2008 Racial Disparity committee recommendations

Racial Disparity Report; released February 2008
Recommendations
In making recommendations to address racial disparity in the criminal justice system, the Commission recognizes that there are serious offenses and behaviors that, for reasons of public safety, require that some offenders be removed from the community. The Commission also recognizes that most of the people who are incarcerated will one day be returned to the community. Addressing the issues that led to their incarceration and resulted from that incarceration is an essential step in ensuring the well-being of the entire community. In its 2007 report America’s Cradle to Prison Pipeline, the Children’s Defense Fund identified a number of the institutions that determine the opportunities children have to lead successful lives and noted that:
Racial disparity runs through every major system impacting children’s life chances: limited access to
health care; lack of Head Start and quality preschool experiences; children waiting in foster care for permanent families; and failing schools with harsh discipline policies that suspend, expel and discourage children who drop out and don’t graduate and push more children into juvenile detention and adult prisons.
The Commission has recognized that many of the issues that were addressed in the Pipeline report exist in Wisconsin and, as a result of their impact on youth, contribute to racial disparity in the criminal justice system. The Commission has formulated recommendations focused on youth that generally fall into the categories of data collection and analysis; mental health; education issues and system issues.
These recommendations, if implemented, will have broad effect; can be acted upon quickly; and will serve the dual purpose of reducing disparity in Wisconsin’s justice system and enhancing public safety. Focusing attention on children and families using evidence based services can have a deep impact on the racial disparity as evidenced by two programs in Rock and Milwaukee Counties that were developed with funding provided by the Governor’s Juvenile Justice Commission1.
In addition, the Commission recognizes that focusing attention on children and families is an investment that should bear fruit for a long period of time. Research shows that prevention and early
intervention programs for youth and their families are the most cost effective means in the long run
to impact troubled children and their families. Discussions on racial disparity are best focused at
the local level. Currently, there is a lack of data and/or lack of tracking data by race at all stages of
the justice system, from initial law enforcement contact through probation, incarceration, and parole.
Local jurisdictions need to have data so they have an understanding of what is happening in their communities and can begin the discussion locally.
Recommendations
♦ Throughout the state, we must increase and improve the validity and reliability of data, e.g. collecting and making data available.
♦ Local jurisdictions must develop a tracking system to identify race and age at all stages of contact with the justice system.
♦ Information technology resources must be developed to pull together data from different databases to the extent possible. Consistent and reliable data must be developed across the systems and across
jurisdictions.
♦ The barriers that prevent juvenile justice system and child welfare system workers
from sharing information about youth in either system should be broken down.
Many youth have mental health issues that directly lead to contact with the juvenile justice system. Too often children do not receive adequate screening for mental health needs nor do they receive mental health services
until they reach the juvenile justice system. Using the juvenile justice system as the means to sort out which youth and families will receive services can have a long term deleterious effect on children as they accumulate delinquency labels that will follow them into adulthood. In addition, too often the type of service available to children and families is neither evidence-based nor cost effective.
Recommendations
♦ Significantly more evidence-based resources should be devoted to addressing mental health issues of all youth involved in the juvenile justice system. Some local jurisdictions and service providers have implemented Best Practice models that have proved effective in addressing mental health issues.
♦ The State must increase its commitment to Wraparound and other coordinated service team models so that the mental health needs of all youth - and not just those in the juvenile justice system - can be addressed within the community.
Truancy, “zero tolerance” policies, and school discipline responses often lead to a juvenile having unnecessary contact with the juvenile justice system and have been shown to disproportionately affect children of color. Providing support to
1Rock County made a data-driven study of the points of contact of minority youth with the juvenile justice system and identified the placement in secure custody as the appropriate point to develop an Alternatives to Detention program. This program has been added to the Office of Juvenile Justice and Delinquency Prevention Model Programs site.

school districts to develop alternate means of ensuring safety within the schools, engaging all youth in becoming part of a learning community, and developing creative alternatives to promote positive and responsible behavior will reduce the disproportionate impact of restrictive discipline codes and policies.
Recommendations
♦ Education on cultural competency (not just cultural diversity) and support should be offered to law enforcement, school resource officers, human services personnel, mental health services providers, educators and the judiciary. This could include developing a mentoring program in which more experienced staff in this area mentor new personnel.
♦ School districts should be encouraged to examine their local data on the effects of “zero tolerance” and other discipline policies on youth of color. Schools should be encouraged to use school resource officers for prevention as well as intervention with students. Parents should be included in this examination so they will have a voice in this process and thereby better effectuate change.
Progress in identifying solutions to problems relating to racial disparity is difficult and requires a consistent effort by many to resolve the conditions which create the disparity. A uniform method must exist whereby the results of these efforts can be evaluated and adherence to them enforced.
Recommendations
♦ A statewide process or entity should be created to monitor and track progress in resolving issues relating to racial disparity. ♦ Training and resources should be provided to local organizations on
racial disparity issues.
Efforts that are designed to facilitate the return of inmates to their communities should include the recognition that juveniles released from state facilities are in need of many of the same re-entry aids as adults.
Recommendations
♦ Public and private sector leaders should collaborate in community efforts that emphasize education,
employment, and community mentoring. ♦ Programs such as the Milwaukee Boys and Girls Club collaboration with the Ethan Allen School should be supported and expanded.
