Jesse J. Norris


Reacting to widespread budget crises, many states are experimenting with earned release (also known as “early release”) legislation to help cut correctional costs. This earned release revolution is a stark reversal of earlier trends toward determinate sentencing. Implementing earned release policies appropriately could help bring about a new sentencing era characterized by lower rates of incarceration and higher levels of public safety. However, earned release is potentially vulnerable to abuse and prone to backlash, and must be planned and implemented carefully to avoid endangering the public, fostering injustice, or failing to realize hoped-for budgetary savings.

This Article outlines a set of principles for ensuring the success of earned release, using Wisconsin as a case study because of its unusually complex array of earned release policies over the last decade. After a preliminary evaluation of Wisconsin’s recent earned release policies, this Article presents four principles for an effective earned release system. Specifically, state policymakers dealing with earned release legislation should (a) prevent injustice by monitoring for bias and requiring structured, recorded decision-making; (b) provide for effective implementation through strategic governance; (c) ensure earned release is compatible with public safety; and (d) complement earned release with other measures designed to decrease incarceration.

This Article also uses preliminary data to respond to recent work on earned release and sentence modification. First, in response to arguments for the superiority of judicial rather than administrative sentence modification, the Article provides evidence that judicial sentence modification mechanisms may widen racial disparities. Second, addressing the concern that administratively-run earned release might exacerbate racial disparities, I show that this has not occurred in Wisconsin. Finally, I demonstrate that Wisconsin’s expanded earned release programs, in their first full year of implementation, only released about 100 inmates who would not have been released that year anyway (about .5% of the state’s prison population). While this does not prove that earned release can never be a major factor in reducing prison populations, it does reinforce the Article’s argument for supplementing earned release with other incarceration-lowering policies.

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