counties with
populations under 100,000, although that number
has jumped 36 percent since 1999.
While the use of incarceration is on the rise in
Milwaukee and many rural counties, the trend runs
in the opposite direction in several large jurisdictions that account for a large share of the prison
population. The number of prisoners serving sentences imposed in Kenosha, Racine and Walworth
(the Second Judicial District), has declined for the
last four years, falling 10 percent between June 30,
1999 and June 30, 2004.
Racine led the way with a 22-percent, 286-person
reduction in its sentenced prison population.
Kenosha saw a more modest four-percent, 52-person
decline driven by a 10-percent reduction in its nonviolent prisoner population. The number of prisoners
sentenced in Walworth grew by 19-percent (53 prisoners) over the five-year period but the growth was
offset by the declines in the larger counties.

Wisconsin’s Fifth Judicial District, which includes Madison’s Dane County along with
Lafayette, Green and Rock counties, also saw a net
decline in its sentenced prison population between
1999 and 2004. The three-percent reduction was
largely attributable to a 22-percent, 155-person
drop in the number of prisoners sentenced in Rock
County. In fact, Rock County had a third fewer

JUSTICE STRATEGIES

people serving state prison time for nonviolent offenses in 2004 than in 1999 – the largest nonviolent
prison population drop in the state.34
The number of prisoners sentenced in Dane
County, the second-largest consumer of prison beds
after Milwaukee, rose between 1999 and 2004, but
growth in the nonviolent prisoner population was held
down to just three percent. Lafayette and Green both
saw a 20-percent growth in their respective prison
populations, but the impact was negligible since together the counties account for just 60 prisoners.
The trend in Dane, Kenosha, Racine and Rock
stands in sharp contrast to several large counties
where the use of prison beds has increased sharply,
especially for those convicted of nonviolent offenses.
Waukesha’s sentenced prison population jumped by
over a third (35 percent or 213 prisoners) between
1999 and 2004, largely due to 55-percent growth in
the county’s nonviolent prisoner population.
Brown County saw 29 percent, 163-person
growth over the period, fueled by a 49-percent increase in the nonviolent prisoner population.
Neighboring Outagamie and Winnebago also saw
significant increases in their sentenced prison populations – 53 percent and 40 percent, respectively, totaling 260 beds. That growth was the result of a
sharp increase in their nonviolent prisoner populations (100 percent and 78 percent, respectively).
Finally, Wisconsin’s less populous counties expe-

rienced rapid growth in the numbers committed to
prison. Overall, the counties with resident populations under 100,000 saw 36-percent, 1,259-person
growth in the number of prisoners they put behind
state bars. Most of the growth came from a 58-percent rise in the number incarcerated for drug, property and public order offenses.

Factors driving prison population
increases
Truth in sentencing?…
The common wisdom is that growth in Wisconsin’s prison population is being driven by the elimination of parole and “good time,” as well as the dramatic increases in maximum sentences that accompanied truth in sentencing. A comparison of DOC
data for new sentence-only prison admissions before
and after January 1, 2000 shows that the length of
time prisoners are projected to serve before their
first release did spike after truth in sentencing was
implemented, rising 17 percent between 1999 and
2002.35 36
It is not difficult to understand why initial confinement time shot up. Under the indeterminate
system, most offenses were classified as A, B, BC, C,
D or E felonies. The maximum sentence for a Class
A felony, including first-degree murder, was life in
prison, while the maximum for a Class E felony,

Growth in sentenced prison population by county of commitment and offense type:
June 30, 1999 to June 30, 2004
120%
100%
80%
60%
40%
20%
0%
-20%
-40%
-60%

e
ke
au
lw
i
M

ne
Da

sha
no
Ke

e
a
cin
esh
Ra
uk
a
W

wn
Bro

e
n
n
o
es
ck
sse
mi
ga
ag
ton
ho
nti
Ro
oy
ga
eb
Cro
rat
ou
ing
a
b
n
a
c
a
t
h
e
L
n
s
r
M
Sh
Ou
Wi
he
Wa
Ot

Violent

Nonviolent

SOURCE: DOC Public Information Data File

JUSTICE STRATEGIES

27

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Penalties for most common offenses resulting in prison admission
Maximum total sentence
Rank Offense

Parole & mandatory
release eligibility (pre-TIS)

Maximum term of
confinement

pre-TIS

TIS I

TIS II

Parole

Mand. rls.

TIS I

TIS II

1

Cocaine delivery/PWI up to one gram

10

15

10

2.5

6.6

11.25

5

2

Operating Under the Influence

5

5

6

0.5

3.3

3.75

3

3

Burglary

10

15

12.5

2.5

6.6

10

7.5

4

Cocaine delivery/PWI (1-5g)

10

15

12.5

2.5

6.6

11.25

7.5

5

Armed robbery

40

60

40

10

26.6

40

25

6

Bail jumping (felony)

2

5

10

0.5

1.3

2

5

7

Felon in possession of firearm

2

3

3

0.5

1.3

2.25

1.5

8

Fleeing an officer

5

10

6

1.25

3.3

5

3

9

Forgery/uttering

10

15

6

2.5

6.6

10

3

10

Marijuana delivery/PWI

3

4.5

3.5

0.75

2

3.4

1.5

SOURCE: Wisconsin Legislative Fiscal Bureau, Wisconsin Sentencing Commission

such as operating a vehicle without the owner’s consent, was two years in prison. Other felonies, including most drug offenses, remained unclassified
and carried penalties prescribed by statute.
When truth in sentencing was first enacted, the
old classification system was retained, and the previous statutory maximum prison terms became the
maximum terms of confinement that could be imposed. The total maximum bifurcated sentences (including both confinement in prison and post-release
supervision) were raised by anywhere from 25 percent (for unclassified offenses) to 150 percent (for
Class E felonies) so judges could sentence defendants to serve up to 100 percent of the old maximum prison sentence and impose an additional
term of extended supervision.
For example, under the indeterminate system, a
person convicted of selling five grams or less of cocaine faced a prison term of up to 10 years. He or
she would be parole-eligible after serving 25 percent of the prison term (up to 2.5 years) and reach
mandatory release after serving two-thirds of the
prison term (up to 6.6 years). When truth in sentencing went into effect, the maximum sentence
was raised to 15 years and the maximum term of
confinement set at 10 years. A person sentenced to
the maximum term of confinement would have to
serve all 10 years before being released to a term
of extended supervision that might range from a
minimum of two-and-a-half years to a maximum
of five years.
28

In 2003, however, a new schedule of penalties
took effect under TIS II. Most felonies, including
many that were formerly unclassified, received new
designations ranging from Class A to Class I. The
new system substantially reduced the maximum sentences for many offenses.
For example, under the indeterminate system,
burglary, forgery and theft (over $2,500) were Class
C felonies carrying a maximum 10-year prison term
(2.5 years to parole eligibility or 6.6 years to mandatory release). Under TIS I, 10 years became the
maximum term of confinement, while the maximum sentence was raised to 15 years.
When TIS II took effect, however, burglary became a Class F felony with a 7.5-year maximum
term of confinement and a 12.5-year maximum sentence. Forgery became a Class H felony with a
three-year maximum term of confinement and a sixyear maximum sentence. Theft of $2,500 to $5,000
became a Class I felony with a 1.5-year maximum
term of confinement and a 3.5-year maximum sentence.
The results of the TIS II reform have been dramatic, as shown on the charts below. In 2003, the
year TIS II took effect, projected time to first release dropped by 12 percent. By the first six months
of 2004, average time to first release was just one
percent above the average for those sentenced in
1999 and four percent below the average for those
sentenced in 1998.
The only groups that saw average time to first re-

JUSTICE STRATEGIES

Average confinement time (projected):
New sentence-only prison admissions
110
100

105.4

108.9
102.6

102.2

99.2

90

102.5
95.8

Months

80
70.7

70
60

70.0

66.4

63.4

61.8
56.8

50
40
30
20

46.0

36.7
28.9

43.6
31.8
26.5

23.5

23.3

1998

1999

56.8
53.6

50.8

51.1

47.8

44.1

38.8

31.7

30.9

31.8
28.5
2000

28.2

26.9

2001

2002

Total
Assault only
Property/other only

45.2

44.0

41.0

42.1

25.9

24.6

26.5

25.4

2003
Assault-drug
Sex assault

2004
Drug only

SOURCE: DOC Public Information Data File

Average post-release supervision (projected):
New sentence-only prison admissions
220

209.6

220.6

215.4
206.2

200
181.4

180
162.5

158.2

160

144.7
136.8

140

128.4
120.4

Months

121.9

120

109.4

102.9
94.5

100

111.7
99.0

94.7

95.2

78.4

80

90.9

74.3

85.4

56.0

62.7

74.5

40

49.1

45.0

44.0

43.6

1998

1999

90.2

71.6

64.6

60

98.7

85.0

65.6

64.8

65.3

65.3

61.5

61.1

2001

2002

2003

2004

52.5

20
0
2000

Total
SOURCE: DOC Public Information Data File

Assault only

Property/other only

JUSTICE STRATEGIES

Assault-drug

Drug only

Sex assault

29

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

lease increase between 1999 and the first half of
2004 were those incarcerated for nonviolent drug
offenses and those incarcerated for a combination of
drug and assaultive offenses. Over the period, projected time to first release grew six percent for nonviolent drug prisoners, from 23 to 25 months. Individuals incarcerated for both drug and assaultive
convictions, whose major offense was most likely to
be a drug offense, saw 32-percent growth in time to
first release, from 32 to 42 months.
By contrast, between 1999 and 2004, the projected time to first release remained unchanged for
those convicted of sexual assault (103 months) and
other assaultive offenses (57 months), and fell four
percent for those convicted of property and public
order offenses (from 27 to 25 months).
In fact, what has ballooned under truth in sentencing is not the initial period of confinement, but
the time prisoners are required to spend on supervision after release. Between 1999 and 2002, the average projected period of post-release supervision
nearly doubled before falling by 11 percent in 2003
under TIS II. During the first six months of 2004,
the average anticipated period of post-release supervision was 55 months compared to just 31 months
in 1999.
Post-release supervision time has doubled for
those convicted of sexual assault (from 57 to 113
months); drug and assaultive offenses (from 24 to
48 months); and property and public order offenses

New prison admissions: 1998 to 2003
3,600
3,400
3,200
3,000
2,800
2,600
2,400
1998

1999

Violent

2000

Nonviolent

SOURCE: DOC Public Information Data File

30

2001

2002

2003

(from 19 to 39 months). Those incarcerated for
nonviolent drug offenses saw their post-release supervision time rise by 90 percent (from 20 to 39
months) and those serving time for other assaultive
offenses faced nearly 70 percent more time on supervision after release (from 38 to 64 months).
The near doubling of post-release supervision
under truth in sentencing has created a potential
time-bomb for the state. Nonviolent offenders with
substance abuse problems, who are at risk of relapse,
may be especially vulnerable to being revoked. As will
be discussed later, there is evidence that close to half
of those released to extended supervision will spend
some or all of their supervision time behind bars.
The results of truth in sentencing appear to run
contrary to expectations. Rather than lengthening
prison terms, as some had expected, the law seems
likely to have little long-term impact on the amount
of time prisoners serve before they are released,
thanks in large part to the TIS II criminal code revisions.
Instead, truth in sentencing has driven up the
length of time prisoners must serve on supervision
after release. One ironic consequence is a reduction
in the proportion of the total sentence prisoners are
likely to serve before first release, from 59 percent
for those released in 1999 and 2000 to 55 percent
for those sentenced in 2004.

...Or growth in nonviolent
admissions?
The focus on truth in sentencing has distracted attention from other factors that may have a far greater
impact on the prison population. Analysis of DOC data
shows that growth in nonviolent prison admissions
may be doing more to crowd state prisons than truth in
sentencing.
Between 1998 and 2003, the annual number of
new prison admissions – including revocations of
probation – of individuals convicted of violent or
sex offenses fell by one percent, from 2,659 to
2,627. During the same period, however, the number admitted for new drug, property and public
order offenses grew by 17 percent. Beginning with
a record 2,964 admissions in 1998, the number of
new nonviolent prison admissions hit new highs in
each subsequent year before reaching 3,452 admissions in 2003.
The number admitted annually for nonviolent

JUSTICE STRATEGIES

Drug distribution/PWI felony classification (TIS II)
Statutory amount code

1g

1 or 1r

2

3

4

I

H

G

F

E

D

C

3.5/1.5

6/3

10/5

12.5/ 7.5

15/10

25/15

40/25

up to 3g

3-10g

10-50g

over 50g

(200-400g)

1-5g

5-15g

15-40g

over 40g

(over 100g)

10-50g

over 50g

(200-400g)

Felony class
Maximum sentence/
confinement term

Drug weights

Amphetamines
Cocaine

Up to 1g

Heroin

up to 3g

3-10g

Up to 1g

1-5g

over 5g

up to 100g

100-500g

over 500g

200g-1kg

1-2.5kg

2.5-10kg

over 10kg

2

3

4

5

LSD
Psilocybin
THC (Marijuana)

up to 200g

Stat. amount code (THC)

1

5 (old law)

SOURCE: Wisconsin Legislative Fiscal Bureau

west, Fox River Valley and Milwaukee’s
northern neighbors (the Tenth, Eighth
and Third Judicial Districts, respectively)
increased by over 60 percent.

Drug prisoner population :
Delivery/PWI by substance and amount
(June 30, 2004, estimated)
Statutory amount code

All

Amphetamines
Cocaine
Heroin

1

2

3

4

17

7

5

7

2

2,053

1,329

275

163

120

167

111

89

12

9

0

LSD

4

4

0

0

0

Narcotic

15

10

2

1

1

Non-Narcotic

13

9

2

1

1

8

8

0

0

0

Psilocybin
Schedule IV

1

1

THC

385

290

47

44

4

Unknown

185

123

24

16

10

2,813

1,868

371

238

146

Total

5

38

SOURCE: DOC Public Information File

offenses with new sentences who were not revoked
from supervision also set records in 2002 (1,567)
and 2003 (1,617), while the proportion sentenced
for violent offenses reached a low of 43 percent.
The greatest growth in new sentence-only prison
admissions was among those convicted of drug offenses, whose numbers increased by 20 percent over
the five-year period.
While Milwaukee accounted for nearly half of
growth in nonviolent admissions between 1998 and
2003, the fastest growth took place in other parts of
the state. Drug, property, OWI and other nonviolent admissions from central and south-west Wisconsin (the Sixth and Seventh Judicial Districts)
nearly doubled, while admissions from the north-

The Drug War

The role played by the drug war in Wisconsin’s out-of-control prison growth can0
not be overstated. Wisconsin law prescribes
1
stiff maximum penalties for selling, or pos1
sessing with intent to sell, very small quan0
tities of most controlled substances other
than marijuana. Although drug arrest pat0
terns show that illicit substances are used
12
and sold throughout the state, the drug
190
war has been prosecuted most vigorously
in Milwaukee, where prison terms are
handed down on a daily basis to young
men and women convicted of selling a gram or less
of cocaine.
0

Wisconsin’s drug statutes
Under Wisconsin law, possession of marijuana or
cocaine for personal use is a misdemeanor on the first
offense and a felony on the second or subsequent offense. Possession of a Schedule I and II narcotic
drugs (including heroin) and possession of methamphetamine are Class I felonies on the first offense.
The law allows the court to defer judgment and dismiss charges for those who successfully complete probation, including any treatment or other conditions
imposed, and who have no prior drug convictions
(Chapter 961.47 of the Wisconsin Statutes).

JUSTICE STRATEGIES

31

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Under 961.472, individuals convicted of drug
possession are supposed to be assessed for possible
treatment needs if no current assessment is available. The court may then, at its discretion, defer
sentencing and allow the individual to enter a treatment program. If the program is completed successfully, the court has the option of releasing the
defendant from his or her sentence.
Manufacture or delivery of a controlled substance and possession of the substance with intent
to deliver (PWI) are separate criminal offenses, but
the offenses carry the same penalties and elicit similar treatment by the criminal justice system. Conspiracy to manufacture, deliver or possess with intent also carries the same penalties.
Manufacture, delivery or possession with intent
to deliver any amount of a controlled substance is a
felony whose class is determined by the weight of
the drugs in question. Delivery/PWI of 200 grams
or less of marijuana is classified at the lowest felony
level (Class I), while weights over 10 kilograms
make the offense a Class E felony.
Delivery/PWI of one gram or less of cocaine (including cocaine base or “crack”) is a Class G felony,
while weights over 40 grams make the offense a
Class C felony. The classification of offenses involving heroin and methamphetamine is similar to cocaine, although the lowest designation for heroin
and methamphetamine delivery/PWI is Class F (up
to three grams).
Several enhancements can increase the sentence
length for drug offenses. The maximum term of imprisonment for drug felonies other than possession
for personal use increases by four to six years – depending on the classification of the current offense
– if the defendant has a prior misdemeanor or felony
drug conviction. The maximum for delivery/PWI
increases by five years if the offense takes place on
the premises of a scattered-site public housing project or within 1,000 feet of a park, correctional facility, multiunit public housing project, public pool,
community center, school, school bus or treatment
facility – an enhancement that is more likely to impact defendants in densely-populated urban areas
than defendants in suburban and rural areas.
Any conviction for a drug law violation – including a misdemeanor – results in a minimum sixmonth suspension of the defendant’s motor vehicle
operating privileges (up to five years). Under the

32

law, those convicted of a first drug offense are immediately eligible for an occupational license, while
second- and third-time drug offenders must wait for
60 and 90 days, respectively, before obtaining an
occupational license. Driving privileges are suspended immediately, but court officials say that the
clock does not start on the suspension period until
an individual has filed the necessary paperwork and
cleared up fines and a $50 license reinstatement fee.
Low-level sales predominate
While a handful of drug prisoners are serving
time for selling or possessing significant quantities
of a controlled substance, the overwhelming majority were convicted of offenses involving very small
amounts. Nearly two-thirds (65 percent) of prisoners sentenced for cocaine charges where information
on weight was available were convicted of offenses
involving five grams or less. Another 13 percent of
cases involved between five and 15 grams.37
By contrast, just 14 percent of incarcerated cocaine offenders were convicted of offenses involving
more than 40 grams. Similarly, three-fourths of
those sentenced for possession with intent or delivery of THC were convicted of charges involving
200 grams or less, while just 12 percent were convicted of charges involving more than a kilogram.
The preceding table shows a breakdown of prisoners serving time for delivery/PWI by substance and
drug amount, using the statutory amount codes.
Just six percent of drug prisoners are serving time
for simple possession or other low-level drug offenses (i.e. possession of paraphernalia, keeping a
drug house).
Despite the fact that the overwhelming majority
of drug delivery/PWI cases involve small amounts
of drugs, most defendants end up in prison. The
Sentencing Commission found that 61 percent of
cocaine delivery/PWI cases involving a gram or less
resulted in a prison sentence.38 By contrast, in
Michigan, sentencing guidelines for drugs make
probation presumptive for a defendant convicted
for sale of up to 50 grams of cocaine, unless the person has a very significant prior record or there were
serious aggravating factors involved.
Milwaukee’s drug war
In recent years, many criminal justice policy makers have begun trying to reduce their reliance on

JUSTICE STRATEGIES

Employment discrimination: Another collateral consequence the drug war?
In Milwaukee, judges, prosecutors and defenders agree
that the lack of job opportunities for young men is one of
the top problems facing the criminal justice system. Caseworkers say that even their most motivated clients find it
difficult to secure employment, and nearly impossible to obtain a stable job that pays enough to feed a family and meet
other obligations such as restitution and fines.
While part of the problem is attributable to lack of skills
and experience among the criminal justice population, research conducted in Milwaukee by Northwestern University
sociologist Devah Pager found that individuals with drug
convictions are likely to face widespread employment discrimination, especially if they are African American.39
Wisconsin law bars public employers, private employers
and occupational licensing authorities from considering
criminal records unless the crimes closely relate to the specific duties of the job.40 Nonetheless, when Pager sent
matched pairs of trained “tester” applicants with identical
qualifications to apply for entry-level jobs, those who indi-

policing and prisons, and emphasizing prevention
and treatment as the most effective responses to
substance abuse. In Milwaukee, by contrast, officials
have continued to pursue drug enforcement strategies that drive up the prison population without resolving the problem.
The rise in Wisconsin’s drug prisoner population
has been driven largely by Milwaukee County. The
number of nonviolent drug prisoners with a governing conviction from Milwaukee shot up 51 percent (661 prisoners) between 1999 and 2004, compared to 19 percent (248) for the rest of the state.
Milwaukee, which sentenced 51 percent of those incarcerated for drug offenses in 1999, now accounts
for nearly 57 percent of the state’s drug prisoners.
The lengthening of prison terms under TIS I
may account for some of this growth. However, a
rising tide of drug admissions from Milwaukee appears to play a greater role. Between 2000 and
2003, the annual number of new drug prisoner admissions from Milwaukee jumped 48 percent, from
642 to 952. The number of admissions of individuals sentenced directly to prison who were not under
supervision at the time of the offense also shot up
62 percent, from 385 to 622.
The growth in admissions cannot be directly attributed to truth in sentencing. Not only did the
law not restrict the ability of judges to place defendants on probation, but the revisions to the criminal
code that followed truth in sentencing also repealed

cated that they had previously been convicted of a drug offense were far less likely to be called back or offered a job
than those who said they had no criminal record.41
After auditing 350 Milwaukee-area employers, Pager
found that white applicants who admitted to drug convictions were half as likely to succeed as white counterparts
without convictions – 17 percent vs. 34 percent.42 Black applicants who disclosed a past drug conviction were nearly
three times less likely to succeed than black applicants without a criminal record – five percent vs. 14 percent – and over
six times less successful than white applicants with no criminal record.
Pager’s research suggests that drug convictions not only
hurt an individual’s long-term chances of being able to support him or herself, but they may also reinforce existing
racial bias in hiring. These findings have profound implications for a city where thousands of young African Americans
are arrested and sentenced each year for low-level drug offenses.

many laws that made a minimum prison term presumptive for certain drug offenses.
One explanation for growth in Milwaukee drug
admissions is a sharp jump in arrests for drug sales.
Data from Wisconsin’s Statistical Analysis Center
show that, between 2001 and 2003, drug sale arrests jumped 66 percent in Milwaukee County. The
increase in drug sale arrests far exceeded total
growth in Milwaukee arrests over the two-year period (16 percent), and clearly separated Milwaukee
from the rest of the state, where drug sale arrests fell
very slightly over the same period.
Drug arrests, in turn, are driving record numbers
of felony drug cases that have overloaded the
courts. DOC data show that the annual number of
felony drug cases (possession and sales) disposed to
prison or probation rose 22 percent in Milwaukee
between 2000 and 2003.
More significant than the growth in cases, however, was a harsh shift in sentencing patterns. In Milwaukee, even as the number of drug cases grew, the
number sentenced to probation actually fell by nine
percent (from 719 to 654) over the three-year period,
while the number of drug cases sentenced to prison
spiked by 53 percent (from 771 to 1,074). The proportion of drug cases sentenced to prison in Milwaukee increased from just under half (49 percent) in
2000 to over three in five (62 percent) in 2003.
There are different theories about who is responsible for recent, dramatic growth in Milwau-

JUSTICE STRATEGIES

33

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

34

kee’s drug admissions. Some observers charge that
the Milwaukee Police Department is sweeping up
hundreds of low-level user/sellers, overwhelming
the system. Others say that hard-line policies
adopted by the DA’s office during the early years of
the crack epidemic are still driving the disposition of
drug cases, with Assistant DAs continuing to recommend prison even in second-time possession
cases. Still others say that the county’s judges – who
turned down funds for a drug treatment court several years ago out of concern that it would strain judicial resources already worn too thin – are not interested in finding alternative dispositions for substance-addicted defendants.
But interviews with top officials in the Milwaukee police department and the DA’s office, as well
as focus groups conducted with Milwaukee judges,
paint a more hopeful picture. Many close observers
say that the new head of the DA’s drug unit, Steve
Licata, has been a breath of fresh air. Under Licata’s
leadership, individuals who “facilitate” drug sales –
often addicts who tell undercover police where they
can buy drugs hoping to get drugs in return – are
no longer being charged as felons. Defenders also
say that the DA’s office has become somewhat more
receptive to considering the individual circumstances of defendants. Judging by the numbers, the
impact of these policy changes does not appear to
be large, but they may signal a new willingness to
rethink the current approach to drug prosecutions.
As will be discussed below, Milwaukee judges
who participated in a focus group convened by the
Sentencing Commission went even further in suggesting that they are tired of “business as usual.”
These judges indicated that they would redirect a
third or more of their prison-bound drug, property
and public order cases to community treatment if
adequate resources were available.

to 24 percent.
Yet buried within these overall trends were some
jurisdictions – including parts of central and western Wisconsin and the Fox River Valley – that saw
their drug prisoner populations grow even more
quickly than Milwaukee’s. The number of drug
prisoners sentenced in the Seventh, Eighth and
Tenth Judicial Districts nearly doubled between
1999 and 2004, while the number sentenced in the
Sixth Judicial District shot up by 170 percent.
One factor contributing to growth in the number of drug prisoners committed from some jurisdictions outside Milwaukee is a rise in methamphetamine use and the response being mounted by law
enforcement. DOC analysts report that the number
of people convicted of, and incarcerated for,
methamphetamine crimes has risen sharply over the
past seven years.43
In 1997, just five people were sentenced to probation or prison for manufacturing or possessing
methamphetamine, possessing paraphernalia or disposing of methamphetamine waste. By 2004, the
annual number of convictions had grown to 120,
with just over a third receiving prison sentences.
Despite the rapid growth, however, convictions and
prison admissions for methamphetamine continue
to be dwarfed by those involving cocaine, marijuana
and even heroin
The western Seventh Judicial District led the way
in growth of drug prisoner admissions, which
tripled from 19 to 58 admissions per year between
1998 and 2003, while the northwestern Tenth Judicial District saw drug prisoner admissions more
than double. But DOC data show that even the
drug prisoners committed from the part of the state
hit hardest by methamphetamine were more likely
to have been convicted of possessing or selling cocaine or marijuana, rather than methamphetamine.