The deliberations of the Commission included review of each of the contact points a citizen would have with officials in the criminal justice system. Through the review of reports of previous commissions that have examined aspects of the justice system, the public hearings and Commission meetings, the submissions by citizens and each of the meetings the Commission conducted, the Commission has identified areas of the criminal justice system in which system changes or individual actions can help to reduce the racial disparity the Commission found to exist in the criminal justice system.
The initial point of contact identified involves law enforcement officers and the efforts of law enforcement agencies to ensure public safety and adherence to the law. It is the law enforcement officer who, in investigating the facts that have attracted law enforcement attention, initially determines if an actionable violation has occurred and whose exercise of discretion begins the track of the defendant either outside or through the criminal justice system.
The Commission recommendations relating to law enforcement include recommendations regarding prevention strategies that would reduce the number of the entire community, including minority-group members, entering the criminal justice system. The recommendations particularly note drug offenses and the impact drug laws and enforcement practices have had on racial disparity. The Commission further noted that Governor Tommy Thompson, in November, 1999, created the Governor’s Task Force on Racial Profiling and charged that task force with the responsibility of studying and making recommendations on the use of profiling when making traffic stops throughout the state.
The Commission noted that many of the recommendations made by that task force addressed needs for data and data analysis that are similar to those this Commission has identified. Recognizing that law enforcement agencies have to be concerned with the fiscal impact of and personnel commitment required in data collection, the Commission has sought to utilize existing data sources and tools to document whether disparities exist and whether efforts to address inappropriate disparities are successful.
Recommendations
♦ An Executive Order should be issued accepting and enforcing the findings and recommendations of the Racial Profiling Task Force Report of 2000.
♦ Appropriate state agencies should be directed to conduct a county-bycounty baseline study of racial disparity using existing traffic citation and arrest data to determine disparity levels in the state.
The Commission specifically notes the availability of information that would allow the Department of Transportation Division of Motor Vehicles to conduct a study of traffic citation data by race and to compare that data to recent demographic information to determine if disparity exists in arrests . Wisconsin’s counties vary greatly in their ethnic/ racial composition and their disparity patterns. Decisions about where to focus disparity-reduction efforts need to be based on data identifying where disparities exist and involving significant numbers of people. Readily available citation, arrest, and corrections data can be used to calculate gross statistics to show in which counties and for which groups there is
evidence of significant patterns of racial disparity. The data can provide a basis for flagging situations that require further investigation and for evidence-based decisions about allocating resources for disparity reduction efforts.
The Commission examined the impact of drug offense arrests and prosecutions on racial disparity rates throughout the state. It heard anecdotal references to a tradition of suburban or rural residents receiving citations for marijuana possession under circumstances that would have resulted in minority residents of an urban setting being arrested and entering the criminal justice system.
The Commission reviewed national studies (including the 2003 National Survey on Drug Use and Health, Department of Health and Human Services) that indicate young Caucasians self-report use of illegal drugs more frequently than their African-American counterparts, yet African-Americans are imprisoned multiple times more than Caucasians for nonviolent drug offenses.
The Commission noted that drug convictions have impact on more than just the liberty of the defendant. It heard testimony from citizens who argued that there were differences in the response to chemical abuse problems. Cited were instances in which some violators are referred to treatment facilities and have their legal difficulties resolved in light of the intervening substance abuse treatment while others are immediately referred to criminal court processes.
Concerns were also raised regarding perceptions that sentencing differences for crack cocaine,a drug perceived as being more frequently used by African-Americans, and for powder cocaine, which is self-reported more frequently as the drug of choice of 3Caucasians were not based on any substantive difference. There were concerns also expressed that users of ethamphetamine - who are typically Caucasian - were treated as needing treatment where users of crack cocaine were treated as needing imprisonment.
Bases for these reports included the Federal Bureau of Investigation and Substance Abuse and Mental Health Services Administration Summary of Findings from the 1998 National Household Survey on Drug Abuse (U.S. Department of Health and Human Services, 1999.
The Commission concluded that reducing demand for illegal drugs and providing access to treatment is a more effective strategy than using “zero tolerance” policies that often serve to remove low-level drug offenders
from the community without providing the needed treatment. Such actions were seen to exacerbate addiction problems without necessarily addressing the underlying treatment need. The “offender” is often returned to the
community with the same addiction, and the difficulties associated with a criminal record.
In addition, the incarceration itself may have exacerbated problems surrounding the family structure, educational pursuits, and employment efforts. The Commission believes state and local leaders should engage in an intensive multisystem effort to reduce substance abuse and the demand for illegal drugs using evidence based services. The concerns expressed by judges and others throughout the justice system reflect the lack of sufficient treatment alternatives for those convicted of substance abuse-related offenses highlight the need to identify and develop treatment resources.
Whether it is the state’s high rank in the nation in binge-drinking and alcohol consumption, often reflected in multiple drunk-driving arrests and the danger to the community those acts involve, or the state’s national rank in the top half for cocaine use for all ages, the failure of Wisconsin’s continued reliance on law enforcement and corrections instead of investing in treatment alternatives has had significant negative effect.2
In a number of instances, the Commission’s attention was called to a comparison of incarceration practices in Wisconsin with those in Minnesota. Minnesota was seen as emphasizing community supervision and treatment programs more frequently than Wisconsin, particularly for non-violent, drug and alcoholaddicted offenders. The comparison of rates of incarceration in the two state indicate Wisconsin is approaching three times the number of its citizens in prisons and jails per 100,000 residents compared to Minnesota.3
Recommendations
♦ Increased state and federal funds should be committed to substance abuse treatment and effective evidence- based programming to reduce drug use.
