Feb

1

A Comparison of an Article 32 Investigation with a Federal Grand Jury (And Why the Former Prevails)

Posted by: | February 1, 2012 | Leave a Comment

My recent military law class helped me to understand the judicial system employed by our armed forces. Many similarities exist between the judicial system in the armed forces and the Article III courts, but differences stand out as well. One such difference is that between an Article 32 investigation and its civilian counterpart, a federal grand [...]

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Jan

30

Cockfighting, Congress, and Interstate Commerce

Posted by: | January 30, 2012 | 1 Comment

Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several [...]

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Jan

28

Prosecutorial Discretion in the John Doe Investigation

Posted by: | January 28, 2012 | 2 Comments

Over at the Shark and Shepherd Blog, Rick Esenberg has put up a post questioning whether the recently filed criminal complaint in the ongoing John Doe investigation of the County Executive’s Office during Scott Walker’s tenure justifies the time and expense spent thus far on the investigation. I posted several comments in response to Rick’s [...]

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Jan

20

How Should the Supreme Court Handle Warrantless GPS Tracking?

Posted by: | January 20, 2012 | 2 Comments

One of the most anticipated decisions of the current U.S. Supreme Court term is United States v. Jones, which was argued last fall (transcript here).  The case concerns Fourth Amendment protections from GPS tracking of automobiles.   The lower court, the D.C. Circuit, held that the government was prohibited from placing a GPS tracking device on the [...]

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Jan

17

Private Prisons and Accountability

Posted by: | January 17, 2012 | 4 Comments

Last week, in Minneci v. Pollard (No. 10-1104), the United States Supreme Court held that employees of privately run federal prisons cannot be sued for money damages for violations of constitutional rights.  By coincidence, last week also saw the release of a new report on private prisons by the Sentencing Project.  The report raises a multitude [...]

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Jan

13

Delay in Criminal Procedure: What’s Good for the Goose Is . . . Well, Never Mind

Posted by: | January 13, 2012 | Leave a Comment

Earlier this week, in Gonzalez v. Thaler (No. 10-895), the Supreme Court rejected Rafael Gonzalez’s pro se habeas corpus petition because it was filed about five weeks too late.  The Court did not comment on the deep irony of this decision: what Gonzalez was complaining about in his petition — the issue that the Court refused to address on [...]

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Jan

11

A Tale of Three States, Part 6: Happy Days

Posted by: | January 11, 2012 | Leave a Comment

In the previous post in this series, I took the imprisonment data from Indiana, Minnesota, and Wisconsin back to 1991.  I’ve been interested, though, in pinpointing when exactly the Minnesota-Wisconsin imprisonment disparity arose, which requires going back further — much further, to the 1950′s.  Here are the numbers: WI Imprisonment Rate (per 1000,000) Percent Change MN [...]

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Dec

29

Felony Prosecutions Are Cheap

Posted by: | December 29, 2011 | Leave a Comment

Earlier this week, the Bureau of Justice Statistics released the latest data from its periodic national surveys of prosecutors’ offices.  The report contains a lot of interesting information (albeit perhaps a bit dated — the survey was from 2007). The number that struck me the most was $2,792 — what BJS reported as the average cost [...]

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Dec

27

A Visit From the Ghost of Jury Service Past

Posted by: | December 27, 2011 | Leave a Comment

What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed [...]

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Dec

20

A Tale of Three States, Part 5: The Effect of Truth in Sentencing in Wisconsin

Posted by: | December 20, 2011 | Leave a Comment

Previous posts in this series have examined the latest available incarceration data from Indiana, Minnesota, and Wisconsin. This post considers historical data. I’m particularly interested in the impact of a major change in sentencing law that was adopted in Wisconsin in 1998. Under the “truth in sentencing” law, parole was abolished for crimes committed on [...]

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Dec

16

Intent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?

Posted by: | December 16, 2011 | Leave a Comment

The felony-murder rule is perhaps the most troubling and controversial surviving relic of the common law of homicide, branding felons as murderers notwithstanding an absence of the sort of culpability otherwise required for a murder conviction. If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to [...]

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Dec

14

A Tale of Three States, Part 4: The Racial Threat Hypothesis

Posted by: | December 14, 2011 | Leave a Comment

In the previous post in this series, I highlighted a wide gap in the incarceration rates of Indiana and Minnesota, with Wisconsin in the middle.  The ordering of the three states from highest incarceration rate to lowest corresponds with the ordering from highest rate of violent crime to lowest.  However, for reasons I explained in the previous post, I [...]

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