This piece is part of a collaboration that includes the Institute for Nonprofit News, The Beacon/KCUR 89.3; Bridge Michigan/Side Effects Public Media; Cicero Independiente/South Side Weekly; Detour Detroit/Planet Detroit/Tostada Magazine; Evanston RoundTable/Growing Community Media; Madison365/Wausau Pilot & Review; and MinnPost/Sahan Journal. The project was made possible by a grant from the Robert Wood Johnson Foundation with additional support from INN’s Amplify News Project and the Solutions Journalism Network. Read more at https://inn.org/inn-collaborations/ac-life-after-covid/.
Even before COVID-19 began to snake through Wisconsin’s jails and prisons, Chad Billeb saw a storm coming.
As chief deputy for the Marathon County Sheriff’s Department, Billeb was already studying ways to reduce the number of inmates in the jail, a challenge that county leaders have been working to mitigate for years. As early as 2017, overcrowding was such a central issue that a broad consensus of staff and outside experts concluded that the county would need a new jail – and soon – one that would cost taxpayers at least $75 million to build.
Then, the pandemic hit, and what started as a long-range plan to find answers to the jail overcrowding problem took on new urgency.
A similar story played out in jails and prisons across Wisconsin and across the country. The result is a major experiment in public health and criminal justice.
Nationwide, corrections officials were faced with the knowledge that incarcerated people exposed to the virus were getting sick and dying at a rate unparalleled in the general public. And the scramble to protect the health of inmates, the staff members supervising them and the communities in which they live, began in earnest in jails and prisons around the state. Combined, Wisconsin’s state prisons and local jails held fewer than 30,000 inmates in December 2020, the lowest number in more than 20 years, according to Department of Corrections data.
As cases surged, public health experts amplified long-standing demands of criminal justice reform advocates: lock fewer people up. Because of the virus, decarceration efforts, once almost unthinkable, made speedy progress.
While corrections and law enforcement officials view their mitigation efforts as successful, those numbers aren’t good enough for most advocates.
“I think everyone was ill-prepared,” said Anthony Cooper, coordinator of re-entry services at Nehemiah Center in Madison. “I think that there were some things that was done right, but also I think there was some things that was done wrong, but I think when I look back, it just shows if we’re just talking about the epidemic by itself, there was so much that was unknown, but the people that were incarcerated, they were still looked at as less than.”
A health crisis unfolds
Since the pandemic began one out of every two inmates in Wisconsin’s prisons have tested positive for the virus, a rate four times higher than the state’s general population, according to the Department of Corrections. One in 737 prisoners died of COVID-19 complications, which translates to a rate of 135 per 100,000 people — somewhat higher than the state rate of 124 per 100,000 residents. In Marathon County, an October outbreak traced to a single inmate who tested negative for the virus when he was admitted, only to test positive three days later, led to dozens of infections among inmates and staff.
In Dane County, for example, the jail population dropped from over 700 to about 570, roughly 70 of whom were outside the jail building on electronic monitoring. Dane County Sheriff’s Captain Kerry Porter, who oversees security services including the jail, said the County reduced the population as much as it could, but had to turn to other agencies for help in keeping the population low.
“I think most people would be surprised to know that our options are very, very limited in terms of reducing our jail population without the help of some of the external criminal justice partners and their willingness to help with that, which we found here in Dane County that they very much were,” Porter said.
Porter said judges stayed many sentences, which, along with a hiatus on jury trials, slowed the intake of inmates at the jail. The court system was also helpful by offering what he called “COVID release warrants,” which gave law enforcement discretion to decide not to arrest someone with an open warrant if they didn’t pose an immediate threat to the public.
Porter said the sheriff’s office also communicated with other municipal law enforcement agencies “encouraging (them) to exercise discretion, if there’s a possibility of citing and releasing, or if there’s a possibility of referring charges to the DA’s office without a custodial arrest.” Police in other areas of the state, including Marathon County, did the same. Fewer arrests led to less potential COVID exposure both for the subject and for the arresting officer during transport, as well as jail staff.
The state Department of Corrections (DOC) also has some say over county jail populations, as DOC can petition courts to revoke parole or order people incarcerated who violate conditions of their probation. Wisconsin Corrections Secretary Kevin Carr said the DOC instructed its parole and probation officers to exercise discretion and only incarcerate those who posed a risk to the public.