♦ Active efforts should be made to change prohibitions against financial aid for education and housing
for convicted drug offenders.
♦ Using the example of High Point, NC and examining statistics and examples showing the impact of community sweeps, local law enforcement should engage in comprehensive responses to open air drug markets as opposed to zero-tolerance policies.
In making its recommendations for law enforcement leaders to follow in identifying, hiring, and keeping the best candidates for longterm law enforcement careers, the International Association of Chiefs of Police noted that
desirable officers were those who “possess not only the aptitudes and attributes to engage in traditional, action-oriented policing, but also those who will perform in increasingly multifaceted policing environments. Law enforcement leaders must establish and then sustain a cadre of officers who are dedicated to ethical service-oriented policing that is respectful of the civil rights of all community members while maintaining safety and public order.”4
A concern of the Commission was the notion that law enforcement officers are often thought to provide “help” for mentally ill subjects or those with substance abuse problems by making an arrest and starting them in “the
system.” It is extremely important that the effect of using arrests and the criminal or juvenile justice systems to obtain “help” be explored.
The Commission developed recommendations to assist law enforcement leadership in equipping its officers with the skills and training that will help the officers working with changing populations throughout Wisconsin. The state is experiencing demographic changes throughout, and cultural as well as ethnic varieties are being introduced into Wisconsin communities.
Recommendations
♦ State leadership should collaborate with appropriate justice system and administrative officials to develop training and standards consistent with the recommendations of the Racial Profiling Task Force.
♦ The appropriate state agency should collect, promote and disseminate best law enforcement practices on traffic stop, treatment of mental health cases and use of force procedures to reduce the perception of unfairness and partiality of law enforcement towards minorities.
♦ A state-organized major conference shall be convened for law enforcement executives to highlight and discuss the issue of racial disparity in Wisconsin that includes elevation of risks associated with introduction into the criminal justice system.
The success of efforts to address racial disparity and ensure community safety will be directly affected by the allocation of sufficient resources to support the agencies called upon to collect and analyze data; provide treatment alternatives; and provide appropriate law enforcement efforts. These efforts must be mindful of the role of community members as the greatest and most powerful resource that local law enforcement has to reduce crime.
Involvement of community members and agencies in justice councils will assist in the identification of “hot spots” in the community as well as create avenues of communication between neighborhood representatives and law enforcement.
Recommendations
♦ County baseline study data should be used to determine the allocation of federal Justice funds over which the Governor has control towards community efforts addressing racial disparity within their criminal and juvenile justice systems. Programs should include, but not be limited to: youth diversion, drug court programs, community accountability boards, gang prevention efforts and community justice councils.
♦ Local law enforcement agencies should engage in community justice councils to develop community based solutions to low-level offenses.
♦ Federal and state funds should be committed for reentry planning and programming focusing on housing, employment and education, specifically for young African-American men returning to the community
from prisons.
“The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open and reasoned way. When it costs so much more to incarcerate than to educate a child, we should take special care to ensure that we are not incarcerating too many persons for too long.” U. S. Supreme Court Justice Anthony Kennedy; American Bar Association; San Francisco, CA 8/9/03
In arriving at appropriate sentencing decisions, the court benefits from a balanced approach in which the court is provided not only the traditionally supplied information about the crime, the impact on any victims, and the background of the defendant, but also receives additional information that would allow it to fashion the most appropriate sentence. Currently, courts are left at the time of sentencing not knowing when treatment might be available, or what support for reentry from prison might look like two or three years later.
Courts consider numerous factors in deciding an appropriate sentence. Judges must rely on the information provided to them about the charges and the defendant. Public Defenders need resources to appropriately prepare cases and present necessary information, including sentencing alternatives, to the decision maker.
The Commission was informed that standards for eligibility for Public Defender services have remained the same for twenty years. In addition, the rate of compensation for attorneys accepting appointment for Public Defender cases has remained low. As a result, resources available to private attorneys to accept the appointments to represent indigent defendants discourage most except the newest, least experienced attorneys from accepting appointments.

2Treatment Instead of Prisons: A Roadmap for Sentencing and Correctional Policy Reform in Wisconsin, Drug Policy Alliance, January 2006.
3Bureau of Justice Statistics-Midyear 2005. Cited in Uneven Justice: State Rates of Incarceration By Race and Ethnicity, Marc Mauer and Ryan S. King, The Sentencing Project, July 2007.
4 Protecting Civil Rights: A leadership Guide for State, Local, and Tribal Law Enforcement, International Association of Chiefs of Police, September2006.

Recommendations
♦ Judges should recommend and encourage the use of new adjudicative methods, including community based sentencing alternatives.
♦ Pre-sentence reports provided for sentencing should inform the judge and the parties about the full range of sentencing alternatives available at the time of the sentencing, identifying both community-based and institutional resources, and providing a realistic plan for offender rehabilitation
that addresses the actual availability of services in both the institutional and community settings.
♦ An online statewide database should be developed to collect and disseminate information on alternative justice programs. ♦ Eligibility standards for qualification for Public Defender services should be revised. Resources available to the defense for investigation and social work should reflect the need to make adequate sentencing information available to the court.
The Commission believes there should be a comprehensive assessment of Wisconsin justice system programming to determine best practices and build state level support for alternative programs. Judges are in a position to work with other criminal justice officials in designing and implementing useful and effective alternatives to incarceration, such as those implicated in the Treatment Alternatives and Diversion Program (TAD), deferred prosecution agreements and drug treatment courts.
