Law professor Michael O’Hear has just published his new book with us this week: Wisconsin Sentencing in the Tough-on-Crime Era. We spoke with him about his findings on this timely subject.
A lot has been written in the popular and academic press about mass incarceration, as the number of Americans in prison has increased tremendously since the 1970s. What does your book add?
Most writing on mass incarceration deals with the subject as a generalized national phenomenon. However, the vast majority of American prisoners—about seven in eight—are held in state institutions after being sentenced in state courts under state laws. Really, it is state-level policies and practices that have driven the unprecedented imprisonment boom that we have seen in the U.S. over the past four decades. This helps to explain why mass incarceration has hit some states a lot harder than others. Yet, there are very few studies that explore the experience of particular states in depth. We will not have the full story of mass incarceration in America until state experiences are better understood.
My book covers the historical development of sentencing policy in Wisconsin over a period of more than forty years. Only a handful of other states have been studied in a comparable fashion. I hope to enrich the literature by putting another state that has had a distinctive experience under the microscope. Of course, I think my book will also hold a special appeal for Wisconsinites who are interested in better understanding and possibly reforming penal practices in their own state.
How hard did mass incarceration hit Wisconsin?
In some respects, the Wisconsin experience has been representative of the overall national experience. As with most other states, Wisconsin’s prison population rose sharply in the last quarter of the twentieth century and remains today near its all-time high. At present, the prison population amounts to about 377 out of every 100,000 state residents. This figure is not far off the national average of 402 state prisoners out of every 100,000 U.S. residents.
However, Wisconsin’s numbers do stand out in at least two ways. First, the state’s prison population grew remarkably quickly, even by national standards. In the early 1970’s, Wisconsin’s imprisonment rate was only about half the national average. In essence, Wisconsin went from being a low-imprisonment state forty years ago to a middle-of-the-pack state today. Second, mass incarceration hit Wisconsin’s African American community in an especially dramatic and disheartening way. By some measures, Wisconsin may have the nation’s very highest rate of black male incarceration. In some neighborhoods in Milwaukee, in particular, imprisonment has become a routine and expected part of the life experience of young men of color.
What caused Wisconsin’s prison population to grow so quickly?
Let me first address two common errors about mass incarceration. I’ve heard these stories often from commentators both locally and nationally, but the Wisconsin experience does a good job of highlighting the problems with these accounts. First, many people think that mass incarceration was caused by the “war on drugs.” It is true that the imprisonment boom, at both the state and national level, coincided with a toughening of drug laws and a sharp increase in drug arrests. However, the vast majority of arrests have been for low-level offenses, like simple possession of marijuana, and the offenders have tended to cycle in and out of the criminal-justice system relatively quickly. Thus, in Wisconsin, the portion of the prison population serving time for drug offenses topped out at about 15 percent, and has since dropped to below 10 percent. The national numbers are a little higher, but the fact remains that mass incarceration would still exist even if every drug offender were released from prison tomorrow.
Second, it is often said that mass incarceration resulted from the adoption of mandatory minimums and other laws that took away the discretion of sentencing judges. It is true that Wisconsin, like many other states, adopted a host of new statutory minimums in the 1980s and 1990s. However, upon closer inspection, the minimums are revealed for what they really were—largely symbolic enactments that vented public frustration over crime without actually doing much to pump up the prison population. Minimums were relatively short, or narrowly targeted, or included safety valves that permitted judges to avoid them. In some states, like California, discretion was much more dramatically curtailed. However, the Wisconsin story demonstrates that mass incarceration happened without aggressive changes in sentencing law.
In Wisconsin, the prison population initially exploded because crime exploded, and because judges and prosecutors lacked confidence in the ability of the Department of Corrections to manage the rising tide of offenders effectively in the community. But then, even when crime stabilized in the 1990s, the prison population continued to grow, as indicated in the figure below. Sentences were becoming more severe, reflecting the entrenchment of tough-on-crime attitudes among criminal-justice officials. (In Wisconsin, as in most states, judges and district attorneys are elected, which makes it perilous for these key local officials to appear overly lenient.) For a few years, generous parole practices partly counterbalanced tougher sentences, but parole grew politicized in the mid-1990s and was effectively phased out. The formal elimination of parole through “truth in sentencing” helped to ensure that Wisconsin’s prison population would remain near its all-time high on a sustained basis.
Why should we care about the state or national imprisonment rate?
Commentators have been calling for large-scale decarceration in the United States for years. The numbers-crunchers tell us that that this could likely be accomplished with little or no adverse impact on public safety. The historical experiences of Wisconsin and Minnesota offer a telling comparison. The two states had similar crime and imprisonment rates in the early 1970s. Since then, Wisconsin’s imprisonment rate has grown far more quickly than Minnesota’s, but the crime rates have remained closely in sync.
In recent years, the opponents of mass incarceration have particularly emphasized the fiscal burdens of imprisonment. It is true that corrections expenses are stressing state budgets in Wisconsin and elsewhere. Local taxpayers are now paying more for corrections than they are for the University of Wisconsin, which hardly seems an ideal way to prioritize public expenditures. Still, I am skeptical that appeals to fiscal restraint alone will inspire much decarceration. Fear of crime remains widespread, and people resist thinking about crime policy in terms of dollars and cents; the stakes just seem too high.
Reformers need to make the case that new sentencing policies would not only save money, but actually make us safer. Accumulating bodies of evidence show that imprisonment can make some offenders more likely to reoffend, while some types of community-based rehabilitative programming can significantly reduce risks of recidivism. However, I argue in my book that real reform likely requires more than just a good public education campaign.
Ultimately, as a society, we must move beyond the reflexive vilification of offenders and recognize their shared humanity. They are not just criminals, but also parents, children, spouses, neighbors, friends, and employees, and many desperately want to do something positive with their lives. Moreover, most come from disadvantaged backgrounds and have faced extraordinary adversity growing up, which ought to inspire at least a little compassion. If we care about the well-being of prisoners, and the well-being of those on the outside who are connected to them, then we should care very deeply about the excessive use of imprisonment that is reflected in the mass-incarceration numbers. This is not to say that we should empty out the prisons tomorrow. Saint Augustine taught us to hate the sin, but love the sinner. If we were really to take that teaching to heart, we would find ways to protect public safety and hold offenders accountable, but without doing so much unnecessary damage to so many human lives along the way.
Michael O‘Hear is a professor of law at Marquette University. He is an editor of the journal Federal Sentencing Reporter and has published many articles on sentencing law, criminal procedure, and public opinion about the criminal justice system.