Since he was a law student himself, Marquette Law School professor Michael O’Hear has been interested in the issues of sentencing and mass incarceration. He has written two books about the subject and is working on a third. Marquette Today sat down with O’Hear to discuss his research and a new grant that will support it.
Q: How would you describe your research?
A: I specialize in sentencing law and practice, and I have particularly focused in recent years on the relationship between sentencing and mass incarceration. We, as a nation and as a state, have unprecedented levels of imprisonment right now, and I’ve been very interested in exploring the ways that our sentencing laws contribute to this phenomenon.
Q: How long have you been interested in this as a research topic?
A: I’ve been studying sentencing law for over 20 years. It’s been my primary academic interest going back to law school. Then, about a decade ago, I began to focus more particularly on the mass incarceration issue. This really has become the dominant concern in the sentencing field, because we continue to be at levels of imprisonment that are not only historically unprecedented in the United States, but are also far higher than you’ll find in practically any other nation in the world.
Q: We saw some attention to this issue under the previous presidential administration. But it would not be accurate to say that the problem has been solved, right?
A: No. President Obama and his first Attorney General, Eric Holder, brought some public attention to mass incarceration, and especially the way that it has had a greatly disparate impact on racial minority groups. But there’s only so much that a president can do. Most criminal justice policy is made at the state level, not at the federal level. So even with a president fully committed to addressing the problem, it’s really up to state governors and state legislators to take the lead on making reforms.
Q: And you’ve written two books about this?
A: Yes. One of them, “Wisconsin Sentencing in the Tough-on-Crime Era,” is about Wisconsin sentencing law, and how that has affected mass incarceration here in our home state. The second book, “The Failed Promise of Sentencing Reform,” is the national story. The book describes the efforts that many states have made since 2000 to try to reduce mass incarceration, and explains why these reforms have had little impact on imprisonment levels.
Q: And you’re working on a third book now?
A: Yes, I have a grant that will support my research for the next book. This new book will pick up, in a sense, where I left off in the second book. One of my main points in the second book was that current reform efforts are not succeeding because they are not doing anything to affect people who have been convicted of committing violent crimes. And that’s about half of our prison population. In fact, depending on the way you define violent crime, it may be closer to three-quarters of the national prison population. So there’s no way that as a nation we’re going to do anything about mass incarceration unless we start to re-think the way that we are handling violent crime. That’s the focus of this new project.
Q: Describe the grant you received to support this project?
A: The grant is from the Charles Koch Foundation which will buy out some of my teaching time over the next couple of years. This will give me more time to focus on research and help me to produce the next book a year or two earlier than I otherwise would have been able to. In addition to supporting my research time, the grant will also go to support a conference here at Marquette which will draw leading experts from around the country to share ideas about how the legal system should deal with violent crime.
Q: And it’s not particularly unusual for the Koch Foundation to support university research, is it? According to their website, hundreds of universities across the country receive support from them for research.
A: Absolutely, and one of the foundation’s particular areas of interest has been criminal justice reform. I am just one of a number of scholars doing work in this area who is receiving support from the foundation.
Q: Are the politics of sentencing and incarceration less polarizing than they have been in the past?
A: I think that’s fair. Sentencing policy was an extremely politicized issue in the 1980s and 1990s. Increasingly, people from across the political spectrum have come to recognize mass incarceration as a problem, and as something that ought to be addressed. Certainly on the conservative side of the spectrum, you’ve seen some notable change with prominent conservatives like Rick Perry, Newt Gingrich, and Grover Norquist, among others, stepping up and saying that it’s time to reconsider mass incarceration. Still, it would be a bit of an exaggeration to say that everybody across the political spectrum is entirely on board with changing sentencing policies. For one thing, the current presidential administration has a different view on crime policy than folks like Gingrich and Norquist, so there seems to be a division within the ranks of conservative Republicans. I think that the Koch Foundation has tended to align itself with the conservatives — and also with liberals and independents and moderates — who are interested in exploring alternatives to mass incarceration.
Q: And it’s fair to say that the grant supports your research, but doesn’t direct it?
A: I have a grant to investigate some particular aspects of the mass incarceration problem. But I’ve not been asked, or made any commitment, to support any particular policy reforms. I will go where the research leads me.
Q: You’ve said before that the crux of this issue is that just reducing sentences for drug offenses won’t solve the problem. We’d have to take on the tougher issue of people convicted of violent crimes, wouldn’t we?
A: There are some people serving long sentences for minor drug crimes, and by all means, we should adopt reforms to prevent that. But we really shouldn’t think about such reforms as a solution to mass incarceration.
For most people when they hear “violent crime” or “violent criminal,” they immediately imagine a worst-case scenario – a hardened criminal who is a predator now and always will be a dangerous predator. But what I think the research will show is that these categories of violent crime and violent criminal are actually extremely broad categories that include a lot of less serious crime and a lot of individuals who are not irredeemably dangerous. In fact, there’s already research to show that the repeat offending rate of people convicted of violent crimes is actually lower than that of drug and property offenders. I hope that my research will help to move us toward a more nuanced understanding of the phenomenon of violent crime.