“We modified our criteria somewhat. Our primary mission is public safety,” Carr said. “Whenever we would make a decision on who to release who was on a hold, we always looked at the public safety component first. And it may be a judgment that, as long as the person didn’t represent as a threat to public safety, they would be considered for release on a hold. And of course, that says that prior to changing that assessment, we just routinely held people on holds that the police would arrest, for instance. I mean, whether they represented a threat to public safety or not because they had police contact. Well, that’s an example of a situation where you can assess the nature of the contact and determine that there’s no reason to hold that person in custody for three days or more, disrupt their lives, put their jobs and housing at risk, or anything like that. “
On March 2, 2020, the state had 3,680 people in custody in county jails on probation holds, parole holds or short-term sanctions; by April 20, that number had dropped to 1,723 — a decrease of 53 percent.
As of July 5, that population had risen back to 2,270, still well below the normal number.
Carr said that change in criteria and reduction in holds and sanctions were part of a longer-term plan that began before the pandemic.
“It was for the governor and my agenda to reform the way that we do things in community corrections,” Carr said. “So that’s not directly related to the pandemic. The (reduction in) holds could be viewed as part of that effort, but it was certainly accelerated by the pandemic.”
A future uncertain
For well over a decade, before the COVID-19 pandemic forced immediate changes, the daily jail population hovered around 400 in Marathon County, a number that eased only slightly with diversion programs and policing policies implemented over the past several years.
Today, with an average daily population of about 244, it might be tempting to breathe a sigh of relief and assume the overcrowding problem has been solved.
But that would be a mistake when envisioning the future of the jail, which has a maximum capacity of 279 inmates and a recommended population of no more than 250. While the number of inmates has dropped significantly, Billeb said, there is still an enormous disparity between the number of pretrial inmates and those who have been sentenced.
In mid-June, for example, of 244 inmates in Marathon County, just 45 had already been sentenced. Of those, 28 were serving their sentences on electronic monitoring, rather than spending time in a cell. Some of those inmates represent those in juvenile detention centers, while a handful were waiting to be transferred to other facilities or jurisdictions. The rest – 140 inmates – were awaiting trial.
The court system already faced a backlog before the COVID-19 pandemic, a mutli-faceted problem borne of a lack of prosecutors, lack of public defenders and too few judges to handle a growing caseload in Marathon County. That problem is only exacerbated by a new wrinkle borne of the pandemic itself, when jury trials were placed on hold for more than a year amid public safety concerns. Marathon County District Attorney Theresa Wetzsteon said her office has at least 400 additional pending cases now compared to 15 months ago.
The sheer number of cases waiting to move through the court system has police, prosecutors and judges on edge. Without significant changes, that will spell trouble, Billeb said.
“Pandemic or no pandemic, if we can’t get a handle on the massive backlog in the court system, if something doesn’t move, we’re going to need a 1,000-bed jail,” Billeb said. “The tipping point is coming.”
In counties throughout the state, officials implemented several strategies to reduce the jail population amid the COVID-19 pandemic. Police and prosecutors also made changes that have had an impact on the jail population including summoning defendants into court rather than taking them into custody. Some court functions, including processing of “failure to appear” warrants, were reduced. Many court appearances were rescheduled, and probation and parole agents made an effort to manage clients without jail sanctions. At every step, COVID was a factor. Was it worth putting someone in jail if they were at risk of getting infected and spreading the virus through the community?
Early studies suggest decarceration efforts have lowered infection rates in some jails. But for all those efforts, BIlleb said, the influx of people coming into the system hasn’t slowed. And the biggest issue he sees is not with the law enforcement officers on the street.
“It’s the system that’s not moving anything along,” Billeb said.
A system on overload
The response to COVID-19 had an unprecedented impact on Wisconsin’s incarcerated population, causing local jail populations in the state to decline by more than one third last spring, according to new state data outlined in a Wisconsin Policy Forum report released in March. Though the number of people in custody has risen somewhat in local jails since then, they are still 24% lower than they were a year earlier, DOC figures show.
Marathon County Deputy Jail Administrator Paul Mergandahl pointed out that even with smaller jail populations, the average length of jail stays increased during the pandemic. For the first six months of 2019, inmates averaged 31 days in jail, a number that more than doubled during the first six months of 2020, to 76.
Mergandahl said the chief reason for the lengthy stay was the state’s refusal to bring new inmates into the Wisconsin Prison System. Inmates receiving prison sentences who would normally be transported immediately to Dodge Correctional for intake stayed put, spending their days in county jails not equipped for long-term commitment. In Marathon County, the percentage of inmates awaiting transport to secure facilities elsewhere grew, even as the jail population overall continued to shrink.
