By Michael M. O’Hear
The latest edition of the Marquette University Law School Poll includes some interesting data on sentencing policy. I’m 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 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over new early release opportunities for prison inmates, which were embraced by the legislature in 2009, but then repealed two years later.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 — in what was probably a bit of an overstatement — that the new early release mechanisms “gutted” truth-in-sentencing.
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 “truth in sentencing should continue to be the law in Wisconsin.” (25c) Moreover, only 27% agreed that “many of the people who are locked up in prison do not deserve to be there,” and only 37% agreed that “many of the people who are locked up in prison could be safely released without endangering the community.” (27d, e)
But the story is a little more complicated than might first appear.
Take a look at the following:
26a: 85% agree that “Criminals who have genuinely turned their lives around deserve a second chance.”
26c: 67% agree that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
26g: 55% agree that “once 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.”
These answers, especially the latter two, are inconsistent with pure truth-in-sentencing, and are arguably more in the spirit of the 2009 reforms.
What gives? How could one person (as apparently many did) agree with both truth-in-sentencing and early release based on rehabilitative success?
I think there are at least two considerations that help to explain the apparent contradiction.
First, take a look at how we defined truth-in-sentencing laws: “Laws that ban parole and require prisoners to serve the full term of their sentences, regardless of what they do in prison.” (The full text of what was read to survey respondents is here. An explanation of the poll methodology is here.) By foregrounding “parole” 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.
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’s 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 “revolving-door justice.” In any event, it seems safe to assume that few Wisconsinites regarded parole as a reliable gauge of rehabilitative progress.
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 “parole.”
Thus, when 63% of Wisconsinites say that they favor truth-in-sentencing, they may not be rejecting the theory of parole — early release based on rehabilitative progress — so much as the actual historical practice, which fell far short of theoretical ideals.
That’s one way of reconciling support for both truth-in-sentencing and early release. In essence, people are saying, “We like the idea of getting rehabilitated offenders out of prison, but we don’t like that awful system we had in the ’90’s that didn’t really pay any attention to rehabilitation.”
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 here.) 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 ’90’s. Their basic idea was that TIS would reduce crime rates by keeping criminals locked up longer — no more violent offenders conning the parole board into letting them go early to prey on unsuspecting victims.
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.
Symbolic themes along these lines also figured prominently in the TIS debates in the ’90’s — 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 “truth,” not “safety” or some other term with instrumental connotations. We vote for truth simply because it is morally attractive to vote for truth — no other justification is necessary.
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 “helps to reduce crime and make Wisconsin safer” (55%, 25b). A whopping 70% recognize the symbolic character of truth-in-sentencing, agreeing that it “sends a message that society will not tolerate crime.” (25a) And a majority (54%) agreed that “even if [TIS] does not reduce crime, it would still be the right thing to do.” (25d)
It seems clear that some meaningful share, perhaps even a dominant share, of the public support for TIS stems from symbolic considerations — from the sense that by supporting TIS, one communicates one’s support for a certain set of attractive moral values: “truth,” individual responsibility, accountability, etc.
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.
In 2009, early release was presented to us in instrumental terms, specifically, as a cost-saving measure. But it could have been presented in moral, symbolic terms. Indeed, in a pair of recent articles, I’ve been trying to develop a moral theory of early release (here and here).
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 — 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.
However we treat the passive, unproductive inmates, there is an argument that the prisoners who really do work hard for many years and accomplish everything they can to lay a foundation for successful reintegration into society should be released, not because they are “safe” or because it is “cost-effective” to do so, but because they deserve 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.
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:
26a: “Criminals who have genuinely turned their lives around deserve a second chance.”
26c: “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
26d: “Even if such an earned-release progam does not reduce crime, it would still be the right thing to do.”
26g: “Once 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 [note that the inmate carries the burden] that he is no longer a threat to society.”
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 “votes” are really for the same thing — for an ethic of individual responsibility and a criminal-justice system that gives people what they truly deserve.
I’ve offered two preliminary attempts to make sense of the data. Both hypotheses resonate with me, but I certainly can’t 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.
Michael O’Hear is Associate Dean for Research and Professor of Law at Marquette University Law School.