Flynn: “I’d Like to See Fifty More Prosecutors”

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Category: Criminal Law & Process, Milwaukee, Public, Speakers at Marquette
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Don’t look only to the police to solve the problems of high poverty communities, Milwaukee Police Chief Ed Flynn told a capacity audience Thursday in the Appellate Courtroom at Eckstein Hall.

Flynn pointed to the need for better services to help people with mental illnesses and to deal with issues such as child abuse as steps that would help reduce crime.

And when it comes to crime specifically, he pointed to what he saw as failings of both the state and federal systems for prosecuting and punishing criminals. Many criminals don’t face punishment that discourages them from offending. Read more »

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Rodriguez v. United States: Supreme Court Says No to Prolonged Traffic Stops

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Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
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Last week, the Supreme Court decided City of Los Angeles v. Patel, the fourth and final of its search-and-seizure cases this term. In Patel, the Court overturned a city ordinance requiring hotel operators to share information about their guests with the police.

Patel confirmed this as a good term for Fourth Amendment rights, joining Grady v. North Carolina (GPS tracking of sex offender counted as search for Fourth-Amendment purposes) and Rodriguez v. United States (police improperly extended traffic stop to conduct dog sniff of car). Less favorable, though, was Heien v. North Carolina (no suppression of evidence obtained after traffic stop that was based on officer’s reasonable mistake of law).

The remainder of this post will focus on Rodriguez, which strikes me as the most interesting of the Fourth-Amendment series. Broadly speaking, at issue was the extent to which the police can go on a fishing expedition when they pull over a driver for a traffic violation.   Read more »

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Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

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Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
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By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature. A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered. Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.   Read more »

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Elonis v. United States: SCOTUS Again Adopts Narrowing Construction of Criminal Statute

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Category: Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Public, U.S. Supreme Court
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As I noted in my post last week, the Supreme Court has a variety of interpretive tools at its disposal to rein in the ever-expanding reach of federal criminal law. Right on cue, the Court demonstrated the use of one of these tools this week in Elonis v. United States.

Elonis, a self-styled rapper, posted a variety of lyrics with violent themes on his Facebook page. Some of these lyrics related to his wife, some to coworkers, and some to law-enforcement personnel, among others. Elonis was eventually convicted under 18 U.S.C. §875(c), which prohibits individuals from transmitting in interstate commerce “any communication containing any threat . . . to injure the person of another.”

The Supreme Court reversed, ruling that Elonis’s jury had been improperly instructed.   Read more »

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Yates v. United States: Overcoming Plain Meaning

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Category: Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Public, U.S. Supreme Court
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As we enter the home stretch of the Supreme Court term, I have been reviewing the criminal cases already decided by the Court this year. For my money, the most interesting is Yates v. United States, which presents a classic statutory interpretation problem. This was the fish case that got a fair amount of whimsical press coverage when it came out. Even the Justices proved incapable of avoiding fish puns in their opinions, but I’ll do my best not to get caught in that net. (Oops.)

Yates captained a commercial fishing vessel that was catching undersized grouper in violation of federal law. Following an inspection, some of the illegal catch was thrown back into the sea on Yates’s orders, presumably to avoid penalties. Yates was eventually convicted under 18 U.S.C. §1519, which authorizes a prison term of up to twenty years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”

On appeal, the question was simply whether a fish counted as a “tangible object.”   Read more »

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Deadly Force in Philly (and Milwaukee)

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Category: Criminal Law & Process, Milwaukee, Public
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Last month, the U.S. Department of Justice issued a voluminous report on uses of deadly force by the Philadelphia Police Department. In recent years, there has been a drop in both violent crime and assaults on police officers in the City of Brotherly Love, but officer-involved shootings (OISs) have remained stubbornly high. Amidst media coverage of rising OIS numbers in 2013, the Police Department requested assistance from the DOJ in order to assess the problem.

The new report, authored by George Fachner and Steven Carter, finds there were 394 OISs in Philadelphia between 2007 and 2014, for an average of 49 per year. The suspects were unarmed in 15% of the cases. Fachner and Carter provide a wealth of data regarding the 394 OISs and dozens of recommendations for the Department.

One recommendation is that the “PPD should publish a detailed report on use of force, including deadly force, on an annual basis. The report should be released to the public.”

I’m pleased to say that we are already doing such annual reports here in Milwaukee. How do the numbers compare?