Outside Milwaukee

Other nonviolent offenses

Elsewhere in the state, the picture is more mixed.
Overall, sentencing patterns in drug cases have
moved in the opposite direction from Milwaukee.
Between 2000 and 2003, the number of drug probation cases disposed in other counties grew by 17
percent, from 1,451 to 1,696, while the number of
drug cases sentenced to prison crept up by just three
percent. The proportion of drug cases sentenced to
prison during this period declined from 26 percent

The drug war is not the only factor pushing up
the number of prisoners serving time for nonviolent
offenses. Outside Milwaukee, there was 29-percent
growth in the number incarcerated for property and
public order offenses between 1999 and 2004,
compared to 19 percent for drug offenses and 13
percent for those convicted of violent or sex offenses.
In the northeast parts of the state and in the

JUSTICE STRATEGIES

First-releases to parole, mandatory release and extended supervision
3500
3000
2500

Releases

2000
1500
1000
500
0
1994

1995

1996

1997

1998

1999

2000

Parole

2001

Mandatory release

2002

2003

2004
proj.

Extended supervision

SOURCE: DOC Public Information Data File

counties just north of Milwaukee (the Fourth,
Eighth and Third Judicial Districts), the number of
property and public order prisoners has grown by
more than half since 1999.
Much of the growth is attributable to the legislature’s decision to make the fifth conviction for
drunk-driving a felony. The number of new prison
admissions for drunk driving shot up from 26 in
1998 to 428 in 2003. During the first half of 2004,
the number of new OWI admissions (223) nearly
equaled the number of new burglary admissions
(224). The Fox River Valley has experienced some
of the fastest growth – a 64 percent increase between 2000 and 2003.
According to an analysis produced by staff at the
DOC, by October 15, 2004, there were over 1,000
prisoners with felony OWI convictions, of which
half had no other current convictions.44 Prisoners
with OWI convictions accounted for ten percent of
prisoners sentenced in Waukesha, 13 percent of
those sentenced in Winnebago and 19 percent of
those sentenced in Washington County.

Factors likely to drive future prison
population increases
Despite a temporary spike in the length of prison
sentences and record-breaking admissions, Wisconsin’s prison population growth has been relatively
modest since truth in sentencing took effect in
2000. Two factors make it unlikely that this trend
will continue, however, without further changes to
sentencing and correctional policy and practice.
First, the parole of “old law” prisoners has played

a critical role in containing population growth during the first years of truth in sentencing, but the impact of parole is declining alongside the number of
parole-eligible prisoners. Second, the average term
of post-release supervision has greatly lengthened.
As a result, the state is likely to face a flood of extended supervision revocations and a growing population of revokees who would already have served
out their sentences under the old parole system.
Diminishing parole release
Historically, the overwhelming majority of people released from prison have been granted parole.
In 1996, for example there were over four times as
many paroles (2,889) as mandatory releases (690).45
Over the next three years, however, the number of
parole releases fell sharply, while the number of prisoners held until their mandatory release dates rose.
By 1999, there were nearly 50 percent more mandatory releases (2,041) than parole grants (1,385).
After truth in sentencing took effect, the pendulum swung back toward parole for the “old law”
prisoners. Although the proportion of parole-eligible releasees among all those released has fallen
sharply – from 98 percent in 2000 to 48 percent in
the first months of 2004 – more of those who are
parole eligible are being granted parole, and fewer
held until their mandatory release dates.
By 2003, there were nearly as many paroles
(1,522) as mandatory releases (1,579) of “old law”
prisoners. And in the first half of 2004, parole releases (703) exceeded mandatory releases (545) for
the first time since 1998. Nevertheless, the total

JUSTICE STRATEGIES

35

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

number of parole releases is declining
steadily as the pool of parole-eligible prisoners shrinks. As of June 30, 2004, 55 percent
of prisoners were ineligible for parole according to DOC data.

Average anticipated period of post-release
supervision by year of admission
120
100

The extended supervision time-bomb

80

60
The truth-in-sentencing statute requires
40
that an individual who is revoked from extended supervision be “resentenced” to
20
serve some or all of the original extended
0
supervision term in prison. No credit is
Assault
AssaultDrug
Property/
Sex
drug
only
other
assault
awarded for time served in the community
on supervision.
1999
37.7
24.2
20.3
18.5
55.6
As a consequence, the time it takes to
2004
63.5
48.1
38.5
39.3
112.9
serve an extended supervision sentence can
SOURCE: DOC Public Information Data File
far exceed the original term. For example, in
one case DOC records show that it took a
their original maximum discharge dates, much less
person who was sentenced to prison in 2001 poscompleted their sentences. As of June 30, 2004,
session of up to five grams of cocaine with intent to
5,217 prisoners had been released to extended sudistribute 29 months to complete an 18-month
pervision for the first time. Of those released, just
term of extended supervision. The individual in
760 (15 percent) were scheduled to have completed
question – who was revoked from supervision after
their full sentences on or before June 30, 2004.
serving a year of his 18-month sentence in the comWith so few cases available for analysis, the evimunity – ended up spending five additional months
dence
is not sufficient to predict with any certainty
in prison and a total of 24 months on post-release
how
many
TIS releasees will succeed on extended susupervision before finishing his sentence.
pervision,
or how much time those who fail will
In 2001, DOC released an average of 26 TIS
spend behind bars. But preliminary data for the initial
prisoners to extended supervision each month. By
760 cases show a disturbing pattern which could, if it
early 2004, the monthly average had climbed to
continues, have a tremendous impact on the state’s
256. Releases to extended supervision did not begin
prison population. Just 58 percent (439) of those
until 2001 and the median term of extended superscheduled to serve their sentences by June 30, 2004,
vision – even after the TIS II reforms took effect –
managed to reach their maximum discharge dates
is three years. This means that just a fraction of
without being revoked from extended supervision.
those placed on extended supervision have reached
Among the 296 that were revoked, most were eiProportion of extended supervision term
ther in prison awaiting re-release (108) or back on
served behind bars (excluding holds)
extended supervision (79) on June 30, 2004.
Nearly a quarter were “maxed out” (re-sentenced to
serve their entire remaining term of extended suAll
10%
pervision behind bars), with 32 still incarcerated
and 38 out after serving the full sentence.46 One in
Some or all
eight (39) completed their supervision term after
None
25%
60%
being re-released (having served, on average, 40
percent of their extended supervision term in DOC
custody).
Put another way, of 735 people released on exSome 5%
tended supervision (excluding 25 individuals in cusSOURCE: DOC Public Information Data File
tody on June 30, 2004 whose status could not be

36

JUSTICE STRATEGIES

determined): 47
• 439 served no extended supervision time
behind bars
• 39 served some supervision time behind bars
• 187 will have served some or all of their time
behind bars
• 70 will have served all of their time behind
bars
The number of cases examined is too small to
confidently predict outcomes for the thousands who
will be released in the coming years. However, if current patterns were to hold into the future, one in five
incarcerated under truth in sentencing would do all
of their extended supervision time behind bars (80
percent in DOC facilities), and another one in five
would serve 40 percent of the time behind bars.48
As a result, we might expect to see those revoked
from extended supervision serving, on average, 60
percent of the time in prison.49 Even if just a quarter
of individuals revoked from extended supervision
served the full term behind bars and the remaining
three-quarters served only part of the time in
prison, those revoked would end up spending, on
average, 50 percent of their extended supervision
time in prison.50 In other words, 20 percent to 24
percent of all extended supervision time could turn
into prison time.
Prisoners admitted with a new prison sentence
and no violations in early 2004 were likely to serve
an average of 44 months in prison prior to their first
release, followed by 55 months of extended supervision. If just 20 percent of the extended supervision term were spent behind bars, then prisoners admitted in 2004 would spend, on average, 55
months incarcerated and 44 months on extended
supervision – probably much more, since when revoked they receive no credit for the time they already served under supervision. At an estimated annual cost of $28,622 per prisoner, 11 extra months
of incarceration would cost the state more than
$26,000 for each person admitted to prison.
Moreover, these figures probably understate the
future likelihood of failure on extended supervision
since the 760 cases available for our examination involved individuals sentenced to comparatively short
terms of prison and extended supervision during the
early years of truth in sentencing. While the average
term of extended supervision for this group was just
16 months, the median term of extended supervi-

sion for those currently being sentenced to prison
under TIS is 36 months, which greatly increases
their risk of being revoked and having to start all
over again.51
Obviously, before truth in sentencing, individuals on mandatory release or parole supervision were
also at risk of being revoked and spending more
time in prison. But prisoners admitted in the first
half of 2004 faced terms of post-release supervision
that were 77-percent longer, on average, than were
imposed on prisoners admitted in 1999.
Unless something is done to substantially reduce
revocation rates, and/or to shorten the extended
supervision terms imposed, the lengthening of postrelease supervision under truth in sentencing is
likely to translate into significant future prison population growth.

JUSTICE STRATEGIES

37

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Substance abuse, addiction and crime
ubstance abuse and addiction are serious
problems that impose huge human and economic costs on Wisconsin residents. According to figures released by SAMHSA, Wisconsin has
the second-highest rate of binge-drinking in the nation and ranks ninth in alcohol consumption.52 Wisconsin also ranks seventh in alcohol dependence or
abuse and eighth in the proportion of state residents
who needed, but did not receive, treatment for alcohol abuse in the past year.
Although alcohol is the leading substance abuse
problem in Wisconsin, the state ranks in the top half
for cocaine use for all ages (just above Illinois), and
twentieth in cocaine use by 12 to 17 year-olds. It is
estimated that 7.5 percent of all residents, and 19
percent of 18 to 25 year-olds, have used illicit drugs
in the past month.
For too many years, Wisconsin policymakers
have relied heavily on law enforcement and corrections to address the state’s substance abuse problem
and have allowed treatment to remain underfunded.
According to the state’s Bureau of Mental Health
and Substance Abuse Services (BMHSAS) roughly
450,000 adults and adolescents in Wisconsin have
substance abuse disorders, with just 13 percent of
that number (58,320) receiving treatment in
2003.53 BMHSAS estimated that, in 2000, there
were over 43,000 uninsured state residents whose
substance abuse problems could not be treated because of a lack of public treatment dollars.54

S

Treatment capacity
Constrained by tight budgets, Wisconsin’s substance abuse treatment infrastructure falls far short
of meeting the needs of state residents. Public substance abuse treatment admissions grew by less than
two percent over the most recent five-year period
for which data is available: from 29,126 in 1998 to
29,596 in 2003.55 By comparison, new nonviolent

38

drug prisoner admissions rose by 20 percent over
the five-year span. In 2003, the state had 606 certified substance abuse treatment facilities, just 22
more than in 2001.56
A 2003 survey of county substance abuse treatment services found that 1,189 treatment applicants were placed on waiting lists for at least two
weeks, most for outpatient treatment.57 Another
940 patients were discharged early from treatment
because county funds were insufficient. These figures do not include Milwaukee, which had not
fully reported 2003 treatment services data. According to the director of one agency that provides
services to the criminal justice population in Milwaukee, very few treatment slots are available for
court-involved individuals, and waiting lists are as
long as six months.
An analysis of gaps in the state’s substance abuse
treatment capacity published by the University of
Wisconsin Medical School in August 2002 estimated that a third of those in need of publiclyfunded treatment actually received it.58 The report
projected the annual cost of closing the gap at $40
million a year.
According to BMHSAS, total spending on treatment in Wisconsin – including federal, state and
county government funds as well as private insurance and out-of-pocket expenditures by patients –
was nearly $100 million in 2002.59 While significant,
that figure is dwarfed by the $1 billion annual DOC
budget, not to mention the hundreds of millions of
dollars spent on law enforcement in the state.
The average cost of publicly-funded treatment
in 2003 ranged from $4,256 for residential treatment (an average 38 days) and $4,312 for halfway
house care (56 days) on the high end; to $1,121
for intensive outpatient treatment (30 hours) and
$732 for outpatient group treatment (22.2 hours)
on the low end.60 The typical term of outpatient
treatment in Wisconsin – 158 to 194 days between

JUSTICE STRATEGIES

admission and discharge – exceeded the national
120-day benchmark in 2003.

Growth in treatment and drug prisoner
admissions: 1998 to 2003

Criminal justice treatment needs

25%

DOC data show that OWI and drug offenses accounted for 60 percent of all prison population
growth over the last five years. Further, of the top
four offenses that drive prison admissions according
to the state’s Sentencing Commission, three are directly connected to substance abuse (cocaine delivery/possession with intent up to one gram, operating under the influence and cocaine delivery/PWI
of one to five grams), and the fourth, burglary, is
often driven by addiction according to judges and
other criminal justice professionals.61
Many of those caught up in the state’s criminal
justice system have substance abuse problems. A
1998 study conducted by researchers at the University of Wisconsin - Milwaukee found that nearly two
in five arrestees tested positive for illicit substances,
while a third were diagnosed with an alcohol or
drug dependency disorder.62 The study consisted of
interviews and voluntary drug tests conducted with
arrestees from Milwaukee and a cross-section of
counties with medium-sized and small cities, including Dane, Racine, Outagamie, Brown,
Marathon, Wood, Manitowoc and Portage.
The researchers found that alcohol was the most
commonly abused substance statewide, but that in
Milwaukee County, the majority of arrestees tested
positive for one or more controlled substances,
most often cocaine (33 percent) and marijuana (27
percent).63
Just one in ten study participants with substance
abuse problems were in treatment at the time of arrest, although most had received treatment at some
time in their lives. Half of those interviewed (51
percent) expressed a desire to enter treatment. The
research team estimated that 65,000 arrestees were
in need of substance abuse treatment statewide, a
figure that does not include individuals in need of
drug education (those who did not meet clinical criteria for dependency disorders).
The researchers recommended that alcohol and
drug abuse screening be provided for all persons entering the criminal and juvenile justice systems They
also recommended that community-based treatment should be pursued as an alternative to jail or
prison, both pretrial and post-adjudication, and that

20%
19.5%

15%
10%
5%

1.5%

0%
Publicly funded substance abuse treatment

Prison (nonviolent drug
offenses)

SOURCE: DOC Public Information Data File

relapse prevention support be provided to those reentering the community from prison.
DOC data, which identify prisoners who require
clinical substance abuse treatment and/or drug education, show that 83 percent of the standing
prison population has an alcohol and other drug
abuse (AODA) programming need. Among individuals incarcerated for drug offenses, those whose
convictions involved the smallest amounts of drugs
were most likely to have substance abuse problems.
Four in five prisoners (81 percent) serving time for
delivery/PWI of cocaine up to five grams had identified AODA needs, compared to 71 percent of
those whose offenses involved more than 40 grams.
Many prisoners with substance abuse problems
are not receiving AODA services while they are incarcerated. Figures provided by DOC for 2004
show that, of 1,955 prisoners with AODA needs
who were released after two or more years of incarceration, nearly 400 had not received substance
abuse treatment because services were unavailable.
Supporting documents that accompanied the Governor’s proposed 2005-2007 budget show that the
proportion of prisoners on waiting lists for AODA
services – 13.4 percent – has remained virtually unchanged since 2000.

County-specific treatment gaps
In 1999, researchers and public health officials
conducted a comprehensive assessment of substance
abuse treatment needs and capacity at the county
level.64 Using the estimated prevalence of substance
abuse disorders, combined with other indicia such
as drug arrests, substance-related hospitalizations
and alcohol-related crashes, the study team assessed

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

the severity of each county’s substance abuse problem as well as the gap between the need and the
level of services provided.
The authors determined that, with the exception
of rural Florence County, Milwaukee had the largest
“treatment gap” in the state. Milwaukee residents
were no more likely to have substance abuse disorders than other state residents, and the county actually treated a higher percentage of those in need (27
percent vs. 21 percent statewide). But the researchers concluded that the severity of Milwaukee’s

Milwaukee share of law enforcement,
corrections and treatment resources
70%
60%
61%

50%
47%

40%
30%
20%

27%

10%

12%

0%
Drug arrests
(all)

Drug sale
arrests

Nonviolent
drug prison
admits

Substance
abuse
treatment
admits

SOURCE: DOC Public Information Data File, Office of Justice Assistance, Bureau of
Substance Abuse and Mental Health Services

substance problem was much greater, as indicated
by high levels of substance-related law enforcement
activity.
The research leads to two conclusions. First, substance abuse has even more serious consequences in
Milwaukee than elsewhere, a result that was linked
to the lack of employment and educational opportunities by nearly every judge, prosecutor, defender
and social service provider interviewed.
Second, resources for combating substance abuse
have been invested disproportionately in law enforcement, generating thousands of arrests and
prison admissions without addressing the root
problem. Milwaukee County, which comprises 17
percent of the state population, accounted for 27
percent of all drug arrests, 47 percent of drug sale
arrests, and 61 percent of new prison admissions of
drug offenders in 2003.
When it comes to treatment, however, the most
recent available data show that Milwaukee accounted for just 12 percent of publicly-funded admissions (2000).65 With the number of substancerelated arrests and criminal cases far outstripping
treatment capacity, it is not surprising that Milwaukee court officials say waiting lists are too long for
treatment to be a realistic sentencing option.
Milwaukee was not the only county with a large
treatment gap. Several rural and mid-urban counties

Substance Abuse and Mental Illness – Overlapping Treatment Needs
If substance abuse is the number one problem in
the state’s criminal justice system, then mental illness
comes in a close second. The relationship between
mental health and incarceration is receiving greater attention as both corrections and mental health professionals become increasingly aware of a growing population of mentally ill prisoners and detainees. According to a 2000 investigative report by the Milwaukee
Journal Sentinel, there were between 3,000 and 4,000
chronically mentally ill prisoners in the state system –
15 to 20 percent of the population.67
Prisons and jails are generally ill-equipped to handle the mentally ill, who have trouble conforming to
rules and are disproportionately likely to be confined
in segregation units for disciplinary violations that
stem from an illness over which they have no control.
On the other hand, the harshness and isolation of
prison life, combined with a lack of appropriate medical and psychiatric care, can cause the condition of

40

mentally ill individuals to worsen.
A 2003 report by Human Rights Watch and the National Alliance for the Mentally Ill found that, nationally, the mentally ill were under-treated and subject to
frequent abuse in prisons and jails.68 The incarceration
of mentally ill prisoners in near-total isolation at Wisconsin’s “Supermax” facility, which ended as a result of
a lawsuit brought on behalf of prisoners by the American Civil Liberties Union’s National Prison Project, is a
case in point.
Co-occurring substance abuse and mental health
disorders are a common phenomenon and a difficult
problem to treat. Most substance abuse treatment
providers surveyed by BMHSAS in 2003 indicate that
they screen for mental illness (89 percent), and over
two-thirds said they provide co-occurring treatment.69
However, some social service professionals that work
with the criminal justice population report great difficulty finding co-occurring treatment for their clients.

JUSTICE STRATEGIES

had much lower levels of controlled substance-related law enforcement activity but higher levels of
alcohol-related problems such as drunken-driving
accidents and alcohol poisoning deaths. Adams,
Buffalo, Florence, Iron, Kenosha, Menominee,
Walworth and Washburn all received high “alcohol
problem” scores and were found to have large treatment gaps. Aside from alcohol, criminal justice professionals say methamphetamine use is putting increasing strain on both local law enforcement and
treatment resources in western Wisconsin.
In rural areas, where treatment professionals and
specialized programs can be hard to come by, people with substance abuse disorders were least likely
to receive treatment. Of 27 counties that treated
less than 10 percent of the estimated population in
need, all but one had populations under 100,000.66

Evidence of substance abuse treatment
efficacy
Viewed from both an economic and public safety
standpoint, the choice between prison and substance-abuse treatment for most individuals convicted of nonviolent offenses should be an easy one.
A growing body of research completed since the
start of the “war on drugs” indicates that a rational
cost-benefit calculation favors treatment handsdown.
The landmark RAND Corporation study comparing the impacts of different law enforcement
strategies to treatment for heavy users of cocaine
found that treatment is far more effective than
mandatory minimum prison sentences. The RAND
research team estimated that money spent on treatment for people prosecuted on federal cocaine
charges should reduce serious crimes against both
property and persons about 15 times more effectively than incarceration.70
The U.S. Department of Health and Human
Services evaluation of clients in publicly-funded
treatment programs found that drug use dropped
by 41 percent in the year after treatment. The proportion of clients selling drugs dropped by 78 percent and the proportion arrested on any charge
dropped by 64 percent.71
The “CALDATA” study in California found that
for every tax dollar invested in substance abuse
treatment, taxpayers saved seven dollars in future
crime-and health-related costs.72

Staff at the Washington State Institute for Public
Policy conducted extensive research on the costs
and benefits of program interventions that might be
expected to reduce crime. Findings released in 2003
show that for those convicted of drug offenses, a
dollar invested in imprisonment produces just $0.37
in crime reduction benefits, while Washington’s
drug courts produce $1.74 in benefits for each dollar spent.73
A recent study of the Drug Treatment Alternative to Prison (DTAP) program conducted by the
Center on Addiction and Substance Abuse at Columbia University (CASA) found that treatment is
effective, even for individuals with very significant
criminal histories. DTAP, which is run by the office
of the District Attorney in Brooklyn, NY, treats repeat felony offenders addicted to heroin, crack and
powder cocaine who have already spent an average
four years behind bars. Despite the obstacles, more
than half graduate from the program.
CASA researchers found that DTAP participants,
who receive 15 to 24 months of residential drug
treatment, were less likely to be re-arrested or re-incarcerated than members of a matched comparison
group who were sentenced to prison. After two
years, those placed in DTAP were 26-percent less
likely to be arrested, 36-percent less likely to be reconvicted and 67-percent less likely to return to
prison than the matched comparison group.
Research conducted in Wisconsin by staff at the
Department of Health and Family Services also supports the conclusion that substance abuse treatment
“works.”74 According to the most recent DHFS figures (2003), nearly half (47 percent) of patients
who entered outpatient treatment – and 63 percent
of patients who entered residential treatment –
completed successfully and saw moderate or major
improvements.75 Wisconsin’s outpatient treatment
completion rate compares favorably to the nation as
a whole and the inpatient completion rate is similar.
A statewide study of outcomes at ten treatment
agencies commissioned by DHFS found substantial
reductions in substance use and arrest rates. The research findings are based on agency records and interviews conducted with 409 treatment program
participants at admission, as well as follow-up interviews conducted with 190 participants four to six
months after discharge.
Alcohol was the primary substance abused by the

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41

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

large majority of all participants (77 percent), followed by marijuana (eight percent) and cocaine
(seven percent). Just under half had been arrested in
the year preceding treatment and two in five had a
co-occurring mental health diagnosis.
Among patients who participated in follow-up interviews, the proportion abstaining from alcohol
more than doubled – from 23 percent reporting no
alcohol use in the month before treatment to 55 percent in the month before follow-up – even after adjusting for self-report and response bias.76 Further,
the proportion with stable living situations had increased from 72 percent to 88 percent at follow-up.
While nearly half (46 percent) of participants had
been arrested in the year preceding treatment, fewer
than one in five (18 percent) reported being arrested between treatment admission and follow-up.
The average number of arrests dropped from 0.7 in
the year before admission to 0.3 by the time of the
follow-up interview.

Treatment for methamphetamine
addiction
The spread of methamphetamine across western
Wisconsin has raised questions about whether, and
under what conditions, methamphetamine users can
be treated successfully. As indicated by comments in
the focus group discussed below in Chapter IV,
some judges in the region worry that methamphetamine addiction is an intractable problem.
Although methamphetamine has emerged as a
relatively new problem in Wisconsin, public health
agencies and treatment providers in the western
United States have been dealing with the drug for
more than a decade. Their work has provided convincing evidence that methamphetamine users can
be treated successfully in an outpatient setting.
In 2004, researchers published the results of the
largest randomized clinical trial of treatments for
methamphetamine to date, funded by SAMHSA’s
Center for Substance Abuse Treatment (CSAT), in
the journal Addiction. 77 The research project compared outcomes for 978 methamphetamine users in
eight sites who received intensive outpatient treatment. Half received treatment based on a model developed by the Los Angeles-based Matrix Institute,
while the other half received “treatment-as-usual”
(including one drug treatment court program).
Investigators found substantial reductions in
42

methamphetamine use as well as gains in other life
areas, both during treatment and at the six-month
follow-up, for Matrix Model and treatment-as-usual
participants. In the month preceding treatment, the
subjects – a racially, ethnically and socio-economically diverse group whose history with the drug averaged 7.5 years – used methamphetamine an average of 11.5 days. By the time participants left treatment, average use had fallen by nearly two-thirds to
four days per month.
The gains, which occurred for both Matrix
Model and treatment-as-usual patients, were sustained six months after the end of treatment, with
69 percent testing negative for methamphetamine.
Participants also showed significant improvements
across the drug, alcohol, psychiatric and family domains of the Addiction Severity Index. While both
groups made significant progress, Matrix Model
and drug court participants were most likely to
complete treatment, test negative for methamphetamine and remain abstinent during treatment.
Previous research also demonstrates the effectiveness of Matrix Model outpatient treatment for
methamphetamine users.78 In 1997, Matrix staff
compared the records of 500 methamphetamineabusing patients and 224 cocaine-abusing patients
who were treated at the organization’s Rancho Cucamonga, California office over a seven-year period
ending in 1995. They found that methamphetamine and cocaine users had similar, and positive, responses to treatment.
Matrix staff also conducted follow-up interviews
and drug testing with a sample of the 500 methamphetamine users. Results for 114 patients who were
located, and who agreed to participate, were very
positive. The proportion reporting methamphetamine use had declined from 86 percent in the
month before treatment to just 17.5 percent two to
five years later. Further, just 6.5 percent of 46 individuals who participated in follow-up urinalysis
tested positive for methamphetamine.

