Parole commission update

Wisconsin’s parole system is a corrupt and harmful charade. Reform progress under the new chair, John Tate II has been achingly slow, and the parole commission engages in convoluted logic and willful ignorance to justify deeply unjust practices. At their recent staff meeting on August 4, Tate shed some light on early release through executive directive 31 and other parole practices.

The meeting started 30 minutes late, and lasted about 25 minutes. It was held at the DOC headquarters in Madison, but the public was only invited to attend online. The full staff was present, except commissioner Doug Drankiewicz, who attended via zoom. The late start seemed to be due to technical difficulties with the zoom meeting, seemingly because they changed the format to better restrict public participation. Tate has always been very concerned about possible disruption from people at the meetings, though none has ever occurred.

Also, Tate and some staff members were wearing masks and participating in the zoom via a room mic that often made it hard to hear. Apologies in advance for incomplete or inaccurate information in these notes resulting from that difficulty.

Minor changes

Tate began the meeting by instructing commissioners to change two practices. First, he said that commissioners are to stop presenting their recommendations as decisions at the end of their dispositions. Second, commissioners are to foreground an applicant’s parole history in their files. Both of these changes suggest future practices of increased releases.

Regarding the first change, the process at the parole commission is that commissioners make recommendations, which the chair reviews. It is important to always remember that as we’ve described in the past, releasing people goes against a commissioner’s personal self-interest. The commissioner almost always affirms their staff’s recommendations, which are almost always deferrals of release. Deferrals keep them in their jobs. Prior chairs’ potentially universal affirmation of recommendations likely led to the practice of commissioners presenting their recommendations as decisions to incarcerated people. Tate sought to correct this, “as it exists right now,” he explained, “those decisions are coming from me.”

Tate has already been reversing decisions more often than previous commission chairs, though not nearly as often as he could or should. There has probably been some confusion when people going up for parole were told by a commissioner that they were deferred only to later hear that Tate approved release, or a shorter defer. Making this change now suggests that Tate finally has more confidence in his ability to reverse recommendations and grant releases.

The second change is that commissioners should include basic parole history information at the top of a person’s file. It sounds like currently they only list a person’s conviction in that space. Going forward, Tate will have them also include the number of times the person has appeared before the commission and what deferral they are coming off of. He said that having that info readily available helps provide “initial context and easy reference, and tracking overtime how each hearing is progressing and how things are changing or not.” Most people going to a parole hearing have many prior appearances ending in petty and unfair deferrals. Foregrounding this information, rather than simply a person’s conviction will hopefully facilitate more releases.

Let’s put this into some political context. Governor Tony Evers has a very poor re-election campaign strategy. He keeps delaying or avoiding acknowledgment of his promises to address Wisconsin’s rampant racism and reduce incarceration by 50% while handing republicans gifts like a massive tax break for the rich. He is leaving many of the people who elected him with little motivation to support him, so despite the advantages of incumbency, and being able to spend billions of federal dollars, he may lose in 2022. If so, the republican who replaces Evers will likely appoint a commission chair like Tate’s predecessor, Daniel Gabler, who released hardly anyone.

Marchers call out Tony Evers during the 2nd anniversary of the CLOSEmsdf campaign, July 2019.

If Tate cares about reducing incarceration and doing his job, rather than protecting this corrupt institution, he will start stepping up releases now. As the election approaches, republicans will only grow more likely to politicize his work, so he should establish a baseline practice of higher releases as soon as possible. Also, if Evers botches the election, everyone Tate leaves behind is very likely to languish through 4 or 8 years of long defers under a republican-appointed commission chair.

Finally, Tate indicated that follow ups on informational defers are happening, as he instructed in the last staff meeting. He mentioned a person whose grant was held back due to lack of housing, but then housing was found. The commissioners and DOC bureaucracy cooperated in getting the person released, rather than waiting for the defer to expire. So, that’s progress.

Tate said that some commissioners are doing hearings virtual and others in person, and encouraged commissioners to follow up-to-date COVID19 information and to weigh and minimize risks of infecting people in the institutions they visit.

Recordings of hearings

Tate then opened up the meeting to staff, and the only person who raised anything was Oliver Buchino, a records associate. It was especially difficult to hear what he said, but apparently there’s confusion or disagreement regarding the recordings of parole hearings. The advice from DOC legal council is that the recordings cannot be sent to anyone other than the incarcerated person who was the target of the hearing. A memo from 2012 conflicts with this advice and some security directors have sent hearings out. It’s unclear who these recordings were sent to. Sometimes, incarcerated people want recordings of their hearings sent to families or advocates, which they should be allowed to do. Some facility security directors may have been sending recordings to other people, like victim advocate groups or families of victims. He said he would draft a clarifying memo to security directors, which Tate approved of and said he wanted to review before it was sent.

