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Are Judges Responsible for Wisconsin’s Mass Incarceration Crisis?

New book explores how judicial power contributed to state’s high prison population

Jan. 10, 2017
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Ask anyone about the causes of Wisconsin’s ballooning prison population and you’ll get two responses: the tough Truth in Sentencing law, which virtually eliminated parole and extended prison sentences, and the War on Drugs, which locked up thousands of nonviolent drug offenders for relatively low-level violations. But we should also consider the role played by judges, argues Marquette University Law Professor Michael O’Hear in his soon-to-launch book, Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway (University of Wisconsin Press). O’Hear’s research found that Wisconsin judges have unusually wide discretion over sentencing. Instead of using that discretion to offer reduced sentences to offenders, Wisconsin’s judges contributed to our mass incarceration by imposing longer sentences and boosting our prison population. In effect, our judges are just as “tough on crime” as many of our lock-’em-up legislators. Here’s an excerpt of the Shepherd’s conversation with O’Hear about his research into Wisconsin’s very powerful judges.

Shepherd: How did judges become so powerful in Wisconsin in determining sentencing?

O’Hear: Wisconsin is unusual in that regard. It happened because policy-makers wanted to appear tough on crime and there was a whole series of enactments that were designed to appear tough on crime to the public. At the same time, policy-makers were reined in by fiscal concerns. The way that they settled generally on balancing those desires was by adopting sentencing laws that increased maximum sentence lengths without necessarily increasing minimum sentence lengths. So when you go from a situation where the sentencing range for a particular crime, let’s say, is zero to 10 years, and then you make it zero to 20 years to make it appear that you’re being tough on crime, that’s a big increase in the power of the judges.

Then the other big piece that empowered the judges was the Truth in Sentencing law. I know from speaking with people around the state for a lot of years that many people in Wisconsin think that Truth in Sentencing not only eliminated parole in the state but that it also ties the judges’ hands at sentencing. That is not true at all. Parole was eliminated but that empowered judges. That didn’t weaken judges. The parole board had for years and years and years been a key check and balance on the judges. Truth in Sentencing took away the checks and balances in the system and really established the judge as the dominant player in determining punishment.

Shepherd: Do the judges appreciate their role in Wisconsin’s mass incarceration problem? 

O’Hear: I don’t have the sense that there is a whole lot of systemic thinking like that on the part of the judges. I think that the judges see one case at a time coming before them. Judges don’t decide the incarceration rate for Wisconsin will be X. I think the judges see themselves as making the right decision case by case by case, without necessarily thinking a whole lot about how thousands of case-by-case-by-case decisions made by hundreds of judges across the state are adding up to mass incarceration. And in fairness to the judges, they are busy people and they are consumed with this case-by-case-by-case management.

Shepherd: Also, as you point out in your book, the judges aren’t accountable to the Department of Corrections. They’re accountable to the people who elect them in their local communities.

O’Hear: I do think that this is one of the broader systemic problems which has caused mass incarceration not only in Wisconsin, but across the country. The judges make the decisions that fill the prisons. Judges almost everywhere in the United States are locally elected. Those local voters only pay a very small portion of the bill for mass incarceration. It’s the state and state taxpayers as a whole who pay the bill. Some criminologists refer to this as the “correctional free lunch.” Judges get a free lunch when they send a local troublemaker to state prison and basically make the problem a state-level problem, not a local problem.

Shepherd: Another myth you take on is the belief that our prisons are full of nonviolent drug offenders who are victims of the War on Drugs. 

O’Hear: That’s a very common misperception. We had a lot more drug incarceration around 2000. There was a pretty significant increase in drug incarceration in the 1990s, which really came out of Milwaukee because the DA’s office in Milwaukee took a really strong “tough on crack” stance. From Milwaukee we were sending an awful lot of predominantly black young men to state prison for crack offenses in the ’90s. But even at the height of the War on Drugs the prison population was still only about 15% drug offenders, and it’s come down pretty markedly since then. I think this is a quiet but important story. There’s been a pretty dramatic decrease in the number of drug offenders in prison in the state since the early 2000s. That decrease corresponds very closely with a dramatic decline in drug arrests in Milwaukee. There you might be seeing corrections numbers being driven in significant ways by policing strategy decisions. That’s not a connection many people make.

Shepherd: One bright spot you highlight is the Treatment Alternatives and Diversion (TAD) program, which was championed by the faith-based coalition WISDOM. TAD is a county-based program that allows local leaders to create treatment programs for offenders with a substance use problem, instead of sending them to jail. 

O’Hear: There’s more money going into TAD now and I think that’s a good thing. The research on TAD, which comes out of the University of Wisconsin-Madison, finds that the program is successful, that it achieves some significant reductions in jail time and prison time, and that the overall savings to the state of TAD exceed the amount of money that’s going into the TAD program.

What I think is really important about TAD, and why it’s successful, is that TAD is empowering local criminal justice leaders to be creative, to set up new programs, to divert people from prison. We have this historical problem of the correctional free lunch. You’re a busy judge or a busy prosecutor and you have a troublemaker and it becomes a pretty easy choice to ship him off to state prison and get him out of your hair for a few years. What TAD does is allow local officials to set up options or alternatives. Those local officials will be invested in those options and will want to see them succeed and will want to see them utilized and to prove themselves successful. I think it changes the political dynamics and fiscal dynamics in important ways. Now your local decision-makers are much more drawn to alternatives to incarceration.

O’Hear will launch Wisconsin Sentencing in the Tough-on-Crime Era at 7 p.m. on Tuesday, Jan. 17, at Boswell Book Co., 2559 N. Downer Ave. He’ll also appear on Mike Gousha’s “On the Issues” Marquette Law School Series on Thursday, Jan. 26. 


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