JUSTICE STRATEGIES

What judges say about the problem
nlike many states, where judges’ hands are
tied by mandatory minimum sentencing laws,
Wisconsin’s judges enjoy broad discretion in
deciding whether, and for how long, an individual
should be sentenced to prison.
In February and March of 2005 the Justice Strategies research team assisted the Wisconsin Sentencing
Commission in designing, conducting and documenting a series of focus groups involving judges representing three different regions of the state. The
focus groups were convened at the request of Senator
Carol Roessler, who sought the commission’s help in
determining “the size of a pool of potential candidates who, if diverted from incarceration to treatment, would free up a significant number of prison
beds, thereby providing fiscal savings that can be used
to fund the expansion of treatment services.”79
The focus groups were convened at locations
within three diverse areas of the state: in Appleton,
to draw from courts in Judicial District Eight, located in the Fox River Valley area; in Milwaukee, to
draw from District One, the state’s largest urban
courts; and in Barron, to draw from courts in District Ten, the mostly rural northwestern and westcentral part of the state. Sentencing Commission
staff requested that district court officials ensure
that participants reflect the range of experience and
philosophical approaches to sentencing within the
jurisdiction. Each session involved ten judges, including the district chief judge from that jurisdiction. The Barron group was joined by the district
chief judge from neighboring District Seven.
The 90-minute sessions were structured with a
set of specific pre-determined questions, although
the discussions were allowed to evolve as judges
raised issues and posed questions to each other. The
sessions were not tape-recorded, but detailed notes
were taken by at least two non-participant observers
in all three groups, and by three in two of the
groups. The notes were transcribed and compared

U

for concurrence among Sentencing Commission
staff and Justice Strategies researchers.
The judge-participants represented a broad
cross-section of views and experience, yet they expressed substantial agreement on three points:
• That a greater number of effective substance
abuse treatment options are needed and would be
well utilized by Wisconsin’s judges;
• That provision of more treatment options
must go hand-in-hand with efforts to build more
systematic and comprehensive approaches to identify defendants with substance abuse problems and
provide them with more effective supervision in the
community; and
• That increasing the supply of treatment options and upgrading community supervision could
substantially reduce correctional costs and enhance
community safety.
The focus group discussions revealed that there are
major differences in drug-related crime patterns, as
well as in judicial concerns about the problem of substance abuse, in different localities across the state.
Judges from the Fox River Valley courts were primarily
concerned about the need for better tools to address
the alcohol problems of defendants in drunk-driving
cases. In Milwaukee, judges said that nearly all of the
defendants who come before them need basic social
supports – education and employment opportunities
– in addition to treatment, and that the lack of strong
community supervision and the limited capacity of existing programs were the primary problems they have
to wrestle with. Judges in the Barron group indicated
that while marijuana offenses are still the most common, methamphetamine abuse has emerged as the
most difficult problem they must address.

Reviewing current sentencing practices:
Asked about their current sentencing practices,
and about the characteristics of individual defen-

JUSTICE STRATEGIES

43

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

dants that may shape the choice between probation
or prison, most judges in the Appleton and Barron
groups said that they are reluctant to use prison as
the first option with people charged with low-level,
nonviolent crimes.
“I consider prison a limited resource and try
to use it really sparingly, for violent, assaultive
crimes. I presumptively look at cases with
drugs and try to divert.”
Many judges said they saw motivation as the primary factor in drug cases.
“I put drug offenders into two categories: 1)
dealers for profit and 2) dealers for habit/survival. In my court a user/dealer might get a
break. But if you’re a dealer doing it for profit,
I’ll send you to prison the very first time.
We’ve got dealers bringing crack in from Milwaukee and Chicago, making massive profits.
For them, probation is no deterrent and
they’re going straight to Waupun.”
“Generally speaking, I don’t use prison as a
sanction unless the case involves serious violence – or with drug cases, unless the defendant is a real dealer: someone who is out there
selling just to make money, and probably
using other people to conduct their business.
The small-scale guys… just dealing to have
enough for their own use – I don’t put them
in prison. I view treatment as a good option
unless there’s an issue of violence, or a real
need to protect the community.”
Defendants with education, jobs, steady home
lives, and good support networks were considered
good risks for probation and treatment. Some
thought women were better risks than men – some
thought that risk factors are more “gender-neutral.”
“I look at factors like where the defendant has
a good job… whether they’re on probation at
the time of the offense…”
“Women are more amenable to treatment options because they’re more willing to talk
openly about their problems, while men are
not. Gender doesn’t affect the sentence, but it
is taken into account.”
“And because they’re more likely to be careproviders – and we know they’re less likely to
44

be violent.”
Some said that a person’s prior criminal record or
their treatment history mattered most.
“How I handle these kinds of defendants depends on their past record. If it’s minor, no
more than one or two prior burglaries – no
armed robberies – I’ll use a treatment alternative.”
“Or if they’re on probation with treatment
but I hear their attendance is spotty – they
show up for the first session, miss the next
two, turn up for the fourth – they’re going to
prison. I usually don’t give second chances if
they fail treatment.”
“I use probation for guys with, maybe, one
prior – where the amount of drugs involved is
small, maybe a quarter-ounce of marijuana –
and the guy is young… what matters to me is
the quantity of drugs; the number of times
they’ve been before the court before; the
number of times they’ve been through treatment. If they’ve completed treatment but are
out getting high again…”
Others said that relapse was to be expected, and
were somewhat more willing to try treatment more
than once if there were reasons to expect success.
“I don’t have a strict rule about whether
they’ve been through treatment before or
not. They might have been sent to treatment
several times before and failed – but this time
it might be the exception. Also, if the agent
has a positive response. I’ll go out on a
limb…”
Some judges in the Fox River Valley group advocated that alcohol treatment interventions be targeted for people before they commit the fifth drunkdriving offense that boosts them to the felony level.
“The ‘on the bubble’ cases that are hardest for
me are the 5th-time OWIs. Supposedly
they’ve gone through treatment, but how do
I know if they really did it? I’m wanting to
give them another chance – yet what if they
go out next time and kills somebody? It’s hard
to justify sending them to prison, but there
could be huge consequences if I put someone
on probation and they get in trouble.”

JUSTICE STRATEGIES

I think the 5th OWI’s need to go to prison.
The guy’s got lots of priors and had every
chance — but the agent says, “We’ve gotta
program for this guy…” I say “Where we you
four or five offenses ago… 2… 3… 4… 5…
offenses ago?”
Yeah... where were they at the 3rd alcohol offense? There has to be earlier intervention. A
defendant can’t even be put on probation
until the 4th offense.
There was little consensus about the effectiveness
of coerced treatment. Some judges said that people
have to be ready and willing to participate before
they would impose a treatment alternative.
“There is a certain group of people who
should definitely have drug treatment, but I
wouldn’t give it to them because they haven’t
exhibited the readiness for change.”
“There should be a component where the defendant asks to get put into a program rather
than be forced into one. Most of them don’t
realize how bad they have it. They need to
want to get treatment in order for it to be effective.”
Others disagreed.
“We just had a meeting with our providers
and they indicated otherwise. They say that
people ordered to treatment can get as much
out of it as those who seek it out themselves.
The providers don’t care how or why the defendants are there. What matters is the quality
of the treatment, not whether they want to be
there. It’s like in drunk-driving cases where
they don’t think they need treatment – but
treatment can still make a difference. They all
have the same chance at success.”
Judges from the northwest/west-central area
courts described their efforts to cope with the recent influx of cases involving methamphetamine.
“Of course meth is not the most prevalent
drug problem in this region. Pot still ranks
number one around here, by far. Marijuana
cuts into every social strata. We see a lot of
high-school students. And the middle-aged
hippies – they grow their own and they’re
gonna keep using no matter what we do. But

meth is really making inroads with the middle-class folks.”
“These days I’m seeing more and more middleclass people involved with meth. They get
hauled over in a traffic stop, and the cop says
there was meth on the console. Or it’s a domestic violence call, and the cop finds meth on the
bureau drawers. It’s invading the ranks of our
middle-class home-owners: people with jobs;
people who are otherwise upstanding citizens.”
Judges’ assessments of the methamphetamine
problem ranged widely. Some judges believe that
the drug has a unique power over addicts.
“‘Meth is the most powerful drug there is.
I’ve talked to some of these guys – “You’ve
just got out of prison – what are you going to
do now?’ ‘Well… to be honest, judge, if I get
the opportunity to get high, I probably will.’”
Others expressed a more moderate point of view.
“We need to really focus on treatment. It’s
not like meth is some scary, sneaky new drug,
some secret scheme cooked up by Dr. No.
Meth has been around since the 60s and 70s.
These things come and go in phases. The
point is that these kinds of things follow a
pretty uniform pattern. A tiny percentage –
maybe one percent – will fall into real addiction, whether it’s coke, crack, or alcohol.
Most folks will just try it and get out. That
‘use it one time, and you’re hooked for life’
story… that’s just ridiculous.”
There was no consensus about what constitutes
effective treatment for people addicted to the drug.
Some judges expressed a belief that it is necessary to
impose a period of sobriety by jailing addicts for
many weeks before treatment could begin.
“To get through to any of these folks with effective treatment takes getting them sober for
at least four to six months. Right now there’s
only one place I can use for that purpose: jail.
They have such an appetite for it… will go to
any lengths to get it… It takes four months
before they can even start to deal with treatment. But that’s a huge upfront cost.”
But other judges were confident about using
other approaches effectively.

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

“It’s not just what you hear from law enforcement – that there’s no effective treatment. If
you listen to the folks at Hazelton, they’ll tell
you that treatment might just take a little
longer…”
“I may not want to put them in jail to enforce
abstinence. I’d rather have them drop a urine
sample every day.”

The need for more treatment options
and stronger community supervision:
Judges in all three focus groups expressed some
level of frustration with the current options available
to them in handling low-level, nonviolent drug
abusers. They pointed out that most people involved in serious drug trafficking end up in the federal courts. Most judges indicated a belief that incarceration is not the most constructive route to address the substance abuse that underlies the relatively low-level criminal behavior they see in their
courts.
“Prison is a total waste – and the economic
impact on the families the – dependant mom,
the kids – can be horrendous.”
“Everyone will do their time, get out, and get
wasted… They’re back before us regardless.”
“Yeah… It’s like, “We’re going to teach you to
swim by throwing you into seven feet of water.
If that doesn’t work, we’ll try 20 feet. If you
still can’t swim we’ll haul you out to the middle of Lake Michigan and dump you in…”
“You can’t even be sure they’re clean in
prison. I hear that even in our local jail there’s
some availability of drugs.”
Some judges complained about the length of
time people have to spend in prison before they are
admitted to treatment.
“We’ve been told that if you’ve put them in
for less than two years they can’t get treatment.”
“My understanding is if they need drug treatment, I’ve got to send them to prison for 5?
years. That’s just wasting 4-1/2 years!
And some coupled this with a complaint that
once a prisoner is released, there’s little done to help
them stay drug-free, and that in the absence of
46

good aftercare, whatever benefit was accomplished
with treatment in prison is lost.
“We understand it takes at least two years to
get them treated in prison. But here’s the
problem: they come out clean and then
there’s nothing. At best they get a one-month
stay in a local hotel.”
“I sentence them to two years plus extended
supervision. Extended supervision is horrible
is my county. When they get out after two
years in prison with treatment, they get out
with no help.”
Judges in all three focus groups said that a substantial majority of the people who come before
them on criminal charges in their courts have alcohol and substance abuse problems, and that substance abuse underlies or contributes to their criminal behavior. In Milwaukee, judges described the
problem as pervasive.
“Drugs drive all our crime, the whole caseload. The economics of the whole criminal
justice system here is driven by addiction.”
“Burglary; robbery; drug sales – it’s all about
how they finance their habits.”
“There are some cases where dealing is the
main thing. But for most of the cases in drug
court, addiction is the main problem.”80
Access to programs for court-ordered treatment
was described as problematic by judges in all three
focus groups. In rural areas this problem is exacerbated by the distance people have to travel to receive treatment.
“We should be providing treatment in every
community. Some people are ordered to go to
programs 40-45 miles from their homes that
can’t even drive – people who’ve had their licenses suspended because of a drug arrest.”
Waiting lists are endemic and discourage judges
from making greater use of these options.
“We have no expectation that they’ll get treatment. There’s a long waiting list.”
“There are treatment programs out there…
and halfway houses… maybe six different options, but none of them offer more than a 21-

JUSTICE STRATEGIES

day program. The problem is the cost of treatment. It’s expensive. If probation can pay,
you’re looking at a 1-2-3-month waiting list.”
Many judges expressed a lack of confidence that
the probation system makes the necessary arrangements to secure appropriate treatment placements
or to gain compliance from probationers when
treatment is ordered.
“I’ve got no confidence in treatment at all. If I
put them on probation supervision, what do I
know about what happens? Maybe if they were
followed more closely… I have more faith that
something is happening in prison. But on the
other hand, prison is just a black hole.”
“As it is now, I’ve been led to understand that
I have to put them on probation for 14
months if I want to be sure there’s enough
time to have their AODA need addressed.”
“The PSI recommendations for treatment are
good – but then you don’t know if people get
what’s been recommended. The agents who
conduct the investigations and fill out the reports are guessing just like me.”
Milwaukee judges were particularly concerned
about the need for a more reliable system to secure
appropriate treatment placements and more effective supervision of those in treatment.
“When you talk to people about what happens on probation, you find out that they’ve
never had treatment. Maybe they never even
had an AODA assessment, or got a referral.
Sometimes they’ve been stuck on a long waiting list. Sometimes they were referred to go
check it out – but they didn’t go.”
“I’m seeing a lot of people going into that
cycle. Treatment was ordered the first time
around, but they never got any. They only get
it when they screw up.”
“Even when they’re using – when urine tests
are positive – it’s a fluke that they get caught.
There are no consequences when guys test
dirty, even if we’ve granted probation blanket
authority. Most important: they’re not actively putting people into treatment… not
putting something in their lives that constructively occupies the space…”

“We’ve been looking at putting more alternatives on the front-end – more pre-trial services. But state officials tell us that even though
we just got a new $21 million Access to Recovery grant, the waiting lists aren’t going to
be eliminated. I don’t understand why – but
that’s what they’re telling us.”
While the judges who met in Barron expressed a
good degree of confidence in the community supervision agents that work in their jurisdictions, it is
clear that on the whole, judges believe that Wisconsin’s community supervision capacity is overwhelmed, and needs to be bolstered with additional
resources – especially in Milwaukee, where the need
for more effective supervision is greatest, and probation caseloads are greatly overloaded. Supervision
caseloads for probationers placed in treatment need
to be low enough to make oversight meaningful.
“I’m very happy with our agents. We have a
very good relationship with them.”
“I don’t want to trash the front-line supervision agents because they’ve got a lot of very
serious, violent people to deal with. They just
don’t have the time to look closely at everybody – and they’ve got to let some folks slide.
For the most part they’re overtaxed. If we
don’t put money into the front end, it can’t
work on the back end.”
“If probation was able to offer the things that
really work, we wouldn’t have to talk about
setting up special treatment courts or day-reporting centers… Problem is, we don’t have
enough resources, enough money to even do
what we’re trying to do now. What we should
really be talking about is how to get more
money and resources in the community instead of in the courts.”
While the extended supervision provisions of Wisconsin’s truth-in-sentencing policy are still too new
for much to be known about the impact of this new
type of post-prison community supervision, some
judges expressed concern that the system is suffering
from similar problems, and that the length of the
terms being imposed in many cases is far too long.
“I just had two extended supervision cases
this morning – and they both had drug issues.
All of us in the felony arena are getting tons of

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

them back. I don’t want to call it re-sentencing. I’ve been starting to gauge how long it
takes them to come back to us. It’s within a
year – usually it’s just three to six months –
after their release.”
“When the study committee conceived of extended supervision they anticipated a change
– they anticipated resources that didn’t exist.
Ultimately, it’s just the same as parole.”
“You order conditions – no alcohol; no drug
use – but you don’t know if they are enforced.”
“The thing is, you put them on for a heck of
a long period of time. I was giving out a lot of
ES at the beginning of TIS, but I kept seeing
the offenders come back because they failed
once they were on it. It’s very unlikely that
someone can be perfect when they are on ES;
the longer the time on ES, the greater likelihood that they will fail. So, I started changing
my strategy. I now give less ES time.”
“We’re dealing with a moral imperative here:
a person can do well for almost the entire period of ES, but then they might make a mistake in the last month and have to go back in
prison for the whole time! I’ve seen ES terms
set as long as seven or eight years. Is it fair to
keep them on ES that long with that kind of
hammer hanging over them?”
There were many comments about the counterproductive consequences of some current policies –
such as the law that requires suspension of driving
privileges for six months when people are convicted
of drug offenses – and about the need for more flexible use of judicial discretion to ameliorate some of
the collateral consequences of criminal convictions.
“A kid gets caught with drug paraphernalia,
and we are required to revoke his driver’s license for six months. You know he’s got to
drive to keep his job, and you knows he’s
gonna do it. But once he’s back on their third
OAR, he’s really behind the 8-ball, and the
DA wants some time. Or, if he loses his job,
what do you think he’s going to do? You can
guess what else he knows how to do to get
by… Or the single mom who forges a prescription – and now it’s six months with no
48

driver’s license and her life is shot. I don’t
know what kind of program offers an option
for these folks.”
“The state needs to look at how the law treats
the lowest-level drug offenses. There’s got to
be some way of dealing with cases involving
miniscule amounts of residue without the offender ending up with a felony record. Between the felony-level convictions, the suspension of driving privileges, and the various
the mandatory rules we’ve attached to drug
offenses, we’re creating a whole class of social
outcasts. They need to give us some room to
deal more constructively with folks like this:
Let us allow people to drive if they need to.
Help them with employment… with housing.
Let us expunge their conviction record if they
succeed.”
“An agent told me that they have more treatment options with felonies than misdemeanors. That’s why it would be so helpful to
provide judges with authority for reducing
felonies to misdemeanors at the end of successful supervision. There’s so much more supervision agents can do when the case is at the
felony level.”
Judges in all three focus groups maintained that
more treatment options were needed, and would be
welcomed by their colleagues on the bench.
“It’s not surprising that you have an addicted
person in drug court that comes back with a
positive test. They aren’t just going to go
away and sin no more. But are we just going
to keep locking them up? We need some tools
to divert them from the system.”
“We’re don’t have that prison mentality – we
do diversion. But we need to do it with a treatment component up front to increase the
chances it won’t just bring them back into the
system.”
“What’s really important is making treatment
more available. There needs to be treatment
facilities available for offenders in their own
communities.”
“The state needs to make a huge commitment
to treatment – just like they’re willing to make

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to law enforcement. And that’s got to dovetail with mental health services too.”
Some judges urged that policymakers develop a
more coordinated state-wide strategy and work to
create a spirit of collaborative partnership with
counties and regions.
“Right now there is a lack of cooperation.
Things are way too fragmented here. We need
a state-level treatment strategy… a coordinated drug court strategy. But it can’t be another unfunded mandate. The counties have
to get some funding to do this. And the funding has to be sustained. In my jurisdiction,
we’ll get a three-year federal grant for a program, but when the three years are up, and we
go to the county board, it’s “No way, Jose!” If
what’s being planned is done like that, it will
all be gone in five years.”
Judges in one district had already tried to convince lawmakers that funding for treatment should
be scaled-up to match the level of resources provided for drug enforcement.
We talked to Senator Feingold and Senator
Kohl back when they were working on a new
federal appropriation for Wisconsin’s drug
task forces. We said, “Give us an equal
amount of money for treatment as for law enforcement.” They got the state another halfmillion for extra drug enforcement officers,
but no extra resources for treatment. It all depends on where the resources get pointed.”
Asked to describe program models that inspire
confidence, judges expressed a need for treatment
programs of sufficient intensity (daily treatment sessions for many clients, at least in the initial stage of
treatment), and adequate duration (a regimen lasting months, not weeks), that should include a range
of services designed to return the offender to a productive, tax-paying role in their communities. In
Milwaukee the Community Justice Resource Center and the Benedict Center’s program for women
are very highly regarded, but judges say the small
capacity of the programs restricts their use to a mere
handful of the potential candidates.
“I’ve been very impressed with the Community Justice Resource Center. They have to be
there every day. They’re signed out to go to

treatment. There’s follow-up supervision –
and if they’re not there, if they screw up,
something happens. If I want them to be supervised, I’ll send them there.”
In every focus group judges expressed the belief
that to be successful with many of the people they
see before them in court every day, substance abuse
treatment needs to be bolstered by effective supervision and provision of other vital “wrap-around”
services. Milwaukee judges, whose dockets are
loaded with people from impoverished urban neighborhoods, were particularly emphatic on this point.
“What I understand from my experience with
the FDOATP program is that these people are
so incredibly needy. They don’t have the education… only a 3rd or 4th grade reading
level… they don’t have any family support – so
to say you can turn their lives around in eight
or twelve weeks… It’s an unrealistic expectation that four months of treatment will work.”
“Treatment isn’t going to work in a vacuum.
The approach has to be multidisciplinary. We
need to look into other parameters in addition to treatment… do something about the
inadequacy of probation supervision.”
“It’s really just common sense: Cut the waiting lists for treatment. And you’d have to
offer some real alternatives… some jobs.
There’s got to be something at the end of the
rainbow.”
“Another problem is that after they’ve come
out of a treatment program, some of the
halfway houses are in areas where the drug
dealers are just a block or two away, pulling
them back into their old life… I don’t know
how we address that.”
“People have to get comprehensive wraparound services. It has to be a whole package:
We’re talking about hygiene, about motivating
them; really basic things – lifeskills; literacy;
health education – the things that they’d get if
they were in an intact family, with supportive
parents. The people going into these program
lack nurturing. What’s needed is a one-stop
shopping program – it’s got to all be there.”
“What’s imperative for the type of individual

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

we’re dealing with in the drug arena is a onestop shopping approach… It should be like
going to high school. They need to have a
schedule from 8:30 to 4:30: First, AODA
treatment. After that, GED… then vocational
skills… In a setting that offers it all, across the
board. I would definitely like to see more dayreporting centers.”
“That’s where the Community Justice Resource Center comes in. They can provide
them with something really substantive – jobs;
education; treatment; parenting skills…”
Many judges had examined therapeutic treatment court models in other jurisdictions. Some
judges expressed enthusiasm about establishing a
drug court in their jurisdiction, and some are now
experimenting with features of a treatment-court
approach in their own practice. Yet many other
judges – especially those in Milwaukee – were skeptical that large-scale replication of these models
would be cost-effective.
“Minnesota had a 17 percent decrease using a
drug diversion program. We’ve visited the
drug court in Hastings, Minnesota to see how
judges are using treatment options, probation, and jail to keep these kinds of defendants
out of prison altogether. We’ve looked at the
drug/alcohol court in La Crosse.”
“Sometimes we don’t get a lot of useful feedback with what works and what doesn’t. Drug
court offers the most direct feedback I can
think of.”
“Instead of having it for the many, via the probation department, you have it for the few, via
the drug treatment court. There’re a lot of social services – that’s why it’s so costly, with all
those services. And it’s very time-consuming
and resource-consuming for the courts.”
“In my court the agent decides where they
go. What I do is impose a nine-month sentence but stay it. That way I can make a quick
response for every dirty urine — imposing 30
days for each – and I can put some teeth into
the requirement that they attend their meetings. But it’s the probation agent who moves
for a revocation – it’s not my decision.”

50

Judges said they would welcome accurate information about treatment outcomes, on both individual and program levels, in a timely fashion so that
they can utilize the available options with greater
confidence, and respond appropriately to individual
successes and failures.
“It’s critical to have that kind of information.
Our whole thinking about sentencing pedophiles has shifted because we’ve learned
about what’s effective and what’s not effective. We have to stay current on these issues.
Even more important is having professionals
to assist us with doing assessment and making
referrals to treatment programs.”
“And we need feedback to understand how
people actually do in treatment. Take 10 cases
and track them closely — give us computer
printouts that detail their performance”
One suggestion was to hold focus groups with
people who had experienced treatment to learn
more about program quality.
“Actually we’re serving them – they’re our clients
– so why don’t we ask them, ‘are these programs
effective?’ We need to hear from them.”
Another judge pointed out that gauging the success or failure of a treatment initiative requires setting realistic goals, bearing in mind that addictions
are difficult to break.
“It depends on how you define failure. What
is ‘success’ or ‘failure’? Relapse in 95 percent
of cases? In 50 percent? In 10 percent?”
Judges in every group maintained that provision
of effective treatment options for substance-abusing
offenders would require a more coordinated, systematic approach. A system for screening defendants for treatment needs and supplying judges with
timely information about appropriate, available
treatment options should be established up-front –
so that assessments are conducted as early as possible after a case is commenced to avoid delays in addressing treatment needs, and to reduce the risk of
more offending.
“We’re missing the boat when we have them
under supervision pre-trial. That’s the point
when they’re the most motivated. But it’s a
year-and-a-half to two years later by the time

JUSTICE STRATEGIES

we get around to doing something with them.
And then we stick them on a waiting list that’s
eight months long.”
“We really need assistance from someone
who understands the range of options and can
advise us about which program this person fits
into – a liaison like that is really the missing
piece. Months can go by before we hear anything helpful from the probation agents.”
Asked what impact might result from an early
screening system to provide judges with a quick assessment of AODA needs and a recommendation
for an appropriate program, judges responded with
enthusiasm.
“It would be wonderful – it would have a big
impact, provided there’d also be real followthrough.”
“It’d be as valuable as the good housekeeping
seal of approval… someone has gone out and
seen that there’s a program for this guy…”
Most judges agreed that increasing the supply of
substance abuse treatment options available to the
courts and up-grading the Department of Correction’s community supervision capacity could have a
very substantial impact in saving correctional resources, and preserving community safety. Judges in
each focus group tended to differ in their analysis of
how these savings might be achieved, however,
largely mirroring variations in sentencing patterns
among the regions represented.
Judges in both the Appleton and Barron focus
groups maintained that it is not their usual practice
to send low-level nonviolent substance abusers to
prison (a contention that is well-supported in data
that portray sentencing patterns in the different regions).
When judges from the Fox River Valley area were
asked whether there was a range of offenders they
now incarcerate who might be diverted from prison
if there were more effective treatment options, their
responses were relatively conservative. They predicted that adding more treatment options and
strengthening community supervision capacity
would primarily impact local jail population levels in
the short run, but could also impact prison admissions by reducing the probation failure rate (averting revocations), and the rate of recidivism.