Buchino also mentioned that the recordings are destroyed after 6 months. The commission’s policy of withholding recordings from the public and destroying them after 6 months allows them to evade public scrutiny and potential lawsuits. If a person undergoing a parole hearing wants the recording sent to their supporters or family, it should be sent. Parole hearings are legal proceedings that can result in years of confinement in inhumane conditions. If a parolee consents, the public should be allowed to know exactly what commissioners are saying in these proceedings.

The parole commission’s work is also very vulnerable to violations of the 14th amendment’s “equal protection under the law” provision and other constitutional violations. Commissioners pass highly subjective judgements on people who are frequently targets of discrimination based on race, gender identity, sexuality, religious belief, and ability. Commissioners also have a personal self interest (job security) incentive to issue deferrals rather than releases, which can lead to patterns and practices of abuse. Any law firm with the capacity and interest to sue the parole commission on behalf of old law prisoners would likely find useful evidence in the hearing recordings. Unfortunately, thanks to the 1997 prison litigation reform act, suing the prison system is exceptionally difficult in amerika. With a few exceptions, Wisconsin’s community of lawyers lack a robust activist culture. It’s especially hard to find good, affordable lawyers for incarcerated people. Some promise support that doesn’t materialize, or just refer people to an under-resourced law student program. Wisconsin lawyers allow many injustices to go unchecked.

Executive directive 31

Tate took one question from the public, about an early release mechanism called executive directive 31 (ED31). Tate urged that ED31 is “not a magna carta, y’know… golden ticket mechanism for release,” but a possibility only available in narrow circumstances. The statute language indicates that it never applies to people serving life sentences. Also, it mostly moves up parole eligibility dates. If someone has already done 25% of their sentence or is otherwise already eligible for parole, then Tate doesn’t need ED31. He already has the power to release such people, but is choosing not to.

“It’s not a mechanism for getting around the standard parole process,” Tate said. People who are already eligible and engaged in regular parole processes who file under ED31 are requesting release outside of those regular processes. “In my view,” he said, “the only extraordinary circumstances that call for consideration of release outside of normal parole processes once a person has reached their parole eligibility date is those types of circumstances that diminish or mitigate their risk for re-offense or re-incarceration… for example, a person who has reached their PE date and is physically or mentally or cognitively infirm to the state that they COULD NOT re-offend.”

Tate is saying he intends ED31 to only bypass the parole commission’s hoops and traps if someone has suffered such a severe hardship that they are pretty much physically or cognitively unable to act. If you are capable of filing for ED31, he will likely consider you capable of re-offending and deny you. Sounds like people who are parole-eligible would be better off focusing on whatever excuses Tate or his commissioners have been using to hold them. 

ED31 offers more hope for people who have not reached parole eligibility. It will not gain release, but only access to the parole hearings process. Even then, Tate said he will only use it in “extraordinary circumstances”. The ridiculous and racist 1990s era sentencing practices, the corruption of the parole commission, and the humanitarian crisis in Wisconsin prisons, especially amidst the pandemic are extraordinary circumstances that universally apply to every single person doing time under the old law. Unfortunately, Tate uses a much stingier definition of “extraordinary circumstances”.

He described someone who applied for consideration under ED31 who is serving a sentence in excess of 300 years and won’t get parole eligibility until after they’ve surely died. Tate is not applying ED31 in every case with a distant parole eligibility date. RA Buchino admitted in an email that ED31 has been applied in only 3 cases so far. The first was released, the second given a long defer (22 months), and the third has a hearing coming up this week.

During the staff meeting, Tate described how the software the parole commission uses (WIX) was not designed with ED31 in mind. He said they need to develop a “mechanism within WIX that actually captures cases that are being reviewed under ED31 because as it is right now there’s potential glitches in the system… [using ED31] may interfere with the standard case.” He said that after the update, they will likely use ED31 more, and the update may also reveal cases where it may apply. A Forum For Understanding Prisons volunteer requested records from the people commission relating to ED31, which are available online. Analysis of those records is forthcoming, but in the meantime, they are available to anyone interested in looking at ED31 more deeply. 

Even for people with hugely long sentences and distant parole eligibility dates, Tate said that ED31 only “applies to a situation where there might be that very significant sentence, but also that person has been doing a lot of good things to work toward release if they HAD been seen by parole… a person who is obviously having a lot of misconduct… doesn’t give me a lot of room or encouragement.” In other words, someone who was not eligible for parole needs to paradoxically have behaved as though they were eligible for parole inorder for Tate to apply ED31 and make them eligible. 

This is not a matter of rewarding people who behaved well just for the sake of being good. The prison system has nothing to do with morality or justice. A record of “misconduct” is a very poor indicator of behavior, safety risk, or even personality or demeanor. What conduct reports most reliably show is whether someone gets along with staff. Parole eligible people, or people with a realistic eligibility date have more reason to try and get along with staff members. They might code-switch, appease, tolerate injustices, and allow petty degradations by staff in hopes of “earning” eventual release.

