Obama Clemency Grants Pick Up Steam

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Marquette Law School, President & Executive Branch, Prisoner Rights, Public, Race & Law
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Somewhat lost amidst the wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined. The August 30 grants, however, had special significance for me and a small group of recent Marquette Law School graduates.

Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Reinforcing the negative perceptions, President Bill Clinton’s pardon of financier Marc Rich and President George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby seemed to confirm that clemency was mostly used to benefit wealthy, powerful defendants.

The Obama Administration, however, envisioned a very different way to use clemency.   Read more »

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Confronting Racism

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Category: Civil Rights, Political Processes & Rhetoric, Public, Race & Law
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Plessy_markerIn Plessy v. Ferguson, Justice John Marshall Harlan wrote “[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens.” [1] Today, most people might say they too are color-blind. However, race relations have been prevalent in the news as of late because the state of racism in America has mutated. Racism is rarely as bold as the cross burnings of yore, but no less insidious. [2]

Because racism is different, our understanding of our inherent biases must also become different. I believe the modern definition of racism has shifted. I define racism as taking a negative action towards someone, whether explicitly or implicitly, on account of their race. This means that people can take racist actions without being aware that they are doing so.[3] We can no longer oversimplify racism, and instead need to confront it within ourselves and as a community.

As a country, we need to do a better job confronting racism. A plethora of high profile incidents, involving police brutality and campus outrage, have given us another opportunity to confront our inherent biases. Unfortunately, too many “color-blind” people have not heeded the second part of Justice Harlan’s dissent and have instead tolerated or even justified the systemic mistreatment of classes of citizens. [4] Read more »

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Bucks President Offers Big Visions of Success On and Off the Court

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Category: Milwaukee, Race & Law, Speakers at Marquette, Sports & Law
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With new design plans for the Milwaukee Bucks arena to be unveiled in the next several days, Peter Feigin, president of the professional basketball franchise, exuded nothing but enthusiasm during an “On the Issues with Mike Gousha” program Wednesday about the future of the team and what its impact will be not only in Milwaukee and statewide but across the globe.

“Awesome,” he said. “This is going to be miraculous.” But that will come to pass only with hard work, not only on the basketball court but throughout every aspect of what the does, Feigin told a large audience in the Appellate Courtroom of Eckstein Hall.

Milwaukee? Feigin said the team wants to do all it can to connect with the city, including connecting its players with the youth of the city and increasing its philanthropic work focused on youth, wellness, and education. And the new arena and the team’s operations as a whole will mean several thousand full-time jobs in the city.

Wisconsin? The Bucks want to be “Wisconsin’s team” in the way the Green Bay Packers and Milwaukee Brewers have become Wisconsin’s teams in their sports. Read more »

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Narrative and Social Control

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Category: Civil Rights, Criminal Law & Process, Media & Journalism, Political Processes & Rhetoric, Public, Race & Law
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copslogoIn recent decades, awareness of narrative and of stories in general has increased in many fields and academic disciplines, law included.  However, it is nevertheless surprising to see that even law enforcement specialists in the Justice Department have developed an appreciation of the workings and importance of narrative.

This heightened sensitivity surfaced in the recent Justice Department report on police conduct in Ferguson, Missouri following the shooting of Michael Brown.  Issued by the Department’s “Community Oriented Policing Services” office, the report outlines no fewer than 113 lessons that police in Missouri and elsewhere might learn from developments during the seventeen days following Brown’s death and funeral.

Much of the report is predictable.  It criticizes such police tactics as the use of dogs, tear gas, and so-called “overwatching.”  With the latter, police use rifle sights to survey a crowd from positions on top of police vehicles.  Overall, the report warns that “militarization” of a volatile situation will probably make things worse.

Toward the end of the report, its authors turn to what they label “lost narrative.”  In their opinion, Missouri law enforcement was too slow to provide information about the shooting of Brown and thereby created an opening for alternative representations of the incident.  Supporters of Brown and his family seized the opportunity and offered an alternative narrative, one conveyed largely but not completely through the social media and one stressing that “Black Lives Matter.” Read more »

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Israel Reflections 2015 — Putting the Lessons into Action

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Before posting our last (and fabulous) blog post from the trip, I just want to say that it has been a real delight to share all of these reflections from my terrific students with our blogging community.  Looking forward already to the next trip in 2017!

Student James Bowers does a beautiful job here outlining how learning about international conflict may inspire us to deal with our own conflict in the U.S. Read more »

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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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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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Milwaukee Residents Give Solid Marks to Police

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Category: Criminal Law & Process, Milwaukee, Public, Race & Law
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Last week, the Milwaukee Fire and Police Commission (of which I am a member) released the results of its first-ever survey of citizen attitudes toward the police.  Although the survey identified a few areas of concern, the overall tenor of citizen attitudes seems positive.

