The conventional wisdom about mass incarceration is that prisons are bursting at the seams because lawmakers took away the discretion of judges when it comes time to sentence people convicted of crimes.
Prisons are bursting at the seams — more than four people in 1,000 are behind bars at any one time, a rate that’s risen sharply over the past four decades.
But despite widespread belief that stiff mandatory sentences are to blame, Marquette University law professor Michael O’Hear argues that it’s a lot more complicated — and that in Wisconsin, judges kept a lot more control over sentencing than some of their peers in other states. And that means solving the problem won’t be as simple as wiping away a slew of tough sentencing laws.
O’Hear — who will speak Feb. 21 at UW-Madison — argues his case in a new book, Wisconsin Sentencing in the Tough-on-Crime Era, published in January by the University of Wisconsin Press. It seeks to explain, in the words of its subtitle, “How judges retained power and why mass incarceration happened anyway.”
The book comes amid growing debate over the impact of the enormous growth in the prison population nationwide, a debate that touches on everything from racism to drug laws to mental health treatment to the sheer — and ever-increasing — cost of preventing and punishing crime.
O’Hear is no defender of mass incarceration. And he knows that politics, including lawmakers’ rhetoric, has forged a public consensus in favor of stiff prison terms.
“There’s still in the political system a widespread belief that longer sentences and tough treatment of criminals will reduce crime,” says the law professor, whose interest in sentencing policy dates back to his years at Yale Law School. “The research doesn’t really support that. Research shows that incarceration is more effective when it’s used sparingly.”
But O’Hear says misunderstandings continue to cloud the discussion of mass incarceration. His book aims “to dispel some of the myths.”
The underlying problem is real enough. Over the last four decades, O’Hear reports in his book, prison populations have exploded. Wisconsin prisons held 2,046 inmates in 1973, about 45 people for every 100,000 state residents; by 2013, there were 22,471 inmates, more than 400 per 100,000. The national trend was similar, with state prisons going from 178,835 inmates in 1973 to 1.36 million in 2013.
Yet the forces behind those trends aren’t uniform.
“That story of law-driven mass incarceration does hold true in some other states — most importantly in California,” O’Hear says. There, an especially stringent “three strikes” law mandating life in prison for people convicted of a third felony helped fill state prisons through the 1990s.
Other states copied California, including Wisconsin — yet here, “three strikes” was only narrowly applied, and its effects were far more limited, he found.
“Three strikes” and other laws ratcheting up prison sentences were part of a “tough on crime” trend that took hold in the 1980s and continued through the ’90s and beyond.
In Wisconsin, O’Hear says, “the most important law adopted during this whole period was ‘Truth in Sentencing.’” That state measure essentially abolished the option of paroling inmates before the end of their prison terms.
O’Hear joined the Marquette law faculty after three years in private practice in Chicago just as Truth in Sentencing was about to take effect amid dire predictions from lawyers and judges in the state that the prison system would all but collapse under its weight.
Yet by the time that law was implemented in 2000, most of the growth in the state’s prison population had already taken place, topping 20,000. Incarceration leveled off at about 22,000 in 2004.
O’Hear says that the evidence shows that after truth in sentencing, judges at least somewhat changed their sentencing practices — sometimes replacing longer terms that included parole with shorter ones now that parole was no longer an option. Sentencing severity did increase, he agrees, but the overall effect was less dramatic than critics had predicted.
In many other instances, lawmakers in the 1980s and ‘90s who were worried about growing state budgets scaled back proposals that might have prompted even greater prison expansion than already took place, he adds. In an interview with former Gov. Tommy Thompson, O’Hear says, Thompson told him that while he was always concerned about being tough on crime, he also was determined to keep the state Department of Corrections budget lower than that of the UW System — and succeeded in doing so. Only after Thompson’s tenure did the balance shift, O’Hear reports.
Another challenge to conventional wisdom is O’Hear’s finding that tougher drug laws aren’t behind the soaring prison population in the 1980s and ’90s.
Because of that perception and the related one blaming steeper mandatory minimum sentences for more widespread imprisonment, national reform movements have focused on eliminating mandatory minimums for drug crimes and developing better drug treatment programs.
These may be worthwhile goals, but they have limitations. “Mandatory drug treatment in the criminal justice system is limited in what it can accomplish,” O’Hear says. Failure rates are high — which doesn’t mean they’re a waste of time, but does mean they need more persistence to improve them. “Drug addiction is an extremely difficult problem.”
More to the point, however, the Wisconsin experience has been that “drugs are not the main driver” of the state’s higher prison population, he explains. “Sexual and violent offenses are.”
Understanding these details and others is important, O’Hear says, because Wisconsin shows that more generous judicial discretion doesn’t guarantee a reduction in mass incarceration.
By his own admission, O’Hear’s book doesn’t deeply explore the role of racism in the growth of prison populations — not because he thinks it’s trivial, he says, but because its complexity was beyond the scope of his research. The impact of race, he agrees, is worth greater study in its own right.
O’Hear does believe there are solutions to the prison population bomb. One thing that can help, he suggests, is expanding effective alternatives to prison for certain offenders — something that even Republican lawmakers and Gov. Scott Walker have increased funding for in recent years. So would restoring some system of reducing sentences based on inmate behavior — but with greater transparency than the old parole system displayed. “I’m a big fan of good-conduct-time laws,” O’Hear says.
Still, he acknowledges that broader-based reforms face stiff headwinds. Whatever their role in ramping up prison populations, lawmakers do help shape popular perceptions about sentencing policy, and those perceptions remain deeply, emotionally punitive.
Says O’Hear: “The tough-on-crime politics of the 1990s are alive and well.”
O’Hear will speak Feb. 21 at UW-Madison Law School’s Lubar Commons, noon-1:30 pm, along with UW-Madison law professor Cecelia Klingele.