Why No “Good Time” in Wisconsin?

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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Unlike most other states, Wisconsin does not recognize prisoners’ good behavior with credits toward accelerated release.  Wisconsin had such a “good time” program for well over a century, but eliminated it as part of the policy changes in the 1980s and 1990s that collectively left the state unusually — perhaps even uniquely — inflexible in its terms of imprisonment.  I’ve been researching the history of good time in Wisconsin in connection with a forthcoming law review article.

Wisconsin adopted its first good time law in 1860, which placed it among the first states to embrace this new device for improving prison discipline.  Twenty years later, in 1880, the Legislature expanded good time and restructured the program in the form it would retain for about a century.  In the first year of imprisonment, an inmate could earn one month of credit for good behavior; in the second, two months; in the third, three; and so forth.  Credits maxed out at six months per year.   A model prisoner with a ten-year term, for instance, might earn enough credits to knock off nearly three years from the time served.

In Wisconsin and elsewhere, good time has had a distinct history, structure, and purpose from parole.  

While good time credits accrue in a more-or-less automatic way based on a prisoner’s disciplinary record, parole decisions are discretionary.  In theory, the paroling authority releases an inmate when he has been rehabilitated.  Of course, disciplinary records have always been part of the parole calculus, but other considerations are also likely to come into play.

A later innovation than good time, parole was first implemented in the United States in 1876.  Once again, Wisconsin was a relatively early adopter, passing its first parole law in 1889.

Wisconsin eliminated good time in 1984, as part of a broader effort to tighten up sentencing and corrections law.  Sentencing guidelines were adopted in the same year, as were new restrictions on parole discretion.

Even after 1984, though, Wisconsin retained considerable flexibility with release dates. Prisoners could be paroled as early as the one-quarter mark of their sentences, and had to be paroled by the two-thirds mark.  Despite the loss of good time, the system retained very robust mechanisms for encouraging and recognizing the good behavior and rehabilitative efforts of inmates.

A series of laws over the ensuing decade cut back on parole in a variety of small ways, but the big change came with the 1998 “truth in sentencing” law, which wholly eliminated discretionary parole.

Many other states adopted TIS laws in the 1990s, but Wisconsin was unusual in eliminating nearly all flexibility with release dates.  Typically, other states retained either good time, or a truncated version of parole, or both.  The federal TIS grant program, which provided financial incentives for states to adopt TIS laws, included an 85% benchmark for violent offenders; in the program, states could still knock off up to 15% from prison terms for such offenders based on good time.

By 1998, parole had (fairly or not) become very politically controversial in Wisconsin, and its total elimination is understandable.  More curious was the failure to reinstate good time.  Parole was criticized as unpredictable and (often granted at about the half-way mark of the sentence) overly generous.  Good time functions in a more transparent manner and typically offers a much smaller reduction in prison terms; the norm among other states seems to be a maximum discount in the range of 25% to 40%, with violent offenders, per the federal grant program, often limited to a 15% discount.

Given the elimination of parole, I view it as unfortunate that Wisconsin did not reinstate good time.  I am sympathetic to the view that maintaining both systems, parole and good time, creates too much uncertainty around release dates.  However, most states have found it helpful to retain at least one of the two systems as a way to promote institutional discipline and rehabilitative effort.  This also seems consistent with the weight of expert opinion.  The American Law Institute, for instance, has included good time in its pending revisions to the sentencing sections of the Model Penal Code.  Moreover, rigorous empirical studies in two other states (Florida and North Carolina) provide support for the commonly expressed view of corrections professionals that cutting back on good time increases disciplinary infractions.

As some readers may know, good time (rechristened as “positive adjustment time”) did make a temporary comeback in Wisconsin in 2009.  This was one part of a much larger package of reforms that reintroduced quite a bit more flexibility into prison release dates.  Pretty much the whole package was then repealed in 2011.  The criticisms of the 2009 reforms closely tracked the criticisms of parole that had been made in the 1990s.  However, as discussed above, good time and parole are different in many respects, and a rejection of one does not necessarily require a rejection of the other.

Results of the Marquette Law School Poll suggest that a good time program might be quite popular with voters.  The July 2012 Poll found that two-thirds of Wisconsin voters support recognizing prisoners’ rehabilitative accomplishments by awarding credits towards early release.  Meanwhile, in the July 2013 Poll, more than 88% of Wisconsin voters said that it was at least somewhat important to take into account prisoners’ disciplinary records in making early release decision.

Wisconsin’s recent creation of two special Legislative Council committees on criminal-justice issues suggests that momentum might be building in the state for significant reforms to the get-tough arrangements that dominated the legislative agenda in the 1990s.  These developments in Wisconsin seem to echo a broader, national conversation about mass incarceration that has been taking shape in recent years.  The national conversation is strikingly bipartisan, with Tea Party libertarians and fiscal conservatives finding common ground with liberal critics of get-tough policies.  As reforms are considered in Wisconsin, I hope that good time will be on the table.

Cross posted at Life Sentences.

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