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January 18, 2015

Highlighting that most prisoners in Wisconsin now sent there for parole or probation violations

B99420782z.1_20150117211308_000_g199j1go.1-0This lengthy Milwaukee-Wisconsin Journal Sentinel article highlights the interesting reality of just who gets sent to prison in the Badger State and how. The piece carries this headline and subheading: "No new conviction, but sent back to prison; Re-incarceration for rule, parole violations costs taxpayers millions." Here is how the article starts:

More than half of the nearly 8,000 people sent to Wisconsin's prisons in 2013 were locked up without a trial — and they weren't found guilty of new crimes.  Some were punished for violating probation or parole by doing things such as accepting a job without permission, using a cellphone or computer without authorization, or leaving their home county. Some were suspected of criminal activity, but not charged.

Re-incarcerating people for breaking the rules costs Wisconsin taxpayers more than $100 million every year. The process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.

Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo on the shoulder of a 15-year-old boy. The tattoo featured a cross and a quote from peace activist Marianne Williamson: "Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure."

Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail. But because he was on parole at the time, Cubero, 52, has served more than two years — with no guarantee he will ever go home.

Cubero already had spent more than 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery. Court records show Cubero, 18 at the time of the offense, did not plan the robbery or fire the shots that killed the victim, a Milwaukee dentist.

Until the parents of the 15-year-old complained about the tattoo, Cubero had never violated parole, according to Corrections Department records. During the four years he'd been free, he passed all his drug tests, paid his restitution and court costs and worked fairly steadily. Nonetheless, Cubero's parole agent recommended he be sent back to prison. The agent, with cooperation from a prison social worker, also blocked his fiancée, Charlotte Mertins of Delafield, and her three children, all in their 20s, from visiting him.

January 18, 2015 at 09:56 PM | Permalink


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Ummm, as I see it incarcerating someone for a probation or parole violation should not be seen as costing the state anything extra. The expense was incurred at the time of sentencing on the original offense, just with the hope of getting a discount by having parole/probation work. In the case of revocation that hope did not pan out, or at least not to the degree hoped for. Similar to how I do not see a 'trial penalty' for those that plead not guilty but instead I see executive leniency for those who plead guilty.

Posted by: Soronel Haetir | Jan 19, 2015 9:18:04 AM

Castro is a murderer. I don't really have a huge problem with a hair-trigger parole revocation. In other situations, hair-trigger parole revocations seem silly.

Posted by: federalist | Jan 19, 2015 10:55:40 AM

I would also say the correct comparison is not the number of revocations against the population of those sent to prison but the number of revocations vs. those on probation and parole. In a way I would say that a high percentage of those newly incarcerated being revocations coupled with those being revoked being a low percent of the total population of probationers and parolees would be a sign of success rather than any sort of failure.

Without that data I have a very difficult time seeing any significance in this figure standing alone.

Posted by: Soronel Haetir | Jan 19, 2015 3:08:12 PM

From reading on the surface, it seems unfortunate for Cubero. But it seems unlikely that the legal world would turn in him or just this simple error. My take.

Wisconsin was, (not sure now) was extremely lenient on OWI. First was a simple misdemeanor, 4th was a felony. Ive read in the papers, some guy has his 17th or 13th owi in Wis. Good gravy, Wis is on the Truth sytem. In other words get 10 yrs you are pretty much going to do 10. But I think parole is part of the sentence.

I think Cubero was getting out of the pocket, so thy sent him back, if not, its a terrible misdoing.

Posted by: 187Midwest Guy | Jan 19, 2015 8:24:04 PM

Midwest Guy: Admittedly, we don't have complete information here. But as someone familiar with the parole process in several other states, I would not agree that it is in any way "unlikely" that the surface impression (that Cubero was succeeding on parole and not having any other problems and his revocation is based only on this tatooing-a-minor incident) is accurate.

The process of parole is incredibly arbitrary, as the kinds of due process protections that apply in court are absent at every stage. For example, often you have no right to access the record the Board uses to decide on your parole, even though it is not unusual at all for there to be major errors in those records. Also, many states have parole board members who vary to the extremes in their voting patterns (like from 5% grant rate to 60%), meaning that in states where the parole board sits in panels, the specific members you draw for you panel can be the most significant factor in the ultimate decision, regardless of the merits. (Also, whether or not you have a lawyer representing you is a significant factor influencing the result. In most cases, this turns completely on whether you or your family have the money or sophistication to hire a lawyer or convince one to help you pro bono, since most states do not appoint counsel for the parole process.) And of course the board often gives you no specific reason for your denial, or relies on static and/or general factors like "severity of original crime" or "lack of rehabilitation."

If you are fortunate enough to get out, it gets worse. Everything from the availability of resources like job assistance, housing, residential reentry programs, etc., to the assignment of your parole officer depends on arbitrary factors. In my experience, the basic orientation of the parole officer can vary wildly, from those who consider themselves to be in a "helping" profession where the overall goal is to see you succeed in reentering society (even though part of that help certainly involves setting expectations and imposing consequences for failing to meet them), to those who consider themselves to be in essentially a prosecutorial/law enforcement profession, where the assumption is that every parolee is a "criminal" by nature, and the goal is to catch him (or her) showing his true colors and protect society by sending him back to prison. And on top of that, these folks carry case loads that make public defenders and ADAs look under-worked. So even the well-meaning ones often don't have the time to sort out a true misunderstanding from a willful violation of the rules.

Further, like the parole board, the officers exercise a remarkable amount of unreviewable discretion. In many cases, parole restrictions are so comprehensive and open-ended, and the criminal code is so broad, that most parolees (and most citizens, for that matter), probably can't avoid violating parole on some technical ground on a weekly if not daily basis. At that point, it is just a matter of whether or not your PO decides he or she wants to violate you.

So, to sum up: while I also don't presume to know the full story from a media account, I don't find it at all unlikely that Mr. Cubero simply had the misfortune to be stuck with an unreasonably hard-ass parole officer. And, if so, I am glad that the Milwaukee-Wisconsin Journal Sentinel is highlighting this issue, because it doesn't serve anybody to have a system that acts in such an arbitrary manner.

Posted by: anon | Jan 20, 2015 12:32:06 PM

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