Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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In 1998, Wisconsin adopted what may have been the nation’s most rigid truth-in-sentencing law, eliminating parole across the board and declining to put into place any alternative system of back-end release flexibility, such as credits for good behavior in prison.  Subsequent reforms to this system have been either short-lived or very modest in scope.  However, new results from the Marquette Law School Poll confirm and strengthen findings from other recent surveys that Wisconsin residents would actually welcome a more flexible system.

As I noted in an earlier post, the Law School Poll has asked Wisconsinites their views about criminal-justice policies in each of the past three summers.  Although the Poll has revealed significant support for truth in sentencing, it has also revealed comparable or even greater support for enhanced flexibility.

In 2012, Poll results included the following:  

  • 85% of respondents agreed that “criminals who have genuinely turned their lives around deserve a second chance.”
  • 67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
  • 55% agreed 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.”

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Wisconsinites Give Criminal-Justice System Low Marks, Especially for Offender Rehabilitation

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Category: Criminal Law & Process, Marquette Law School, Public, Race & Law, Wisconsin Criminal Law & Process
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We expect a lot from our criminal-justice system, and we don’t seem very impressed with the results we are getting.  These are two of the notable lessons that emerge from the most recent Marquette Law School Poll of Wisconsin residents, the results of which were released earlier today.

In one part of the survey, respondents were asked to assess the importance of five competing priorities for the criminal-justice system.  As to each of the five, a majority indicated that the priority was either “very important” or “absolutely essential.”  The five priorities were:

  • Making Wisconsin a safer place to live (91.6% said either very important or absolutely essential)
  • Ensuring that people who commit crimes receive the punishment they deserve (88.1%)
  • Keeping crime victims informed about their cases and helping them to understand how the system works (81.0%)
  • Rehabilitating offenders and helping them to become contributing members of society (74.1%)
  • Reducing the amount of money we spend on imprisoning criminals (51.2%)

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US Supreme Court Review: Constitutional Criminal Cases

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Category: Constitutional Law, Criminal Law & Process, Judges & Judicial Process, Public, U.S. Supreme Court
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(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

In my previous post, I discussed the Court’s recent Fourth Amendment decisions.  Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):

  • Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
  • Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
  • Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
  • Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).

A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.

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US Supreme Court Review: Fourth Amendment Cases

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Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
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US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

On the criminal side of the Court’s docket, I found this term’s statutory interpretation cases more interesting than the constitutional cases. In the latter category, the Fourth Amendment decisions were probably the most significant. They were:

  • Fernandez v. California, 571 U.S. __ (2014) (police permissibly conducted warrantless consent search of home notwithstanding objection of one occupant).
  • Prado Navarette v. California, 572 U.S. __ (2014) (anonymous 911 call sufficiently justified stop of vehicle).
  • Riley v. California, 573 U.S. __ (2014) (warrant required for search of arrestee’s cell phone).

In reviewing these three cases, I think the most intriguing comparison is between Fernandez and Riley. The two decisions serve to highlight apparent inconsistencies in the Court’s stance toward search warrants.

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US Supreme Court Review: Should the Court Care How Effective a Statute Is?

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US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

In my previous post, I noted a number of the considerations that the Supreme Court emphasized in its criminal statutory interpretation cases from the past term. In this post, I will highlight one recurring point of controversy, that is, whether the Court should try to maximize the effectiveness of statutes in achieving their overarching purposes.

Abramski, the firearms purchase case, provides a good illustration.   Read more »

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US Supreme Court Review: Statutory Interpretation in Criminal Cases

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public, U.S. Supreme Court
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US Supreme Court OT2013 logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

In the first post in this series, I discussed two causation cases in some detail.  In this post, I will more briefly summarize the full set of the Court’s criminal statutory interpretation cases from the past term and then offer a few overarching observations.

Here are the cases (excluding habeas corpus decisions):   Read more »

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US Supreme Court Review: Crime and Causation

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public, U.S. Supreme Court
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US Supreme Court logo(This is the first post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term. Other posts, when they appear, can be found here.) The Court’s criminal docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.

Burrage nicely illustrates the tension.   Read more »

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Bond v. United States: SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

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Category: Constitutional Law, Criminal Law & Process, Federalism, Public, U.S. Supreme Court
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In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act. Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes. The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.” (12) This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond. The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.   Read more »

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SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

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In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify. Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower. Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests. “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.   Read more »

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Which States Have Reduced Their Prison Populations in the Past Decade?

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Category: Criminal Law & Process, Public
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By 2002, in the wake of a recession that caused difficult fiscal challenges in many states, there was an increasingly widespread recognition that the American imprisonment boom of the 1980s and 1990s was not economically sustainable. Dozens of states adopted new sentencing and corrections policies that were intended to restrain further growth in imprisonment. These reforms seem to have had some success, as imprisonment rates finally stabilized after so many years of explosive growth. However, very little progress has been made toward bringing U.S. imprisonment rates back down to historic and international norms. The “if you build it, they will come” principle seems in evidence — after so much prison capacity was built in the boom years, we’ve found ways to keep using it even as crime rates have tumbled down.

Notwithstanding the overall national picture, a few states have had success in downsizing their prison populations. Here are the ten states whose prison populations dropped between December 2002 and December 2012:

New York             -19%
New Jersey          -17%
California             -16%
Connecticut         -15%
Michigan              -14%
Maryland             -9%
South Carolina    -5%
Wisconsin            -5%
Rhode Island       -2%
Hawaii                  -1%

Even the largest decreases on the list are rather small compared with the size of the pre-2002 increases. Nonetheless, some might wonder whether reduced imprisonment has resulted in more crime. With that concern in mind, I gathered data on violent crime in the five states that experienced double-digit drops in imprisonment.   Read more »

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New Study Shows High Arrest Rates for Returning Prisoners–What Are the Policy Implications?

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Every decade or so, the U.S. Bureau of Justice Statistics releases a big national study of prisoner recidivism. The latest BJS research came out last week, and the numbers were no less depressing than they were in 2002. Here’s the report’s lead:

Overall, 67.8% of the 404,638 state prisoners released in 2005 in 30 states were arrested within 3 years of release, and 76.6% were arrested within 5 years of release.

Failure seems to be the norm, not the exception, for individuals released from U.S. prisons.

High recidivism rates constitute the most difficult and important challenge for those of us who would like to see fewer long sentences and more generous opportunities for inmates to earn early release. If most prisoners are rearrested shortly after they get out, doesn’t that lead inexorably to the conclusion that we should err on the side of more, not less, time behind bars?

Certainly, the woeful recidivism numbers should take indiscriminate, mass releases off the table. On the other hand, I think it is possible to overstate the significance of national rearrest rates for sentencing and corrections policy. These numbers should be the start, not the end, of the conversation.   Read more »

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Violence in the Heartland, Part VI: Cities Within the City

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Category: Criminal Law & Process, Milwaukee, Poverty & Law, Public
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My most recent posts in this series have compared violent crime data from different cities. However, focusing on a single crime-rate number from a city may mask wide neighborhood-to-neighborhood variations within the city.

Consider Milwaukee. A helpful on-line data tool permits interesting comparisons among the city’s seven police districts. The data reveal that rates of violent crime vary within the city by about as much as they do across cities. Here, for instance, are the homicides per 100,000 district residents since 2010:

district homicide

District 5, encompassing the north-central portion of the city, has easily had the highest homicide rate each year, while Districts 1 (downtown and northeast) and 6 (far south) have easily had the lowest. (District boundaries are described in more detail here.)

Robbery rates reflect a similar pattern:   Read more »

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