Saturday, March 5, 2011

State v. DeVera update (and a solution to Wisconsin’s fiscal woes)

In The Legal Watchdog’s first post, I wrote about a judge that made up facts out of thin air to justify sending a developmentally disabled, twenty-one-year-old defendant to prison for having a “non-coercive” sexual relationship with his minor girlfriend.  Even the prosecutor had asked for probation, but the judge justified her draconian sentence by citing DeVera’s poor performance while released on bond during the case, and while on probation in a previous case.  What the judge overlooked, however, was that DeVera was never released on bond, nor had he ever been placed on probation.  Therefore, because the judge’s sentence was built on pure fiction, the appellate court “was constrained to reverse and remand for resentencing.”  So what happened next?

On paper, at least, everything turned out the way it was supposed to, albeit three years too late.  After defense-appellate attorney Mary Scholle won the reversal, she wisely filed a substitution request for a different judge at resentencing.  Then, defense-trial attorney Donna Kuchler persuaded the new judge to order probation.  But what about the three years—that’s right, three years—that DeVera spent in prison because the first judge decided to make up facts and destroy his life as he knew it?  Well, nothing.  Those are three years that are lost forever.  Even worse, there’s no way to tell what kind of harmful effects his prison experience will have on him in the future.   

But putting aside DeVera’s personal story, what financial cost do we taxpayers incur because our state legislature has given these irrational, politically tough-on-crime, and often anti-sex judges the broad discretion to express their hyper-aggressive nature with obscene sentences?  (For example, the maximum available penalty for touching a fifteen-year-old person’s buttocks, over the clothing, is forty (40) years.)

First, add up the state-paid defense attorneys' fees, the cost of the prosecutor’s time and the Attorney General’s time for the appeal, the cost of the voluminous transcripts, the cost of the court personnel, the staggering cost of imprisoning the defendant, and the huge cost of the bureaucracy needed to supervise the defendant after release from custody.  Second, multiply that number by the number of our citizens that are sitting in prison or on supervision for crimes where there was no direct, or even indirect, victim. 

This second step is critical because while reversals of sentences are incredibly rare, DeVera’s case, in a broader sense, is very common.  When reversing DeVera’s prison sentence, the appellate court stated that it would have upheld the sentence had the judge not made up facts, but instead offered different reasons—any reasons—to support her sentence.  So, in that sense, DeVera is lucky.  There are hundreds of defendants who won’t get their lengthy prison sentences reversed because their trial judges were crafty enough to support their sentences with reasons that, while obviously pretextual, were impossible to disprove with one-hundred-percent certainty. 

I don’t know how to begin to quantify these costs.  But imagine how many millions (or billions) of dollars our state would save if we only incarcerated and supervised people for crimes where there was an actual victim who suffered real harm.  (Not a victim in the sense that the word is used today.  Today, nearly everyone is a “victim,” and we often create imaginary harms to justify the label—a label that often causes more damage than the underlying “crime” itself.)  If we would just shrink the reach of our government in this regard, and stop feeding the billion dollar beast that is our criminal justice system, our state’s fiscal woes and the accompanying political drama would soon disappear.


  1. Pretty good post Mike. I watched the re-sentencing for DeVera and Donna did a heck of a job. You raise a good point though - everyone seems to be a victim these days. You are right, our state would surely save hundreds of millions of dollars if we moved to a more rational sentencing structure.

  2. Cathy RitterbuschMarch 6, 2011 at 9:05 AM

    You're on the money with this one, Mike. In Wisconsin, we spend nearly three times to incarcerate a man for one year, than we do on a year of his son's education in our public school system. As I tell my students, we pay for it now or we pay for it later. Usually, if it's later, the price tag has gone up. In this case - as is typical with this principle as applied to the CJ system - economic costs are eclipsed by the price of human tragedy. If a society may be judged by how it treats the least of its members, we earned a resounding F in the case of Mr. DeVera.

  3. Mike,

    Good points. Judges and prosecutors have lots of power and, thus, lots of responsibility (both to the defendant charged and to the taxpayers) to use that power wisely. When either the judge or the prosecutor fails to use that power wisely there are consequences for the entire community.

    -Drew Burgoyne

  4. There is a lot of corruption when there is no strict code of conduct tha probation/parole officers have to live up to. If the agents does not like the person on parole/probation, there is little to stop abuse of the parolee/probationee. Medical care may be witheld, because the agent decides the appointment the probationee/parolee has with him/her is more important than a life and death health situation. If the ex-offender has a job, that job may be lost because of unreasonable demands by the officer that conflict with maintaining employment, which is usually a demand placed on the probationee/parolee by the system.

    Sentencing is often arbitrary, subject to the whims of the presiding judge. Even when sentencing guidelines are greatly reduced, it can be very difficult to have an individual sentence adjusted to meet current sentencing guidelines. Combine the parole/probation abuse and it's no wonder why some convicted felons would rather finish their sentences in prison than be at the mercy of those on the outside.