DOOR ON EARLY RELEASE CLOSES TIGHTLY

Second of four parts

Dexter H. Harris, 47, fought alcoholism his whole life. Now he was in
prison for the second time for drunken driving, and cancer was
spreading through his body.

After he had surgery last fall, his family began pleading that he be
released to die at home.

Then Harris ran into a little-known provision of a state law
implemented four years ago - called truth in sentencing - a law that
experts say is one of the harshest in the country.

The law requires that violent and non-violent offenders serve every
day of their prison terms. It also eliminates any role for the parole
board, which in the past could release offenders who served as little
as 25% of their sentences. Early release could be awarded if the board
believed an inmate had been rehabilitated, was terminally ill or was
no longer a danger to society because of age or infirmity.

Terminally ill inmates such as Harris must now get two doctors to sign
affidavits stating that the offender will die within six months -
something prison doctors say is almost impossible to predict. Inmates
then must get approval from prison officials to petition the
sentencing court for a release. They are not entitled to legal help.

While an extreme example, Harris' case illustrates how difficult it is
for inmates even facing death to be released from prison early under
truth in sentencing.

Petitions for clemency from inmates who believe they have learned
their lesson and have served most of their sentence are being
routinely blocked by district attorneys. A recent state Supreme Court
decision upheld the limitations on early release under truth in sentencing.

In short, the door - for even model prisoners, or aged or ill inmates
who want to plead their cases - is tightly closed.

"This was a get-tough-on-crime law. The end," said Barron County
Circuit Judge Edward R. Brunner, who signed the petition for Harris'
release. "It was, let's put everyone away and who cares what happens
to them next. Out of sight, out of mind.

"It's only now that legislators and others are beginning to realize
the serious cost to taxpayers and the cost in real lives."

An informal survey of 22 judges around the state found that while many
like being able to determine exactly how many years an inmate will
serve in prison, that power has become a double-edged sword.

"For me, it boils down to the crystal ball," said Dane County Circuit
Judge William Foust, who said he is most troubled by the offenders who
receive 10 years or more. "Everyone knows that people change. With
truth in sentencing, we don't have a mechanism to evaluate that change
the way we had when we had the parole board.

"This business is really about predicting future human behavior, and
no one has a perfect crystal ball when it comes to that."

Under the law, judges sentence offenders to an exact number of years
in prison and an additional number of years on extended supervision to
be served in the community. Some inmates can be released early if they
are placed in a short-term treatment program such as boot camp and
complete it successfully.

Judges were encouraged by a committee studying how to implement the
law to modify their sentences to roughly what offenders would have
served under the old parole system.

However, a computer analysis of Department of Corrections and court
records by the Journal Sentinel shows that did not happen, and that
offenders are serving more time in prison and on community supervision
than under the old system.

Harris, for example, who was sentenced to three years in prison on his
most recent charge, would have been eligible for parole consideration
after serving nine months and would have had to be released after
serving about 24 months under the old parole system.

"Are we better off with truth in sentencing? I believe the answer to
be yes, because we have more predictability and more control over
offenders," Milwaukee County Circuit Judge Elsa Lamelas said. "I
frankly feel more comfortable with the notion that there is not a
parole board there that may be susceptible to fiscal pressure in the
release of offenders. That is something that gives me
confidence."

Prison population aging

Older inmates such as Harris have increased in number as sentence
lengths have increased for both violent and non-violent offenders. The
population of inmates 40 and older has more than tripled, from 1,711
in December 1993 to 6,516 in December 2003.

In addition, corrections officials are proposing to open two special
geriatric units in existing prisons - in effect, small nursing homes
for criminals.

"More inmates are dying in prison due to many different chronic
conditions and the imposition of longer prison sentences, creating a
need for geriatric and hospice services," a Department of Corrections
budget document states.

Release due to the infirmities of old age are limited under the law.
In order to petition a court for release, an inmate must be at least
65 and have served at least five years in prison or be at least 60 and
have served at least 10 years in prison.

Prison medical care expenditures have more than doubled in five years,
from $30,354,830 in fiscal 1999 to $75,595,500 in the year that ended
on June 30, 2004, state records show.

Releases blocked

The broadest release provision in the law allows offenders to petition
a court for sentence adjustment after they have served 75% or 85% of
their time in prison, depending on the crime.

However, authorities said that district attorneys statewide are
routinely blocking these petitions. Under truth in sentencing, if a
district attorney objects to the petition, it cannot be granted. The
same is true if victims in some sexual assault cases object.

"The courts in our area are overwhelmed with volume, and this adds one
more thing," Dane County Circuit Judge Daniel Moeser said. "There are
no good guidelines or standards or direction. So you have an out to
say no if the DA objects. I think the DAs kind of do it for the same
reason. They are overwhelmed and overworked, too."

La Crosse County District Attorney Scott Horne, who is also president
of the Wisconsin District Attorneys Association, said he supports the
district attorney and victim veto provision in the law and said that
each case in his office is reviewed on its merits.

"I think what the Legislature is saying is if there is going to be a
time cut, there ought to be a consensus that it is an appropriate case
for reduction," Horne said.

