{"id":17795,"date":"2012-07-17T13:23:57","date_gmt":"2012-07-17T18:23:57","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=17795"},"modified":"2012-07-17T13:45:37","modified_gmt":"2012-07-17T18:45:37","slug":"wisconsinites-like-truth-in-sentencing-sort-of","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/07\/wisconsinites-like-truth-in-sentencing-sort-of\/","title":{"rendered":"Wisconsinites Like Truth-in-Sentencing . . . Sort Of"},"content":{"rendered":"<p>The latest edition of the <a href=\"http:\/\/law.marquette.edu\/poll\/\">Marquette University\u00a0Law School Poll <\/a>includes some interesting data on sentencing policy. I\u2019m grateful to Professor Charles Franklin for collaborating with me in putting the questions together. The results are<a href=\"https:\/\/law.marquette.edu\/poll\/wp-content\/uploads\/2012\/07\/MLSP8_Toplines.pdf\"> here<\/a> (note that the sentencing questions start at Q25a).<\/p>\n<p>The primary purpose of the questions was to determine the attitudes of Wisconsinites toward truth-in-sentencing, which was adopted by the state legislature in 1998. The questions are timely in light of recent political debates over new early release opportunities for prison inmates, which were embraced by the legislature in 2009, but then repealed two years later. Early release undercuts truth-in-sentencing by introducing uncertainty into the actual date that inmates will be released. Indeed, critics of the 2009 reforms complained \u2014 in what was probably a bit of an overstatement \u2014 that the new early release mechanisms \u201cgutted\u201d truth-in-sentencing.<\/p>\n<p>At first blush, the new poll seems to provide strong support for the 2011 repeal and the return to a purer form of truth-in-sentencing: a decisive 63% majority agreed that \u201ctruth in sentencing should continue to be the law in Wisconsin.\u201d (25c) Moreover, only 27% agreed that \u201cmany of the people who are locked up in prison do not deserve to be there,\u201d and only 37% agreed that \u201cmany of the people who are locked up in prison could be safely released without endangering the community.\u201d (27d, e)<\/p>\n<p>But the story is a little more complicated than might first appear.\u00a0 <!--more--><\/p>\n<p>Take a look at the following:<\/p>\n<ul>\n<li>26a: 85% agree that \u201cCriminals who have genuinely turned their lives around deserve a second chance.\u201d<\/li>\n<li>26c: 67% agree that \u201cWisconsin should recognize prisoners\u2019 rehabilitative accomplishments by awarding credits toward early release.\u201d<\/li>\n<li>26g: 55% agree that \u201conce a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.\u201d<\/li>\n<\/ul>\n<p>These answers, especially the latter two, are inconsistent with pure truth-in-sentencing, and are arguably more in the spirit of the 2009 reforms.<\/p>\n<p>What gives? How could one person (as apparently many did) agree with <em>both <\/em>truth-in-sentencing <em>and <\/em>early release based on rehabilitative success?<\/p>\n<p>I think there are at least two considerations that help to explain the apparent contradiction.<\/p>\n<p>First, take a look at how we defined truth-in-sentencing laws: \u201cLaws that <em>ban parole<\/em> and require prisoners to serve the full term of their sentences, regardless of what they do in prison.\u201d (The full text of what was read to survey respondents is<a href=\"https:\/\/law.marquette.edu\/poll\/wp-content\/uploads\/2012\/07\/MLSP8_SurveyInstrument.pdf\"> here<\/a>. An explanation of the poll methodology is <a href=\"https:\/\/law.marquette.edu\/poll\/wp-content\/uploads\/2012\/07\/MLSP8_Methdology.pdf\">here<\/a>.) By foregrounding \u201cparole\u201d in this way, we implictly invited respondents to equate a vote for truth-in-sentencing with a vote against parole. But parole has a lot of particular negative connotations in this and many other states.<\/p>\n<p>If you go back and study the history of the debates over truth-in-sentencing in 1997-1998, as I have done, you will see that parole was blasted by critics from across the political spectrum as unprincipled and insensitive to public safety concerns. The parole spigot was turned up to full blast in the mid-1990\u2032s to deal with prison overcrowding, then turned down and up and down again, apparently in response to various administrative and political considerations. The Wisconsin experience must surely have reinforced the pervasive, negative image of parole in popular culture as \u201crevolving-door justice.\u201d In any event, it seems safe to assume that few Wisconsinites regarded parole as a reliable gauge of rehabilitative progress.<\/p>\n<p>The continued negative connotations of parole are evident in the 2009 reforms themselves, which created new early release opportunities that might fit certain textboook definitions of parole, but that carefully avoided the term \u201cparole.\u201d<\/p>\n<p>Thus, when 63% of Wisconsinites say that they favor truth-in-sentencing, they may not be rejecting the <em>theory <\/em>of parole \u2014 early release based on rehabilitative progress \u2014 so much as the actual historical practice, which fell far short of theoretical ideals.<\/p>\n<p>That\u2019s one way of reconciling support for both truth-in-sentencing and early release. In essence, people are saying, \u201cWe like the idea of getting rehabilitated offenders out of prison, but we don\u2019t like that awful system we had in the \u201990\u2032s that didn\u2019t really pay any attention to rehabilitation.\u201d<\/p>\n<p>My second hypothesis requires some background to explain. Researchers have identified two distinct types of reasons why the public supports tough-on-crime legislation. (See my post <a href=\"http:\/\/www.lifesentencesblog.com\/?p=281\">here<\/a>.) One type of reason is instrumental: the public simply wants to reduce the risks of criminal victimization. This theme was commonly sounded by some supporters of truth-in-sentencing in the \u201990\u2032s. Their basic idea was that TIS would reduce crime rates by keeping criminals locked up longer \u2014 no more violent offenders conning the parole board into letting them go early to prey on unsuspecting victims.