John Tate II receiving kudos at governor Evers’s “state of the state” speech, January 2020.

Someone whose eligibility date is past their life expectancy is instead naturally and rationally inclined to focus on surviving in prison. That means maintaining what they can of their autonomy and dignity, which tends to put a person in conflict with staff. Conduct reports are a tool often used by staff to break people struggling to survive prison. So when Tate uses “misconduct” to disqualify people, he is likely disqualifying people for refusing to be degraded, diminished, and controlled by racist guards. This is another way that Tate‒a Black man who beleives himself to be a reformer‒is actually affirming the dehumanizing and white supremacist structures of the Wisconsin prison system.

Advice for those seeking parole

We are not legal experts, just drawing conclusions from observations of the system and these staff meetings. Tate seemed exasperated by ED31 filings. He spoke about updating the language of ED31 to limit its use to his narrow interpretation and discourage people from filing under it. That means he might look unfavorably on already-eligible people pursuing ED31. So, if you have hearing coming up, preparing well for it is likely a better use of your time than filing for ED31. If your next hearing is far away, try writing to request a shorter defer.

Filing for ED31 does seem likely to benefit people sentenced under the old law who have not yet reached their parole eligibility date. Those people should be prepared to offer explanations or remorse for any conduct reports they’ve received. 

Tate and other commissioners made some suggestions about preparing for hearings in the last commission meeting. Many of these recommendations are absurd and nearly impossible for an incarcerated person without family support to meet, which is why we at ABOLISHmke focus on critique of systemic flaws in Tate’s commission and awareness of prison realities. While better than prior commissions, Tate remains overly cautious and continues to allow systemic racism and to put his personal gain and self interest over justice and fairness for incarcerated people.

Take action!

Using their Second Chance WI blog, FFUP tries to assist people going before the parole commission, especially those who do not have enough family support or are in especially difficult circumstances. They recently asked us to help solicit support letters for two such individuals, Juan Navarro and Kamau Damali. You can read more about their cases at that link, but please take a few minutes to send a letter or email to parole chair John Tate II on behalf of these two. Email or mail to the address in the sample letters below.

Juan Navarro

Sample letter for Juan, who has a hearing in September: 

John Tate, Chairman
Parole Commission
PO Box 7960
Madison, WI 53707
RE: Parole for Juan Navarro 136027 WSPF
Chairman Tate,
I ask you to address a heartbreaking miscarriage of Justice. Juan Navarro, a citizen of Mexico with a green card, killed a man 38 years ago. There were two witnesses ready to state that this was self defense but they were not allowed to testify and Juan has been entombed in maximum security prisons since. The judge ordered him deported but since we do not have the agreement necessary to do that, THE DOC chose to bury him.
His innocence is beside the point. He has been eligible for parole for since 1993. As a citizen of this beautiful country, how can I hold my head high when I see such injustice?
Juan had a stroke and has had two surgeries; he has a daughter pleading for his release so he can spend his last years with her.
Please do the right thing and release this man. It is time.
I thank you for your attention.
[Your name. and contact information.]

Kamau Damali

Base your support letter for Kamau on this letter FFUP founder Peg Swan sent in July 2019. Kamau’s next hearing is in December:

Hello Chairman Tate,

I am writing on behalf of a long suffering inmate in the Wisconsin Correctional System. He was incarcerated as a juvenile and has served 25 years, 14 of which were in solitary. I started visiting this man (by tv) while he was in the then Supermax and watched with alarm as he became more desperate, feeling insects crawling on him and hearing what he called “snap crackle pop” in his head. He washed himself so many times each day he bled. I did my usual advocacy- calling , writing, but there was nothing done for years.

I cannot describe the torture this man has been through- the care since he left the supermax has been uneven – he has been called a malingerer and has had all meds abruptly stopped, but he has also had bouts of good care. In the end his symptoms do not let up and he has learned to concentrate on language learning and studying- this gives him a sense of purpose and takes his mind off the sounds in his head and crawling feelings at least part of the time. He hears voices in his head now, though, which brings new anxieties.

He also gets sick when he eats prison food- and he is sure they are trying to poison him. He only eats food he buys food from canteen. While at WRC they wrapped his food in foil and sent it straight from kitchen and that he could eat, however the DOC will not do this for him. So it is always a struggle for him to get enough money to buy on canteen and there is little healthy food there to purchase.

Enclosed is his letter to you with his story and essays he has written. He asks and I ask that his sentence be commuted and that he be released from prison. His family and friends are also intending to write. He is not the uncaring, violent, confused boy he was 25 years ago- he is caring, wise and much suffering. He needs his family and the sunshine.

Please read his story and essays and commute his sentence to time served. You can do so much for this man.

Yours Sincerely,

Peg Swan

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