Having alternative program information available online would allow judges and others in the criminal justice system to quickly identify programs that are suitable, available and proven to work. Posted information would
include program format, availability, procedures, participants, and overall effectiveness. Internal to the judiciary, judges should work with appropriate staff and/or community resources to find creative ways to unify adjudications of cases to better serve court users. Judges are in a unique position and should provide leadership in unification initiatives across division lines making courts more accessible and less duplicative in improving the processing of a single family’s case.
Recommendation
♦ Judges should take a leadership role in the development of a community criminal justice council for each of
the ten judicial districts.
Judges should provide leadership. The mission of the Council should be to efficiently and collaboratively coordinate services and to effectively allocate financial resources to ensure crime reduction, victim support, offender accountability and restorative community based programs. Through strategic planning and research, the Council should identify, evaluate and develop strategies to improve the justice system to enhance public safety and the quality of life.
The Council should consist of an Executive Committee composed of various stakeholders, including, as it relates to the jurisdiction, the Mayor(s), County Executive(s), Sheriff(s),Chief Judge, Chair of the County Board, District Attorney(s), Police Chief(s), area head of the Public Defender’s Office, the Department of Corrections, and a representative of community service providers.
5) The Council should be comprised of voting members from a variety of city, county, state justice agencies along with business, advocacy and other community groups. The Council should have standing subcommittees in community justice areas such as mental health, incarceration alternative programs, juvenile justice, public
education and information gathering.
The Council will collect and review local racial disparity data within each county where applicable and develop targeted and collaborative efforts with other criminal justice system and community stakeholders to reduce racial disparity in their communities. In addition, they will develop programs to address the disparity and monitor progress over time. In order to qualify for full funding of this grant program, the District Attorney must be an active participant.
The Office of Justice Assistance should develop a grant program or provide seed money using Justice Assistance Grant money to implement the Community Justice Councils modeled after the Disproportionate Minority Contact (DMC) committees funded by the Governor’s Juvenile Justice Commission.
“Racial stereotypes sometimes operate unconsciously and can influence perceptions of dangerousness
even on the part of decision-makers who harbor no conscious prejudices…Minority offenders’ personal circumstances may make them appear to some judges as unlikely prospects for rehabilitation.Those who can pay for private drug or mental health treatment, provide restitution in large amounts to victims and communities, or attend educational and vocational programs often unavailable to the poor are likely to receive milder punishments than others who have committed exactly the same crimes.”5
Recommendation
♦ Judges should report the appearance of any pattern and practice of disparate treatment by any actor involved in policing, charging decisions, sentencing recommendations, or any court proceeding, to the appropriate chief executive officer and/or agency head.
5Unlocking America: Why and How to Reduce America’s Prison Population, November 2007, The JFA Institute, Washington, DC 2002.

Judges should send a clear message that our justice system will not tolerate discrimination in any form. Inappropriate conduct from staff, litigants, counsels or others including but not limited to off-color jokes, comments or other discriminatory behavior should be swiftly and forcefully rebuked and may be subject to appropriate sanctions. Throughout its deliberations, the Commission has heard testimony and has noted the need for data and information on which to base recommendations for changes that will reduce disparity in the justice system. Whether it is as a result of the exercise of discretion by law enforcement officers, prosecutors, or judges, the need for accurate information on which to base systemic policies and changes has been a source of frequent testimony.
Recommendations
♦ A statewide schema should be developed and utilized to collect data on race and ethnicity at all points in the criminal justice system process in the CCAP and PROTECT systems.
♦ Advanced technologies should be utilized to electronically codify contents of court transcripts.
♦ The judiciary should take the lead in ensuring that adequate and qualified interpreters are made available at every stage of the justice system process.
The need for the collection of data is particu­larly important regarding white and non-white Hispanics. Better data for Asian, Hmong, Native-American, and other ethnic groups with significant populations in Wisconsin should be obtained. Though numbers for these groups have historically remained low, a catch-all "other" category is of little use with­out more specific information about these groups.
Transcripts contain detailed information not collected nor documented anywhere else in the justice system. This information, if codified and entered into a database, could be used to ascertain the true breadth of factors consid­ered by judges in their decision-making proc­ess. There are existing data bases in jurisdic­tions such as LaCrosse, Portage and Dane Counties.
Changing demographics and the increasingly diverse population appearing in the juvenile and criminal justice systems make the avail­ability of qualified interpreters at all stages of the justice system process a critical issue. The court must be able to communicate effec­tively using court interpreters to explain all options and alternatives available in a particu­lar case. Where decisions involving diversion from the formal court process are made prior to court contact - such as the intake decision in the juvenile justice system to enter into a deferred prosecution agreement - interpret­ers must be available to ensure all who are subject of the process have equal access to dispositional or diversion options.
Recommendations
· The judiciary should continue to provide access and encourage the public to view how the court system works, and should educate the public and legislature about the role of courts and effective justice strategies, particularly as it relates to the lack of alternatives to prison for offenders suffering from mental health and drug treatment issues.
· The judiciary should conduct broad research nationally and draw from the best programs and develop a statewide judicial education program addressing racial disparity in the criminal justice system and how to combat it.
· Judges should educate the other branches of government on the fiscal impact of unfunded mandates on the judiciary’s capacity to meet it’s constitutional obligations.
Judges have the opportunity to educate the community about the workings of the justice system by encouraging members of the pub­lic to observe judicial proceedings. Judges also have the ability to participate in educa­tional programs at schools and community forums.