“It’s hard to say. I’m really reticent to put
anybody in prison. If we had effective, affordable treatment you’d see a de-escalation in use
of prison over time.”
“I’d like not to rely so much on prison because
I believed that probation was the better alternative, and that when that’s not working we’d
find another program. I’ve seen the drug court
in New York. But I know we’re not going to
get that kind of money here. I’d rather able to
send them to prison with expanded earned-release… boot camps and that sort of thing.”
A few judges saw themselves using treatment
“up-front” more frequently in felony (5th-time or
higher) drunk-driving cases, or with people convicted of drug offenses.
“Drug cases won’t be affected one bit. Yet,
OWI cases would be affected by treatment.
Give us a program for OWI and we’ll use it.”
It’s those 5th-time OWI’s – I’d send 75 percent fewer to prison if the programs were really there! No one would get prison for 5th
and 6th OWI’s.
“I would segregate the OWI and drug cases.
For me, it’s not the 5th-time OWI’s I’d put in
treatment – they’re going to prison. But I
don’t consider drug cases to be such a serious
public safety issue.”
Judges who participated in the Barron focus
group also said they don’t normally use prison for
the low-level nonviolent offenses that comprise the
bulk of their caseload.
“We don’t see very many real dealers up here.
What we see are the five-and-dime users…
folks who’re sharing what they have with
other users. By definition these are folks I
consider for probation.”
“Even in cases involving meth or cocaine, we
don’t use prison at the front end. Maybe we’ll
use a little jail with probation supervision. If
they come back again, maybe a more lengthy
term of jail… They’ve got to come through
on their third or fourth ticket before we’ll
send them off to prison.”
Still, some judges in the Barron group pointed to

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

obvious cost-benefit advantages of using treatment
as a sentencing tool.
“If you used treatment in all the cases where it
is appropriate, just think how much money
you’d save! Even using it in 25-30 percent of
the cases, the money you’d invest in treatment
would be returned seven-fold. You could cut
recidivism from two-thirds to one-fourth.”
Others in the Barron group seemed convinced
that there is significant potential for savings by diverting some people from prison or jail, since the
cost for treatment is so small, compared to the cost
of incarceration.
“Back when we approached Senator Kohl
about a grant we asked him to give us money
for treatment in relation to what he was trying to provide for law enforcement. We calculated what could be done with just a quarter
of a million dollars: $250,000 would have
paid for 60 days of in-patient treatment for 40
addicts (20 people addicted to meth and 20
alcoholics convicted with DUI); and for sixto-nine months of supervision with nearly
daily urine analysis, followed with less intensive supervision. For an 18-month package of
different levels of treatment and supervision,
the cost came to just $6,100 per person – definitely a bargain from a correctional standpoint, if you’re talking about people you’d
otherwise have incarcerated.”
“Given services and supervision with sufficient intensity, I could count on one hand the
number of people I’d send to prison.

longer rap sheet do not get probation. With
more services available, they might also be
considered for an alternative… maybe with a
little time up-front in jail.”
“I have no doubt that we could save more
money with wraparound services… I don’t know
the figure… the only question is whether we’re
willing to spend the money up-front. We’re
spending at the end of the road, not at the beginning… If we don’t put the resources up front,
it’s like we’re trying to drain Lake Michigan.”
“We could shutter two medium-security prisons to pay for this program – let’s say 2,000
prisoners. 30 to 40 percent of people could
benefit from day reporting centers.”
“Is 33 to 45 percent too high?”
“They have justified the day-reporting center
based on number of jail beds it would save. I
think 30 to 40 percent, I would agree with that.”
“If I was on the drug bench and I had confidence in what was available, I would refer over
half of my calendar.”
Additional savings would result from lower rates
of revocation and recidivism.
“The people we already put on probation –
they get revoked because of all the things
we’ve been talking about. We could save a lot
of prison space because we could avoid a lot
of revocations.”

Milwaukee judges, working in the court jurisdiction that makes the largest contribution of substance abusers to the state prison system, indicated
that given a more effective, expanded sanctioning
system – more treatment and day reporting programs coupled with stronger community supervision – substantial redirection of low-level drug and
property defendants from prison sentences to treatment programs could occur.
“The first-offense burglary cases, the secondoffense possession cases, etc. – almost all of
these get probation. But with these same
kinds of offenses – low-level drug-dealing or
burglary – defendants who have a somewhat
52

JUSTICE STRATEGIES

Program interventions and innovations
ecades ago, Milwaukee was considered a national model of criminal justice innovation.
Millions of federal and foundation dollars
poured into the county to support pioneering pretrial release and diversion projects for those with
substance abuse and mental health problems. Unfortunately, many of the county’s model programs
vanished over the years as funding streams – and political will – ran dry.
At one time, Milwaukee screened every defendant prior to the first court appearance to determine
whether he or she could safely be released before
trial, and to determine what type of supervision and
services the defendant required. The screening system provided critical information to judges who set
bail and helped to identify defendants with substance abuse and other treatment needs early in the
process. Today, however, defendants are no longer
screened before their first appearance and those
who work in the system say many who pose little
public or flight risk await trial in jail because they
cannot afford to post money bail.
Milwaukee District Attorney E. Michael McCann earned a national reputation by introducing
new practices to improve the prosecution process
such as “charging conferences” – meetings where
charging decisions are made by teams of prosecutors. In the 1980s, McCann’s office ran diversion
programs that allowed eligible defendants to avoid
criminal charges by turning their lives around. Over
a decade ago, however, the programs were dismantled, and diversion is now limited to a handful of
young defendants who participate in a community
conferencing program.
The Community Support Program (CSP),
launched by Wisconsin Community Services (formerly Wisconsin Correctional Services), was highlighted in 1992 by the National Institute of Justice
as an example of best-practices in the management
of mentally ill offenders in the community. Three

D

years ago, the county won a SAMHSA grant to
build on the success of CSP with Project AIM, an
initiative to divert the mentally ill from prosecution
into community-based treatment. Dozens of mentally-ill individuals were successfully diverted, saving
jail beds and significantly improving outcomes for
participants.81 But when federal funding ended last
year, officials failed to come up with resources to
keep Project AIM going.
There have been other lost opportunities as well.
In 1995 Milwaukee turned down a $500,000 Federal grant to launch a drug treatment court because
the funds would have covered treatment for participants but not the extra court time the program
would have required. As a consequence, Milwaukee’s “drug court” is not a therapeutic court designed to keep addicts in treatment, but a speedydisposition docket where young defendants are
quickly charged, convicted and – in many cases –
sentenced to prison.
Milwaukee does operate a few innovative and
highly-regarded programs, such as the Community
Justice Resource Center (formerly known as the
Day Reporting Center) and probation review hearings for domestic violence cases. But advocates say
these programs are often one grant away from closing their doors, leaving the county with nothing but
police, prisons and an overloaded probation system.

A tale of two programs
A comparison of two programs that were established in Milwaukee to address the rising tide of
nonviolent admissions to state prisons and county
jails illustrates both the problem with current approaches and the potential for Milwaukee to resume
its place as a leader in criminal justice innovation.
The first, an “alternative to incarceration” for young
drug defendants that begins with four-and-a-half to
six months in prison, has experienced operational
problems and produced low graduation rates de-

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

spite success in some areas. The second, a community-based day reporting center that provides supervision and services in lieu of incarceration, is a showcase that has increased enthusiasm among elected
officials and judges for community-based sentencing options.
The Felony Drug Offender Alternative to Prison
The Felony Drug Offender Alternative to Prison
(FDOATP) program was established in March 2000
as a sentencing option for young men convicted of
drug delivery or possession with intent to deliver involving cocaine or marijuana. Over time, the maximum age was raised from 25 to 31, and eligibility
broadened to include all controlled substances.82
Participants must have a substance abuse treatment
need and cannot have a prison record, a past firearm
conviction or a serious mental health problem. A
separate program for women – the Treatment Alternative Program – was launched in October 2004.
FDOATP participants must be recommended by
a pre-sentence investigator and sentenced to the
program by a judge. Although it is considered an alternative to incarceration, participants are required
to spend at least four-and-a-half months in a highsecurity correctional facility before graduating to a
DOC pre-release center placement. Once they leave
the Milwaukee Secure Detention Facility and begin
Phase II of the program, participants must obtain
employment and continue to participate in treatment and educational programming.
Those who graduate to Phase III are allowed to
move to a pre-approved residence or transitional living apartment, where they must maintain employment, perform 50 hours of community service, participate in aftercare programming, and attend community/victim speaker panels. Compliance with
program conditions is monitored through the use
of electronic ankle bracelets (60 days), random
weekly urinalysis, and after-hours visits by police
and probation agents.
According to an early evaluation of FDOATP
conducted by researchers at the University of Wisconsin – Milwaukee, 222 youth were ordered into
the program from March 2000 through September
2002.83 The evaluators found that most participants
graduated successfully from the first two phases of
the program. Four in five of those that exited Phase
I (178) completed successfully (143), while one in
54

five was revoked (35). Similarly, four of five participants that exited Phase II (123) graduated to Phase
III (100), while just one in five was revoked (23).
In other words, nearly twice as many participants
graduated from Phase I and II as were revoked. But
the results are very different for Phase III. While
two-thirds of Phase III participants were still enrolled at the time the data was extracted (66),
among those who left the program, just two graduated while 32 were revoked.
Despite a high failure rate in the final phase,
many positive outcomes were observed. The evaluators reported that most participants completed
substance abuse treatment and that the overwhelming majority tested negative for drugs. They also
found that two-thirds of Phase II participants and
close to 90 percent of Phase III participants obtained employment. Further, most of those who
found jobs were still employed when they left the
program (or when the data was extracted, for those
still enrolled).
The evaluators noted that breakdowns and problems in program execution during its early years
may have left participants ill-prepared for re-entry
into the community. The most serious of these was
a move in 2001 from the county-operated House of
Correction (HOC) to the DOC-operated Milwaukee Secure Detention Facility (MSDF). The move
disrupted program management, case management
and service delivery, which undoubtedly affected
outcomes.
Data obtained from the Milwaukee DA’s office
show that since the period covered in the evaluation
an additional 170 youth have been sentenced to
FDOATP (October 2002 through December
2004). 84 Just over a third of these participants had
prior criminal records (including misdemeanor convictions) and another nine percent had juvenile
records, while a solid majority had no criminal or juvenile record whatsoever. Although no more recent
program data are available, DOC officials say
changes have been made to the program to improve
outcomes.
The Community Justice Resource Center
Milwaukee’s Community Justice Resource Center (CJRC), launched in 2000 as a collaborative effort of V.E. Carter Development Services, the Benedict Center and the county House of Corrections,

JUSTICE STRATEGIES

is based on a different model. CJRC is designed as
an alternative to incarceration, providing supervision and services – including electronic monitoring,
substance abuse treatment and relapse prevention,
GED preparation, job training, counseling, parenting classes and opportunities to do restorative community service – to an average of 75 men and
women on probation or parole supervision.85
CJRC operates a day-reporting program. Most
participants are referred by judges, but the program
also accepts referrals from the DOC Division of
Community Corrections of people who face revocation. Of 261 people enrolled in the first half of
2004, 78 percent were African American and another seven percent were Latino.
CJRC participants are subject to random urine
screening to detect drug use. The rate of negative
drug tests for those enrolled in the program during
the first half of 2004 was 89 percent. The number
of arrests reported for people under CJRC supervision is negligible, with 99 percent remaining arrestfree. Among those who successfully complete
CJRC, 75 percent have remained arrest-free over a
one-year tracking period. Just 16 percent were convicted of “a like or more serious offense” in the year
following successful completion of the program.
Of 1,233 people who went through CJRC since
the program’s inception in 2000, 755 (61 percent)
completed successfully. Program managers say that,
by diverting people from incarceration, CJRC has
emptied two housing units at the Milwaukee
County Jail and the House of Correction, yielding
tangible fiscal savings. And, according to former Executive Director John Givens, the CJRC costs half
as much as a day in county jail.86
Kit McNally, Executive Director of the Benedict
Center, sees CJRC as the first step in a long-term
strategy of putting problem-solving resources into
the hands of the communities hardest hit by both
crime and incarceration. McNally worked with local
leaders to design and site a new community justice
center on Milwaukee’s South Side where youth and
returning prisoners access services and community
support.
McNally is one of the leading advocates of a
more balanced and restorative approach to criminal
justice in Milwaukee, and her organization operates
several well-regarded programs in the community,
including gender-specific programs for women.

Other Milwaukee initiatives
Domestic violence court
Another program that receives overwhelmingly
positive reviews is the use of probation review hearings for domestic violence cases. The hearings are a
middle ground between traditional courts, where
probationers receive little personal attention from
the court and only see a judge after sentencing if
they are about to be revoked, and therapeutic
courts such as drug treatment courts, where participants often appear before the judge on a weekly
basis.
In Milwaukee’s domestic violence court, probation agents make appearances before the sentencing
judge every two to three months to report on a probationer’s compliance with supervision conditions
and progress in batterer’s treatment or other programming. The probationer may be required to appear as well, and can be subject to immediate sanctions – including a weekend in jail – if he or she fails
to meet requirements.
According to Judge Marshall Murray, the program allows him to closely monitor probationers and
make sure that they are participating in batterer’s intervention. Through the use of the hearings, Murray
is able keep a closer eye on probationers while continuing to carry a significant caseload (300 to 350
cases). Federal funding ensures immediate availability of slots in a batterer’s intervention program.
Judges from the Eighth Judicial District who
participated in focus groups convened by the Sentencing Commission say that they, too, have been
making greater use of probation review hearings to
encourage participation in substance abuse treatment and compliance with supervision conditions.
Chief Justice Shirley S. Abrahamson and Director of
State Courts John Voelker visited Appleton last
February to assess the potential of probation review
hearings as a cost-effective alternative to traditional
therapeutic courts, which require greater judicial resources.
Community conferencing program
The Milwaukee District Attorney’s office runs a
small Community Conferencing program for defendants with no prior felony convictions who are
charged with nonviolent offenses such as theft,
fraud and burglary. Recently, the program has also
begun to admit 17 year-olds charged with felony

JUSTICE STRATEGIES

55

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

marijuana offenses.
The Community Conferencing program uses
restorative justice principles to engage offenders,
victims and community members in a process that
helps offenders understand and repair the harm
caused by their actions. In some cases, defendants
avoid prosecution through their participation in the
program. Victims also find the process helpful, and
appreciate the chance to participate in a meaningful
way, according to Assistant DA David Lerman, who
directs the program.
A June 2004 report by the Legislative Audit Bureau found that those who participated in the community conferences were two-thirds less likely than
members of a control group to be re-arrested.87 The
program – which is funded by the DA’s office and
by a federal grant that expires this year – serves
roughly 50 offenders and an equal number of victims each year.
Pretrial services
Pretrial screening and services are offered in Milwaukee for individuals with mental health and substance abuse problems, albeit at lower levels than in
the past. In addition to running the Community
Support program described above, WCS, which has
been an existence over a century, develops and
monitors supervision plans for defendants with
AODA needs.
Justice 2000, which began providing pretrial
services to the Milwaukee Circuit Court in March
2002, creates release plans for mentally ill defendants and provides supervision and case management services if the court agrees to place them on
pretrial supervision. The agency also establishes release plans and provides supervision to defendants
who are undergoing competency hearings, and recently launched a pretrial release program that seeks
to identify detainees who could safely be released
with supportive services.
The defendants released by Milwaukee judges to
case management in the Pretrial Mental Health Intervention Program show high rates of success
under supervision. Program staff estimate that release of defendants from jail to the program saved
almost 5,000 pretrial detention days during 2004.
Milwaukee’s two pretrial programs are small, but
the track-record they have established is very encouraging. According to Holly Szablewski, the Pre-

56

trial Services Coordinator for the Milwaukee Circuit
Court, there are roughly 150 detainees in the WCS
AODA program and 130 detainees in the Justice
2000 mental health program at any given time. Szablewski says that just six to seven percent of supervised releasees fail to appear in court, and that three
to five percent are rearrested while awaiting trial.
Milwaukee also has in-home detention and electronic monitoring programs which can accommodate roughly 70 participants.
Alternatives to revocation
Using treatment resources made available by the
SAMHSA-funded Wiser Choice program, DOC is
establishing an alternative to revocation (ATR) program in Milwaukee that will place individuals at risk
of being revoked from supervision in communitybased treatment. The Wiser Choice ATR will accept
probationers and parolees who have AODA treatment needs, can be safely managed in the community, and have at least six months of supervision remaining.88
Under the Wiser Choice ATR program, a community “reach-in specialist” will screen candidates at
the facility where they are being held (usually
MSDF), identify a “care coordination” agency and
help develop a “care plan.” Once the individual is
released, the probation/parole agent, the care coordinator and the treatment provider will work together to ensure successful transition and effective
aftercare.
DOC operates a 302-bed prison-based ATR program, but currently has no comprehensive, community-based option of the type envisioned by
Wiser Choice. Most of the designated ATR prison
beds are at MSDF (140 beds) and at the Sturtevant
Treatment Facility (50 beds), with the remainder
scattered at 14 other correctional facilities throughout the state.
The Office of the State Public Defender in Milwaukee has established its own ATR project, staffed
by five attorneys, the client services unit and several
interns. The Public Defender’s project seeks to prevent revocations by establishing formal ATR plans
that address clients’ needs, including substance
abuse treatment and other services. Because few resources have been available through the DOC, the
program depends largely on persuading local programs to accept probationers and parolees.

JUSTICE STRATEGIES

Other county initiatives
Drug treatment courts
Several Wisconsin counties have established drug
treatment courts, which employ the criminal justice
system as a lever to encourage participation in substance abuse treatment. Drug treatment courts have
now been in use for more than a decade in the U.S.
and generally get positive reviews from all of the
stakeholders involved, including prosecutors, defenders, judges and probation agents.
Dane County’s therapeutic drug treatment court
has been in existence for close to a decade. The
court offers both a treatment track for participants
with chemical dependencies, and an education track
for participants who are thought to need intensive
intervention services but are not necessarily addicted. On June 30, 2004, there were 61 active participants in the Treatment Track and 12 in the Educational Track.89 Between 1996 and mid-2004,
387 participants graduated, giving the program a 70
percent completion rate.
A comparison between graduates and individuals
who were eligible but declined to participate in the
program found significant differences in recidivism
rates. Among those who graduated and had been
out of the program for 12 to 48 months, just 39
percent had been rearrested. By comparison, 45
percent of those who declined the program had
been rearrested within the same period.
Data on other outcomes also show significant
gains by drug treatment court participants. As of
June 30, 2004, 37 percent of graduates had obtained full- or part-time employment. A quarter had
enrolled in, or graduated from, high school/GED,
college or vocational educational programs.
While the program initially handled almost exclusively people charged with drug possession, its
reach has since broadened to include individuals
convicted of more serious offenses. In 1999, 88 percent of referrals were for drug possession, but by
mid-year 2004 possession cases made up just 66
percent of referrals. Cases of fraud, theft, possession
with intent to deliver, burglary, and forgery now
make up a third of annual referrals.
The overwhelming majority (78 percent) of drug
treatment court participants received outpatient
treatment or education services. Fewer than one in
five (17 percent) used residential treatment services
and five percent participated in day treatment. The

average per diem cost of the program for 2003 was
$17.78, less than a third of the cost of a stay in the
Dane County jail ($60.41 per day) and a quarter of
the cost of a stay in prison ($78.36 per day).
In addition, La Crosse and Monroe counties currently operate drug treatment courts, as does the
Menominee tribe. Eau Claire, Pierce and Wood
counties are running pilot projects, and Waukesha
and Winnebago are exploring launching alcohol
treatment courts. 90
Criminal Justice Coordinating Councils
Several counties have made efforts to improve coordination between agencies that work in the criminal justice system, in order to improve outcomes and
avoid problems like jail crowding. La Crosse,
Marathon, Monroe, Portage and Waukesha have established coordinating bodies – often called “criminal justice coordinating councils” – that bring together key stakeholders to discuss emerging issues.
While public attention has focused on expansion
of the prison system, jail expansion is spurring discussions of criminal justice policy in several jurisdictions. According to an analysis of jail capacity data
by staff at the Wisconsin Statistical Analysis Center,
the number of jail beds shot up by 30 percent
statewide between 2001 and 2003.91 Jail expansion
can place a heavy burden on local taxpayers who already struggle with high property taxes. The opening of state prison beds for individuals confined on
probation and parole holds has eased the pressure
this population had created in county jails in southeastern Wisconsin, however probation and parole
holds continue to be an issue for other counties.

JUSTICE STRATEGIES

57

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Positive trends in state sentencing and correctional
policies and what the public thinks
ver the past few years most states in the U.S.
have struggled with a severe fiscal crisis. In
the face of declining revenues, policymakers
– both Republicans and Democrats – have been rethinking many of the costly correctional policies
they had embraced when revenues were booming.
In 31 states, policymakers have introduced
major reforms in their efforts to cut costs while improving the effectiveness of their sentencing and
correctional systems. At least 20 states have rolled
back mandatory minimum sentences or restructured other harsh penalties enacted in preceding
years to “get tough” on low-level drug defendants
or nonviolent lawbreakers. Legislators in at least 24
states have eased prison population pressures with
mechanisms to shorten time served in prison, speed
the release of prisoners who pose little risk to public
safety, and penalize those who violate release conditions without returning them to prison.92
While state revenue performance improved
somewhat in 2004, many state officials are continuing on a trajectory of reform. New initiatives in state
after state are expanding and improving correctional
supervision of people in the community instead of
incarcerating them. These efforts have focused, in
particular, on diverting those with substance abuse
problems to treatment, and imposing alternative
sanctions for those who violate conditions of probation or parole.93

O

Connecticut
After finding their state ranked number one for
prison population expansion in 2002, Connecticut
policymakers began taking immediate steps to address the problem. By the end of 2003, Connecticut led the nation in prison population reductions –
a remarkable one-year turnaround. Spurred by advocates pressing for reforms, legislative leaders restored previous cuts to probation and alternative
sanctions programs that were needed in order to
58

provide tighter case management and greater access
to treatment programs.
In 2004 Connecticut policymakers enacted
H.B. 5211, the Prison Overcrowding Act, requiring
development of a more comprehensive approach to
re-entry for people released from prison, as well as a
variety of new efforts to cut down on the number of
people who are sent to prison for technical violations of both probation and parole. A 20-percent
target was set for reducing admissions to prison in
each violation category.
At the same time as they enacted the bill, legislators appropriated $13.4 million to provide expanded supervision and program services. More
than $7 million was provided for contracts for new
residential beds, including $2.4 million to fund 130
drug treatment beds for people awaiting trial;
$500,000 to fund treatment beds for participants in
alternative-to-incarceration programs run by the Judicial Branch’s Court Support Services Division
(CSSD); and $4.4 million for 310 new halfway
house beds for people who are eligible for release
from prison.
In addition to making a major investment in
community-based treatment and halfway house
beds, Connecticut lawmakers also gave CSSD $4.2
million to hire 68 new probation officers and
funded the DOC to hire 12 community release officers and a job development coordinator to work
with people nearing release from prison (another
$450,000). More than $1 million was earmarked
for creation of “Building Bridges” pilot projects in
New Haven and Hartford to aid re-entry for
parolees, in keeping with the philosophy of “justice
reinvestment.”
H.B. 5211 also spurred a number of administrative reforms intended to improve and streamline the
parole system. The pardons board was merged with
the parole board and the operation was placed
under the administration of the DOC with full-time

JUSTICE STRATEGIES

Summary of positive trends in sentencing and correctional policy – 2000-2005
AL AZ

AR CO

CT DE

HI

IN

IA

KS

KY LA ME MD MI MS MO MT NE

NV NH NM NY ND OK PA TX

VA WA WI WY

Revised sentencing laws and guidelines to reduce penalties
X

X

X

X

X

X

X

Rolled back or eliminated mandatory minimum sentencing laws
X

X

X

X

X

X

X

X

X

X

Rolled back harsh truth-in-sentencing laws and habitual offender statutes
X

X

X

Diverted nonviolent drug defendants to treatment instead of incarceration
X

X

X

X

X

X

X

Early-release time credits and programs
X

X

X

X

X

X

X

X

Revised parole standards/increased parole rates
X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Improved responses to technical revocations
X

X

X

professional board members. New parole standards
now require that prisoners who become eligible for
parole after serving 50 percent of their term must be
granted a formal parole hearing when they reach 75
percent of their sentences. Prisoners who become
eligible for parole after serving 85 percent of their
sentences, those convicted of a crime involving use
or threat of force, must receive a hearing when they
become eligible.
The act also changed eligibility for administrative
parole and authorized release of some prisoners to
alternative facilities within 18 months of their parole
release date. It increased the maximum period allowed for furloughs from prison, and it authorized
compassionate release under particular circumstances.
The following year, the community groups that
helped push through the prison overcrowding bill
demanded that the state go further by addressing
high levels of racial disparity in the use of incarceration for nonviolent drug offenses. Specifically, advocates targeted a mandatory minimum sentencing
law that meted out harsher penalties for sellers of
“crack” cocaine – who are more likely to be African
American or latino – than sellers of powder cocaine
– who are more likely to be white.
Led by Robert Rooks, now the national field organizer for the ACLU’s drug law reform project,
and Lorenzo Jones, director of the Hartford-based
A Better Way Foundation, a coalition of urban and
suburban community groups campaigned to equal-

X

ize weight triggers for crack and powder cocaine,
then 1/2 gram and 28 grams respectively. Spurred
by an army of activists, Connecticut’s lawmakers
were forced to acknowledge that, with Connecticut
ranked number one for racial disparity in state incarceration rates, the current law could not be justified, and they responded by setting the threshold
for both forms of the drug at 14 grams.

Maryland
In 2004, Governor Robert Ehrlich signed S.B.
194, a bill designed to expand the options available
to judges, prosecutors and the state’s Parole Commission for placing addicted defendants in community-based treatment rather than prison. The initiative was remarkable not only for the high degree of
bipartisan consensus it achieved, but also because a
broad-based coalition of community groups, treatment providers and civil rights advocates put the
issue on the state’s agenda.
In addition to increasing funding for treatment
and encouraging local planning for substance abuse
treatment needs, the reform package introduces a
defendant’s substance abuse problem as a consideration – and structures options for placing a defendant in treatment – at every stage of the criminal
justice process. S.B. 194
• Encouraged prosecutors to divert defendants
to treatment by creating a new class of case dismissals and suspensions with treatment conditions

JUSTICE STRATEGIES

59

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

• Permitted courts to strike the entry of judgment for individuals who successfully complete
treatment ordered as a condition of probation
• Attempted to streamline the process through
which substance-addicted defendants are committed to the Department of Health and Mental Hygiene for treatment
• Allowed the Parole Commission to parole
most nonviolent prisoners to substance abuse treatment at any time during their terms of incarceration
• Required that an individual’s need for substance abuse treatment be considered before probation is revoked or parole is denied
• Required counties to establish local alcohol
and drug abuse councils to coordinate identification
of treatment needs and delivery of services
Although S.B. 194 represents an important step
forward for Maryland, state lawmakers had already
demonstrated their commitment to combating substance abuse several years earlier by approving an $8
million increase in Baltimore’s fiscal year 2001
treatment funding – the largest single-year increase
in the history of the state’s Alcohol and Drug Abuse
Administration.
These investments have significantly increased
the number of substance abusers receiving treatment in Maryland. In 2000, there were nearly 800
fewer admissions to publicly-funded treatment in
Maryland than Wisconsin (28,498 vs. 29,279). By
2003, however, Maryland boasted 18 percent more
admissions than Wisconsin (34,852 vs. 28,498).

