Gina Barton

Milwaukee Journal Sentinel

Nearly 3,000 people in Wisconsin were sent back to prison last year even though they were not found guilty of new crimes, according to a report released Tuesday.

Some were on probation when the violations occurred. Others had been released from custody but were still being supervised by the Department of Corrections. About 70% of them were suspected of criminal activity, the department says. But because they were not formally charged, they did not have due process rights in court.

These ex-offenders were re-incarcerated for “technical violations,” which also can include things such as accepting a job without permission, missing a meeting with their probation and parole officer, or leaving their home counties.

A Journal Sentinel investigation published last year found the process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.



Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo — a quote from a peace activist — on the shoulder of a 15-year-old boy, the Journal Sentinel found.



Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail.

But because he was on parole at the time, Cubero has served more than four years — with no guarantee he will ever go home.

"Living this life where you're always on edge — and concerned that you might get sent back at any moment — really disrupts people's lives more than it needs to, and it harms people's ability to put their lives back together," said David Liners, executive director of WISDOM, a statewide group of faith leaders and activists dedicated to prison reform.

WISDOM commissioned the study, which was conducted by Human Impact Partners, a California-based research and advocacy organization that aims to uncover policies that negatively affect the health of communities.

While the 2015 figure is down by about 1,000 offenders from two years earlier, incarcerating people for technical violations cost Wisconsin taxpayers more than $147 million in 2015, the study says.

Not only does the practice fail to improve public safety, it may actually increase crime, the study says, citing research conducted by experts at the University of Minnesota, among others. It also can have negative implications both for the people returned to prison and for their families and society.

"Being incarcerated can impact an individual's health in profound ways, and social policies that lead to mass incarceration can impact the health of entire groups," it says.

Of the 2,954 people revoked without new criminal convictions in 2015, 86% spent more than six months in prison, according to the study. However, that estimate includes only time served after the conclusion of an often lengthy revocation process. The Corrections Department does not track how long people spend behind bars as that process unfolds, according to the study.

Corrections officials provided some data about people jailed pending revocation around the state, saying they spent an average of 13 days behind bars waiting for a final determination. But those calculations did not include information about people held in the 1,040-bed Milwaukee Secure Detention Facility, a holding site specifically for those accused of violating supervision that was full throughout 2015, according to Department of Corrections spokesman Tristan Cook.

"The length of the revocation process is unique to each case depending on the amount of time required to investigate the alleged violation and the presence of any pending criminal charges," he said.

And while ex-offenders don't have the right to remain silent and aren't entitled to jury trials if they are not charged with new crimes, they are entitled to a hearing before an administrative law judge, Cook pointed out. The agent makes recommendations to the administrative law judge about whether someone should be sent back to prison and for how long, but the final decision is up to the judge.

Locking people up for even a short time can result in the loss of jobs and housing, which are difficult for ex-offenders to obtain in the first place. It also can cause physical and mental health problems or exacerbate issues that already exist, the study says.

In 2015, approximately 3,000 Wisconsin children saw one of their parents sent back to prison without new criminal convictions, according to the study. These children are more likely than their peers to struggle academically, exhibit behavior problems and develop psychological problems such as depression.

Some probation and parole agents think their primary focus should be helping former inmates succeed outside of prison. Other agents feel strongly that violators should be punished.

Agents must consider other options and consult with a supervisor before sending someone back to jail, Cook said.

Those discussions are designed "to maximize consistency and provide a similar response for similarly situated offenders," Cook said.

"There are certain aggravating and mitigating factors that are considered by probation and parole agents in recommending reincarceration time," he said.

The Department of Corrections also has a chart that lists categories of rule infractions as well as potential consequences for each. But they are not applied consistently, the study says.

“The system’s not fair. Some people are revoked for small infractions and some people aren’t,” state Rep. Evan Goyke (D-Milwaukee) told the study’s authors. “When the system is unequal and unfair, you have less likelihood that people will buy into it and agree to live by those rules.”

In addition to more consistency and improved training for agents, the Corrections Department should move toward a more positive model in which agents prioritize helping ex-offenders succeed and rewarding good behavior, the study recommends.

"We're hoping the Legislature and the administration give them the resources and the tools they need to be able to do that job," Liners said. "We’d love to see those resources come from reallocating the $150 million that’s being wasted every year by re-incarcerating people who really don’t need to be incarcerated."