Conducted for the FPC by UWM’s Center for Urban Initiatives & Research last summer, the survey involved telephone interviews of 1,452 Milwaukee residents.  As detailed in the CUIR’s report, the survey respondents were reflective of the city’s diversity in racial composition and in other respects.

The report’s lead finding is that about three-quarters of Milwaukee residents report that they are at least somewhat satisfied with the Milwaukee Police Department, while only about nine percent said they were “not at all satisfied.”  These findings are notable for a number of reasons, not the least of which is that fully one-quarter of the respondents reported being stopped by the police in the past year.  One might suppose that this group would be predisposed to negative evaluations of the police.  However, the vast majority (71%) of those stopped felt that they were treated fairly.  The MPD has significantly increased its number of stops in recent years, but it does not appear that involuntary contact with the police normally leads to hard feelings by the person stopped.

Given recent racial tensions in Milwaukee and nationally regarding policing practices, it is especially important to note the racial patterns in survey responses.   Read more »

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Independence of Voters Yields Surprises in Law School Poll Results

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Category: Marquette Law School Poll, Political Processes & Rhetoric, Race & Law
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It probably shouldn’t be such a surprise that independent votes would show their independence. But the Marquette Law School Poll results released Wednesday in an “On the Issues with Mike Gousha” session at Eckstein Hall clearly caught people in the room, as well as far beyond the room, by surprise. Independent voters were largely the reason why.

Two weeks ago, the poll put Republican Gov. Scott Walker ahead of Democratic challenger Mary Burke by five percentage points among likely voters. This time, the two were in such a dead heat among likely voters that the exact same number of poll respondents picked Walker and Burke (380 each). That made for a 47%-47% tie, with the scattered responses making up the remainder.

What changed? Among voters who labeled themselves independents, Walker led in the prior Marquette Law School Poll, conducted late September, by 53% to 40%. But in the new poll, conducted from Oct. 9 through 12, Burke was favored by 45% of independents and Walker by 44%. Professor Charles Franklin, director of the Marquette Law School Poll, considered that a significant shift and an indication that there were still voters out there who are persuadable by either candidate – potentially enough to decide the election. Read more »

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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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Ninth Circuit Rules on Free Speech Issue in Schools

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Category: Civil Rights, Constitutional Law, Education & Law, First Amendment, Public, Race & Law
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clip_image002Late last month, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that the Principal of Live Oak High School properly exercised the school’s rights when he offered students wearing T-shirts bearing the American Flag on Cinco de Mayo the choice to either turn their shirts inside out or go home for the day.  The Principal’s action came on the heels of threats of violence from Mexican-American students earlier in the day and the occurrence of a slight physical altercation on Cinco de Mayo 2009.  The students were not disciplined in any way for their decisions to go home rather than turn their shirts inside out.

The court rested its decision on the First Amendment challenge made by the students on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503.  In Dariano, the Ninth Circuit applied Tinker to find that the school could restrict student speech based upon officials’ reasonable belief that the T-shirts would cause a “material and substantial” disruption in school activities.  The Ninth Circuit distinguished the facts of Dariano from those of Tinker by finding that in Tinker, there was no threat of disruption from the wearing of the armbands, whereas there were actual threats of violence throughout the day at Live Oak High School. Read more »

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Hallows Lecture Examines Little Noted, but Pivotal Civil Rights Decision

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Category: Civil Rights, Constitutional Interpretation, Legal History, Public, Race & Law, Speakers at Marquette
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“Remarkable but relatively obscure” – that’s how Judge Paul T. Watford of the United States Court of Appeals for the Ninth Circuit described the 1945 U.S. Supreme Court decision, Screws v. United States. In presenting Marquette Law School’s annual Hallows Lecture on March 4, Judge Watford aimed to lift the decision from some of its obscurity and increase awareness of “the birth of federal civil rights enforcement,” as the title of his lecture put it.

The case began with the vicious and fatal beating of Robert Hall, an African-American man, by M. Claude Screws, the sheriff of Baker County, Ga., and two of Screws’ deputies. Judge Watford said the circumstances of Hall’s death provide a window into how African Americans of that era had to live with the “ever-present reality” of unwarranted violence against them by white law enforcement officers. Even given the many witnesses to Hall’s death, Georgia authorities declined to prosecute Screws and his deputies. But, in what Watford described as an unusual development for that time, a federal indictment was issued against them for violating Hall’s civil rights.

Ultimately, a splintered Supreme Court did not do all that civil rights advocates would have wanted, but the justices upheld the application in situations such as this of 18 U.S.C. § 242, prohibiting violation of civil rights by someone acting under the color of law. The majority of justices rejected the argument that civil rights violations were a matter to be left to the states, although no single opinion commanded a majority.

“Had Screws come out the other way, and been decided against the federal government, federal civil rights enforcement would have been stifled,” Watford said. “Instead, it was given new life, and that helped change the course of history, particularly in the South, in the second half of the twentieth century.”  Read more »

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