When the floodgates opened in late April, Billeb said, dozens of inmates were transferred to state prisons over a two-week span. But for inmates awaiting trial who are not accepting a plea deal, the wait is longer than ever as the pandemic and its effects have only exacerbated the backlog keeping pre-trial inmates behind bars.
On any given day, more than 85 percent of Marathon County inmates are in custody for non-violent offenses and only a fraction have actually been sentenced for crimes they are convicted of committing.
“I don’t know what their backlog looks like,” said Dane County’s Porter of the Dane County Court. “But when those jury trials) start running again, those that ended up being convicted out of those jury trials will be coming to us.” Porter said many people have been in custody for the duration of the pandemic awaiting trial; asked whether that’s a constitutional violation, he said, “We’ll have to let that play out in the courts.”
With hundreds of additional pending cases compared to pre-pandemic levels, prosecutors are calling for a systematic overhaul to prevent a future avalanche.
“We may not have the number of people in jails taking up space but their cases are accumulating at an alarming rate,” DA Wetzsteon said. “I’ll tell you what we can’t do. We can’t sacrifice public safety.”
Wetzsteon said it is “not appropriate” for district attorneys, in an adversarial system, to determine which cases should be prioritized. Though jury trials have resumed, frequent delays are resulting in longer stays for pre-trial inmates. Some, like homicide suspect Lee Franck, have been incarcerated for years. Franck was arrested in 2018 in connection with the death of 77-year-old Lyle Leith, who was stabbed to death in the garage of his Wausau home. His jury trial, which has been delayed multiple times, is set to begin in late August.
Now, Wetzsteon is calling for greater accountability in courtroom delays to better pinpoint solutions to the problem and determine where the delays are most likely to originate. That way, she said, defense attorneys, prosecutors and judges can make adjustments that will move cases more swiftly through the courts. Currently, there is no such system in place.
“If we can determine the cause of delay, I’d think we all should want to know that,” Wetzsteon said. “This should be data-driven, but there is no system in place to pull the data from.”
Some changes permanent, others in flux
During the pandemic, courts – even without jury trials in place – were forced to make significant changes to keep cases moving forward. Wetzsteon said she hopes some of those changes, such as video access to court hearings, will be permanent. Video appearances help streamline the process for attorneys and allows “tremendous access” for victims to appear in court, she said.
“Victims want to see and hear what’s going on, but not necessarily be there in person, for a lot of reasons,” Wetzsteon said. “It’s beneficial for all kinds of reasons.”
That said, the level of accountability for people accused of crimes who can show up for court on Zoom, rather than in person, is lost when they do not need to appear in front of a judge, she said.
The decision to continue video court will lie with judges.
For some inmates, especially juveniles, appearing in court via video can reduce exposure and trauma by avoiding handcuffs and leg irons, Marathon County Jail Deputy Administrator Paul Mergandahl said.
Video court appearances can also save time and taxpayer money.
“It’s certainly more cost-effective and more efficient for us to use video visitation for routine court matters, like a scheduling conference,” Carr said. “Why would you drive somebody from Stanley, Wisconsin down to Milwaukee for a five minute scheduling conference, when you can do it over the internet?”
However, not all jails are equipped with adequate facilities for such video conferencing; Dane County Jail officials took criticism for forcing inmates to appear via video through the food slots in their cell doors, which many advocates said was dehumanizing.
Mergandahl points to other changes he sees as positive outcomes resulting from the pandemic. For example, jail officials now incorporate telemedicine and technologies for mental health assistance for inmates, giving them greater access to care without the need for transport.
“Those are all positives,” he said.
Carr said video visitation can also provide a bit more humanity for inmates. As important as in-person visits are, they don’t allow glimpses into home and community life.
“(In in-person visits) they couldn’t see the dog that they left behind, or they couldn’t see somebody carrying their niece or nephew in the background, or what the house looks like now, or the Christmas tree, or whatever they wanted to see,” Carr said. “Video visitation became extremely popular.”
For Wetzsteon, questions remain over how best to balance accountability with an ever-increasing caseload. Diversion programs, which were in place prior to the pandemic, have been taken to a new level, she said. Though the drug court continues to admit new participants, the county’s OWI court has been derailed by 2020 legislation that made prison time mandatory for offenders convicted of fifth-and sixth-offense drunken driving. Change, Wetzsteon said, is inevitable and crucial to the system moving forward.
“We have to be willing to adapt,” she said. “But as far as letting some crimes go unpunished, that won’t happen. Not during my time here.”
Tomorrow: More on how jails and prisons reduced their populations, and whether those populations can stay low.