"From our perspective in this office, we don't blindly say no. We do
confer about it and decide what our position on the case ought to be,
and I assume most DAs would take that responsibility seriously. It's
not something that we would easily agree to, I will say that."

Horne said his office has not received many of these requests, and he
could not remember whether he had approved any.

Most judges interviewed for this report said the district attorney in
their counties has objected to every single request for sentence
modification.

Waukesha County Circuit Judge Mark Gempeler said that even if the
requests aren't opposed by prosecutors, judges aren't likely to grant
them.

"Judges have to run for office every six years," he said. "Why would a
reasonable judge want to swim upstream? It's a question of judicial
survival, but it's also a matter of giving the public what it wants."

Supreme Court weighs in

The Wisconsin Supreme Court will hear arguments in December in a case
challenging the right of district attorneys to veto these release
requests and other matters relating to requests for early release by
truth-in-sentencing inmates.

However, in a unanimous decision this year, the high court signaled
its reluctance to change the law, citing legislative intent.

The case involved James Crochiere, 29, who pleaded guilty to one count
of reckless endangering safety in Marathon County in 2001 and was
sentenced to three years in prison and five years on community
supervision. He refused to turn his truck off when stopped by police.
When the officer tried to remove the keys from the ignition, Crochiere
drove away, dragging the officer, who then fell to the ground, records
state. Crochiere had two previous convictions for drunken driving as
well as other misdemeanor convictions.

Once in prison, Crochiere earned the privilege of working off prison
grounds. He got a job maintaining state parks for 24 cents an hour.

After serving 18 months without incident, he petitioned the Marathon
County Circuit Court for release, arguing that his previous job, which
paid $10 an hour, was available to him and that his child-support
obligations were going unpaid while he was in prison.

His situation and apparent rehabilitation was "a new factor" that the
court should be allowed to consider in deciding to release him -
something the old parole board would have done, Crochiere's attorney,
Stephen Weiss, argued in his brief to the Supreme Court after lower
courts denied his client's request for release.

"There is simply no logic in a sentencing system that does not provide
for some form of review and release due to changed circumstances,"
Weiss argued.

In its June decision, the state Supreme Court stated:

"To do what Crochiere asks of us would turn circuit courts into parole
boards, a result that would change the role of the circuit courts and
be inconsistent with the Legislature's intent.

"The Legislature intended that conduct subsequent to incarceration
would not reduce an inmate's sentence."

Underfunded commission

As part of truth in sentencing, the Legislature created a state
Sentencing Commission to collect data on judicial practices and advise
policy-makers on how the law is being implemented.

However, the commission is struggling on a shoestring budget and is
not expected to begin analyzing sentencing data until next year. The
panel has funding for only two positions, an executive director and a
deputy director.

When salaries and benefits are eliminated from the commission's
$235,000 budget, it is left with only about $25,000 for data
collection and outside help, said Michael Connelly, the commission's
executive director.

Connelly was not even hired until January 2004, more than three years
after truth in sentencing was implemented. The commission has 19
members representing a cross-section of the criminal justice system,
including judges, prosecutors, defense attorneys and victim advocates.

Connelly said that by January, the commission expects to provide
judges with new sentencing guideline work sheets to help them decide
which offenders should be sent to prison and for how long. However,
judges are not required to follow the guidelines, which are only
advisory. That is one reason Wisconsin's truth-in-sentencing law is
considered by experts to be one of the toughest in the nation.

Records show that as of June, more than 50% of the 241 circuit court
judges in the state failed to use the currentsentencing guideline work
sheets, which have been in place since February 2003. Those numbers
have increased in recent months, Connelly said. The work sheets list
factors such as age, previous criminal record and type of crime and
then suggest a sentencing range. The completed work sheets were to be
returned to the commission for analysis.

"The judges are as unguided as ever," said Walter Dickey, a University
of Wisconsin Law School professor who was secretary of the Department
of Corrections from 1983 to 1987. "They are unguided by either
numerical data or policy guidance."

Gov. Jim Doyle is in favor of mandatory sentencing ranges for
judges.

"I think there should be judicial discretion. I think the judicial
discretion should be much more limited, and that people with similar
criminal history backgrounds and who have committed similar crimes
should be looking at roughly the same time.

"This is a balance. I do not believe that there should be a computer
that kicks out a sentence. Nor do I think there should be wide open
anything from zero to 20."

Going home to die

For Dexter Harris, death was his ticket out of prison.

Brunner, the Barron County judge, approved Harris' release on June 9
after family members said they were finally able to get two doctors to
agree that he had six months or less to live. However, because of
problems arranging community hospice care for Harris, he was not
released from prison until July 6. He lived for five weeks, said
Harris' sister Betty Moore, who cared for him along with other family
members in her Kenosha County home until his death.

"It was so heart-wrenching," said Sarah Bohner, another sister of
Harris. "You could have poured a cup of water in his sunken shoulders,
and it would have stayed.

"He wasn't a danger. I want to see the law fixed so that other
families don't go through what we did, because it's one of the most
pitiful things in the world."