Ohio
One Midwestern state provides a remarkable example of how comprehensive policy reforms and
substantial investments in community-based alternative programs can, over time, yield huge correctional cost savings. In 1996 Ohio legislators embraced “truth-in-sentencing” when they enacted
Senate Bill 2. They abolished parole release and established a system of flat sentences. They also provided a system of sentencing guidance for judges
grounded on basic principles which are developed
and enforced by appellate review.
Ohio’s experience is particularly notable because,
as they restructured the sentencing system, state
policymakers rejected the numerical grid concept
used by sentencing guidelines states to shape judicial discretion. Legislators established the overriding
60

purposes of felony sentencing (public protection
and punishment) and provided basic guiding principles and presumptions that set limits on how the
sentencing purposes may be achieved. Judges are required to give reasons for their sentencing decisions.
The system is enforced by appellate review.94
The new sentencing structure was designed to
steer more serious, chronic felons to prison while
channeling the others to community sanctions. One
important principle is conservation of public resources. Under S.B. 2 the most serious offenses
(first- and second-degree felonies) carry a presumption of imprisonment, while for fourth- and fifthdegree felonies the presumption favors a community-based sanction. The structure was also designed to discourage unnecessarily lengthy prison
terms. Accordingly, a first-time prison sentence will
normally be set at the bottom of the sentence range
set for the offense95 – while the maximum term is to
be reserved for the “worst form of the offense,” or
for defendants that “pose the greatest likelihood of
committing future crime.”96
S.B. 2 authorized a broad array of communitybased sanctions that allow judges to tailor a sentence that may include residence in a communitybased correctional facility or halfway house, or require participation in a day-reporting program,
electronic monitoring, house arrest, or intensive
probation supervision. The objectives of S.B. 2 have
been strongly reinforced by provision of increased
funding for community-based programs. More than
$9 million was added to the state correctional
budget for these programs in 1996, the year S.B. 2
was enacted. Since then the community-based program budget has doubled, totaling more than $111
million in the current fiscal year.
The new sentencing structure has helped to readjust the mix in Ohio’s prison, tilting the population toward individuals with long criminal records
and those convicted of violent crimes. Since 1996
the proportion of people sentenced to prison with
no convictions for violent crime (current or prior)
has steadily declined. At the same time, the share of
total prison admissions made up of African Americans has slowly – but consistently – declined.97
Prisoners are allowed a modest amount of “earned
time” – one day per month – provided they are able
to meet a prison program requirement. In the absence of parole, Ohio’s judges retain an extra margin

JUSTICE STRATEGIES

aged to reduce reliance on incarceration, winning
of discretionary jurisdiction over the prison sentences
substantial savings in prison costs.
they impose. They are able to grant a prisoner’s release from prison, typically within 18 months to two
years of the end of their sentence. In fiscal year 2004
Public opinion supports treatment
judges granted 1,740 release petitions.
over incarceration
In 1998 the Ohio Adult Parole Authority
Recent national research on public preferences
adopted new parole guidelines that dramatically
about crime and corrections also indicates strong
changed the handling of prisoners sentenced before
support – by a two to one margin – for measures
the guidelines reform took effect. The parole guidethat address the causes of crime over strict sentenclines grid consists of 13 levels of offense severity and
ing.98 Among the results,
a criminal history/risk formula used to score the
• A majority of Americans (54 percent) believe
likelihood of recidivism at four levels of risk. At the
that prevention or rehabilitation should be the priintersection of the two scores, the grid provides a
mary goal for dealing with crime, compared to just
range of months for determining the amount of
39 percent who favor punishment or enforcement.
time a prisoner must serve before being released.
• By two-to-one, poll respondents termed drug
Once in place, the parole guidelines intensified
abuse a medical problem, preferring counseling and
the population shifts begun under the sentencing
treatment over incarceration.
reform, with low-level, nonviolent prisoners gaining
• Most respondents (71 percent) favored
parole in record numbers. In December 2002 a demandatory drug treatment and community service
cision rendered by the Ohio Supreme Court further
rather than prison for those who sell small amounts
stepped up parole eligibility for many “old law”
of drugs.
prisoners.
• A solid majority (56 percent) favor eliminatFor “new-law” prisoners (those sentenced under
ing mandatory sentencing such as the so-called
S.B. 2) the parole board retains discretion to impose
“three-strikes” law.
“post-release control,” typically three years of post• More than three-quarters thought that investprison supervision. Of the 28,679 prisoners released
ments in after-school programs and other crime prein fiscal year 2004, 7,818 were slated for post-revention strategies would save money by reducing
lease control supervision. The parole board can also
the need for prisons.
order “transitional control” of a prisoner for up to
• Asked where legislators facing budget deficits
180 days of pre-parole release, typically to a halfway
should make cuts, they put prison budgets at the
house. In fiscal year 2004, 1,794 prisoners were
top of the list.
granted a transitional-control release.
These findings are mirrored from coast to coast.
The combination of structured reforms
at both the “front end” and the “back end”
Incarceration rates 1996 – 2003
has worked to stabilize Ohio’s correctional
system and to reduce the state’s prison pop450
ulation by more than 5,000, allowing closure of two prisons, and saving taxpayers
400
more than $65 million a year.
Comparing violent crime and incarcera350
tion trends in Ohio and Wisconsin since S.B.
300
2 was adopted provides an interesting contrast. In line with national trends, violent
250
crime declined in both states over this period.
Ohio has enjoyed a slightly larger measure
200
of relief – a 19-percent reduction, compared
1996 1997 1998 1999 2000 2001 2002 2003
to 17 percent in Wisconsin. Yet through the
Ohio
Wisconsin
same period Wisconsin’s incarceration rate
SOURCE: DOC Public Information Data File
increased by 70 percent, while Ohio man-

JUSTICE STRATEGIES

61

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

In 2001 four times as many Californians surveyed in a Field poll supported reducing the prison
budget as those who supported cutting higher education. A 2003 Potomac poll conducted in Maryland also found prisons at the top of the budget
“cut” list.
A Bendixen poll in California released early in
2004,99 found that an overwhelming majority of
those surveyed saw more benefit in funding education over prison construction. The poll also found
overwhelming support for diverting a portion of
prison expenditures to programs that provide child
protective services. And a 2004 Bluegrass poll
found that 73 percent of Kentuckians were willing
to see funding cuts for the state’s courts and prisons
to bring the budget into balance, compared to just
29 percent willing to cut funding for schools and
medical care for the poor.
Closer to home, a poll conducted in 2000 in
Wisconsin by the Milwaukee-based Public Policy
Forum shows that public approval for rehabilitation
and prevention strategies is strong.100 Three-quarters of residents polled in Milwaukee, Ozaukee,
Washington and Waukesha Counties said they favored spending tax dollars on preventive approaches
over prison. A healthy majority said they would be
willing to pay higher taxes to fund more drug and
alcohol treatment for those who get in trouble with
the law, with 65 percent willing to increase taxes to
create more alternatives to jail and prison for nonviolent offenders
The poll also marked a shift in public opinion on
prison expansion from an earlier survey conducted
by the Public Policy Forum. In 1998, PPF reported
that 59 percent of those surveyed favored spending
tax dollars to expand prisons, but within just two
years, the pollsters found that support for prison expansion had fallen to 44 percent.

62

JUSTICE STRATEGIES

What “Treatment Instead of Prisons”
could mean for Wisconsin
here is no doubt that Wisconsin’s substance
abuse treatment delivery system would need
improvements to prepare it to handle a larger
share of the court-involved, substance-addicted
population. But the changes that are needed are
well known to the state’s policymakers, and the benefits would be very substantial.
For an estimated cost of $6,100 per person, Wisconsin could provide quality substance abuse treatment, case management and supportive services to
individuals whose criminal behavior is driven by addiction.101 Even when the annual cost of probation
supervision – currently below $2,000 per person – is
included, community-based treatment is far more
economical than incarceration, which costs the state
$28,622 per person per year.102 Further, research has
shown that treatment does far more than incarceration to reduce both recidivism and substance abuse.

T

Who could be sent to treatment
instead of prison?
At the request of Senator Carol Roessler, the Justice Strategies research team conducted an analysis
of DOC prison population and case data – supplemented by interviews with criminal justice professionals – to determine how many prison-bound defendants could be redirected to community-based
treatment and supervision without compromising
public safety.
The process began with an extensive analysis of
the standing prison population to determine not
only how many people are serving time for lowlevel, nonviolent offenses, but also how and why
they were incarcerated. The result was a detailed
breakdown of the nonviolent prisoner population
by offense, admission type, sentencing jurisdiction,
prior criminal record and substance abuse programming need.
Our analysis found that there are roughly 2,900

prisoners serving time for low-level, nonviolent offenses that have limited criminal histories and
AODA programming needs. This population can be
said to consume $83 million a year in correctional
resources, based on average annual costs of $28,622
per prisoner.
At the same time, Justice Strategies researchers
interviewed dozens of criminal justice professionals
and worked with the Sentencing Commission to design focus groups with judges in three distinct regions of the state. The interviews and focus groups
provided a clearer picture of what resources would
be needed to successfully redirect prison-bound defendants into community-based treatment, and the
barriers that would have to be overcome.
We found that a program that addressed the high
need for substance abuse treatment demonstrated by
this population, as well as the need for other services
designed to stabilize offenders in the community,
would make a significant impact on the willingness
of judges to redirect “prison-bound” cases to treatment. Such a program would also improve the success rates of those normally placed on probation.
Feedback from the judicial focus groups was integrated with DOC data to project the potential impact of expanding access to treatment on the state’s
prison population and correctional resources. Our
analysis shows that, if targeted narrowly toward
prison-bound defendants – as a sentencing option
or alternative to revocation – the proposed initiative
could ultimately generate correctional cost saving of
as much as $4.40 for each dollar invested.
Even if resources were split evenly between
prison-bound individuals and others unlikely to
serve prison time, each dollar spent on treatment
and supervision would likely yield between one-anda-half and two dollars in long-term correctional costsavings without counting any of the associated benefits of reduced crime and substance abuse.

JUSTICE STRATEGIES

63

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Identification process
The estimate of 2,900 prisoners was developed
by applying a set of screens to DOC data on the
standing prison population on June 30, 2004.
First, the population was screened to eliminate
prisoners who were serving time for an assaultive or
sex offense, including individuals whose major offense was nonviolent but who were also convicted
of a lesser violent offense. Further analysis of Wisconsin case data found that just 10 to 16 percent of
prisoners whose current convictions were nonviolent had a prior assaultive felony conviction.
Second, the nonviolent population was screened
to remove prisoners sentenced for serious offenses
such as distribution of large quantities of a controlled substance, major property crimes and OWI
resulting in injury.
Third, the low-level, nonviolent population was
screened to eliminate prisoners who were unlikely to
benefit from substance abuse treatment or drug education because they did not have identified AODA
needs and their crimes were not drug-related.

Low-level, nonviolent drug prisoners
by offense: June 30, 2004
Other 74

129
Possession (personal use)

1,603
308

Cocaine
distribution

Other distribution

336
Marijuana distribution
SOURCE: DOC Public Information Data File

Low-level, nonviolent drug prisoners
(cocaine delivery/PWI) by number
of prior felonies
No data (4%)
Five-plus (5%)
Four (3%)

None
(42%)

Three (9%)

Two (14%)

One (23%)

SOURCE: DOC Public Information Data File

64

Fourth, the low-level, nonviolent population in
need of substance abuse services was screened to
eliminate individuals with significant criminal histories, defined conservatively as more than one prior
felony conviction.
The population that remained after applying all
four screens is comprised of an estimated 2,900
low-level, nonviolent prisoners with limited criminal
histories and substance abuse treatment or drug education needs. This group includes 1,400 individuals who were sentenced for drug offenses, 1,000
serving time for property offenses, and 500 incarcerated as a result of OWI convictions.
Drug offenses
Using the amounts set out in the state’s controlled substance statutes, Justice Strategies researchers identified a set of low-level drug offenses
that account for the bulk of drug admissions and
prisoners. For the most common offense – cocaine
delivery/possession with intent – the cutoff amount
was set at 15 grams, less than a third of the 50-gram
threshold that makes prison presumptive under
Michigan’s sentencing guidelines.
The offenses include:
• Delivery/possession with intent of up to:
a) 15 grams of cocaine (Class E, F or G)
b) 10 grams of heroin or amphetamines (Class E
or F)
c) 1 kilogram of marijuana (Class H or I)
d) equivalent amounts of other controlled substances
• Simple possession (Class I for a second or subsequent offense in most cases)
• Other (non-delivery/PWI) drug offenses except use of child (Class H or I)
On June 30, 2004, there were an estimated
2,451 Wisconsin prisoners sentenced for the offenses listed above who had no concurrent violent
felony convictions.103 Over half (53 percent) were
incarcerated for delivery of a controlled substance.
Another 39 percent were serving time for possession of a controlled substance with intent to deliver.
Just eight percent were serving time for other drug
offenses such as acquisition through a friend or
keeping a drug house.
Cocaine offenses accounted for an overwhelming
majority of delivery/PWI cases (74 percent), followed by marijuana (14 percent), heroin (four per-

JUSTICE STRATEGIES

cent) and amphetamines (one percent).104 Among
those sentenced for other drug offenses, three in
five (61 percent) were serving time for simple drug
possession, with possession of cocaine accounting
for almost half (42 percent) of all possession cases.
Most of those incarcerated for low-level drug offenses were sentenced directly to prison (55 percent), although more than a quarter (29 percent)
were sentenced to prison after being revoked from
probation. The remainder was admitted after being
revoked from post-release supervision (parole,
mandatory release or extended supervision).
Two in five (39 percent) of those serving time
for low-level delivery or possession with intent had
no prior felony convictions, and another one in five
(22 percent) had just one prior felony conviction. A
third (34 percent) of those sentenced for other drug
offenses had no prior felony convictions and one in
five (19 percent) had one prior felony conviction.
Among the other characteristics of the low-level,
nonviolent drug prisoner population:
• Four in five had an identified substance abuse
treatment (AODA) need
• Two-thirds were African American
• One in eight was a woman
• Three in five were sentenced in Milwaukee
• A quarter was sentenced in other counties
with populations over 100,000
• One in eight was sentenced in counties with
populations under 100,000
• One in five was 21 or younger at admission to
prison
Nonviolent property offenses
Justice Strategies researchers also identified a
group of low-level property offenses that significantly drive Wisconsin’s nonviolent prison population. These offense include:
• Burglary (excluding those involving weapons
or injury)
• Theft (excluding fraud, embezzlement, pickpocketing and amounts over $10,000)
• Shoplifting/retail theft (excluding amounts
over $10,000)
• Operating a vehicle without consent (joyriding only)
• Forgery, forgery/uttering and worthless
checks
• Misappropriation of personal identification

Low-level, nonviolent property prisoners
by offense: June 30, 2004
Other 111
Shoplifting 99
Fail to support 130

1285
Burglary

Op. vehicle w/o consent 188

Theft 276

632
Forgery

SOURCE: DOC Public Information Data File

• Receiving stolen property (excluding amounts
over $10,000)
• Failure to support
On June 30, 2004, there were roughly 2,500
Wisconsin prisoners sentenced for the offenses listed
above who had no concurrent violent felony convictions.105 Analysis of case data going back to
1990 shows that just one in six (16 percent) had a
past violent felony conviction.
Nearly half (47 percent) of the population were
serving time for burglary, followed by forgery (23
percent), theft (10 percent), operating a vehicle
without consent (seven percent) and failure to support (five percent).
Overall, three in four property prisoners (76 percent) had an identified substance abuse treatment
need, with those convicted of burglary exhibiting
the greatest need (82 percent). Nearly a third (32
percent) of property prisoners with substance abuse
treatment needs had no prior felony convictions
when they were admitted to prison, and 18 percent
had only one conviction.

Low-level, nonviolent property prisoners
by number of prior felonies
No data (5%)

None
(32%)
Five-plus
(16%)

One
(18%)
Four (6%)
Three (10%)

Two
(13%)

SOURCE: DOC Public Information Data File

JUSTICE STRATEGIES

65

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Among the other characteristics of those incarcerated for low-level, nonviolent property offenses:
• Three in five were white
• One in every nine was a woman
• Nearly two in five were sentenced in Milwaukee
• Over a third were sentenced in other counties
with populations over 100,000
• Over a quarter were sentenced in counties
with populations under 100,000
• One in five – two in five among first-felons –
was 21 or younger at admission
Operating While Intoxicated
On June 30, 2004, there were 751 individuals
incarcerated for OWI incidents not resulting in injury with no concurrent violent felony convictions.
Just one in ten OWI prisoners had a past Wisconsin
conviction for an assaultive felony. Virtually all had
substance abuse problems. Half had no prior felony
convictions, and less than a third (31 percent) had
more than one prior felony.
Among the other characteristics of Wisconsin’s
nonviolent OWI prisoner population:
• Nine in ten were white
• One in every twelve was a woman
• One in nine was sentenced in Milwaukee
• Half were sentenced in other counties with

Low-level, nonviolent prisoners by county
of commitment: June 30, 2004
3000
2500
2000
1500
1000
500
0
Drug

Property

DUI

populations over 100,000
• Two in five were sentenced in counties with
populations under 100,000

Projected impact of expanding treatment as an alternative to incarceration
Expanded provision of quality substance abuse
treatment, in combination with other services designed to stabilize offenders in the community, could
impact the state’s prison population in several ways.
• First, judges indicate that, if more substance
abuse treatment and “wrap-around” services were
available, they would be eager to use them as a sentencing option for nonviolent defendants, including
many who are currently being sentenced to prison.
• Second, expanded community-based treatment could serve as an alternative to revocation
(ATR) for probationers and parolees whose substance abuse problems have put them of risk of
being revoked.
• Third, expanding access to treatment and
“wrap-around” services would improve the success
rates of those currently on probation and parole, reducing the number at risk of revocation.
• Fourth, a wealth of research on the effectiveness of treatment interventions shows that substance abusers are significantly less likely to recidivate if treated, which reduces levels of crime and
prison admissions over the long term.
The objectives of the current proposals to expand treatment programs in Wisconsin are to reduce levels of criminal behavior and addiction, and
– as discussed above – there is ample evidence that
these aims can be achieved.
Our estimate of the potential impact, however,
focuses more narrowly on the direct effect on sentencing and revocation patterns in order to arrive at
a conservative estimate of how investments in treatment and related services might impact prison populations, thereby reducing correctional costs. Any
broader cost-savings or other benefits obtained by
preventing crime and curing addiction are over and
above the savings estimates presented here.

Milwaukee
Counties w. 100,000+ pop.
Counties under 100,000 pop.

SOURCE: DOC Public Information Data File, US Census

66

Key assumptions
Between 10 percent and a third of nonviolent
felony cases that currently result in a prison sentence
would be redirected to community-based treatment if
adequate resources and supervision were available.
JUSTICE STRATEGIES

Aside from a small number of cases in which a
prison term is mandatory, Wisconsin judges have
sole discretion over whether an offender receives a
prison or probation sentence. Milwaukee judges
who participated in focus groups conducted by the
Sentencing Commission indicated that they would
grant probation in a large proportion of cases that
currently result in a prison sentence – between 30
and 40 percent – if substance abuse treatment,
“wrap-around” services and meaningful supervision
were provided. Elsewhere, judges suggested that a
small number of prison-bound drug and property
cases, and a somewhat larger number of OWI cases,
would be redirected to probation if quality treatment were made available.
The feedback from judges was used to estimate
the proportion of admissions that would have been
avoided under the proposed initiative. In Milwaukee, we projected that a third of the nonviolent
prison-bound cases would be redirected – a figure
from the low end of the range suggested by judges.
Outside Milwaukee, the “redirection ratio” for drug
and property cases was set at a modest 10 percent,
and the ratio for drunk-driving cases was set at 25
percent based on strong statements made by several
judges concerning their reluctance to incarcerate
solid community members with no other criminal
history.106
Half of prisoners who were admitted after being
revoked from probation or parole supervision, and
who met DOC ATR program criteria, would have
been given the opportunity to participate in treatment as an ATR if resources were available.
Quality community-based treatment could be
used not only as an up-front sentencing option for
judges but also as an alternative to revocation of
community supervision. Generally, ATR programs
are not available to individuals who are revoked
from supervision with new criminal convictions, but
instead are used for “technical violators” – those
who have difficulty complying with supervision requirements, often as a result of substance use.
The DOC recently launched a community-based
ATR program as part of the federally-funded Wiser
Choice initiative in Milwaukee. The program accepts felony probationers and parolees at risk of revocation who:
• Can be safely managed in the community with
programming

• Have at least six months of supervision remaining
• Have identified AODA treatment needs that
relate to their criminal behavior
The success rates of individuals sentenced to treatment rather than prison under the proposed initiative
would approximate those of current felony probationers. Somewhat lower success rates would be anticipated
for individuals placed in treatment as an alternative
to revocation.
The success rates of individuals placed on probation in 2000 for low-level drug, property and OWI
felonies previously discussed (Chapter 1) provide a
baseline for estimating success rates under the proposed initiative. These success rates, which range
from 69 percent for drug probationers to 59 percent for OWI probationers, are based on a somewhat different population than would be redirected
from prison to community-based treatment under
the proposed initiative.
If prison-bound defendants were simply redirected to probation without being provided the
treatment and wraparound services contemplated
under the proposed initiative, they would likely fail
at a higher rate than current probationers, who make
up the low-risk end of the criminal justice population. On the other hand, substance abuse treatment
has been shown to substantially reduce recidivism,
which could bring the failure rate for those redirected from prison below that of current probationers. Weighing these factors together for purposes of
this analysis, we assumed that success rates might approximate current probation success rates.
We assume that individuals placed in a community-based treatment ATR would be more likely to
fail than those sentenced to a treatment program by
a judge, since ATR participants have not only already demonstrated difficulty complying with conditions of supervision, but also include a greater
number of individuals re-entering the community
from prison.
The proposed initiative would reduce the prison
population by allowing successful participants to
avoid the prison term they would otherwise have had
to serve under truth in sentencing. The initiative
could further reduce the population further by allowing successful participants to avoid the portion of
their extended supervision terms they would have
spent behind bars after being revoked.

JUSTICE STRATEGIES

67

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Defendants sentenced to treatment as an alternative to incarceration who succeed would avoid not
only 24 months of incarceration, but also 37
months of extended supervision – the average terms
currently imposed on the target population. Since
the confinement term imposed at sentencing is the
absolute minimum any prisoner who does not graduate from an earned release or challenge incarceration program can serve, it provides a solid basis for
projecting program impact.
The bed-savings achieved by successfully redirecting prison-bound individuals to communitybased treatment go beyond the initial confinement
time avoided, however, to include whatever extended supervision time these individuals might
have served behind bars as a result of revocations.
As discussed (see Chapter II), analysis of outcomes
for individuals who were scheduled to have completed extended supervision by June 30, 2004 suggests that 40 percent of those placed on extended
supervision could be revoked, and that between 20
and 24 percent of extended supervision time might
be served in prison.
A separate analysis comparing outcomes for probationers and individuals on extended supervision
suggests that the rate of failure on extended supervision, and the amount of extended supervision
time served behind bars, could be even greater over
a longer supervision period. The data show that individuals on extended supervision were more than
twice as likely to be revoked as probationers over a
12- to 18-month period.
If this pattern continued, the proportion revoked
from extended supervision could ultimately reach as
high as two-thirds – twice the four-year probation
failure rate – with over a third of extended supervision time becoming prison time. The information
available is too limited to allow for reliable estimates
of the prison-bed impact of avoiding extended supervision revocations, so we have set a conservative
range, between 10 percent and a third, for the
amount of extended supervision time that might
become prison time.
Projected impact
Using the assumptions described above and
DOC data, it is possible to project the bed-savings
and fiscal impact of expanding treatment services.
DOC data show that, between June 30, 2003 and
68

June 30, 2004, there were 1,818 prison admissions
of individuals not revoked from supervision whose
major offenses were nonviolent.107 Just over half
(951) were sentenced in Milwaukee and most
(1,016) were convicted of drug offenses. It is estimated that, if quality services and supervision were
available, judges would have redirected 440 prisonbound individuals to community-based treatment.
Of those who were redirected, it is assumed that
291 would complete both the treatment program
and the term of probation supervision successfully,
while 149 would fail and have their probation revoked. By avoiding an average 24-month term of
confinement, successful treatment participants
would be expected to free up nearly 600 prison beds
that currently cost the state over $16 million to operate annually.108 Further, successful treatment participants would avoid serving, and being revoked
from, extended supervision terms, which might save
up to 300 additional beds over the long term.
Aside from those sentenced to community-based
treatment as an alternative to incarceration, hundreds of probationers and parolees might benefit
from the use of treatment as an alternative to revocation. On June 30, 2004, DOC data show that
there were 1,391 prisoners serving time for lowlevel, nonviolent offenses who appeared to meet the
ATR criteria established under the Wiser Choice initiative (i.e. revoked with no new convictions; had
identified AODA programming needs).
Of this number, we estimate that at least half
(696) could have been enrolled in a communitybased treatment ATR, with roughly half of that
number (340) succeeding and avoiding revocation.
By freeing up 340 prison beds, the state could save
up to $10 million in annual correctional costs. Further, avoiding a prison sentence would also mean
avoiding a term of extended supervision for probationers, who make up nearly two-thirds of the ATR
target population. This, in turn, might result in saving an additional 60 to 190 beds each year over the
long term – a potential annual savings of $1.6 million to $5.4 million.
If the proposed treatment initiative were narrowly targeted to redirect the prison-bound defendants described above, the new treatment programs
would have to serve roughly 1,135 individuals each
year. Using an estimated cost of $6,100 for treatment, wraparound services and case management,

JUSTICE STRATEGIES

vision caseloads.
Employed exclusively as a sentencing option or ATR for prisonbound offenders, an $11 million
$45
investment in treatment and super$40
vision could yield direct savings of
$35
$26 million annually. The figure
$30
would grow to between $30 mil$25
lion and $40 million over the long
$20
term if expected savings related to
revocation of extended supervision
$15
are realized, while costs could fall
$10
to $8.5 million due to declining
$5
extended supervision caseloads.
$0
In other words, each dollar inInitial costs
Initial savings
Long-term
Long-term
Long-term
vested
in treatment and supervision
costs
savings
savings
(low est.)
(high est.)
could return $2.50 in direct correctional cost-savings within the first
Treatment ($6,100)
Supervision ($1,991)
Prison ($28,622)
few years of full program operations,
and might return as much as $4.65
in correctional cost-savings over the
Projected annual costs and correctional cost-savings
long-term.
(expanded to cover half of felony probationers)
Extending treatment services to
$45
a larger pool of defendants in need
$40
of such services would benefit not
only prison-bound individuals but
$35
also many who are currently being
$30
sentenced to probation or terms in
$25
county jail. If the initiative covered
$20
half of the more than 5,000 indi$15
viduals sentenced to felony proba$10
tion each year for low-level drug,
property and drunk-driving of$5
fenses, the annual cost of the pro$0
gram would reach $22 million in
Initial costs Initial savings
Long-term
Long-term
Long-term
costs
savings #1
savings #2
the first years, and fall to $20 million thereafter.
Treatment ($6,100)
Supervision ($1,991)
Prison ($28,622)
Although expanding the scope
of the initiative would not greatly
increase anticipated bed-savings, it
the cost of the program – excluding additional sucould have some effect. If just 10 percent of prisonpervision costs – would be $7 million.
ers that were revoked from supervision with a new
Growth in supervision caseloads resulting from
conviction (a population not counted in the previthe redirection of individuals from prison to probaous estimates) avoided revocation because they retion might increase annual supervision costs by as
ceived treatment while under supervision, annual
much as $3.5 million during the first few years.109
savings could grow by another $2.6 million.
Once extended supervision savings kicked in, howWhile $22 million a year represents a major inever, added supervision costs could drop to around
vestment,
it is still less than the $29 million in an$1.6 million each year as the growth in probation
nual correctional cost-savings that could be
caseloads is offset by reductions in extended superin millions

in millions

Projected annual costs and correctional cost-savings
(prison-bound cases only)

JUSTICE STRATEGIES

69

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

achieved in the first few years of the program. Further, as the long-term extended supervision savings
kick in, the cost of the initiative could fall to $20
million a year while annual correctional savings
could reach anywhere from $33 million to $43 million.
As a consequence, each dollar invested in an initiative that provided treatment to both prisonbound and non-prison-bound defendants could return $1.30 in direct correctional cost-savings in the
short term and up to $2.15 over the long term.
These savings do not include those that would accrue to counties through reductions in local jail
populations, or other savings realized by reducing
costs associated with crime and substance abuse.

