SENTENCING LAW FILLS CELLS

Slip-Ups On Extended Supervision Can Add To Truth-In-Sentencing
Terms

Seven years after David Lex went to prison with a five-year term for
his role in a marijuana smuggling ring, he's still got more than four
years left behind bars.

Lex is still doing time because of an aspect of the state's
truth-in-sentencing scheme that didn't get a lot of attention when it
took effect in late 1999. And Lex is far from alone.

Lex was one of 2,400 people who were sent back to the state's crowded
prison system last year because they couldn't stay out of trouble
while on extended supervision, the portion of a truth-in-sentencing
term that follows prison.

When truth in sentencing took effect seven years ago, most of the hype
concerning it focused on the fact that it came without parole. Inmates
sentenced would have to serve every day of the prison term they
received because there was no parole feature to let them out early for
good behavior.

But the sentencing system isn't as cut and dried as it might
sound.

That's because in place of parole, it features extended supervision.
And failure on extended supervision means a former inmate can be
returned again and again to prison with significant sentences. The
possibility of going back - oftentimes for years - exists until an
offender successfully completes the last minute of the last day of
extended supervision.

The impact of that little-discussed aspect is now beginning to firmly
take hold. And prisons already brimming with inmates serving the front
end of their sentences, the so-called confinement portion, are having
to find room at an increasing rate for offenders who failed on the
back end of their terms, their periods of extended
supervision.

In addition, already-busy court systems are facing waves of
resentencing proceedings that are growing larger in number every year.

"It sounded like a good idea at the time we went to this," said
Milwaukee County Circuit Judge Jeffrey Conen. "But now you wonder just
how well it's working."

But state Rep. Garey Bies, a Republican from Sister Bay who chairs the
Assembly's Committee on Corrections and Courts, said the increasing
return of offenders to prison illustrates the unfortunate but
necessary cost of keeping the streets safe.

"I know that the prison system and our judges are overburdened," Bies
said. "But our citizens want us to keep them safe, and that comes at a
cost.

"Wisconsin has chosen to be tough on people who break the
law."

Amelia L. Bizzaro, a Milwaukee attorney who authored an article on the
topic earlier this year in Wisconsin Lawyer, a monthly magazine
published by the State Bar of Wisconsin, said she warns her clients
not to overlook the boomerang aspect attached to truth in sentencing.

"I tell them that the prison part of their sentence is the easy part
and that ES (extended supervision) is going to be the difficult part
because there are going to be a lot of rules to follow," Bizzaro said.
"The troublesome part is that they can be sent back to prison for a
potentially long time because of a rule violation that never would
have been a crime."

Bizzaro, who has represented defendants in two state Court of Appeals
cases concerning resentencing proceedings, thinks judges just need to
deal with the added work. She said that when judges first began
receiving cases for resentencing, they too often gave them short shrift.

"It was a fast-food, drive-through way of sentencing," she said. "I
don't accept the argument that this is taking too much time.

"I know that the courts are overburdened. But if it is done right, it
won't take that much more time than making it a rubber-stamp
proceeding."

When Lex, 33, of Butler, went to prison in 2000, his sentence included
five years of extended supervision to be served after his five-year
prison term. Lex caught a break in prison and had three years trimmed
off his truth-in-sentencing term because he completed participation in
the state Department of Corrections boot camp program, which features
a mix of military-like drilling and extensive substance abuse treatment.

The three years that were trimmed off the prison portion of his
sentence were converted to extended supervision time, making that part
of the sentence eight years. In 2004, Lex had his extended supervision
revoked for the first time after he was arrested for driving drunk
with two children in the car.

His reconfinement term for the marijuana conviction was one year, and
his term on the drunken driving conviction was 100 days.

Lex boomeranged back to prison a second time in 2006 after he was
arrested and charged with selling large quantities of Ecstasy to a
police informant on three occasions.

Rulings by the state Court of Appeals and state Supreme Court over the
past year have given circuit judges guidelines indicating that the
resentencings should be handled essentially like regular sentencings,
urging judges to review transcripts and pre-sentence reports from the
sentencings that sent the offenders to prison in the first place.

For his second resentencing, Lex faced a maximum possible term of six
years, one month and seven days. The department recommended
re-imprisonment for three years, seven months and 28 days.

Milwaukee County Circuit Judge William Sosnay rejected the
recommendation and settled on the maximum, sending Lex to prison for
six years, one month and seven days.

"I think the (parole/probation) agent's recommendation is getting lost
in the process," Bizzaro said. "This is the person who has had the
most contact with the offender, and it's important that the
recommendation not be overlooked."

Milwaukee County Circuit Judge David A. Hansher termed the
department's resentencing recommendations "ludicrously low" in a case
that advanced to the state Supreme Court. The court upheld Hansher's
rejection of the recommendation in that case, and Hansher said this
week that his position hasn't changed.

"I stand by what I said in that case," he said. "The recommendations
are ridiculously low, and they're based on an inflexible grid."