Wednesday, May 19, 2010

ERRC Emergency Rule wrongheaded


To: Kathryn R. Anderson, DOC March 3, 2010
P.O. Box 7925 Madison, WI 53707

Dear Ms. Anderson,
I am currently a prisoner at the Columbia Correctional Institution (CCI) in Portage, Wisconsin. I have been in prison since 1994 and since that time I have been in front of the parole board, hereinafter the Earned Release Review Commission (ERRC), on 3 separate occasions. Since my imprisonment I have also witnessed hundreds of prisoners grieve about the injustice that they feel they suffered from as a result of an ERRC's decision denying them early release. As such, I have first-hand knowledge of the ERRC's historical background in this respect.

Wisconsin's prison population has 3 main categorical sentence structures: (1) those sentenced under the Old Law (pre-April 1994), (2) Presumptive Mandatory Release (PMR) (April of 1994 to December 31, 1999), and (3) Truth In Sentencing (TIS) I & II (post PMR). Prisoners sentenced under TIS I & II do not have a "parole date" but they are eligible to receive an "early release" to "extended supervision" if they meet a certain criteria. After carefully studying the ERRC's Emergency Rule PAC 1 and Permanent Rule PAC 1, I am convinced that some of its rules will do a disservice to the residents of the state of Wisconsin based on the observations outlined below.

1) First and foremost, I find it alarming that the ERRC is moving to create rules (that will more than likely result in prisoners serving redundant in-prison time) when a disproportionately racial component exists within the state's criminal justice system. According to an article in the October 16, 2008 Wisconsin State Journal newspaper titled, "Too Many Blacks in Jail," although "Wisconsin is overwhelmingly white, blacks and other minorities are disproportionately represented in state correctional facilities." The article breaks down the population to incarceration ratio: "Wisconsin total population. 85% White, 6% Black, 5% Hispanic, 2% Asian, 1% Am. Indian. Wisconsin residents in adult correctional facilities, 43% White, 45% Black - Population on Dec. 31, 2006. Wisconsin residents in juvenile correctional facilities. 30% White, 57% Black, 1% Asian, 4% Amer. Indian, 8% Hispanic." The article also cited a Wisconsin-sponsored study that stated that such disparity is "not merely a problem of appearance; it is a calamity that builds on itself." It made reference to a "two-day conference that starts today aims to find solutions to the problem." If nothing else, the aforementioned facts support my assertion that a disproportionate racial component exists within the Wisconsin criminal justice system.
Having established that racial inequality exists within the Wisconsin criminal justice system, the next step is to gauge what effective preventive measures have been taken to balance the scales of justice. "What has been done? What is being done? Is this course of action going to help, harm or maintain the inequality that exists in our criminal justice system?" These are the type of questions that every Wisconsinite should be asking themselves and each other before
focusing on ways to arbitrarily extend a prisoner's in-prison time.

The system that exists now is broke. However,no substantive moves are being done to fix it. Too much dialog without action becomes stagnation. Where are the effects of that "two-day conference" that said newspaper article spoke of? I cannot help but notice that when it was time to deal with racial issues within the criminal justice system, the wheels of action moved at a snail's pace. However, when it comes time to deal with ways that can potentially extend a prisoner's in-prison time, "Emergency" rules are proposed. Where are the "Emergency" rules for curing the racial cancer that is eroding the state's criminal justice system? It goes beyond reason to create "Emergency" rules for peripheral symptoms emanating from a cancerous source that continues to be repudiated. Instead of focusing on "Emergency" rules that extend a prisoner's in-prison time, the focus needs to be on making "Emergency" rules that are conducive to a "Schools Not Prisons" agenda because such an agenda will allow more tax payer dollars to be invested in lifting up, instead of locking up, our communities.

2) Some of the rules in the new PAC 1 Emergency and Permanent
rules will allow the ERRC to arbitrarily deny all prisoners early release without specifying why. Specifically, Emergency and Permanent 'Rules PAC 1 §§ 1.06 (16)(e)1, PAC 1 § 1.06 (16){h), and PAC 1 § 1.07(9). These rules state: "A recommendation for release or a grant or order of release may be made after consideration after [...]the inmate has participated in and has demonstrated sufficient efforts in or recommended programs which have been made available by demonstrating one of the following: The inmate has gained maximum benefit from programs; [...] The inmate has reached a point at which the commission concludes that release would not pose an unreasonable risk to the public and would be in the interest of justice;" "For persons sentenced for offenses committed on or before December 31, 1999, the chairperson may grant or deny parole at any time, if extraordinary circumstances affecting an inmate are documented and verified." The extreme ambiguity in these specific rules sets the stage, for a tsunami of "abuse of discretion" in the ERRC's decision-making. These specific rules need more details to put all concerned parties on notice as to how the rule works. What constitutes "sufficient efforts" ,"maximum benefit", "unreasonable risk", "in the interest of justice" and "extraordinary circumstances"? Without clear definitions to these phrases a prisoner will not be able to comprehend their meaning.
3) Being that the PAC rules are being revised, as stated in State Representative Tamara Grigsby's April 23, 2007 letter to the ERRC Chairman, Alphonso Graham, I too am requesting that PAC 1.06 be revised to allow a prisoner to have 2-3 representatives of their choice at their hearing including but not limited to legal counsel, family members,advocates, and/or spokespersons. This arrangement will be beneficial to both the prisoner and the ERRC, especially if early release is being denied and the prisoner needs a better understanding of the steps needed to obtain release. Having an advocate present may also help the ERRC staff to better understand the support services the prisoner will have available to him or her upon release.
Continuing my agreement with Representative Grigsby's said letter, I am also requesting that PAC 1.06 be amended to develop specific criteria which the ERRC staff must consider when reviewing a prisoner's eligibility for early release by the use of a scoring system or risk assessment tool. The current criterion used by the ERRC is too subjective and does not give prisoners or their families a tangible measurement of the steps a prisoner needs to take in order to achieve release status. Presently, the ERRC lacks a tangible, comprehensive, systematic tool that aids and assists ERRC staff in determining whether or not qualified prisoners are released via early release. Too many prisoners, myself included, are simply told "not enough time served as punishment" as the reason for their denial. Even when other ERRC staff have recommended early release and have documented the steps the prisoner has taken to achieve that status, on several occasions Mr. Graham overrode those affirmative decisions for prisoners who have shown that they deserve early release.

As Representative Grigsby stated in her April 23, 2007 letter, the PAC 1 should adopt a systematic guideline similar to the Structured Decision Making (SDM)model that is currently being used by the Arizona Department of Corrections. While I no longer have a copy of the SDM for you to review, I am hopeful that you will use your extensive resources to obtain a copy of it.
4) Finally, I believe that "retroactively applyinq the ERRC's proposed Emergency and Permanent PAC rules will result in the courts being tied up dealing with litigation alleging that the rules violate the ex post facto law. Thus, said rules should only be applied retroactively if the prisoner waives its retroactive application.
Your consideration of these comments will be greatly appreciated.
MANSA LUTALO IYAPO aka- Rufus West, #225213
P.O. Box 900
(CCI) Portage, WI 53901
Representative Tamara Grigsby
Senator Taylor
Wisconsin Public Radio / Attn: Gil HaIstoad
Forma For Understanding Prisons / Attn: Peggy Swan
President Barack Obama