Marquette University Law School Faculty Blog

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN. Here’s the abstract:

A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.

The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment. Read more »

Last week, the U.S. Bureau of Justice Statistics issued a new report compiling nearly two decades of data on gun crime, Firearm Violence, 1993-2011.  No doubt, many readers will pore over the report’s abundant tables and graphs looking for support for their views on gun control.  However, I was most struck by a breakdown of firearm violence based on population size (table 5).  Among the six size-based categories, the most dangerous places were cities of 500,000-999,999 — the category containing Milwaukee (pop. 597,867).  These mid-large cities not only have rates of gun crime that are about four times higher than cities of less than 100,000, but they are also forty-four percent higher than cities of one million or more.

Last week, the Circuit Court in Milwaukee County rejected the effort of Sheriff David A. Clarke to maintain control over the County Correctional Facility South.  (Judge Van Grunsven’s ruling is available here.)  Although the CCF-S (formerly known as the House of Corrections) was run for decades by a superintendent who was independent of the Sheriff, the County transferred control over the CCF-S to the Sheriff in 2009 as a result of security concerns at the facility.  However, the new management proved less than satisfactory to some important stakeholders.

Conflict over Clarke’s administration of the CCF-S seems connected to a wider ideological conflict between Clarke and other County leaders over the incarceration of relatively low-risk criminal offenders, with Clarke taking a very critical position regarding various criminal-justice initiatives that might be grouped under the heading “evidence-based decision making.”  (Background on the conflict is here; my critique of some of Clarke’s views is here.)  Clarke has been unsupportive of treatment programs and alternatives to incarceration, and his administration of the CCF-S has apparently reflected this perspective.  Finally, through its 2013 budget, the County Board decided to transfer control of the CCF-S back to a superintendent.  Clarke’s control over the downtown jail, which has been his all along, remains unaffected.

Clarke sued the County in order to block the transfer.   Read more »

My practice is nearly exclusively a criminal appellate practice, and it’s been that way for almost 10 years. Being a one-trick pony, I can’t help but think about legal issues in the news in the context of an imaginary appeal. Of course, recently the news was flooded with stories about the Boston Marathon bombing. The issue that grabbed my interest the most was all of the talk centered on not informing captured suspect Dzhokhar Tsarnaev his Miranda rights pursuant to the public safety exception.

The idea behind the public safety exception makes sense: gathering information from a suspect to ward off an immediate threat. The exception was originally created nearly 20 years ago, but in the past 10 years or so, has become stretched (some say past recognition) to deal with terrorist threats. But that’s neither here nor there — the public safety exception and the suppression of evidence obtained from it is a trial lawyer’s concern.

First, told or not told, Tsarnaev has all of the same rights every American citizen has, including the right to remain silent and the right to an attorney. In this era of cop and robbers television (“Law & Order” in all its various forms has been on the air for 23 years), it seems self-evident that a person has those rights. But still, whether he knows he has those rights or not, the government has an obligation to inform a suspect he has them. But what happens when the defense persuades a court that law enforcement interrogated a person in violation of Miranda? That evidence is suppressed and so are the fruits of it. This is the part that really interests the appellate lawyer in me, because the question I keep coming back to here, is: so what?

If any of the news reports are to be believed, and obviously those outside of the parties won’t know until the trial, if there is one, the government has built a relatively strong case against Tsarnaev without his help. So even if some of his statements are suppressed, it doesn’t really matter because the government will still have plenty of evidence to go around. Presumably, the people who did the interrogating had a really good sense of what evidence they already had against him. Perhaps, sure in its case (even though the investigation was in the infancy), the government opted to question Tsarnaev and ask him everything it could think of. Worst case scenario, some cumulative evidence gets suppressed. Read more »

A new report from the UWM Employment and Training Institute shows that Wisconsin leads the nation in incarcerating black males.  Based on data from the 2010 U.S. census, Wisconsin incarcerates about one in every eight of its black men between the ages of 18 and 64.  This includes individuals held in state and local correctional facilities.  The Badger State’s black incarceration rate is, in fact, about one-third higher than that of the second-place state, Oklahoma, and nearly double the national average.

Wisconsin also leads the nation in incarcerating Native-American males, but its white-male incarceration rate (one-tenth of the black rate) closely tracks the national average.  Wisconsin’s Hispanic incarceration rate is actually below the national average.

The Milwaukee County data are particularly striking: more than half of the County’s black males between the ages of 30 and 44 have been or currently are housed in a state correctional institution.

Is this a recent phenomenon?  I’ve taken a look at some historical data on racial disparities for my three-states research.  The following graph indicates that Wisconsin has been above Indiana and Minnesota for some time in black imprisonment (that is, prisoners per 100,000 residents), but that the current wide gap did not really open up until after 1990:  Read more »

In the wake of today’s decision by the U.S. Supreme Court in Missouri v. McNeely, DUI defense attorneys across the land are doing the “happy dance.”  Prosecutors (both state and federal) on the other hand are rending their garments and hair trying to figure out how to deal with the high court’s ruling that forced blood draws in most DUI cases will now require warrants, and the flood of “refusals” sure to follow as the implications of the case filter out to the public.

