420 Magazine Background

Sentencing Law Fills Cells

Smokin Moose

Fallen Cannabis Warrior
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."

Source: Milwaukee Journal Sentinel (WI)
Copyright: 2007 Journal Sentinel Inc.
Contact: The Milwaukee Journal Sentinel Online -- Editorials
Website: JSOnline.com, Web site of the Milwaukee Journal Sentinel
Top Bottom