The provision of education to judges on the issues surrounding racial disparity should be an essential part of judicial education. It should be made a core component of judicial training at a plenary session of the Judicial College and incorporated into specialized training efforts such as the courses routinely offered to new judges and specialized ses­sions on criminal law and sentencing.
It is further important that the courts be fully funded and that the executive and legislative branches provide adequate resources to the courts and community stakeholders for alter­natives to incarceration as a critical compo­nent of efforts to reduce prison and jail popu­lations.
"The legislative branch has the obligation to de­termine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional... Few misconceptions about government are more mischievous than
Throughout the public hearing process, the Commission heard testimony reflecting a common theme relating to inmate reentry and reintegration into the community. Many witnesses testified that a critical element in successful reentry is access to employment that pays wages on which the inmate can adequately provide for family members. Fre­quently cited as obstacles in obtaining these jobs were the access to transportation to jobs that were located in areas to which public transportation was not available.
6Kennedy, Speech at the American Bar Association Annual Meeting, August 9, 2003
the idea that a policy is sound simply because a court finds it permissible. A court decision does not excuse the political branches or the public from the responsibility for unjust laws."6


One program that has been successful but has only been limited on a limited basis is a part­nership between the Department of Correc­tions and the Department of Transportation to ensure that eligible inmates have a valid state-issued driver's license when they are paroled. Inmates who are not eligible for a driver's license should have a valid state iden­tification card.
The City of Milwaukee Municipal Court, through the work of Justice 2000's Center for Driver's License Recovery and Employability Program has completed work on a "comprehensive collaborative effort to reduce the numbers of unlicensed drivers in Milwau­kee County" through the establishment and operation of a community-wide driver's li­cense recovery and employability resource center in Milwaukee.
Treatment Instead of Prisons (TIP) was in­cluded in the 2003 State Budget as a program that would be funded by grants to counties. The original grant was funded at $750,000, an amount that would allow limited opportunity to begin pilot projects that would further prove the efficacy of this program.
Full implementation of this program would reduce incarceration by treating substance abuse. The projected results would lower in­carceration rates; lower recidivism rates by treating the underlying problem without jail; and supplement the already overburdened Department of Corrections substance abuse treatment programs.
Recommendations
· consistent with the results of the January Audit report, 2008, legislation should be introduced to a return jurisdiction of 17 year olds alleged to have violated state or federal criminal laws to juvenile courts. Current waiver provisions should be maintained.
· The State department of transportation and Department of Corrections program should be expanded to serve inmates at all department of Corrections facilities and aid inmate reintegration by ensuring that inmates who request them have a valid identification card before they are released.
Additional funds should be made available to allow for a pilot project that will provide treat­ment services instead of prison.
"Between the time a suspect is arrested and the time he or she is arraigned, a number of impor­tant activities take place where decisions are made that can have a dramatic effect on the racial composition of the criminal justice popu­lation. This critical stage in the processing of a criminal case is rendered more complicated be­cause multiple players are involved, including: the police, the complainant, witnesses, the prosecutor, the suspect, the suspect's family and friends, the pretrial officer, the defense, diversion and alternative sanctions programs, and the court."7
In the report of the Sentencing Commission, Race and Sentencing, the authors were able to determine by the objective data that, by in large, the sentencing schemes in Wisconsin are fairly meted out, particularly for egregious offenses. It also pinpointed, however, some areas of concern around drug sentences and sentences for less serious offenses. Given data suggesting that the greatest racial disparity exists at the lower end of the severity scale in drug cases, one area that appears to deserve especially careful review involves the range of charges issued for possession of small amounts of marijuana, since responses can vary from a mere civil ordinance violation all the way up to felonies, if the possession is for a second or subsequent offense.
The first step in addressing these issues is to collect data so that we know where we are and whether or not there are problems in the juvenile and criminal justice systems that can be addressed.
Recommendation
The office of Justice Assistance should create a work group consisting of a representative of the Wisconsin District Attorney’s Association, the Wisconsin state prosecutor’s Office, the Department of Justice, State Prosecutor Education and Training(SPET) Division, and three District Attorneys, one of whom shall be from either Milwaukee, Dane, Rock , Racine or Kenosha County.6
The work group would initially determine which data from PROTECT and other data bases must be collected on an ongoing basis so that data, and in particular racial data, can be reported periodically to prosecutors regarding critical stages in the continuum such as charging and settlement offers, The group would work to determine which new data should be included in the PROTECT system in order to increase the prosecutor's ability to understand what their respective numbers mean.9 The work group would also work with law enforcement, the courts and the Criminal Investigation Bureau to resolve data defini­tions of race in all systems.
The work group should develop a series of management reports from the PROTECT sys­tem that will report the racial data, along with other information that the work group may prescribe, to enhance the management func­tion of individual District Attorney Offices.
The Office of Justice Assistance is strongly urged to consider consulting with the Vera Institute's Initiative on Prosecution and Racial Disparity to help with the question of data.
District Attorneys tend to agree that, along with the seriousness of the offense, the most important information they
7)'Reducing Racial Disparity in the Criminal Justice System: A Manual for Practitioners and Policymakers, The Sentencing Project, October 2000


use in exercising discretion is the criminal history of an of­fender. Criminal history and the gravity of the offense drive
each discretionary decision the prosecutor makes. While the Sentencing Com­mission's report, Race and Sentencing, was a useful analysis of the role of race in sentenc­ing, the role of criminal history in the context of sentencing was not fully addressed.
Recommendation
· The office of Justice Assistance should commission a study similar to Race and Sentencing but in the context of prosecutorial discretion, giving particular attention to the role of criminal history in that exercise.
