Barrock Lecture Explores Collision Between Criminal Law and Neuroscience

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Category: Criminal Law & Process, Marquette Law School, Public
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Morse“Be of good cheer; everything is going to be all right.” With these words last week, Stephen Morse sought to reassure his audience at Marquette Law School that advances in neuroscience will not ultimately upset traditional understandings of criminal responsibility. Morse, a professor at the University of Pennsylvania, was in town to deliver Marquette’s annual Barrock Lecture on Criminal Law. A podcast of Morse’s engaging presentation is here.

Neuroscience is increasingly giving us the ability to understand — and even, in the form of colorful MRI images, to see — some of the specific biological processes in the brain that produce thought and action. This suggests the possibility of “my brain made me do it” defenses, especially in cases involving defendants who have demonstrable neurological abnormalities. If a particular aspect of a defendant’s brain can be identified as a “but for” cause of his criminal behavior, then should not that provide an excuse?

Morse argues that this defense proves too much.   Read more »

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You Knew Your New iPhone Was Cool, but Did You Know….?

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Category: Computer Law, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Public
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apple-logo-redApple is marketing its newest smartphone operating system, iOS 8, as a bulwark of personal privacy. Apparently, not even Apple itself can bypass a customer’s passcode and extract data from an iPhone that runs the new operating system. This means that even in response to a court order, the company will be powerless to comply.  Competitors are likely to follow suit.

This is a development with profound implications for law enforcement, which views the ability to obtain such data with a warrant as crucial in its efforts to combat crime and terrorism.  Defenders of the new technology point out that law enforcement may be able to obtain the same data in different ways; for example, if the data is stored “in the cloud” or if the password can be deduced somehow.

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New Research on Violence

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The new issue of Criminology features several interesting papers relating to violence and its control. This has been a hot topic here in Milwaukee over the past few months. Perhaps some of the emerging policy proposals would benefit from the new research.

First, an unusual controlled experiment in St. Louis provides support for “hot spots” policing, especially when officers proactively engage with citizens in the high-crime neighborhoods. Researchers working with the St. Louis Metropolitan Police Department randomly assigned hot spots of elevated firearm violence to one of three conditions: (1) a control group; (2) an enhanced visibility group in which officers were directed to patrol slowly through the targeted areas, but to refrain from self-initiated activity unless a crime was in progress; and (3) an enhanced activity group in which officers were directed both to increase patrols and to increase self-initiated activities, which might include arrests, pedestrian stops, vehicle checks, and so forth.   Read more »

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Good Time in Wisconsin: Why and How

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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In a couple of recent posts (here and here), I have discussed the possibility of reinstituting “good time” in Wisconsin. I have developed the argument for good time at much greater depth in a new article that is now available on SSRN. Here is the abstract:

Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior. Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners. Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress. This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions. Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.

Entitled “Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release,” the article is forthcoming in the Marquette Law Review.

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Brutality Touches Down at Home

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Category: Criminal Law & Process, Family Law, Public, Sports & Law
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imagesVR6YYD65Anyone living in the United States who has watched TV in the last two weeks is undoubtedly aware that the NFL is in the midst of a storm of bad publicity. First, we saw the chilling videotape of Baltimore Ravens running back Ray Rice delivering a punch to the head that knocked out his then-fiancée (now wife) Janay Palmer, and then roughly dragging her off the elevator and dropping her like a sack of potatoes on the floor. Only days later, the Minnesota Vikings found themselves in the midst of a similar scandal when their star running back Adrian Peterson was charged with felony child abuse in Texas, where it is alleged he beat his 4-year-old son with a “switch.” Perhaps learning from the debacle that ensued when NFL Commissioner Roger Goodell originally imposed a meagre two-game suspension on Rice for his misdeeds, the Minnesota Vikings have suspended Peterson from games and team activities indefinitely, although since he continues to draw his $11 million dollar salary, he is hardly a sympathetic character at the moment. Meanwhile, the incidents involving NFL player violence against their partners and children keep surfacing.

A lot has already been said and written about these cases, and much of the discussion is thoughtful and educational. Numerous commenters, including New York Times columnist Michael Powell, have pointed out that we should not be so shocked that players who are rewarded for brutality on the football field revert to violent behavior at home. He makes an excellent point. After all, the NFL is not the only place where people who use force, sometimes brutal force, in their jobs have a hard time turning it off at home: the military and various police forces have faced similar issues. Moreover, we live in a society with a high tolerance for violence, at least violence of a recreational sort—as evidenced by numerous TV shows, video games and movies. Read more »

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“Good Time” in Washington: A Model for Wisconsin?

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In an earlier post, I argued that Wisconsin should consider reinstituting “good time” for prisoners, that is, credits toward accelerated release that can be earned based on good behavior.  An established program that Wisconsin might emulate is Washington’s.

Washington has long been regarded as a national leader in criminal justice.  Indeed, Wisconsin has previously borrowed from other Washington innovations, such as its “three strikes and you are out” law and its civil commitment program for sexually violent offenders.  Washington’s good-time law takes a balanced, moderate approach.  It is neither among the most generous nor the most stringent in the nation.

Notably, Washington’s recidivism rate has been consistently lower than both the national average and Wisconsin’s.  Although many factors contribute to a state’s recidivism rate, some research suggests that the incentives established by a well-designed good-time program may help to reduce repeat offending.

With the rules set forth here, the Washington program works like this:   Read more »

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Why No “Good Time” in Wisconsin?

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Unlike most other states, Wisconsin does not recognize prisoners’ good behavior with credits toward accelerated release.  Wisconsin had such a “good time” program for well over a century, but eliminated it as part of the policy changes in the 1980s and 1990s that collectively left the state unusually — perhaps even uniquely — inflexible in its terms of imprisonment.  I’ve been researching the history of good time in Wisconsin in connection with a forthcoming law review article.

Wisconsin adopted its first good time law in 1860, which placed it among the first states to embrace this new device for improving prison discipline.  Twenty years later, in 1880, the Legislature expanded good time and restructured the program in the form it would retain for about a century.  In the first year of imprisonment, an inmate could earn one month of credit for good behavior; in the second, two months; in the third, three; and so forth.  Credits maxed out at six months per year.   A model prisoner with a ten-year term, for instance, might earn enough credits to knock off nearly three years from the time served.

In Wisconsin and elsewhere, good time has had a distinct history, structure, and purpose from parole.   Read more »

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Of Trump Cards and Lawyering

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Category: Criminal Law & Process, Legal Practice, Legal Profession, Pro Bono, Public, Seventh Circuit
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King of SpadesSome of the best and the worst of the legal profession can be seen through Socha v. Boughton, No. 12-1598, decided by the Seventh Circuit this past week. The substance of the case involved the court’s applying — for the first time — the doctrine of equitable tolling to excuse a late filing by a state prisoner in a habeas case. This required a conclusion that the district court had abused its discretion in concluding otherwise, including the catchy characterization that “[t]he mistake made by the district court and the state was to conceive of the equitable tolling inquiry as the search for a single trump card, rather than an evaluation of the entire hand that the petitioner was dealt” (slip op. at 19).

Yet it is the lawyering that I want especially to note. Read more »

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“With Friends Like These . . .”: New Critiques of Graham and Miller

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The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.   Read more »

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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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