Pubdate: Fri, 02 May 2003
Source: Racine Journal Times, The (WI)
Copyright: 2003, The Racine Journal Times
Contact:  http://www.journaltimes.com/
Details: http://www.mapinc.org/media/1659
Author: Jeff Wilford

PRISONERS HAVE AN OUT IN TRUTH IN SENTENCING, BUT IT'S SLIM

RACINE -- Just over 13 months into an 18-month prison sentence for being a 
party to selling marijuana, Paul Velasquez filled out the required forms to 
ask Judge Stephen Simanek to reduce his sentence.

His reason: He had a good prison record, he finished a domestic violence 
program, he's been taking culinary classes through Gateway Technical 
College. Velasquez felt like he was turning his life around.

More than two months later, on April 30, Simanek denied the request. His 
reason: The district attorney objected.

Mike Nieskes, the deputy district attorney who reviews all such petitions, 
had two reasons for rejecting Velasquez's petition. First, because 
Velasquez offered no new information or compelling reason to have his 
sentence reduced, beyond that he was legally eligible.

Second, because Nieskes can.

Wisconsin's Truth in Sentencing law went into effect on Jan. 1, 2000. It 
eliminated time off for good behavior and parole for new offenders, and 
requires people sent to prison to do virtually every single day of their 
sentence.

But Phase II of that law, which went into effect Feb. 1, contained a couple 
of new provisions. One allowed prisoners to petition judges to reduce their 
sentence. The other, and this provision is unique to Wisconsin as far as 
anybody knows, gives the district attorneys veto power over those petitions.

It's a power the Racine County District Attorney's office has wielded 
uniformly.

"Our policy is to say no on all of these," District Attorney Bob Flancher 
said. "Not that there couldn't be an exception. The general policy is all 
of the sentencing factors are known ... there's nothing new that would 
cause us to reconsider.

"You don't reward somebody because they've completed 75 percent of their 
prison sentence. The rule on that is, you need a new factor," Flancher said.

Ray Dall'Osto, a Milwaukee lawyer, said that kind of veto power is 
"unprecedented anywhere in the country."

Dall'Osto said Wisconsin's Truth in Sentencing laws are the most 
restrictive in the country, requiring prisoners to serve 100 percent of 
their sentences. Federal guidelines, which tied such laws to federal aid, 
required prisoners to serve 85 percent of their sentences.

Nor did the Wisconsin law include any provisions for prisoners to be let 
out early, for any reason. Before Truth in Sentencing, prisoners who could 
be deported, extradited or were terminally ill could be let out of prison 
early, Dall'Osto said. That saved the state the expense of incarcerating 
prisoners it didn't need to.

Giving prisoners the right to petition judges sought to return some of that 
flexibility, Dall'Osto said.

Giving district attorneys veto power has made it ineffective.

"Politically, how many DAs and prosecutors in the state, who are elected 
officials, are going to take the risk of agreeing to one of these?" asked 
Dall'Osto. Even judges, for that matter, would be reluctant to risk the 
political fallout of reducing a prisoner's sentence, "no matter how good a 
reason you have."

So far, the number of petitions that have been filed in Racine County is 
relatively small -- maybe a dozen or so. There are several reasons for this.

Serious crimes -- Class A and B felonies -- aren't eligible for sentence 
adjustment. People convicted of felonies C through E can apply, after 
they've served 85 percent of their sentence. People convicted of other 
felonies -- Classes F through I -- have to serve 75 percent of their time 
before they're eligible.

A person would also have to be serving time for a crime committed after 
Jan. 31, 1999, in order to be eligible to petition for a cut in their sentence.

Inmates also have only one chance to petition the judge. So they have to 
make it count. For the first petitions that started arriving just days 
after the new law took effect, petitions were rejected because prisoners 
didn't use the right forms. Those prisoners don't get a second chance to 
ask for a time cut.

Flancher doesn't like giving prisoners the right to ask for time off their 
sentence, but thinks giving district attorneys veto power is a good thing.

"The trouble is that these damn cases never end, (with) the number of 
appeals that they've got," Flancher said. "And when they've exhausted their 
state appeals, they appeal on the federal end. These things go on and on 
forever, there's no finality to it, that's the problem with it. Now they 
throw them another bone."

Marc Mauer, assistant director for The Sentencing Project -- a national 
nonprofit research group that opposes Truth in Sentencing laws -- likes 
having a mechanism to reduce sentences, but doesn't think district 
attorneys should make the final decision.

"Judges are the ones who impose sentence," Mauer said. "You certainly 
wouldn't let the defense attorney impose a sentence, why would you let the 
district attorney?"

Simanek has possibly had more petitions for sentence adjustment than other 
Racine County judges -- nobody is keeping track of this statistic, yet.

He said allowing prisoners to ask judges to cut their sentences flies in 
the face of the rationale behind Truth in Sentencing, and basically turns 
each judge into a one-person parole board.

E. Michael McCann, the Milwaukee County district attorney, agreed.

McCann said the state's original Truth in Sentencing laws were too rigid, 
and that some sort of mechanism to let prisoners cut their sentences was 
needed.

McCann said the veto power given to district attorneys doesn't necessarily 
mean all petitions to reduce sentence will be rejected out of hand.

"Can the D.A. do that as a policy, and I think not," McCann said. "It's 
obviously a discretionary judgment by the district attorney, which means 
each individual has to be reviewed on its merits."

Paul Velasquez thought his case had those merits.

Said Nieskes: "It's a safety valve release for those extraordinary 
circumstances, and I don't think we've seen those extraordinary circumstances."
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