Awareness is the driver of change. The first step in addressing perceptions that racial dis­parities reflect discrimination is understand­ing the disparities. The second step is deter­mining which of those disparities are not concretely tied to relevant factors for the prosecu­tion of crimes and addressing community safety. District Attorneys need to be aware of the numbers as regards racial disparity in the state and in each county. They also need to be aware that while they may be exercising dis­cretion in a race neutral manner, they can take the opportunity to examine those decisions particularly in light of the cultural differences represented by people of color in Wisconsin and the longstanding dangers of unconscious bias.
Recommendation
· The Office of Justice Assistance, the State Prosecutor’s Office and the Department of Justice’s SPET office should collaborate to develop and offer training on conscious or unconscious racism and the danger of institutional bias in the juvenile and criminal justice systems at all SPET conferences.
The Commission recommends that all prose­cutors attend at least one session of this train­ing before the end of the second year of em­ployment and that there also be developed and offered training on cultural differences to particular counties. An example would be the development of a training program on Hmong culture to be offered in Dane, Mara­thon, Eau Claire and other counties having a significant Hmong population.
One of the most effective ways to address the issue of racial disparity in a community is to bring the stakeholders together to address the problem. On the juvenile side, the Gover­nor's Juvenile Justice Commission has been working with six pilot counties for almost six years to help them collect and analyze their data, and to develop and monitor programs and strategies to address identified problems in their respective systems.
Rock County used a number of different strategies, including creative prevention work and detention reform (that included risk as­sessments and electronic monitoring) to de­velop a program that recently led to Rock County being recognized by the MacArthur Foundation as one of its Models for Change sites. The MacArthur Foundation awarded Rock County a grant of $300,000 over three years to continue the work it is doing.
The District Attorneys around the state do not have the resources to address the manage­ment issues that may become clear upon data collection. Having a resource to which they could turn for help in implementing new strategies to deal with racial disparity along with other management issues would help offices to increase efficiencies and use best practices.
Recommendation
· The Office of Justice Assistance shall broker or develop a technical assistance arm to help the justice Councils and District Attorney Offices implement new strategies such as pilot programs to revise charging or plea policies; community Accountability Boards; alternatives to drug prosecution; and/ or Drug treatment Courts as alternatives to traditional case processing.
This effort should include, as part of any diver­sion or deferral programs, evaluation of whether any group (defined by race, gender or other protected class) is being disfavored in referrals or offers made. One unintended con­sequence of a treatment court, for example, can be an inadvertent tendency toward diver­sion and treatment for more privileged defen­
dants, and jail for the less privileged. Policies and practices should be reviewed to try to avoid this tendency, for example,
by seeking "sliding scale" treatment payment plans, cre­ating easy-to-use program brochures, and ensuring referrals are based on an objective, validated assessment process.
The Office of Justice Assistance's supervision of the work groups should include either em­ploying a full-time staff person with analytical abilities or contract with an outside consult­ant through either DA/IT or the Office of Jus­tice Assistance to create the management re­ports and to act as a management consultant to District Attorney Offices around the state to improve their efficiencies.
The Racial Disparity Commission has focused primarily on making recommendations to the Governor that he can implement or influence in addressing racial disparity, District Attor­neys around the state can become partners in this effort by adopting model guidelines to address these issues.
Recommendation
· A resolution should be offered to the Wisconsin District Attorney’s association using the following guidelines: 10
Guidelines for District Attorneys on Racial Disparity in the Wisconsin Juvenile Justice
and Criminal Justice System
I. Prosecutorial Decision Making
a. The District Attorney should be conscious of potential racially disparate impact when setting prosecution priorities and policies.
b. The District Attorney should consider sta­tistical evidence of community crime in­dicators and qualitative evidence of com­munity concerns in setting prosecution priorities and initiatives.
c. The District Attorney should be proactive in his/her leadership and partnership with law enforcement agencies to pre­vent racial and ethnic bias and ensure that similarly situated defendants receive
similar charges and sentences, d. The District Attorney should consider the racial effects of his/her charging and dis­position policies and work with others in the community to address unfair dispa­rate impacts.
.Training
a. Training of prosecutors about the role of racism in our history and criminal justice system should be offered to all prosecu­tors.
b. The District Attorney should encourage all supervisors, attorneys, and other staff to attend the training related to race and suspicion and assessment of risks to be developed by SPET. (See Recommenda­tion #3 Supra.)
c. The District Attorney should advocate for racial disparity/profiling training for law enforcement agencies.
I. Management and Accountability
a. The District Attorney should support of­fice policies that ensure diversity among his/her professional and support staff, including the active recruitment, hiring, retention, and promotion of African-Americans, Native Americans, Hmong, Hispanics and other racial and ethnic mi­norities.
b. Every prosecutor should review his/her own personal beliefs and biases, includ­ing use of racial and ethnic stereotypes or use of proxies for race and ethnicity (such as class/socio-economic status or geography).
c. The District Attorney should charge all assistants and deputies district attorneys with the obligation to consciously review their rationales for prosecution in order to eliminate unfair racially disparate treatment and effects.
d. The District Attorney should take affirma­tive steps to eliminate racial/ethnic bias
victim or stereotyping that may be within his/ her control and supervision,
e. As an internal management tool, the Dis­trict Attorney should collect and analyze quantitative and qualitative data on the race and ethnicity of the defendant and victim at each stage of prosecution, in­cluding but not limited to: case intake, bail requests, declinations, selection of charges, diversion from prosecution or incarceration, plea offers, sentencing rec­ommendations, fast-track sentencing and the use of alternative sanctions.