<\/p>\n<p>The other type of reason is symbolic. We like to be tough on crime not so much because we think new laws will really do anything to make us safer, but because passing tough laws is a way of communicating things about ourselves that we like to communicate: that we support crime victims, that we dislike criminals, that we support individual responsibility and accountability, that we subscribe to traditional moral values, and so forth.<\/p>\n<p>Symbolic themes along these lines also figured prominently in the TIS debates in the \u201990\u2032s \u2014 my impression is even more prominently than the instrumental themes. Just think about the label used for the legislation itself: this was a law that purported to be about \u201ctruth,\u201d not \u201csafety\u201d or some other term with instrumental connotations. We vote for truth simply because it is morally attractive to vote for truth \u2014 no other justification is necessary.<\/p>\n<p>The new polling data suggest that instrumental and symbolic reasons both continue to play a role in support for truth-in-sentencing. In fact, more people support truth-in-sentencing (63%) than believe that it \u201chelps to reduce crime and make Wisconsin safer\u201d (55%, 25b). A whopping 70% recognize the symbolic character of truth-in-sentencing, agreeing that it \u201csends a message that society will not tolerate crime.\u201d (25a) And a majority (54%) agreed that \u201ceven if [TIS] does not reduce crime, it would still be the right thing to do.\u201d (25d)<\/p>\n<p>It seems clear that some meaningful share, perhaps even a dominant share, of the public support for TIS stems from symbolic considerations \u2014 from the sense that by supporting TIS, one communicates one\u2019s support for a certain set of attractive moral values: \u201ctruth,\u201d individual responsibility, accountability, etc.<\/p>\n<p>But these sorts of moral values do not necessarily have to lead to support for truth-in-sentencing; this association just happened to emerge as a result of the way that our crime-and-punishment politics have played out over the past 50 years.<\/p>\n<p>In 2009, early release was presented to us in instrumental terms, specifically, as a cost-saving measure. But it <em>could <\/em>have been presented in moral, symbolic terms. Indeed, in a pair of recent articles, I\u2019ve been trying to develop a moral theory of early release <a href=\"http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=1969072\">(here <\/a>and<a href=\"http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=1772765\"> here<\/a>).<\/p>\n<p>To be successful, such a theory (and practical reforms based on such a theory) must address common (not entirely unfounded) perceptions of prison and parole \u2014 that prison is merely a place of passive waiting for release, that prisoners have few opportunities and little support for doing the sorts of things that might help them to become productive citizens upon their release, and that parole release is normally handed out as a matter of course, without regard to whether an inmate has done anything but play basketball and watch TV while behind bars.<\/p>\n<p>However we treat the passive, unproductive inmates, there is an argument that the prisoners who really do\u00a0work hard for many years\u00a0and\u00a0accomplish everything they can\u00a0to lay a foundation for\u00a0successful reintegration into society should be released, not because they are \u201csafe\u201d or because it is \u201ccost-effective\u201d to do so, but because they <em>deserve <\/em>to be released. That, at any rate, is a way of thinking about early release that is not contrary to, but reinforcing of, individual responsibility and accountability.<\/p>\n<p>Our poll questions were worded so as to associate early release with positive actions by inmates (not just passive waiting) and with moral\/symbolic values:<\/p>\n<ul>\n<li>26a: \u201cCriminals who have genuinely turned their lives around <em>deserve<\/em> a second chance.\u201d<\/li>\n<li>26c: \u201cWisconsin should recognize prisoners\u2019 rehabilitative <em>accomplishments<\/em> by awarding credits toward early release.\u201d<\/li>\n<li>26d: \u201cEven if such an <em>earned-release<\/em> progam does not reduce crime, it would still be the <em>right thing to do<\/em>.\u201d<\/li>\n<li>26g: \u201cOnce a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if <em>he can demonstrate<\/em> [note that the inmate carries the burden] that he is no longer a threat to society.\u201d<\/li>\n<\/ul>\n<p>So, let me try to pull all of this together for a more succinct statement my second hypothesis. It is not really a contradiction to support both truth-in-sentencing and early release for inmates who work hard to rehabilitate themselves in prison, because both \u201cvotes\u201d are really for the same thing \u2014 for an ethic of individual responsibility and a criminal-justice system that gives people what they truly deserve.<\/p>\n<p>I\u2019ve offered two preliminary attempts to make sense of the data. Both hypotheses resonate with me, but I certainly can\u2019t rule out other possibilities. I hope to do some more intense number-crunching with the data later this year, which may clarify things a bit.<\/p>\n<p>Cross posted at Life Sentences.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The latest edition of the Marquette University\u00a0Law School Poll includes some interesting data on sentencing policy. I\u2019m grateful to Professor Charles Franklin for collaborating with me in putting the questions together. The results are here (note that the sentencing questions start at Q25a). The primary purpose of the questions was to determine the attitudes of [&hellip;]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,48,44,122,14],"tags":[],"class_list":["post-17795","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-marquette-law-school","category-political-processes-rhetoric","category-public","category-criminal-law","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17795","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=17795"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17795\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=17795"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=17795"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=17795"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}