Read more »

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Decline in Wisconsin Prison Population Results From Fewer Drug Offenders Behind Bars

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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As I discussed in this post, Wisconsin has achieved one of the nation’s higher rates of reduction in imprisonment over the past decade. To be sure, New York, California, and a few other states have far outpaced Wisconsin in this regard, and Wisconsin’s prison population remains nearly ten times larger than it was in the early 1970s. Still, we may appreciate some overall net progress in the Badger State’s numbers since the mid-2000s. As indicated in the chart after the jump, reduced imprisonment of drug offenders has played a central role in driving this trend.   Read more »

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MULS Conference to Consider Human Trafficking and Restorative Justice

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Category: Criminal Law & Process, Human Rights, Immigration Law, International Law & Diplomacy, Labor & Employment Law, Marquette Law School, Milwaukee, Poverty & Law, Public
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MartinaVImage_0On Thursday and Friday, Marquette Law School will host an important conference, “Restorative Justice and Human Trafficking — From Wisconsin to the World.”  As the title suggests, human trafficking — for sex or labor — is a both a global human rights problem and a significant issue locally.  Hundreds of cases have been reported in Wisconsin, mostly in the Milwaukee area.  The conference is designed to raise awareness about trafficking and to help concerned citizens get involved in efforts to address the problem.

The Conference kicks off at 4:30 on Thursday with a keynote address by Martina Vandenberg (pictured above), who leads the Human Trafficking Pro Bono Legal Center in Washington, D.C.  Vandenberg has worked on cases involving trafficking and other humans rights violations around the world.

On Friday, the Conference will continue with a full schedule of speakers and panels.  A panel of victim-survivors will share their experiences.  Local leaders and activists will discuss the impact of trafficking and current efforts to help victims.  Other speakers will cover the existing legal framework, potential legal reforms, and the international context of trafficking.

The Conference is sold out, but there will be a live feed that can be viewed by clicking on the “Watch Now” tabs in the pages linked to above.

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New Article on Good Conduct Time

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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I have a new article in the Wisconsin Lawyer about good conduct time, a program that permits prisoners to earn accelerated release based on how well they do behind bars.  Most states offer GCT to their prison inmates, but Wisconsin does not.  (Inmates in local jail facilities here may earn GCT, but not the 20,000+ longer-term inmates in state prisons.)  In the new article, I argue that Wisconsin policymakers should consider adopting a GCT program for prisoners as part of their ongoing efforts to reduce the size of the state prison population, which remains near historic highs.  For readers interested in more on this topic, I’ve created a page on my personal blog that collects my writings on GCT.

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Mercenary Justice?

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Category: Criminal Law & Process, Milwaukee, Poverty & Law, Public, Race & Law
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Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri. Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants. For instance, the DOJ charges:

Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)

I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of surcharges, fees, forfeitures, and the like.

Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175).   Read more »

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Prisoner Enfranchisement in Ireland

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Category: Criminal Law & Process, Election Law, Human Rights, Prisoner Rights, Public
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I was surprised to learn recently from an Irish law professor that Ireland gave its prisoners the right to vote in 2006. Felon disenfranchisement is such a pervasive fact of life in the United States that many Americans might assume, as I did, that this is the accepted practice everywhere. This turns out not to be the case. Ireland is hardly alone, even among the common-law countries, in giving prisoners the right to vote, although the case of Ireland may be unusual in that its legislature acted in the absence of a court directive. Canada and South Africa, by contrast, required court rulings before their prisoners were enfranchised. The Irish story is nicely recounted in an article by Cormac Behan and Ian O’Donnell: “Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility,” 48 Brit. J. Criminology 319 (2008).

Before proceeding with the Irish story, a little on the American situation:   Read more »

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Milwaukee Arrests Rarely Involve Force, But Numbers Vary by District

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Category: Criminal Law & Process, Milwaukee, Public, Race & Law
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Last week, the Milwaukee Fire and Police Commission released its annual report on police uses of force for 2013. The report counts 895 incidents in 2013, employing a very broad definition of “use of force” that does not require either an injury or the use of a weapon. To put that number into perspective, the Milwaukee Police Department made more than 30,000 arrests in 2013. For each arrest in which force was used, there were about thirty-six arrests in which force was not used.

In nearly three-quarters of the use-of-force-incidents, no weapon was used by the police officer. In the remaining incidents, the most commonly used weapons were Tasers and pepper spray. Firearms were used on forty occasions, most commonly on dogs. Firearms were used against human subjects in fourteen incidents; eleven of the subjects were hit.   Read more »

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