Wisconsin’s approach, first established in 1993 in State v. Bohling and then reinforced in 2004 in State v. Faust had been to allow warrantless blood draws in drunk driving cases after several criteria were met, including the presence of  probable cause for the officer to believe the driver under investigation had indeed been driving under the influence of alcohol. The key factor that drove the Wisconsin interpretation was the fact that the blood alcohol level of a drunk driving suspect is continually shifting and dissipating from the time the driver is apprehended, and the extra time it takes to procure a warrant incontrovertibly causes BAC evidence to be lost.

Wisconsin’s rationale had recently served as a kind of dividing line in the national debate about warrantless blood draws.  Read more »

The Cato Institute’s Ilya Shapiro recently spoke at the Law School concerning the status of relaxed state marijuana laws in light of the federal Controlled Substances Act’s continued prohibition of activities that these state laws now allow. This is a timely question with, it turns out, a less-than-certain answer. More precisely, it demands an answer that is more nuanced, and less categorical, than one might initially be inclined to give.

One’s initial answer is likely that these state laws are preempted—that is, rendered void and unenforceable—because of the federal statute. It is conventional constitutional doctrine, after all, that the U.S. Constitution’s Supremacy Clause makes valid federal law supreme over conflicting state law. Moreover, because the U.S. Supreme Court in Gonzales v. Raich (2005) deemed the federal marijuana prohibition to be a valid exercise of Congress’ commerce power, the specific question of whether state marijuana laws are vulnerable to preemption seems already to have been answered.

Mr. Shapiro makes an important observation, however. Read more »

As noted here a few weeks ago, my forthcoming article comparing imprisonment trends in Indiana, Minnesota, and Wisconsin in now available on-line.  Due to space constraints, I was unable to include in the article all of the interesting data I have collected on the three states.  I’ll present some of that additional material in an occasional series of posts here.

Today, let’s take a look at the supervised populations of the three states.  The supervised population is comprised of four subgroups: those in prisons, those in jails, those on probation, and those out on post-imprisonment supervised release (a status that goes by different names in different jurisdictions, but which I will call parole).  As is well known, Minnesota has a remarkably low imprisonment rate (at least by U.S. standards), although all three states have experienced an  imprisonment boom since the 1970s.  Here are the imprisonment numbers, reflecting the number of prisoners per 100,000 state residents: 

As the graph indicates, Minnesota has maintained a consistently lower imprisonment rate than the other two states since the mid-1960s.  Indeed, the Minnesota advantage has tended to widen over time.  By contrast, Indiana has generally had the highest imprisonment rate, although Wisconsin has been close at times, and even took the lead for a few years.

The story is quite different, however, if you consider the supervision numbers more broadly.  Read more »

“Bumper sticker” approaches are politically appealing and popular, but they aren’t the right ways to deal with complex major issues connected to drugs and the toll they take, the nation’s drug czar said Wednesday during an appearance in Eckstein Hall.

Neither calling for a war on drugs nor calling for legalization of drugs are effective paths, said, Gil Kerlikowske, whose actual title is director of the White House Office of National Drug Control Policy. Smart, well-structured approaches that combine law enforcement, treatment options, and prevention efforts create a third path that can yield good results, Kerlikowske said.

The “drug war” of the 1980s and ‘90s was “a totally inadequate answer to what is really a very complex problem,” he said. Using law enforcement alone, “we’re not capable of solving drug problems.” But using multiple approaches can show genuine and positive results.

Kerlikowske cited a nationwide decline in cocaine use – he estimated the decline at 40% — as an example of multiple factors coming together to help reduce a problem. He said the factors include reduced cocaine production in Columbia, better interdiction of drug shipments by law enforcement, and widespread recognition among potential users in the US of the dangers and risks of the drug. Read more »

There is no way the legal system – or anyone else — can undo the terrible wounds left on people who have had a loved one murdered. But can the system or those involved in different aspects of it help survivors of a murder victim go forward in leading their lives?

That was the underlying question at the remarkable and emotionally intense 2013 Restorative Justice Conference held last week at Marquette Law School’s Eckstein Hall. “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community” brought together about 200 people from Wisconsin and much of the country to examine the post-murder lives of family members.

But among the many speakers, six stood out – because, as survivors of victims, they personally had gone through the grieving and dealt with the legal system and so many other problems. Three from Texas, two from Minnesota, and one from the Milwaukee area told their searing stories in a pair of panel discussions on Friday morning, the second day of the conference. Read more »

I’m looking forward to this year’s annual Restorative Justice Conference, “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community.” The conference was inspired by a fascinating empirical study comparing the long-run experiences of family members of homicide victims in Texas, which has the death penalty, and Minnesota, which does not. Authored by Marilyn Peterson Armour and Mark S. Umbreit and forthcoming in the Marquette Law Review, the article concludes that the Minnesota family members achieved a higher level of physical, psychological, and behavioral health.

The conference kicks off with a keynote address by Armour (pictured here) at 4:30 on February 21. The following day will include several panels providing a diverse set of first-hand perspectives on the impact of homicide, capital punishment, and the criminal process on family members, lawyers, judges, and many others. Additional information about the conference is available here.