Treatment participants by type
of program admission
2000
1800
1600
1400
1200
1000
800
600
400
200
0
Sentencing
option

Alternative to
revocation

Non-Milwaukee

Probation
enhancement
(expanded only)

Milwaukee

Projected initial prison bed-savings
by type of program admission
600
500
400
300
200
100
0
Sentencing
option

OWI

70

JUSTICE STRATEGIES

Alternative to
revocation

Property

Drug

Probation
enhancement
(expanded only)

Recommendations
Invest in high-quality, community-based
substance abuse and mental health
treatment for the criminal justice
population
Recommendation: Increase funding for community-based substance abuse treatment – employed as an alternative to incarceration and as
an enhancement of probation – by $22 million
annually.
Substance abuse is a major problem in Wisconsin. The state ranks second in the nation on self-reports of binge drinking and falls in the top half of
states for reported cocaine use. Many judges say
that substance abuse is the number one driver of
criminal caseloads, and DOC data show that substance-related offenses – OWI and drug crimes – accounted for 60 percent of all prison population
growth over the last five years.110
For two decades, Wisconsin policymakers have
responded to the problem by pouring millions of
dollars into police and prisons, while allowing the
state’s treatment infrastructure to remain woefully
underfunded. A Bureau of Mental Health and Substance Abuse Services estimate indicates that just
one in every seven state residents with a substance
abuse disorder is receiving treatment. Yet prison admissions for nonviolent drug offenses grew ten
times as fast as admissions to substance abuse treatment over the last five years.
There is growing recognition that the current
approach does little to reduce substance use or to
enhance public safety because it asks the impossible
of law enforcement and corrections: compel addicts
to clean up without offering them adequate treatment. Wisconsin is fortunate to be a recipient of a
$26 million Access to Recovery grant that will go a
long way toward expanding access to treatment for
Milwaukee parolees and other county residents. But

even in Milwaukee, there is no guarantee that the
federally-funded Wiser Choice initiative will eliminate waiting lists or make treatment available to
probationers before trial or at sentencing
If the state is to have any hope of reigning in
prison population growth and making headway in
the fight against addiction, lawmakers must make a
major investment in quality community-based treatment, supervision and “wrap-around” services. The
establishment of the grant program for local treatment-based alternative-to-incarceration programs is
a step in the right direction. But it will remain a
small step until the legislature funds the program at
a level sufficient to make a meaningful impact on
sentencing patterns.
Other state policymakers have recently increased
funding for community-based substance abuse
treatment. Lawmakers in Wyoming, which has a
smaller population than the city of Milwaukee, have
invested over $35 million in early intervention, prevention and treatment since 1998 to combat
methamphetamine use – including $1.7 million for
drug treatment courts. When Kansas legislators approved changes in the state’s sentencing guidelines
to divert drug offenders from prison to treatment in
2003, they also appropriated $6 million to expand
treatment services. In 2004 Hawaii legislators appropriated $14.7 million for this purpose. And in
June of last year, Oklahoma approved $8 million for
the expansion of drug treatment courts – a figure
that will grow to $16 million annually in fiscal year
2006-2007.
In order to assess the potential impact of expanding access to substance abuse treatment and
wraparound services, Justice Strategies initiated a
comprehensive research process that included analysis of data provided by DOC and other state and
local agencies; extensive interviews with criminal
justice professionals and social service providers; and
observation of focus groups organized for judges by

JUSTICE STRATEGIES

71

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

the state’s Sentencing Commission. Based on our
research, we determined that the state could substantially improve outcomes and eventually reduce
annual prison expenditures by an estimated $30
million to $40 million if roughly $10 million were
dedicated each year to providing comprehensive,
community-based substance abuse treatment and
supervision for individuals who would otherwise
have been incarcerated.111
A major investment in substance abuse treatment
is a necessary, but not sufficient, condition for reducing correctional costs and enhancing public
safety. In interviews and focus-group discussions,
judges and other criminal justice professionals
clearly articulated the need for a treatment system
that provides timely, appropriate and comprehensive
services which are closely coordinated with effective
supervision.
A successful strategy for redirecting prisonbound defendants into community-based treatment
must address other issues that directly impact an individual’s capacity to lead a crime- and addictionfree life. For example, in Milwaukee, those who
work in the criminal justice system cite lack of job
skills and opportunities as contributors to both
crime and incarceration. Substance abuse treatment
must be coupled with supportive services that meet
the need for counseling, education, job training and
placement, safe and substance-free housing, and aftercare – without which treatment may be rendered
ineffective.
Wrap-around services increase the cost of treatment, but experts at Drug Strategies cite evidence
that they are extremely cost-effective. Outpatient
treatment enhanced with wrap-around services in
Philadelphia delivers an estimated cost/benefit ratio
of more than six to one.112 The cost of such wraparound services is built into the projections presented here and should be included in any program
funded through the proposed initiative.
Redirecting nonviolent substance abusers from
prison to community-based treatment requires not
only increasing the availability of treatment but also
improving the quality of probation and parole supervision. Wisconsin’s community corrections system, like the state’s treatment infrastructure, has
been under-resourced and overburdened for many
years. A portion of the $20 million to $30 million in
annual net savings (correctional savings less treat-

72

ment and supervision costs) that could be achieved
through the use of treatment as an alternative to incarceration should be redirected to reduce caseloads, improve training and make other changes
necessary to restore the confidence of judges and
other stakeholders in the community corrections
system.
In some cases, the availability of quality treatment and case management will persuade judges to
redirect prison-bound defendants into communitybase programs. In other cases, however, improved
probation supervision will be a precondition for
judges to consider placing defendants in a community setting. For this reason, the legislature should
consider providing increased funding or taking
other steps to encourage the DOC to enhance probation supervision.
Third, the state should provide technical and financial assistance to help rural jurisdictions close the
“treatment gap.” BMHSAS data show that substance abusers are less likely to receive treatment in
rural areas than elsewhere. Many rural counties lack
the capacity to handle serious problems with alcohol and, increasingly, with methamphetamine. Rural
counties may need assistance from the state to attract and hold qualified treatment professionals.

Recommendation: Increase funding for mental
health services and support the establishment
of diversion programs designed to keep the
mentally ill out of the criminal justice system.
The challenge of accommodating the mentally ill
in the justice system has grown as some financially
strapped counties have begun refusing to provide
mental health care to probationers and parolees because they are legally “state clients”. Although caring for the mentally ill can be costly, especially for
those who have been “dually-diagnosed” with both
mental health and substance abuse disorders, the
long-term fiscal and human costs of allowing mentally-ill individuals to cycle in and out of prisons and
jails are even greater.
Policymakers should begin by re-establishing and
expanding Project AIM, Milwaukee’s innovative
mental health diversion program that was shut
down in 2004 after federal funding lapsed. According to Jill Fuller, who ran Project AIM for Wisconsin Community Services, the diversion program

JUSTICE STRATEGIES

could cost as little as $150,000 a year to operate in
Milwaukee – enough for three “boundary-spanners” to screen arrestees before their first appearance – because case management and mental health
treatment are already being provided through Justice 2000 and the county, respectively. Funding
should also be made available to other counties that
want to implement early screening and diversion
programs for court-involved mentally ill individuals.
In addition to the Project AIM model, counties
may want to consider establishing therapeutic mental health courts, similar in philosophy and practice
to drug treatment courts, which have been
launched in several jurisdictions including Brooklyn,
New York, Baltimore, Maryland and Broward
County, Florida. An evaluation of the Broward
County court found that, when compared to similarly situated defendants, participants were twice as
likely to receive mental health treatment and spent
75-percent fewer days in jail.113

Arm policymakers and judges with
information needed to deliver better,
more cost-effective outcomes for
defendants, victims and communities.
In her 2005 address on the state of the judiciary,
Chief Justice Shirley S. Abrahamson highlighted the
importance of good information to achieving the
goal of uniform justice that takes individual circumstances into account. Judges who participated in the
Sentencing Commission’s focus groups also cited
the need for better information about the defendants who appear before them, about interventions
and programs that have been shown to be effective,
and about the outcomes of the cases they have sentenced.
Justice Abrahamson talked about the need to
“strive for a degree of uniformity in sentencing
without losing sight of the fact that no one-size-fitsall solutions are available to resolve the complex
problems we face.” 114 She suggests that the state’s
Sentencing Commission can play a role in improving jurisprudence by helping judges examine sentencing outcomes and informing the larger policy
discussion surrounding sentencing.
Recommendation: Establish an Early Case Assessment and Referral system that puts information regarding defendants’ need for treat-

ment and associated services – along with referrals to appropriate programs – in the hands
of judges, prosecutors, defenders and correctional officials at the earliest possible point in
the criminal justice process.
Given the degree of chronic alcohol and substance abuse among the criminal justice population,
identifying and addressing the treatment needs of
defendants should be a high priority. Once identified, these needs too often go unaddressed for lack
of a timely, appropriate referral. Many defendants
with substance abuse disorders are placed on long
waiting lists. Some are subjected to long and costly
jail stays until a slot opens up, while others released
on pretrial or probation supervision are at high risk
of reoffending because of their addictions.
The perception that nothing is available discourages defendants, defense attorneys and prosecutors
from exploring treatment options. That perception
also encourages judges to impose prison terms in
the hope that addicts will get the treatment they
need behind the walls.
Assessment of treatment needs and referral to appropriate programs should be completed as early as
possible in order to ensure that the placements are
appropriate, and that opportunities are not lost to
divert offenders from prosecution or have them
placed on probation with treatment conditions.
More than a decade ago the Wisconsin Correctional Services agency in Milwaukee (now Wisconsin Community Services) operated an early
screening center in the Public Safety Building
where people were taken directly after arrest. In
the course of interviewing arrestees to determine
their suitability for pretrial release, WCS staff performed a quick assessment of their substance
abuse and mental health needs. Relevant information about treatment needs and available programs was provided to court officials at the initial
stage of each case. When treatment was ordered,
the agency took responsibility for case management – making appropriate referrals for more indepth, professional assessment of treatment
needs, verifying program admissions, tracking
progress in treatment, and providing reports detailing compliance (or noncompliance) to court
officials. An early case screening, referral and case
management system such as this is an essential
tool for effective intervention and treatment.

JUSTICE STRATEGIES

73

Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Recommendation: Improve data collection at
all levels of the criminal justice system and expand the Sentencing Commission’s capacity to
conduct research on sentencing and correctional trends and outcomes.
The Sentencing Commission should be provided
with adequate resources to support in-depth research on sentencing practices and outcomes for
dissemination to judges and other criminal justice
system stakeholders. As they make sentencing determinations, judges need up-to-date information
about best practices and effective programs, including surveys of national research and evaluations of
local programs, as well as information about outcomes for the defendants they have sentenced.
The causes of regional disparity in sentencing
outcomes, as well as racial/ethnic disparity in incarceration rates, should be investigated in order to determine what policy changes or program resources
are necessary to advance the goal of equal justice.
For example, the vast disparity between sentences
imposed for similarly situated defendants in Milwaukee and the rest of the state raises questions of
equal justice and demands further study. By convening judicial focus groups, the Sentencing Commission has helped illuminate one contributing factor: Milwaukee judges indicated that they sentence
a much higher proportion of defendants to prison
each year, not because incarceration is the only or
the best means of protecting the public, but because
the existing alternatives to incarceration are inadequate.
Factors that have allowed some Wisconsin jurisdictions to reduce their reliance on incarceration
should be identified in order to uncover successful
strategies that could be replicated elsewhere. Some
of Wisconsin’s most populous counties – Kenosha,
Racine and Rock – are bucking the statewide trend
by incarcerating fewer people than they did five
years ago, while Dane County has succeeding in
keeping growth far below the state average.
Between 1999 and 2004, the number of beds
occupied by prisoners sentenced in Dane, Kenosha,
Racine and Rock counties fell by nine percent, while
the number of prisoners sentenced elsewhere rose
by 24 percent. Collectively, the four counties can be
said to have “saved” more than 1,100 prison beds
and over $30 million in state corrections spending
that would have been necessary if their use of prison
74

beds had kept pace with the rest of the state.
Use of prison beds is determined by many factors, of which some – changes in population and
crime rates, for example – are outside the control of
local or even state officials. However, local and state
officials do have control over such critical factors as
policing, prosecution, sentencing, and supervision
of probationers and parolees.
It may be, for example, that the nine million dollars legislators invested in 2000 to enhance probation services for Dane and Racine counties paid off.
Similarly, Dane County’s drug treatment court
could have played a role in a 17-percent reduction
in the number of beds that county has used for nonviolent drug prisoners over the last five years.
Whatever the answer, uncovering the factors
driving the state’s incarceration trends could be
enormously beneficial, since it might allow cost-effective practices and model programs to be replicated statewide. If the rest of the state had been able
to mirror trends in Dane, Kenosha, Racine and
Rock over the last five years, Wisconsin would have
4,500 fewer prisoners and be spending roughly
$120 million less on corrections each year.
If funding is provided to expand substance abuse
treatment services, Wisconsin’s policymakers will
need to know whether the investments they make
meet their objectives – reducing use of illegal drugs,
enhancing public safety and reducing reliance on incarceration.

Support local innovations that enhance
public safety while reducing costly
reliance on incarceration.
Recommendation: Support the expansion of
local alternatives to incarceration using a mix
of state grants, community corrections subsidies and state purchase of local services for the
probation and parole population.
The current system of criminal justice funding
encourages local jurisdictions to sentence defendants to prison and let the state pick up the tab,
rather than spend limited local funds on effective
community-based alternatives that would do more
to protect public safety over the long term. Nevertheless, local jurisdictions have responded to the
failure of traditional mechanisms to deliver desired
outcomes with innovative programs that combine

JUSTICE STRATEGIES

the resources of the criminal justice system with
other social services and community supports.
All too often, however, these local initiatives depend on grant funds that are exhausted within a few
years, after which they must close their doors or
limp along without sufficient resources. The state
should fully support local efforts to develop and
sustain community-based alternatives since they will
ultimately reduce state corrections costs.
During the 2005 session, the legislature established a grant program that could be used by counties and regional consortia to fund alternatives to incarceration. The initiative represents an important
step in the right direction although it is currently
under-funded. Funds made available by the legislature to launch new day-reporting centers and fund
re-entry planning and services will also help relieve
some of the burden probation and parole populations place on county social services.
However lawmakers may want to consider a
more comprehensive approach to funding community corrections at the local level. It is clear that the
best results can be achieved by allowing each jurisdiction to develop strategies that best address local
needs and maximizes the use of local resources. Yet
given budget constraints, it is unlikely that the state
could continue full funding for local treatment initiatives if anticipated reductions in prison commitments did not materialize. Realizing the full potential of an initiative that supports local justice innovation will require effective accountability mechanisms and incentives for reducing reliance on imprisonment.
State efforts to create incentives for greater reliance on locally-based community corrections are
nothing new. Effective models can be traced back
for decades. Seeking to better balance the statecounty correctional relationship in California, lawmakers established a special probation supervision
subsidy in 1966. Policymakers were concerned with
the increased cost of incarceration in state prisons
and juvenile institutions, and they were impressed
with promising concepts for supervision and treatment in the community. Studies had established
that substantial numbers of people could be safely
re-directed from the state prison system to local
community corrections if financial incentives for
doing so were provided.
California’s subsidy program was a cost-sharing

program designed to improve community supervision and expand program services. Counties that
volunteered to participate were reimbursed in proportion to the number of cases they kept in the
community and out of state institutions. The rate of
payment was set to reflect a substantial share of the
cost of maintaining prisoners in state custody. The
amount paid to each county depended on the number of reduced commitments, measured against the
yardstick of its average rate of commitment per hundred thousand residents during a prior five-year
baseline period. The goal was to reduce commitments by 25 percent overall, but no individual
county was held to this level of achievement.
The state encouraged counties to use the subsidy
to fund a wide range of programs to strengthen probation supervision – from mental health services to
educational and vocational programs, family services and job placement. The intent was to support
local innovation and flexibility.
Changes in state commitment rates during
Ronald Reagan’s first gubernatorial term were dramatic. Adult commitments to prison leveled off almost immediately while juvenile commitments
plummeted. The state’s goal of a 25-percent reduction in commitments was achieved by the end of the
second year. By 1969 the proportion of superior
court commitments to prison had dropped to 10
percent from 23 percent just four years earlier.115
By the end of its first decade participating counties had received more than $160 million and state
officials deemed the program a resounding success,
claiming a fiscal savings of over $120 million.116

California State Prison population
as of December 31
30,000
25,000
20,000
15,000
10,000
5,000
0
1950 1954

1958

1962 1966 1970 1974 1978

SOURCE: California Department of Corrections

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Evaluators of the subsidy program were quick to
point out that not all of the decline could be attributed to the incentive structure. They cited a variety
of other factors which likely were in play – from improved legal representation for indigent defendants
to growing judicial disillusionment with the results
of imprisonment. Analysts at the California Department of Finance offered a conservative assessment
of the subsidy’s impact. They estimated that at least
46 percent of commitment reductions could be directly attributed to the subsidy program, an impact
on both adult and juvenile commitments they
termed “substantial.”117
In Los Angeles County, by far the state’s most
populous and diverse urban area, the level of reduced commitments was well above that for the
state as a whole. By 1972 the commitment rate had
declined by 52 percent in Los Angeles, while the average decline for all counties was 38 percent.
Prior to introduction of the subsidy program
California’s rate of commitments to state institutions had far exceeded the national average. In 1964
California’s rate was 64.8 per 100,000 residents,
compared to the national rate of 39.4 (excluding
California). Over the first five years of the subsidy
program, while California’s rate declined to a low of
37.5, the national rate first stabilized and then
began to increase, reaching 46.1 in 1971. By 1975
California’s commitment rate had risen again to
45.9 – but the national rate had soared to 54.7.118
The subsidy program played a substantial part in
reducing state commitments of both adults and juveniles, and had kept many in the community who
earlier might have been committed for some minor
offense or a technical violation of probation:
“If something firm is to be learned from probation subsidy experience, it is that offenders
previously thought to require incarceration
can be kept in the community with increased
surveillance, better methods of internal accountability, and more communication between probation officers and police.”119
California’s probation subsidy program continued throughout the 1970s, but introduction of California’s determinate sentencing law in 1976
marked a sea change in the state’s sentencing and
correctional policies that eventually swamped the
subsidy’s incentive power, sending prison population levels through the roof.
76

The concept of using fiscal incentives to reduce
reliance on incarceration and to stimulate development of effective correctional alternatives and crime
prevention programs in local communities has recently re-emerged. New efforts to build community
justice and foster justice reinvestment are stirring interest again in ways to shift state funds from institutional corrections to strengthen the communities
where crimes take place, in order to build local capacity for social control and enhance public safety.
These reforms have theoretical grounding in a
new school of thinking – a “criminology of place”
which holds that a policy of mass incarceration is itself a generator of the crime problems policymakers
intend to eliminate. Since the scale of imprisonment
has risen to the point where more than 700,000
people are released from our nation’s prisons back
to their home communities each year, attention has
been drawn to the high recidivism rates of releasees.
Less attention has been given to important research
that traces the effect of sending so many young men
to prison from those communities in the first place.
In ground-breaking research on this front, criminologists Dina Rose and Todd Clear examined
crime statistics in Tallahassee and found that in the
neighborhoods where incarceration rates shot up
the most, crime rates also increased the most during
the following year. And when crime dropped in Tallahassee overall, it fell the least in the high-incarceration zones.120
While low levels of incarceration may deliver the
desired incapacitation effect, the same crime policy
may backfire if incarceration rates rise too high.
Dina Rose theorizes that when so many young people are pulled from their neighborhoods, incapacitation reaches a “tipping-point” that can send crime
rates spiraling up. Simply churning large numbers of
inner-city youths through the state prison system
destabilizes communities already stressed by poverty
and crime.
Community justice offers a different approach to
address the problem of crime, supporting community action and involving community residents in a
partnership with the formal criminal justice system.
Milwaukee’s Community Justice Resource Center,
developed collaboratively by the Benedict Center
and the Milwaukee County Sheriff ’s Department,
offers a successful model that provides drug and alcohol counseling, anger management courses, GED

JUSTICE STRATEGIES

and job skills classes to people diverted from incarceration.
The new Community Justice Center on Milwaukee’s south side has incorporated restorative justice
practices, with community probation officers, community police officers and community prosecutors
who all work onsite. A community public defender
will soon join them. Half of the members of the governing board for the project are people who live and
work within the boundaries of the CJC service area.
The head of Wisconsin’s parole commission has
established a community parole component. He has
opened a direct line of communication to his office
for members of prisoners’ families from within the
district. If a prisoner who is brought to his attention
through the project is found to be parole-eligible, a
neighborhood support circle is established and a
CJC service plan is incorporated in the person’s parole release agreement.
In Deschutes County, Oregon, community justice principles have guided development of the Department of Juvenile Community Justice. In 1997
community justice activists and county government
leaders won state legislation (H.B. 3737) that established the Community Youth Investment Program.121 Under CYIP, county efforts to reduce the
number of juveniles committed to state juvenile facilities are rewarded by the state, which refunds 100
percent of the cost of incarceration to the county –
roughly $56,000 per youth. The bulk of the funds
derived from CYIP (70 percent) are used to provide
residential treatment and intensive aftercare for the
diverted youths. The remaining funds are invested
in primary prevention programs to reduce the risk
of crime (i.e. home visits for at-risk families with
newborns and behavioral assistance for kindergartners).
CYIP has resulted in a 72-percent reduction in
use of state juvenile beds. CYIP youths pay nearly
twice the amount of victim restitution compared to
those sent to a state institution, and they perform
50 times more hours of community service.122
Advocates for justice reinvestment argue that targeted investments in community development efforts in those neighborhoods with a particular focus
on job creation will produce long-term gains in reduced levels of crime and safer neighborhoods. Development of an incentive funding mechanism
could provide the stimulus needed to put Wiscon-

sin at the forefront of the emerging trend toward
community justice and justice reinvestment.
Recommendation: Fund the establishment and
expansion of problem-solving courts that target prison-bound individuals with severe drug,
alcohol and/or mental health problems.
Drug treatment courts
Several Wisconsin counties have established drug
treatment courts which use the leverage of the criminal justice system to encourage defendants to participate in substance abuse treatment. Drug treatment courts have now been in use for more than a
decade in many jurisdictions across the nation and
generally get positive reviews from all of the stakeholders involved, including prosecutors, defenders,
judges and probation agents.
While drug treatment courts follow a common
set of practices – an emphasis on closely monitored
treatment and use of graduated rewards and sanctions – they vary greatly in who they admit and how
they encourage participation in the program. Some
drug treatment courts focus on defendants who are
unlikely to be sentenced to prison, but who may be
motivated by the opportunity to avoid a felony conviction. Others target low-level defendants with serious substance abuse problems who pose little risk
of committing a violent crime, but who are likely to
re-offend unless they receive treatment.
Drug treatment courts and other problem-solving courts address an important need in the criminal
justice system. Experience in Wisconsin and elsewhere shows that, if used correctly, problem-solving
courts can be a highly efficient and effective means
of handling problem cases.
For example, Baltimore’s ten-year old drug treatment court program has shown that defendants
with extensive criminal records and longstanding
addictions can be ideal candidates for an intensive,
therapeutic court intervention. Evaluation results
published in 2004 found that participants were 31percent less likely to be arrested over a three-year
period than members of the control group.123 An
even more impressive 44-percent reduction in recidivism was achieved with Circuit Court participants, who are generally charged with the most serious offenses.
Dane County’s drug treatment court, which
started with simple drug possession cases, has suc-

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

cessfully broadened its scope to handle more serious
drug and property offenses. Problem-solving courts
that handle serious cases are more cost-effective,
since there is a greater likelihood that participants
will be diverted from a prison sentence. Further,
drug treatment courts that enroll higher-risk defendants have been shown to achieve greater reductions in recidivism than courts that enroll low-risk
defendants.124
In addition to Dane, La Crosse and Monroe
counties have drug treatment courts in place, while
Eau Claire, Pierce and Wood are currently exploring the idea. 125 Judges and other officials in Racine
have also considered establishing a drug treatment
court.126 Further expansion of drug treatment
courts could help slow growth in the state’s drug
prisoner population if they are targeted toward
high-risk defendants.
Drunk-driving/alcohol-treatment courts
Driving while intoxicated is a serious problem in
Wisconsin, contributing to over a third (38 percent)
of all of traffic fatalities in 2003.127 The imposition
of tougher penalties for drunk driving has caused
the number incarcerated for OWI to skyrocket –
from 58 prisoners on June 30, 1994 to 839 prisoners on June 30, 2004 according to DOC data.
Many court officials are concerned about how
best to deal with drunk drivers, who often pay taxes,
raise families and contribute to their communities
even as they continue to endanger themselves and
the public by driving while intoxicated. Court officials in Waukesha County, which ranked second in
use of prison beds for drunk drivers in a recent
DOC analysis,128 are considering launching an alcohol treatment court.129 Winnebago County, which
ranked third in use of prison beds for individuals
with only OWI convictions, is also exploring the alcohol treatment court option.130
In Phoenix, Arizona court officials have found an
approach that has proven to be effective. With funding from the National Highway Traffic Safety Administration (NHTSA), Maricopa County court officials have established a DUI court that operates
along the same principles as drug and other therapeutic courts, using treatment, supervision and regular meetings with a judge to keep participants on
track.
To test the program’s effectiveness, eligible par78

ticipants were randomly assigned to the DUI court.
NHTSA researchers found that the DUI court cut
the recidivism rate of felony DUI probationers by
half. After three years, just seven percent of DUI
court participants with a prior alcohol-related traffic offense had been convicted of a subsequent offense.131 Officials say that the DUI court’s effectiveness has been further enhanced by the use of electronic bracelets that detect alcohol use during participants’ first 90 days in the program, and by the
addition of a Spanish-language DUI court. Establishment of drunk-driving courts or alcohol treatment courts in Wisconsin could help reduce both
drunk-driving incidents and the number of prison
commitments for felony OWI.
Recommendation: Fund the establishment and
expansion of probation review hearings and
other mechanisms designed to enhance supervision at less cost than traditional problem-solving courts.
Problem-solving courts can be an enormously
useful tool when used to divert high-risk and highneeds individuals from prison and/or prosecution.
But problem-solving courts are not a panacea, nor
are they a substitute for an effective system of probation and parole supervision. Chief Justice Abrahamson observed in her annual address on the state
of the judiciary that traditional problem-solving
courts tax already thin judicial resources. As one
Milwaukee judge put it, “Instead of having [substance abuse treatment] for the many, via the probation department, you have it for the few, via the
drug treatment court.”
Some counties have found a middle-ground between standard probation and resource-intensive
problem-solving courts through the use of probation review hearings. Milwaukee’s Domestic Violence Court — a five-year demonstration project
funded by the U.S. Department of Justice, Office of
Justice Programs’ Office on Violence Against
Women (OVW) and the National Institute of Justice – employs probation review hearings and is well
regarded by court officials. Some judges who participated in the Fox River Valley focus group indicated that they, too, were making use of probation
review hearings to ensure that probationers were
meeting requirements, including participation in
treatment, and receiving the support they needed

JUSTICE STRATEGIES

from probation agents..
Recognizing the need to improve outcomes with
limited resources, the Chief Justice and the Director of State Courts are working with Outagamie
Chief Judge Joe Troy to develop a comprehensive
model for incorporating substance abuse and mental health treatment into the criminal justice
process. The proposed initiative would serve a
greater number of defendants than could be handled in traditional problem-solving courts, ensuring
that defendants receive mental health and substance
abuse assessments, making increased use of diversion and enhancing supervision of probationers to
reduce recidivism.132 If successful, the program
should be replicated statewide.

