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When Sentencing Policy Leads to Mass Incarceration in Wisconsin

University of Wisconsin Press

Crime and punishment. It’s not just a Dostoevsky novel, it’s also a very real issue that unfolds in courts around Wisconsin.  

When a defendant is convicted of a crime, he or she goes in front of a judge to be sentenced. But the story doesn’t begin and end there. Beyond the judges, there are many actors affecting what happens to that defendant before, during and after sentencing, from legislators and electors to parole boards and corrections departments.

Professor Michael O’Hear teaches criminal law and related topics at Marquette University Law School. He’s always been interested in sentencing, but his interest in Wisconsin’s policy was piqued when he moved to Milwaukee in 2000, right during the state’s implementation of truth in sentencing, a massive paradigm shift in Wisconsin.

Credit Marquette Law School
Professor Michael O'Hear

His interest and research has culminated in a book: Wisconsin Sentencing in the Tough on Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway.

O'Hear says the mass incarceration trend in Wisconsin started around 1974, when the prison population increased from what had previously been a stable 2,500 total prisoners throughout the '60s and early '70s.

"Every year after that, for 30 years, the prison population increased," he says. "Finally the population peaked in the mid 2000s, and for the past dozen years or so, it's been pretty stable, moving between 22,000 and 23,000 prisoners."

In the '70s, '80s and '90s, defendants would be sentenced to a length in prison and a parole board would be in charge of releasing the inmate from the sentence.  In theory, the parole board could release an inmate after six months of incarceration, but in practice, he notes, "the parole board would pretty often release offenders somewhere around the 50-60% mark of the sentence, and normally they'd have to be released by the two-thirds mark at the latest."

"There was a big political backlash against parole in the state in the 1990s, which led to the imposition of the truth in sentencing law," says O'Hear. That law, he explains, took away the possibility of parole and of having a parole board determine when an offender can be released.

Under truth in sentencing, the judge decides both the amount of initial imprisonment and the amount of supervision in the community that an offender must serve, with limited access to early release programs, which is also under the discretion of the judge. 

As O'Hear writes in his book  the average initial confinement for all offenders went from 31 months to 40 months from 2000-2007, and the average supervision portion of the sentence crept up from 23 to 54 months in those same years. 

"That matters an awful lot because...many of those people will get [their supervision] revoked. The longer their period of extended supervision is, the more likely it is they'll be revoked," he explains. "So that increase in post-prison supervision is feeding into our prison populations in significant ways through the back door."

To put it bluntly, "in recent years, most of the people going into our prisons have been sent because of revocations, not because of the commission of a new crime or the imposition of a new sentence," he details.

While O'Hear acknowledges that prison is appropriate for serious violent crimes like homicide, rape and robbery, he says there are two issues to focus on: less serious crimes and length of sentence. "We might all agree that for these more serious offenses imprisonment is appropriate, but for how long?" he asks. "Is it really appropriate to send people away for 20, 30, 40 years?"

One argument against such a high rate of incarceration, O'Hear notes, is its cost. As of recently, the State of Wisconsin spends more money on its prison system than the entire UW system, he says.

O'Hear also says, "The research shows that from a deterrence standpoint, what matters more is the certainty of punishment, not the severity of punishment. From that, you might infer that we would do better spending money on police departments...rather than pouring that money into extremely lengthy prison terms in the corrections department."

"The economics argument [for decarceration] is important...but it only gets us so far, if the image that we have of offenders is of people who are invariably dangerous, depraved, animalistic sorts of beings," he says.

"I've spent some time in prisons," O'Hear says. "Not everybody in prison is like that. There are a lot of pretty decent and surprisingly normal human beings in prison. If we as a society can better appreciate the humanity of people who commit crimes, then that opens up more potential for these kinds of economic arguments...if [the economic arguments] are grounded in a sense that the lives of people in prison are worth something."

Professor O'Hear's extended interview with Lake Effect contributor Maayan Silver.

Maayan Silver has been a reporter with WUWM’s News Team since 2018.