IV. Community
a. The District Attorney should meet with community members, including mem­bers of the bar and criminal justice pro­fessionals, to obtain their input on crime problems and effective solutions.
b. The District Attorney should seek out from lay community members their con­cerns about real or perceived disparate treatment in prosecutorial policies and disparities in their final results.
c. The District Attorney should collaborate with members of the community and the local criminal and juvenile justice sys­tems to develop problem solving solu­tions to disparate impacts of prosecuto­rial decision making.
V. Influencing Legislation and Policy
a. Each District Attorney has the affirmative obligation to raise the racially disparate effects of legislation and policy with local and state legislative bodies.
b. The District Attorney should advocate sentencing alternatives and reforms that lessen the impact on those adversely af­fected by racial disparities in the Wiscon­sin criminal justice system.
"The cost of housing, feeding, and caring for the inmate population in the United States is over 40 billion dollars per year. ..And despite the high expenditures in prison, there remain urgent, un­met needs in the prison system."''
8 The work group could be something akin to the role the CCAP Oversight Committee plays for the courts.
9 The Commission recognizes that some of the data may not currently be electronically accessible. The work group could, however, address the data needs so that when the time comes that DA's are fully automated, the gathering of racial data for other decision points such as plea offers and sentencing requests can be tracked.
10 guidelines are borrowed from "Prosecutorial Decision-Making and Racial/Ethnic Disparities in the Federal Criminal Justice System: Principles and Guidelines", A Project of the Brennan Center for Justice at NYU School of Law and the National Institute for Law and Equity, Federal Sentencing Reporter, Vol, 19, No. 3, February 2007.
11 Kennedy





Recommendations
· When an inmate is received for custodial placement, available information including the presentence report and other social history including personal interviews with the inmate, shall be used to determine whether any children had been living with the inmate prior to incarceration. Contact should be initiated with and maintained with the appropriate County social services department.
· The Department of Corrections (DOC) should conduct a complete review of the availability of programs that are required for release from custodial placement.
· The legislature and DOC should determine the level of finding needed for the necessary programs and every effort should be made to provide such funding.
· The DOC should develop a process to review the decisions of the program Review Committees as they determine the program needs of inmates and whether a particular inmate will be admitted to a particular program.
· DOC should assess at what point programming is offered to achieve maximum effectiveness and take steps necessary to ensure that essential programming such as ADOA treatment is made available to inmates in need at the earliest possible date.
· DOC should conduct a complete review of the options available to improve and increase the vocational, educational, mental health an rehabilitation programs that can be offered to inmates during their period of incarceration to prepare them for life after reentry.
· DOC should establish a system of incentives for inmates who voluntarily enroll in and complete programs that aid in their rehabilitation.
· DOC should review and expand the use of options such as electronic monitoring, community group homes and others that do not include incarceration when such use is consistent with public safety concerns
IN reports of the Council of Crime and Justice and the California Research Bureau, children of incarcerated parents were noted to often suffer from negative self-image; exhibit symp­toms of emotional distress such as fear, anxi­ety, anger, sadness, and resentment; with­draw from family and friends; and show signs of mental illness such as depression, eating and sleeping disorders, anxiety and hyper-arousal; and attention disorders. They often suffer from diminished academic perform­ance. Classroom behavioral difficulties and truancy are frequently noted. They are more likely to exhibit physical aggression and dis­ruptive behaviors in all the environments in which they interact.12
Causes of these reactions were identified as including the impact of the lack of financial support; social alienation; and the stigma at­tached to having an incarcerated parent. Chil­dren were noted to be keenly attuned to the status of their parents, and were often ex­tremely troubled by concerns for the welfare of the incarcerated parent.
Once an inmate has been received by DOC and noted to have been the person with whom the child resided at the time of the in­carceration, the appropriate DOC worker should identify the appropriate county social services department to which notice of the parent's status should be provided. In addi­tion to remaining aware of county social ser­vices responses to the needs of the child, the DOC should be mindful of recommendations for visitation between the parent and child; note referrals for mentoring or other counsel­ing services; and remain available to social services for recommendations regarding the appropriateness of the parent for visitation/ placement upon release.
DOC should develop a system for managing the admission to programs in a manner that would expedite the process of making the maximum number of inmates eligible for re­entry at the earliest possible date that is con­sistent with the safety of the public.
This would likely have a positive impact on disparity and the level of minority incarcera­tion and would provide inmates with an in­centive to continue improving themselves. DOC should review the programs that it re­quires for release for reasonableness and to determine if there are alternatives such as in­dependent study or completion of program­ming under community-supervision that can be used when space in programs is not avail­able.
In cases where an inmate has otherwise satis­fied requirements for reentry and the remain­ing needed programming is not available be­cause of space limitations or the program­ming not being offered at the particular insti­tution at which the inmate is placed, DOC should review whether the remaining, un­completed program is essential; can be waived; or
satisfied in some other manner consistent with community safety. If not, every effort should be made to enroll the oth-
erwise-prepared inmate into required place­ments in the place of inmates, if any, who ei­ther do not need that particular program for release, or are not presently eligible for release.
DOC should determine whether required pro­grams can be more easily obtained after re­lease while under supervision. If so, inmates should be released when appropriate and al­lowed to satisfy a required program that is not available to him or her in the institution.
