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Excerpted From: Renagh O'Leary, Early Release Advocacy in the Age of Mass Incarceration, 2021 Wisconsin Law Review 447 (92 Footnotes) (Full Document)


RenaghOLearyWe live in “the age of mass incarceration.” Since the mid-1970s, both the absolute number of people in prison and the incarceration rate have soared. Today, over 1.4 million people are incarcerated in U.S. prisons; they are disproportionately people of color. Black Americans are incarcerated in state prisons at more than five times the rate of white Americans. Though the U.S. prison population and incarceration rate have declined modestly since 2009, we are a long way from ending mass incarceration. At the current rate of decarceration, it will take 60 years just to cut the U.S. prison population in half.

The Legal Assistance to Incarcerated People (LAIP) clinic at the University of Wisconsin Law School was founded in 1964, a decade before the first signs of mass incarceration's emergence. At that time, under 3,000 people were incarcerated in Wisconsin state prisons and clinic students were able to interview every person admitted to the Wisconsin prison system. Today, nearly 20,000 people are incarcerated in Wisconsin state prisons. The current incarceration rate for Black Wisconsin residents is more than 11 times higher than for white Wisconsin residents--the second-worst Black/white racial disparity in incarceration rates of any state in the country.

LAIP's work has evolved in response to the emergence and persistence of mass incarceration. In LAIP's early years, law students provided generalist legal aid services to people in prison, assisting them with legal concerns ranging from challenges to their underlying conviction to civil and family law issues. Today, much of LAIP's advocacy focuses on pursuing early release for clinic clients.

“Early release” is an umbrella term that encompasses a variety of procedural mechanisms. In this Essay, I focus on discretionary mechanisms in which the sentencing court judge is the ultimate release decisionmaker. In Wisconsin, these mechanisms include compassionate release, sentence adjustment, and sentence modification. While the availability of early release mechanisms vary widely from state to state, the opportunities for early release advocacy are likely to expand in coming years.

This Essay draws on my experiences as a clinical professor in LAIP to explore early release advocacy strategies and their potential to change front-end sentencing practices. The Essay proceeds in three parts. Part I situates Wisconsin's early release mechanisms in their historical context. Part II argues that early release proceedings present opportunities for expansive and creative advocacy strategies and describes three such strategies. Part III considers how early release advocacy might change front-end sentencing practices.

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When representing a client seeking early release from prison, advocates should consider making arguments based on the client's experience of incarceration, mitigation investigation, and systemic injustice. The purpose of these advocacy strategies is to strengthen an individual client's chances of early release, but their impact may extend beyond any one case. The early release advocacy strategies described in Part II have the potential to change front-end sentencing practices and, in this way, challenge mass incarceration.

To be clear, the contributions of early release advocacy to the fight against mass incarceration may be modest. But mass incarceration was built brick by brick, and it will be dismantled the same way.

Clinical Assistant Professor, University of Wisconsin Law School.

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