Convicted Felons Go To Jail, Right?

Wrong. At least if you are former Wisconsin state Senator Brian Burke (R-Milwaukee).

When I moved to Wisconsin, I was under no illusions that the state government was any less corrupt or back-handed than in Chicago, Cook County or Illinois. What I did expect, however, was that the corruption would (to steal a phrase from Studs Terkel) not be as "theatrical" as in Illinois.

Then comes the conviction and subsequent legal posing in the case of Burke.

The background of this case could have very well come from Chicago. Burke, who served as a Milwaukee County prosecutor and Milwaukee alderman before his 1988 election to the state senate, was once the front-runner to be the Attorney General of Wisconsin. It was during this campaign that he paid aides to solicit donations. When this matter came before the Dane County Circuit Court this year, it was also revealed that he altered documents that were subpoenaed by the prosecution in this case. Read this article from the Milwaukee Journal-Sentinel for further background.

On November 29, 2005, Dane County Circuit Court Judge William Foust convicted Burke of misconduct while in office (a felony) and submitting falsified documents (a misdemeanor). Accompanied by the requisite pleading of loved ones and influential cronies, Foust passed his sentence. When I heard this sentence, I thought that things would be different here in Wisconsin.

Foust actually sentenced Burke to serve six months in the Dane County jail and pay tens of thousands of dollars in fines. The judge made it clear that he was to serve the time in jail, and not on house arrest. Finally, I thought, one of these corrupt bastards would finally feel the sting of waking up for half a year behind bars.

It was at this point that my Chicago political upbringing snapped back into line.

Was I crazy? Did I actually think that a prominent state politico would find no way out of going to jail?

My gut feeling was right, apparently, and the legal posturing that has taken place would make an old Cook County machine hack proud.

Foust, while being clear on the jail time, allowed that Burke could serve his time in Milwaukee instead of Madison. When he was transfered home to Milwaukee, however, he was placed on home detention under the Huber Law. Big surprise there seeing as he used to supervise these people. He is allowed to go to his job as (get this one) a lobbyist during the day and return home at night. So rather that sitting in a jail cell in the Dane County Jail, he is at his doublessly plush home in Milwaukee still working and coming home at night.

Basically, therefore, the sentence for the felony and misdemeanor was merely a bookkeeping issue. Instead of Dane County and jail it is now Milwaukee County and loose house arrest.

This political sleight-of-hand, fortunately, did not go unchallenged. Yesterday, Dane County District Attorney Brian Blanchard filed a little used motion: a "request for clarification of sentence." This urges Judge Foust to send a letter to the Milwaukee House of Corrections and the Milwaukee County Sheriff's Department stating that the purpose of the sentence was to have Burke serve time in an actual jail and not his home. Read the story in The Capital Times (Madison) for more detail on these motions and Blanchard's request.

As the Capital Times story rightly points out, this is a difficult matter. It is standard procedure that, in a criminal conviction, once the judge passes the sentence, it is then in the hands of the sheriff to decide what constitutes the "jail." I guess that Burke's pals in Milwaukee decided that his home was close enough to the House of Corrections. Maybe we should ask the inmates at each facility about their living conditions.

What Foust needs to do is impress upon the Milwaukee County Sheriff that if he knew Burke would avoid actual jail time by being sent to Milwaukee, he would have never allowed it. This would just be an opinion, and one with no legal force at that. Still, Foust did make the ruling and was quite clear in his desire to see Burke behind bars.

There are several issues at work here that make for a typical case of influence politics and avoidance. Of course, the large issue here is the ability of a convicted felon, albeit a prominent one, to avoid the letter of a criminal court judgement. The Milwaukee County Sheriff knew full well that Judge Foust intended Burke to serve time but because of Burke's connection to the office, the term "jail" became instantly flexible. If the sheriff in Milwaukee wants to try and argue that the House of Corrections is overcrowded and Burke's house arrest was because of jail overcrowding, he should have sent Burke back here to Dane County where I am sure there is plenty of room.

Second, and perhaps more egregious, is the application of the Huber Law in this case. While the text of the law (read it at the above link) techincally allows any prisoner to leave incarceration to attend work, medical appointments or counselling, one must wonder about the spirit of the law in this case. I imagine that the law was instituted for those who could benefit from regular work and pay and who may be supporting a family on the "outside." I can also see allowing people, naturally, to leave custody for medical reasons or state-ordered counselling (although there is potential for abuse here). That seems, at least to me, to be the spirit of the Huber Law.

What it was not created for, however, was people like Brian Burke. It was not intended to allow a felon who betrayed the electorate and was convicted to go to a lobbying job during the day and return to his well-heeled home at night. Somehow I feel that when this law was first formulated in Wisconsin in 1913, the framers did not have a millionaire former congressman, convicted felon lobbyist in mind for the reformative and practical benefits of regular work during imprisonment.

I guess I should have known better than to think politicos in Wisconsin were any less connected than in Chicago, Illinois or anywhere else. This editorial in the Wisconsin State Journal typifies the response of people who actually expected Burke to serve time because he was sentenced to do so.

I don't want to be so jaded, but political developments make it a necessary defense mechanism against undue optimism.

Whoever coined the phrase "youthful optimism" obviously had no interest in politics.