Adjust sentencing statutes and
correctional policies that have the
potential to impose huge costs on the
state with little benefit to the public.
Truth in sentencing has not yet produced the explosion of the prison population that some had anticipated. It has, however, increased levels of despair
in prison, hurt efforts at rehabilitation and resulted
in longer prison terms for those convicted of nonviolent drug offenses.133 Further, unless steps are taken
immediately, supervision and prison populations
could skyrocket as the number serving – and failing
– long terms of extended supervision increases.
Solving these problems does not require repeal
of the truth-in-sentencing statutes. Modest adjustments to the state’s sentencing laws, combined with
the proposed expansion of treatment, should allow
the state to reign in prison population growth while
enhancing public safety. Further, adoption of sensible parole reforms like those implemented in other
states for “old law” prisoners in Wisconsin could
also help ease immediate population pressures and
free up resources needed to improve probation and
parole supervision.

Extended supervision
There is no evidence that long periods of postrelease supervision increase public safety. As currently structured, it is possible that Wisconsin’s system of extended supervision could drive up recidivism rates. Lengthy supervision terms will further
stretch the already thin resources available for supervising and supporting probationers and parolees

in the community, and increase the risk that they
will cycle in and out of prison for years as a result of
technical violations.
Analysis of the available data suggests that problems associated with supervising and reincarcerating
those released to extended supervision could soon
reach crisis proportions. Many court and correctional officials worry that unless steps are taken to
reduce supervision terms and improve outcomes,
extended supervision could become a ticking timebomb for the state.
In recent years, policymakers in many states have
recognized the need for more efficient and effective
approaches to correctional supervision. They have
begun to target limited correctional resources toward high-risk individuals rather than spreading
those resources thin by trying to supervise every
probationer and parolee. Agents are being retrained not just to catch supervisees when they fail,
but also to help them succeed. Finally, systems that
were organized around making probationers and
parolees go through the motions until their sentences expired is giving way to one that is focused
on goals such as employment and education, and
that provides incentives for those under supervision
to make extra efforts to turn their lives around.
Several states have moved to reduce supervision
terms for individuals convicted of minor offenses as
well as those who have demonstrated through their
behavior that they are unlikely to commit new
crimes. Legislators in Kansas have reduced the
length of community supervision for individuals
convicted of low-level offenses, cutting supervision
time by half in many cases. And in Washington state
legislators have ended active post-release supervision for many low-level prisoners. Such reforms can
generate millions of dollars in cost-savings while refocusing probation and parole resources on those
who pose the greatest risk to public safety.
Lawmakers could begin by reducing extended
supervision terms and encouraging judges to reward compliance with early discharge. They could
allow credit for any time successfully served in the
community prior to revocation. Many judges are
keenly aware of the unforeseen consequences of imposing long terms of extended supervision on
prison-bound defendants. Without the backing of
lawmakers, however, it is unlikely that judges will
unilaterally cut extended supervision terms. Nor can

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

judges recognize the efforts of parolees who relapse
by crediting the time they spent going to appointments, maintaining employment and staying clean
against their extended supervision sentence.
Recommendation: Limit extended supervision
to 50 percent of the term of confinement.
One solution to the problem would be to limit
the amount of extended supervision time that can
be imposed at sentencing in proportion to the
amount of confinement. Although current law only
requires that the term of extended supervision be at
least 25 percent of the term of confinement, the average period of post-release supervision is equal to
125 percent of the average confinement time.
Limiting extended supervision to half of the term
of confinement would reduce the typical period of
post-release supervision by 60 percent. Such a reform could cut extended supervision caseloads in
half, allowing agents to spend more time supervising and assisting parolees during the critical months
following release from prison. The reform could
also save the state tens of millions of dollars by reducing the number and the duration of revocations
from extended supervision.
Placing a 50-percent cap on extended supervision terms would still allow for a reasonable period
of post-release supervision, with even those who receive the minimum term of confinement for the
lowest-level felony remaining eligible for six months
of supervision. In cases where an individual’s performance on extended supervision demonstrates a
compelling need for further monitoring, judges
could be permitted to extend the term of supervision up to the current statutory maximum.
Recommendation: Encourage early discharge
of successful releasees from extended supervision
In addition to limiting extended supervision
terms, lawmakers could allow individuals who are
meeting supervision requirements to earn early discharge from extended supervision. This provision
would not only reward the efforts of parolees to
turn their lives around, but would also permit parole agents to focus their energies on those who
need the most help and pose the greatest risk to the
public.
In order to earn an early discharge, releasees
80

could be required to meet standards and requirements set by the Department of Corrections or the
sentencing judge, which might include completing
a treatment or vocational program, and maintaining
employment. Eligibility for early discharge could be
designated by the court at or after sentencing, in
order to ensure that the highest-risk individuals
serve the full term of extended supervision.
If just a quarter of all individuals placed on extended supervision were discharged after serving
half of their original supervision terms, the result
could be a more than 10-percent reduction in extended supervision caseloads.
Recommendation: Permit judges to award
credit for time served successfully on extended
supervision prior to revocation at resentencing.
Under Wisconsin’s current system, individuals
who are revoked from extended supervision receive
no credit for time they served successfully in the
community. A person with a substance abuse problem might have completed a treatment program,
obtained employment, found stable housing and
kept all of his or her appointments during the first
year or more of extended supervision. But if this individual experiences a relapse, starts using drugs
again and gets revoked, he or she must start serving
the extended supervision term all over again – first
behind bars and then, if released again, back in the
community. The result is a built-in disincentive for
individuals who are battling addictions, since making the effort to succeed can extend the sentence,
but not shorten it.
This problem could be fixed by allowing judges
to determine at resentencing that some or all of the
time served in the community prior to revocation
should be credited as time served. Granting credit
for time served in the community would let those
on supervision know that efforts to succeed will be
rewarded. It could also reduce both supervision
caseloads and the number incarcerated for revocations of extended supervision.
Examination of prison records for those individuals revoked from extended supervision who completed their sentences by June 30, 2004 shows that
uncredited time served on supervision lengthened
average time spent on extended supervision term by
30 to 40 percent. If judges had awarded credit for
just half of time served in the community prior to

JUSTICE STRATEGIES

revocation, total time served in custody might have
been reduced by roughly 10 percent, while total supervision time might have declined by around seven
percent.134 As the numbers on extended supervision grow, the resulting savings could be significant.

Restoration of “good-time” credits
Recommendation: Allow prisoners sentenced
under truth in sentencing to accrue a modest
amount of “good-time” credits – up to 15 percent of the term of confinement –to reward
good behavior and efforts toward rehabilitation.)
Corrections officials interviewed by the Milwaukee Journal-Sentinel say that truth in sentencing has
virtually eliminated incentives for prisoners to participate in programming or follow prison rules.135
One warden told the paper that the number of prisoners refusing drug and alcohol programs had increased dramatically. Another said that disciplinary
and psychological problems were growing as prisoners become more desperate.
Lawmakers did make some provision for rewarding good behavior by permitting prisoners to petition the court to adjust sentences by as much as 15
percent or 25 percent, depending on the nature of
the offense. However, the process has failed to function as an effective safety-valve because petitions are
routinely blocked by prosecutors.136 One judge told
Milwaukee Journal-Sentinel reporters that, even if
prosecutors did not oppose sentence adjustments,
few judges would grant them because they must
stand for election.137
Revising truth in sentencing to restore a modest
amount of good time could make state correctional
facilities safer and encourage prisoners to take advantage of existing programs. Such a move would
also ease population pressures. If Wisconsin adopted
the truth-in-sentencing standard used in famously
tough-on-crime Arizona, where prisoners must
serve 85 percent of their sentence before release, the
result could be an eventual 2,000-bed reduction in
the prison population.138 If those serving time for
nonviolent offenses were allowed to earn up to 25
percent off their confinement terms, the savings
might grow to 2,500 prison beds.
Recommendation: Reduce penalties for first-

time distribution of very small amounts of cocaine by individuals with no prior felony convictions.
When the TIS II reforms were enacted, lawmakers substantially scaled back penalties for some of
the most common property offenses, including
theft and forgery – sensible changes reflecting the
principle that prison space should be reserved for
those who pose the greatest danger to public safety.
Yet offenses involving very small amounts of controlled substances continue to be ranked alongside
crimes that are arguably much more serious.
For example, sale of a gram or less of cocaine is
classified at the same level as third-degree sexual assault, abuse of vulnerable adults and felony intimidation of a witness. Possession of one to five grams
of cocaine with intent to distribute is classified at the
same level as bringing a firearm into a prison or jail,
intentionally discharging a firearm from a vehicle on
a highway and sexual exploitation of a child. Further, the maximum penalty for selling a gram or less
of cocaine is over three times as long as the maximum prison term that can be imposed for “substantial battery” (causing substantial bodily harm to
another).139
According to judges, substance abusers make up
a great majority of those facing drug distribution
charges. Locking up people who sell small amounts
of drugs to feed their habits does little to reduce the
availability of drugs or further public safety, since
those incarcerated are quickly replaced by other drug
addicts. Nor is there a clear rationale for exposing an
addict who sells half a gram of cocaine on a street
corner to a maximum prison term that is more than
twice as long as the maximum sentence for a substance abuser who steals property or forges checks.
Finally, the harsh penalties prescribed for lowlevel drug offenses fall hard on youth, who make up
a large share of those prosecuted for drug offenses.
According to DOC data, a third of all felony drug
cases involved defendants who were 21 or under at
the time of the offense. In most of the cases, the defendant had no prior Wisconsin criminal record. Between July 1, 2003 and June 30, 2004 alone, 130
young people (21 and under) with no prior felony
convictions were sentenced directly to prison for
drug distribution.140 Another 45 were admitted to
prison for a first felony drug offense after being revoked from probation.

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Scaling back penalties for low-level and first-time
drug offenses would help the state deploy limited
correctional resources more efficiently and reduce
the devastating impact of incarceration on young
defendants. Lawmakers could begin by designating
delivery/PWI of a gram or less of cocaine by a person with no prior felony convictions as a Class I
felony – the same level assigned to delivery or possession with intent of up to 200 grams of marijuana.
In the most recent year covered by DOC case
data, there were at least 425 cases involving delivery/PWI of up to a gram of cocaine by a defendant
with no Wisconsin felony convictions, with at least
185 resulting in a prison sentence.141 In 179 of the
425 cases, the defendant was 21 or younger at the
time of the offense, including 84 cases that resulted
in a prison sentence.
It is impossible to know exactly how sentences
would change if these offenses were reclassified,
however there is some evidence suggesting that the
number sentenced to prison might be reduced. A
comparison between sentencing of the lowest-level
marijuana and cocaine distribution cases shows that
the Class I marijuana convictions were just half as
likely to result in prison terms as the cocaine convictions that would be redesignated Class I offenses
under the proposed reform.142

Parole release
Recommendation: Restructure release criteria
and reentry policies to facilitate parole of “oldlaw” prisoners who pose least risk to public
safety.
Although the proportion of “old-law” prisoners
being released to parole – rather than being held
until mandatory release – has rebounded somewhat
since 1999, thousands of parole applications are still
being deferred or denied by the Parole Commission. On June 30, 2004, DOC data show that there
were roughly 5,000 prisoners who had been held
beyond their initial parole eligibility date.143 Among
those held beyond their initial eligibility date, 800
were deferred to their mandatory release or maximum discharge dates and nearly 3,200 were deferred to their next parole hearing.
Policymakers in Kentucky, Nevada and Texas
have introduced or revised risk-assessment guidelines to increase the chances of parole-eligible prisoners being granted release. Legislators in Nevada
82

and Wyoming have authorized transfer of prisoners
to community-based re-entry programs within two
years of their expected release dates. In Missouri,
prisoners convicted of nonviolent offenses with two
years remaining on their terms may apply for release to home detention. In Connecticut, transfer
to a halfway house is permitted within 18 months
of parole release; in Arkansas, within a year. Early
release to treatment programs has recently been authorized in Arizona, Delaware, New Mexico, and
Pennsylvania.

Redesign sentencing and correctional
policies to facilitate and reward success
rather than simply punishing failure.
Experience with drug courts has shown that the
“carrot and stick” approach can be effective, even
with addicts who have long criminal records. For
the most part, however, Wisconsin’s criminal justice system offers all stick and no carrot. Many probationers who complete treatment, meet supervision requirements and turn their lives around still
struggle under the cloud of a felony conviction.
With the exception of the Earned Release and
Challenge Incarceration Programs, good behavior
and participation in rehabilitative activities in
prison count for little.
Finally, as discussed, individuals who manage to
complete a year or two of their extended supervision successfully before relapsing can end up spending more time in DOC custody or under supervision than those who start breaking rules the day
they get out of prison. In short, there are very few
features of the state’s criminal justice system that
promote success or reward effort.
The Governor has proposed expansion of the
Earned Release Program, which allows nonviolent
prisoners to earn time off of their sentences by completing an intensive substance abuse treatment program. This represents a step in the right direction,
but much more could be done to promote successful outcomes. Lawmakers could start by lowering
some of the barriers to success that confront individuals with drug and other felony convictions in
areas such as employment, education and housing.
One participant in the Sentencing Commission’s
judicial focus-groups put the case succinctly:
“The state needs to look at how the law treats
the lowest-level drug offenses. There’s got to be

JUSTICE STRATEGIES

some way of dealing with cases involving miniscule amounts of residue without the offender
ending up with a felony record. Between the
felony-level convictions, the suspension of driving privileges, and the various the mandatory
rules we’ve attached to drug offenses, we’re creating a whole class of social outcasts. They need
to give us some room to deal more constructively with folks like this: Let us allow people to
drive if they need to. Help them with employment… with housing. Let us expunge their conviction record if they succeed.”

Driving privileges
Recommendation: Repeal the requirement that
the driving privileges of individuals convicted
of drug offenses be suspended.
One critical barrier to success is the state law requiring that individuals convicted of drug-related
offenses have their driving privileges suspended for
a minimum of six months. According to the Department of Administration, in 2004 the Department of Motor Vehicles processed 12,612 driver’s
license suspensions related to drug convictions.144
A bill introduced in the Assembly by Rep. Scott
Jensen (R – Waukesha), would have repealed the
requirement that driving privileges be suspended
upon conviction of a drug offense. AB 256 would
also have made first-time “operating after revocation” (OAR) a civil offense rather than a misdemeanor.
Court officials and other criminal justice professionals interviewed say that the suspension of driving privileges not only clogs misdemeanor courts
with OAR cases, but also makes it harder for those
on supervision to maintain employment and meet
other requirements such as participation in substance abuse treatment. One judge from the Fox
River Valley, suggested that the likelihood of recidivism is increased by forcing individuals who are employed at the time of sentencing to either drive illegally or find another, often illicit, source of income.
Not one official interviewed suggested that the law
serves a useful public purpose.

Employment
Recommendation: Enforce laws barring unwarranted employment discrimination against individuals with criminal convictions and take

steps to improve employment prospects for
those with criminal and prison records.
In order to build safe communities, state policymakers must do more to lower the employment
barriers that confront formerly incarcerated people
and others with criminal records. Many individuals
caught up in the criminal justice system have limited
work experience and educational histories, making
it difficult for them to support themselves and their
families. Further, employers are often reluctant to
hire those with criminal records regardless of their
qualifications.
Devah Pager’s research, discussed in Chapter II,
suggests that reintegrating individuals with criminal
records into mainstream society will require more
than simply improving access to education and job
training. Mainstreaming will require stronger enforcement of laws that prohibit employment discrimination on the basis of past convictions that are
not closely related to specific job requirements as
well as discrimination on the basis of race. Finally,
policymakers will need to take proactive steps to encourage hiring of ex-prisoners and others with criminal records.
New York City’s Center for Alternative Sentencing and Employment Services (CASES) offers
an example of a highly successful employment-oriented sentencing option for young people similar
to those convicted of serious felonies in Milwaukee. CASES’ Court Employment Program (CEP)
admits 400 jail- and prison-bound young people
each year, providing them with six months of intensive case management and youth development
services. Along with a variety of educational, cultural and substance abuse prevention services,
CEP offers a range of transitional job services –
including internships – designed to reinforce the
connection between school and employment, encouraging youths to plan for careers – not just
dead-end jobs.
More than half of CEP participants are charged
with violent felonies – assault; robbery; and
weapons possession – while one-third are charged
with felony drug possession and sale. A recent recidivism study that tracked CEP graduates over a
period of two years after they left the program
found that 80 percent had no new criminal convictions. Only four percent were convicted of a new violent crime.145

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

Education
Recommendation: Expand educational opportunities for prisoners and court-involved youth.
Wisconsin criminal justice professionals say that
educational deficits are common among individuals
caught up in the criminal justice system, particularly
in Milwaukee. Among the state’s sentenced prisoners, close to half (47 percent) lack a high school or
general education degree (GED) according to
DOC data. The proportion is even higher for prisoners sentenced in Milwaukee, of which a solid majority (57 percent) have not graduated from high
school or obtained a GED.
Officials in Indiana have developed an innovative
approach that gives prisoners incentives to pursue
basic literacy, GEDs and even college degrees, resulting in improved outcomes and millions of dollars in
savings for the state. According to John Nally, who directs the state’s correctional education program, prisoners can earn time off their sentences – six months
for attaining basic literacy, six months for earning a
GED, a year for earning an Associate’s degree and two
years for earning a Bachelor’s degree. Nally reports
annual savings to the state in the range of $25 million.
Between July 1, 2003 and June 30, 2004, in
Wisconsin there were over 2,700 new prison admissions of individuals who lacked high school or GED
credentials. If just half were able to earn six months
off their prison terms by attaining either basic literacy or a GED, the prison population could be reduced by roughly 900, generating annual savings of
as much as $25 million.146
For young people, a criminal conviction can
close the doors to education even when it does not
result in a prison sentence. Milwaukee caseworkers,
in particular, say that there are few educational opportunities available for young people caught up in
the criminal justice system because both schools and
youth programs are reluctant to admit individuals
with criminal records. Further, defenders say that
some bright young people who might otherwise be
college-bound are barred from receiving federal financial aid as a result of drug-related convictions.
With thousands of youth receiving felony convictions each year – in 2003 there were over 5,000 felony
cases involving defendants who were 21 or under at
the time of the offense – there is a pressing need to ensure that they have access to the educational opportunities that could help them succeed later in life. New
84

York’s Court Employment Program, discussed above,
is one example of a program that successfully addresses the educational needs of jail- and prisonbound youth with a variety of services: school placement; basic literacy classes; computer and multimedia
skills training; and GED preparation.

Housing
Recommendation: Relax restrictions on eligibility of individuals with past drug convictions to
live in public housing.
Housing can also present a problem for individuals caught up in the criminal justice system, especially those returning home from prison. The Housing Authority of the City of Milwaukee bar individuals convicted of drug-related offenses from public
housing for five years.147
By comparison, housing authorities in Des
Moines and Detroit impose shorter three-year bans
for drug-related convictions.148 In Detroit, the ban
can be shortened if there are mitigating circumstances, while the Des Moines Public Housing Authority will lift the ban once the individual in question has completed a rehabilitation program.

Expanding opportunities to avoid
or remove criminal convictions
Lawmakers should lower barriers to success by
reducing the number of individuals with misdemeanor and felony conviction records by diverting
cases from prosecution, reducing minor criminal offenses to civil offenses, and permitting deserving individuals to have conviction records expunged.
Recommendation: Expand opportunities for
defendants to avoid criminal conviction
through successful participation in pretrial diversion programs.
The Milwaukee District Attorney’s Community
Conferencing program is an excellent example of an
alternative restorative justice approach designed to
reduce recidivism while restoring the harm done to
the victim, the offender and the community alike.
Unfortunately, the program currently handles a
small number of cases, and only a handful of these
are true diversion cases while the rest result in criminal convictions even for successful participants. Expansion of the program to handle a larger number

JUSTICE STRATEGIES

of cases, and a greater proportion of diverted cases
might reduce recidivism and improve outcomes.
Under the current system of funding District Attorney’s offices, there is a financial disincentive to
expanding diversion programs. Although diverted
cases may require as much staff time as cases that are
filed, they do not count in the “weighted caseload”
statistics used to allocate state funds between counties. The legislature could solve this problem by giving prosecutors credit for diverting cases that would
otherwise have been filed to treatment or other appropriate interventions.
Recommendation: Make first-time possession
of small amounts of marijuana a civil offense
statewide
Rep. Sue Jeskewitz (R – Menomonee) proposed
legislation in the 2005 session that would have made
first-time possession of 25 grams or less of marijuana
a civil offense rather than a criminal offense. If prosecuted as a criminal offense, marijuana possession can
result in jail stays, probation supervision and criminal
records. In short, a misdemeanor marijuana possession charge can be a gateway into the criminal justice
system for otherwise law-abiding state residents.
Under current law, municipalities have the option
of designating first possessions up to 25 grams as civil
offenses, resulting in disparate treatment of individuals facing marijuana possession charges. AB 255
would not only have equalized treatment of low-level
marijuana possession but also reduced the number of
people facing employment, education and housing
barriers as a result of marijuana convictions.
In 2003, DOC case data show that more than
1,400 cases involving a top charge of misdemeanor
marijuana possession were sentenced to probation,
including over 800 cases in which marijuana possession was the sole charge. In two of every three cases,
the defendant had no prior Wisconsin convictions,
which suggests that the chances of success might
improve for hundreds if the reform were enacted.
The number who benefit could be much greater,
since the DOC data do not include marijuana possession cases that resulted in a jail sentence and/or
a fine without probation supervision.
Recommendation: Allow the court to expunge
misdemeanor convictions for individuals who
successfully complete their sentences, and to

expunge or reduce certain felony convictions
for those who demonstrate that they have
turned their lives around.
Many states recognize that individuals convicted
of less serious offenses should be given the opportunity to start over with a clean slate once they have
served their sentences and demonstrated readiness
to lead law-abiding lives. According to the Legal
Action Center, seventeen of the fifty states allow
some conviction records to be expunged or sealed,
often for first offenses.149
Michigan allows an individual convicted of no
more than one offense to have the conviction
record set aside five years after completing his or her
sentence unless the crime was a traffic offense, a serious offense or a sex offense. Ohio permits those
convicted of a first offense to apply for expungement three years after discharge for a felony conviction, or one year after discharge for a misdemeanor
conviction.
In Wisconsin, by contrast, such opportunities are
limited to individuals convicted of misdemeanors
for crimes committed under the age of 21. Several
Wisconsin judges suggested in focus group discussions that allowing people convicted of low-level
drug and property offenses to earn a clean record or
the reduction of a felony to a misdemeanor could
improve long-term outcomes.
Rep. Curt Gielow (R – Mequon) introduced a
bill that would have allowed the court to expunge
the misdemeanor conviction of any individual who
successfully completes his or her sentence by removing the existing age restriction. AB 280 would
also have permitted the court to order expungement at any time, rather than at sentencing as is required under current law. In 2004, there were more
than 50,000 misdemeanor convictions statewide.150
In addition to reconsidering Rep. Gielow’s proposal, which was amended and adopted by the Assembly Committee on Corrections and the Courts
but not enacted, the state should also consider creating provisions for those convicted of nonviolent
and first-offense felonies to earn clean records, especially if they are addicts who participate in treatment. As part of a package of “treatment not incarceration” reforms enacted in 2004, Maryland lawmakers authorized judges to strike entry of judgment for any defendant who successfully completes
treatment ordered as a condition of probation.

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

The defendant is eligible to have the record of
the charge expunged after three years as long as he
or she has not been convicted of a new crime and is
not facing new criminal charges. The judge can
offer to strike entry of judgment at sentencing – giving the probationer greater incentive to participate
in treatment – or after the sentence has been served.
In a similar vein, authorities should relax restrictions on the eligibility of individuals with past drug
convictions to live in public housing – restrictions
that are tighter in Milwaukee than in cities such as
Des Moines and Detroit.