12 Children of Incarcerated Parents, California Research Bureau, Charlene Wear Simmons, March, 2000 and Children of Incarcerated Par­ents, Council of Crime and Justice, January, 2006.




A review should be conducted and data should be compiled going forward to allow DOC to determine whether decisions for requiring or allowing admission to programs necessary for release are being made upon inappropriate
considerations such as the race of the person being considered.
The consideration of inmates for parole should be used as an incentive. Inmates who com­plete voluntary programs such as obtaining a GED or other education programs, should be granted a special review of their record. A chance to demonstrate progress and gain an earlier opportunity for release would provide significant incentive for inmates to complete programs that will prepare them for reentry into society, reduce their chances of recidivism, and therefore reduce both the disparity in in­carceration and the high level of incarceration in Wisconsin.
Recommendations
· DOC should review the prison discipline system to determine whether the data reflect any racial disparity in the consideration of and punishments imposed for violations of prison rules.
· DOC should review the use of the extension of inmates’ mandatory release date as a sanction, whether is an effective means of improving behavior and to what degree it adds to the length of inmate’s incarceration.
· A computerized system should be created to better maintain the records of the issuance and adjudication of major conduct reports.
DOC should create a mechanism for the DOC Central Office to review the impact and fair­ness of the prison disciplinary system to de­termine whether it is unnecessarily contribut­ing to the problem of racial disparity, and whether Conduct Reports or penalties are be­ing issued based on inappropriate considera­tions.
In the study of racial disparity, a necessary component was revocation from community supervision. It is impossible to determine from available data why people were revoked. Revocation with a new sentence is obviously the result of a new 9)
or newly discovered offense. However, people who are revoked with no new sentence may have committed no new crime and may have been revoked solely for violating the technical conditions of pro­bation, or may have been accused of a new crime that was not prosecuted because the person had been returned to prison. Using DOC statistics, the Commission exam­ined all people on community supervision from 2001-2006. Because some people are revoked multiple times and might inflate the statistics, we considered only each person's first period under community supervision. We have included the charts that reflect the re­sults of the evaluation in the appendix.
Recommendations
· A complete review of the parole process should be conducted.
· The DOC should review the level of discretion that probation/parole officers have in initiating revocation proceedings, and establish a process for reviewing discretionary decisions related to revocations.
The review of the parole process should in­clude an assessment of the standards used to determine suitability for parole, whether the data demonstrate a racial disparity in the granting of parole or length of deferrals, and whether the current system is the most effi­cient for use in Wisconsin when compared to models used in other states of like size and demographics.
In the review of discretionary decisions, DOC should insist that discretion be exercised in a manner that is consistent across the state, re­flects and advances legitimate policy objec­tives, and is not based upon any inappropri­ate considerations such as the race of the of­fender being considered for revocation.
DOC should prepare a report on at least an annual basis to monitor whether there is an ongoing racial disparity in revocations and whether there is any indication that such deci­sions are being made based upon any inap­propriate considerations such as race or whether current practices are exacerbating racial disparity.
DOC should provide policy direction to proba­tion/parole agents regarding appropriate ex­ercise of discretion in conduct that justifies initiation of revocation proceedings. Provid­ing clear policy goals related to public safety and offender rehabilitation would simplify the decision-making process for agents and would minimize the likelihood of decisions based on inappropriate considerations.
When safety considerations allow and when appropriate, DOC, working as frequently as feasible, with local officials, should develop policies that favor and promote rehabilitation over incarceration. The vast majority of in­mates will eventually return to their commu­nities. It is in the best interest of the overall population that the focus of correctional ef­forts be on the behavioral modification and skills development that will allow the success­ful reentry of the inmate into family and com­munity life.
DOC should consider alternatives to long-term and or temporary incarceration in cases where some form of discipline or supervision is necessary for offenders. While there are cer­tainly circumstances where public safety con­cerns will require incarceration, there are also times where house arrest or a period of being required to participate in electronic monitor­ing is adequate to satisfy safety and rehabilita­tion concerns.
The impact on a probationer's/parolee's em­ployment status should be considered when appropriate. The primary concern expressed in the testimony was by inmates who, on be­ing released after being "cleared", found that they had lost employment due to the un­noticed work absences. The Commission heard frequent examples in which probation­ers or parolees were held in custody over peri­ods of time in which agents, having had the subject report to his or her office and from there ordering the subject held in custody, conducted "investigations" of reported viola­tions.
Recommendation
· The parole Commission should conduct a systematic review of all inmates currently eligible for parole to determine appropriateness for parole
The Commission particularly recommends that inmates who are eligible for parole, but who have not received a review hearing within the last 48 months, be reviewed to as­sess their progress since the last review. De­ferrals should be reviewed to determine whether they were of appropriate length, consistent between panels, and panels should include more than one person and allow in­mate support and participation in hearings.
The DOC Central Office should review a ran­dom sampling of inmate complaints and pre­pare reports on an annual basis. A summary report of those complaints as a random sam­pling and a statistical analysis should be for­warded to the appropriate legislative commit­tee for review.
DOC should continue monitoring and identi­fying effective systems for tracking officers with a pattern of disciplinary problems or who have otherwise demonstrated difficulty in in­teracting with inmates in a manner that is pro­fessional and consistent with DOC rules. Ap­propriate action should be taken.
Recommendation
· Doc should work collaborately with the faith communities to provide services that would assist in the rehabilitation of inmates and prepare them for release from prison. The networks built through this interaction will assist in the maintenance of strong ties and supervision once the inmate returns to his or her communities.

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