Notes
1 “Offenders Under Control on December 30, 2005.”
Wisconsin Department of Corrections. December 30, 2005.
2 Harrison, Paige M. and Allen J. Beck. “Prisoners in
2004.” Washington, DC: Bureau of Justice Statistics. October
2005.
3 “Debt to Society.” Mother Jones. Available online at
http://www.motherjones.com/news/special_reports/prisons/index.html
4 “Crime and Corrections.” The Wisconsin Taxpayer, September 2004, vol. 72, no. 9.
5 Except where otherwise noted, prison population, admission and release information comes from the Public Information Data File described previously in the Methodology section.
The population growth figure is based on state resident population estimates published by the Wisconsin Department of Administration’s Demographic Services Center. Available online
at
http://www.doa.state.wi.us/pagesubtext_detail.asp?linksubcatid=96).
6 In this report, “sentenced prisoners” refers to individuals
serving a sentence of incarceration in a DOC facility, and excludes probationers and parolees who are being held temporarily in DOC custody.
7 “Crime and Corrections.” The Wisconsin Taxpayer, September 2004, vol. 72, no. 9.
8 Drug code enhancers and those pertaining to use of a
dangerous weapon, violent crime in a school zone, certain domestic abuse offenses, and “hate crimes” were not included
among the enhancements the CPSC proposed should become
aggravating factors.
9 The “term of imprisonment” refers to the entire sentence
since it is possible for an individual who violates prison rules
and/or conditions of supervision to serve the full sentence behind bars. Violations of prison rules and conditions of supervision can extend an individual’s term of confinement but total
time served can never exceed the term of imprisonment imposed at sentencing.
10 Zahn, Mary and Gina Barton. “Door on early release
closes tightly.” Milwaukee Journal-Sentinel, November 21,
2004.
11 “Earned Release Program Status Update.” Wisconsin
Department of Corrections. April 21, 2005.
12 In this report, a “violent offense” refers to a crime designated by DOC as an “assaultive” and/or “sex” offense. A
“nonviolent offense” refers to a drug, property or public order

86

offense that is not designated as an assaultive or sex offense.
When used to refer to the prison population, “nonviolent” includes prisoners with no concurrent violent felony convictions.
As a result, while forgery is a nonviolent offense, a prisoner
serving time for forgery who was also sentenced for a lesser
conviction of battery would not be considered a nonviolent
prisoner.
13 In this report, “new prison admissions” include individuals admitted with a new sentence only (not revoked from supervision); individuals admitted after being revoked from probation with or without a new conviction; and individuals revoked from post-release supervision (parole, mandatory release
or extended supervision) with new convictions. Readmissions
that result from revocations of post-release supervision without
a new offense are excluded in order to avoid over-counting individuals who may be admitted and released several times for
the same offense. Admissions for revocation hearings, alternative to revocation programs and temporary probation/parole
holds that did not result in a prison sentence are also excluded.
14 Doege, David. “Small-time drug dealers flood court.”
Milwaukee Journal Sentinel, October 23, 1999.
15 Possession of a controlled substance with intent to deliver is referred to in this report as “possession with intent” or
“PWI”.
16 Criminal Penalties Study Committee. “Final Report.”
August 1999.
17 Murphy, Bruce and Sarah Carr. “School drug policies
differ.” Milwaukee Journal Sentinel, February 6, 2005
18 Records from the Prison Episode Data File provided by
DOC contain information on all known prior convictions,
however records in the Case Disposition File contain information about past Wisconsin convictions only.
19 Criminal Penalties Study Committee. “Final Report.”
August 1999.
20 Doege, David. “Milwaukee County judges leery of probation, panel says.” Milwaukee Journal Sentinel. January 2,
2000.
21 As discussed, prior criminal record information from the
DOC cases data file includes only Wisconsin convictions. In
order to assess the significance of excluding non-Wisconsin
convictions, results from analysis of DOC case data were compared with results from analysis of drug case data provided by
the Milwaukee District Attorney’s office. The DA’s data identifies whether a defendant had a prior criminal, but not the type
(i.e. felony or misdemeanor) or number of convictions, so comparisons can only be made between defendants who have a
criminal record and those who have none. According to the
DOC case data, between July 1, 2003 and June 30, 2004, 51
percent of cocaine delivery/PWI cases (up to five grams) in
which the defendant had no prior Wisconsin felony or misdemeanor convictions resulted in a prison sentence. The DA’s
data shows a somewhat lower figure, with 45 percent of such
cases resulting in a prison sentence. The comparison suggests
that the DOC case data understates the prior criminal history of
offenders, but that the effect is small.
22 “Expenditures by Division For the Year 1998 – 1999.”
Wisconsin Department of Corrections. http://www.widoc.com/99%20fiscal/addstuff/Expend99.pdf
23 Current budget figures from Carmichael, Christina.
“Adult Corrections Program: Informational Paper.” Madison,
WI: Wisconsin Legislative Fiscal Bureau. January 2005.
24 Subjects were tracked until June 30, 2004, a period of
3.5 to 4.5 years depending on the date in 2000 when they were
placed on probation.

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25 Simms, Patricia. “Joint Finance co-chairman: Consider
new prison.” Wisconsin State Journal. March 4, 2005.
26 Ibid.
27 Brinkman, Phil. “Doyle hopes treatment will slow inmate increase.” Wisconsin State Journal. February 7, 2005.
28 “Black” and “African American” are used interchangeably in this report.
29 “State Rates of Incarceration by Race.” Washington,
DC: The Sentencing Project. 2004.
30 Harrison, Paige M. and Allen J. Beck. “Prisoners in
2004.” Washington, DC: Bureau of Justice Statistics. October
2005.
31 The incarceration rates presented here were calculated
using DOC data on the standing sentenced prison population
on June 30, 2004 and resident population estimates extrapolated from 2000 U.S. Census data.
32 The incarceration rate shown here for African Americans
appears significantly lower than the rate reported by The Sentencing Project because it does not include jail populations or
individuals incarcerated on probation and parole holds, both of
which were included in the earlier disparity study.
33 Oliver, Pamela. “Racial Disparities in Criminal Justice.”
http://www.ssc.wisc.edu/~oliver/RACIAL/RacialDisparities.htm
34 The nonviolent prison population sentenced in Rusk
County fell by 58 percent, but the county incarcerates 30 prisoners – too few prisoners to determine if the change is more
than a statistical anomaly.
35 New sentence-only prison admissions include individuals sentenced directly to prison who were not under supervision
at the time of the offense, and excludes those violated from
probation, parole, mandatory release or extended supervision.
36 Projected time served to first release for individuals sentenced before truth in sentencing is calculated by applying the
average proportion of total sentence served prior to first release
by prisoners released in 1999 and 2000 to the average total sentence imposed on prisoners admitted in 1998 and 1999. Projected time served to first release for individuals sentenced after
December 31, 1999, is calculated by subtracting the prisoner’s
admission date from his or her mandatory release/extended supervision date. The method for projecting time to first release
pre-TIS assumes that, absent truth in sentencing, prisoners
would have continued to be released to parole, mandatory release and direct discharge at 1998/1999 rates. The method for
projecting time to first release post-TIS does not account for
sentence adjustments or earned release, which would reduce
time to first release; nor does it account for the imposition of
“bad time,” which would extend time to first release. The projected period of post-release supervision is the difference between the total period of DOC supervision and the projected
time to first release. The total period of DOC supervision does
not include time served in jail before sentencing, which is credited as time served. Total sentences reported here may, therefore, be slightly shorter than the actual sentences imposed by
the judges.
37 The governing statute identifies the amount of controlled substance in nearly half (47 percent) of all cases. The
distribution of prisoners in the chart above has been extrapolated from the available weight information to the entire delivery/PWI population. A comparison of sentence lengths found
little difference between cases where weights are known and
cases where they are unknown.
38 Pingel, Jim and Melissa Schmidt. “TIS II Prison Sentences: Tracking The Most Common Offenses.” Madison, WI:

Wisconsin Sentencing Commission. October 15, 2004.
39 Pager, Devah. “The Mark of a Criminal Record.” American Journal of Sociology, vol. 108, no. 5 (March 2003).
40 Ibid.
41 The bulk of the positions posted were in food service,
warehouse, production and delivery. None required experience
or education beyond high school.
42 Ibid.
43 “Offenders Convicted of Methamphetamine Crimes:
1997 – 2004.” Wisconsin Department of Corrections (unpublished data extract).
44 “Snap-shot Analysis of Inmates Convicted of An OWI
5+ Offense: Inmates Incarcerated on 10/30/04.” Wisconsin
Department of Corrections (unpublished report). October 15,
2004.
45 Re-releases to parole and mandatory release are excluded.
46 Not all extended time served behind bars is served in
DOC facilities because individuals in custody on parole holds
may be detained in local jails. For the 38 that had served their
entire term of extended supervision behind bars by June 30,
2004, 80 percent of the time was served in DOC facilities.
47 The remaining 25 were being held in prison pending
revocation hearings or other proceedings, leaving their status
uncertain.
48 Of the 77 that were revoked and served their sentences,
half (39) completed the extended supervision term in the community after serving 40 percent of their time in DOC facilities,
while the other half (38) served the entire sentence behind
bars.
49 Assuming that half of those revoked serve 80 percent of
their time in a DOC facility and that the other half serve 40
percent of their time in a DOC facility.
50 Assuming that a quarter of those revoked serve 80 percent of their time in a DOC facility and that the other three
quarters serve 40 percent of their time in a DOC facility.
51 While the average term of extended of supervision is 55
months, the median term is 36 months, which means that half
of those sentenced received extended supervision terms of 36
months or less and half received sentences of 36 months or
more.
52 “National Surveys on Drug Use and Health: 2003.
Washington, DC: Substance Abuse and Mental Health Administration.
53 “Substance Abuse Treatment Needs, Capacity and
Costs: 2003.” Madison, WI: Wisconsin Department of Health
and Family Services – Bureau of Mental Health and Substance
Abuse Services. February 2005.
54 Welch, Kevin W. and Michael Quirke. “Substance Abuse
Treatment Capacity Analysis: 2000.” Madison, WI: Wisconsin
Department of Health and Family Services – Bureau of Mental
Health and Substance Abuse Services. August 2002.
55 Treatment admissions figures from: “Substance Abuse
Treatment Needs, Capacity and Costs: 2003.” Madison, WI:
Wisconsin Department of Health and Family Services – Bureau
of Mental Health and Substance Abuse Services. February
2005.; and Welch, Kevin W. and Michael Quirke. “Substance
Abuse Treatment Capacity Analysis: 2000.” Madison, WI: Wisconsin Department of Health and Family Services – Bureau of
Mental Health and Substance Abuse Services. August 2002.
56 “Substance Abuse Treatment Needs, Capacity and
Costs: 2003.” Madison, WI: Wisconsin Department of Health
and Family Services – Bureau of Mental Health and Substance
Abuse Services. February 2005.

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

57 Ibid.
58 Welch, Kevin W. and Michael Quirke. “Substance Abuse
Treatment Capacity Analysis: 2000.” Madison, WI: Wisconsin
Department of Health and Family Services – Bureau of Mental
Health and Substance Abuse Services. August 2002.
59 “Substance Abuse Treatment Needs, Capacity and
Costs: 2003.” Madison, WI: Wisconsin Department of Health
and Family Services – Bureau of Mental Health and Substance
Abuse Services. February 2005.
60 Ibid.
61 Pingel, Jim and Melissa Schmidt. “TIS II Prison Sentences: Tracking the Most Common Offenses.” Madison, WI:
Wisconsin Sentencing Commission. October 15, 2004.
62 Barlow, David et al. “Substance abuse and need for
treatment among arrestees in Wisconsin.” University of Wisconsin – Milwaukee. August 1998.
63 E-mail correspondence with Michael Quirke, Wisconsin
Department of Health and Family Services – Bureau of Mental
Health and Substance Abuse Services. April 19, 2005.
64 Welch, Kevin et al. “Combined Analysis of the State
Treatment Needs Assessment Program Studies.” Madison, WI:
University of Wisconsin Medical School – Center for Health
Policy and Program Evaluation. October 1999.
65 Welch, Kevin W. and Michael Quirke. “Substance Abuse
Treatment Capacity Analysis: 2000.” Madison, WI: Wisconsin
Department of Health and Family Services – Bureau of Mental
Health and Substance Abuse Services. August 2002.
66 Winnebago County, which has approximately 160,000
residents, treated an estimated nine percent of the population
in need. From Welch, Kevin et al. “Combined Analysis of the
State Treatment Needs Assessment Program Studies.” Madison, WI: University of Wisconsin Medical School – Center for
Health Policy and Program Evaluation. October 1999.)
67 Kissinger, Megan. “Trading one locked door for another.” Milwaukee Journal-Sentinel, September 10, 2000.
68 “Ill-Equipped: U.S. Prisons and Offenders with Mental
Illness.” New York, NY: Human Rights Watch. September
2003.
69 Ibid.
70 Caulkins, Jonathan P. and C. Peter Rydell, William
Schwabe, James R. Chiesa “Are Mandatory Minimum Sentences Cost-Effective?” Santa Monica, CA: RAND Drug Policy
Research Center. 1998.
71 U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration. “The
National Treatment Improvement Evaluation Study (NTIES)
Preliminary Report: The Persistent Effects of Substance Abuse
Treatment—One Year Later.” Washington, DC: SAMHSA.
1996.
72 California Department of Alcohol and Drug Programs.
“Evaluating Recovery Services: The California Drug and Alcohol Treatment Assessment (CALDATA).” Sacramento, CA:
California State Department of Alcohol and Drug Programs.
1994
73 Barnoski, Robert and Steve Aos. “Washington State’s
Drug Courts for Adult Defendants: Outcome Evaluation and
Cost-Benefit Analysis.” Olympia, WA: Washington State Institute of Public Policy. March 2003.
74 Although substance abuse treatment is sometimes
viewed as a “hit or miss” proposition, DHFS cites national research showing that current addiction treatments “work” as
well as “treatments for other chronic medical illnesses such as
hypertension, diabetes, and asthma”. (Welch, Kevin, Robert
Rettammel and D. Paul Moberg. “Wisconsin Adult Addictions

88

Treatment Outcomes Measurement Pilot Project.” Madison,
WI: Wisconsin Department of Health and Family Services –
Bureau of Mental Health and Substance Abuse Services. October 2002.)
75 Ibid.
76 The study’s authors note that relying on self-reports and
following up only with those participants who could be located
and agreed to participate introduce some bias into the results.
Using past research on the impact of self-report and sample
bias, the authors have adjusted estimates of alcohol use after
treatment upward to account for these biases.
77 Rawson et al. “A multi-site comparison of psychosocial
approaches for the treatment of methamphetamine dependence.” Addiction, vol. 99, p. 708-717
78 Matrix Institute Program and Outcomes Summary (unpublished)
79 Letter addressed to the Wisconsin Sentencing Commission in January 2005
80 Milwaukee’s special drug court is not a treatment court.
81 “Project AIM (Alternatives to Incarceration in Milwaukee): Project Overview and Summary Final Report.” Milwaukee, WI: Wisconsin Community Services. January 1, 2002 to
July 31, 2004.
82 “Felony Drug Offender Alternative to Prison Program.”
Wisconsin Department of Corrections. July 31, 2003.
83 Stojkovic, Stan, Rick Lovell and Steven Brandl. “Felony
Drug Offender Alternative to Prison Program Final Report.”
March 28, 2003.
84 FDOATP admissions are not recorded separately in the
District Attorney’s drug database and must be extracted by isolating sentences to the Milwaukee Secure Detention Facility,
which has housed Phase I of the program since October 2001.
85 “Mid-year Report: January 2004 – June 2004.” Community Justice Resource Center.
86 Kane, Eugene. “Milwaukee center helps offenders better
themselves.” Milwaukee Journal-Sentinel, March 20, 2003.
87 Wade, Kate, Dean Swenson, David Miller and Scott
Sager. “Restorative Justice Programs – Milwaukee and Outagamie Counties: An Evaluation.” Madison, WI: Legislative
Audit Bureau. June 2004.
88 “Alternative to Revocation Cases: Wiser Choice Access
to Recovery Case Identification and Process Flow (Draft #1).”
Wisconsin Department of Corrections.
89 “Dane County Drug Court Treatment Program Statistics.” June 2004.
90 Abrahamson, Shirley S. “The Causes of Popular Satisfaction with the Administration of Justice,” (Address on the
state of the judiciary presented at the 2005 Wisconsin Judicial
Conference) May 3, 2005
91 “Adult Jail Populations in Wisconsin – 2003.” Madison,
WI: Office of Justice Assistance Statistical Analysis Center. October 2004
92 Greene, Judith A. “Positive Trends in State-Level Sentencing and Corrections Policy.” Washington, D.C.: Families
Against Mandatory Minimums. November 2003. Available online at http://www.justicestrategies.net/Publications.htm
93 Lyons, Donna. “State Crime Legislation in 2004.” Denver, CO: National Conference of State Legislatures.
94 Griffin, Burt W. and Lewis R. Katz. “Sentencing Consistency: Basic Principles Instead of Numerical Grids: The Ohio
Plan.” Case Western Reserve Law Review Vol. 53:1 Fall 2002
95 Ohio Rev. Code Ann. § 2929.14(B)
96 Ohio Rev. Code Ann. § 2929.14(C)
97 Harris, Jeffry and David Diroll. “Monitoring Sentenc-

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ing Reform.” Ohio Criminal Sentencing Commission: January
2005. Available at
98 Peter D. Hart Research Associates, Inc. “Changing Public Attitudes toward the Criminal Justice System.” February
2002.
99 Bendixen & Associates. “Public Opinion Survey of California Ethnic Groups About Criminal Justice Issues.” January
2004.
100 “Prevention Advocated More Than Punishment In
PPF Crime Survey.” Research Brief, vol. 89, no. Milwaukee,
WI: Public Policy Forum. February 12, 2001.
101 The estimate of a $6,100 cost per client for treatment
was developed by a proposal planning group in Judicial District
Ten (see Chapter IV).
102 Average annual cost of incarceration from “Crime and
Corrections.” The Wisconsin Taxpayer, September 2004, vol.
72, no. 9.
103 A search of Wisconsin case data going back to 1990
found that just 13 percent of drug prisoners with no concurrent violent felony convictions had ever been convicted of a violent felony in the state.
104 Other substances accounted for less than one percent
of nonviolent drug prisoners, and in seven percent of cases the
substance was unknown.
105 The exact number could not be determined because
statutes of conviction entered in the DOC database provide
limited information on dollar values involved in forgery, theft
and shoplifting offenses.
106 One judge suggested that he would place 75 percent
of his felony OWI cases in such a program. Another judge said
that individuals convicted of a drunk driving for the fifth time
had already received enough opportunities, but that she would
use the program for drug offenders.
107 The admissions base includes a small number of individuals whose major offense was low-level and nonviolent, but
who also had a lesser assaultive conviction. Although feedback
from judges indicates that they would not consider those with
violent convictions suitable for the program, they are part of
the larger universe of drug, property and OWI cases from
which program participants would be selected. The base does
not include any individuals whose major offense was violent; individuals with current sex offense convictions; or individuals
convicted of both a serious nonviolent offense and a lesser violent offense.
108 Based on an average annual cost of $28,622 per prisoner.
109 The $3.6 million projected cost is based on the assumption that all of the projected 1,150 prison-bound defendants would be redirected each year. If fewer defendants were
redirected from prison, the added cost of supervision would be
less.
110 This figure does not include property offenses driven
by drug addiction or injuries and deaths resulting from drunk
driving incidents.
111 The projected annual cost of treatment and supervision
for prison-bound defendants redirected into the communitybased treatment would reach roughly $11 million before declining to $9 million as the number released from prison to extended supervision begins to fall.. The resulting savings are
projected to reach $26 million annually during the first few
years of the program and rise to between $30 million and $40
million annually in later years as extended supervision revocations are avoided. If the scope of the program were expanded
to include defendants who are not prison-bound, savings could

grow by close to $3 million, however costs would grow as well.
We estimate that cost-savings levels achieved in the first few
years of the program would be sufficient to make treatment
available to half of low-level, nonviolent felony probationers
and still generate savings for the state.
112 “Smart Steps: Treating Baltimore’s Drug Problem.”
Washington DC: Drug Strategies 2000.
113 Boothroyd, R., Poythress, N., McGaha, A. and Petrila,
J. ”The Broward Mental Health Court: Process, outcomes and
service utilization.” International Journal of Law and Psychiatry, vol. 26. Cited in “Mental Health Courts Program.” Washington, DC: Bureau of Justice Assistance.
114 Abrahamson, Shirley S. “The Causes of Popular Satisfaction with the Administration of Justice,” (Address on the
state of the judiciary presented at the 2005 Wisconsin Judicial
Conference) May 3, 2005
115 Smith, Robert. “A Quiet Revolution: Probation Subsidy.” Washington, D.C.: U.S. Department of Health, Education and Welfare. 1971.
116 Lemert, Edwin M. and Forrest Dill. Offenders in the
Community: The Probation Subsidy in California. Lexington,
MA: Lexington Books. 1978.
117 “A Management Review of the State’s Probation Subsidy Program.” Sacramento, CA: California Department of Finance. 1972.
118 “Improvements Needed in the Probation Subsidy Program, California Youth Authority. Report 293” Sacramento,
CA: Office of the Auditor General. 1977
119 Lemert and Dill, Offenders in the Community
120 Clear, Todd R., Dina R. Rose, Elin Waring, and Kristen Scully. “Coercive Mobility and Crime: A Preliminary Examination of Concentrated Incarceration and Social Disorganization” Justice Quarterly vol. 20 no. 1, March 2003.
121 Maloney, Dennis and Deevy Holcomb. “In Pursuit of
Community Justice.” Youth and Society. Volume 33, Number
2. December 2001.
122 O’Brien, Sandra. “A Little Place Making a Big Impact:
Deschutes County’s Mark on Juvenile Justice.” Juvenile and
Family Justice Today. National Council of Juvenile and Family
Court Judges. Volume 12, Number 1. Spring 2003
123 Crumpton, Dave, Jodi Brekhus, Judy Weller and Mike
Finigan. “Cost Analysis of Baltimore City, Maryland Drug
Treatment Court.” Baltimore, MD: NPC Research. January
23, 2004.
124 Meta-analysis of drug treatment court effectiveness
found that courts where most participants had a prior record
achieved recidivism reductions twice as large those where most
participants had no prior record. (Latessa, Edward J. and
Christopher T. Lowenkamp. “Understanding the Risk Principle: How and Why Correctional Interventions Can Harm
Low-Risk Offenders.” Topics in Community Corrections. Washington, DC: National Institute on Corrections. 2004.
125 Abrahamson, Hon. Shirley. “State of the Judiciary
2005: The Causes of Popular Satisfaction with the Administration of Justice.” May 3, 2005.
126 Twohey, Megan. “Judges support concept of drug
court.” Milwaukee Journal-Sentinel. April 27, 2004.
127 “Drunk driving crashes, fatalities and injuries.” Wisconsin Department of Transportation. http://www.dot.wisconsin.gov/safety/motorist/drunkdriving/crash.htm
128 “Snap-shot Analysis of Inmates Convicted of An OWI
5+ Offense: Inmates Incarcerated on 10/30/04.” Wisconsin
Department of Corrections (unpublished report). October 15,
2004.

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Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin

129 “Four counties selected for national drug court training.” The Third Branch. Winter 2005.
130 Abrahamson, Hon. Shirley. “State of the Judiciary
2005: The Causes of Popular Satisfaction with the Administration of Justice.” May 3, 2005.
131 Frank, J. and R.K. Jones. “Random Assignment Evaluation of the DUI Court in Maricopa County.”
132 Abrahamson, Hon. Shirley. “State of the Judiciary
2005: The Causes of Popular Satisfaction with the Administration of Justice.” May 3, 2005.
133 Zahn, Mary. “Inmates less motivated, wardens find.”
Milwaukee Journal-Sentinel. November 21, 2004.
134 It is assumed that time served on supervision or in custody would have been reduced by 15 to 20 percent (half of all
uncredited “street time”), of which 60 percent would have
been served in prison and 40 percent would have been served
on supervision or in a local jail.
135 Zahn, Mary. “Inmates less motivated, wardens find.”
Milwaukee Journal-Sentinel. November 21, 2004.
136 Zahn, Mary and Gina Barton. “Door on early release
closes tightly.” Milwaukee Journal-Sentinel, November 21,
2004.
137 Ibid.
138 On June 30, 2004, DOC data show that there were
over 1,500 prisoners – admitted directly to prison with no violation or supervision or violated – who had served 85 percent
or more of their prison terms. Even if two in five of those who
received good time under the proposed reform ended up serving the time in prison after being revoked from extended supervision, the reform could free up 900 prison beds.
139 The maximum confinement term for sale of a gram or
less of cocaine is five years, while the maximum for substantial
battery is one-and-a-half years.
140 Including possession with intent to distribute.
141 Complete information on drug amounts is not available in all cases, so the total is understated in these figures.
142 The comparison was made between 425 cases involving
defendants with no prior Wisconsin felony convictions and a
top charge of cocaine delivery/PWI up to one gram; and 483
cases involving defendants with no prior Wisconsin felony convictions and a top charge of marijuana delivery/PWI up to 200
grams. In Milwaukee, 51 percent of the cocaine cases and 20
percent of the marijuana cases resulted in prison sentences.
Outside Milwaukee, 12 percent of the cocaine cases and six percent of the marijuana cases resulted in prison sentences.
143 This figure excludes individuals who had been convicted of new offenses after being admitted to prison since new
convictions – whether for crimes committed prior to admission
or crimes committed in prison – could push a prisoner’s parole
eligibility date forward.
144 Fiscal estimate for AB 256, March 23, 2005.
145 Copperman, Joel, Sarah Bryer, and Hannah Gray.
“Community-Based Sentencing Demonstrates Low Recidivism
Among Felony-Level Offenders.” Offender Programs Report,
Vol. 8, No. 2 July/August 2004.
146 It is assumed that 2,700 individuals would have their
confinement terms shortened by six months, but that up to a
third of the time saved would eventually be served as a result of
extended supervision revocations.
147 “After Prison: Roadblocks to Reentry.” Legal Action
Center. 2004. Available online at www.lac.org/lac/.
148 Ibid.
149 “After Prison: Roadblocks to Reentry.” Legal Action
Center. 2004. www.lac.org/lac/

90

150 “Yearend Disposition Summary: Statewide Report.”
Wisconsin Court System. www.courts.state.wi.us/about/pubs/
circuit/docs/disposumstate04.pdf

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