Daubert Has “Teeth” (and a Pulse)

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Category: Legal Practice, Public, Wisconsin Law & Legal System
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The first published case on Wisconsin’s (relatively) new rule on expert opinion testimony has emerged at long last. In 2011 the legislature replaced Wisconsin’s decade’s-old approach with the federal “Daubert rule,” a rule rejected by state appellate courts on several occasions. The old rule left disagreements among experts mostly to the trier of fact, provided the witnesses had suitable specialized knowledge that could assist in fact finding. The current Daubert rule unctuously anoints trial judges as “gatekeepers” responsible for ensuring that only “reliable” expert opinions are put before juries. Many critics, me included, thought the old rule served the same purpose quite well. In State v. Giese, 2014 WI App 92, the court of appeals wisely signals that the new rule is mostly compatible with the older approach.  Read more »

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Attorney General Candidates Raise Profile of Low-Key Race in Eckstein Hall Debate

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Near the end of an hour-long debate Sunday between the two candidates for Wisconsin attorney general, moderator Mike Gousha asked if either wanted to bring up something that hasn’t gotten enough attention during the campaign.

Democrat Susan Happ, the district attorney of Jefferson County, answered first and talked about consumer protection.
Republican Brad Schimel, district attorney of Waukesha County, answered that the entire race hadn’t gotten enough attention. It’s an important race, he said, and there should be more awareness of it.

Indeed, the race has not sparked widespread public attention. A Marquette Law School Poll released on Oct 1 found that about four out of five of those polled did not have an opinion of either Schimel or Happ. Overall, the race was close, according to the poll, but people expressed an opinion on who they would vote for only in response to a question that identified each candidate by party.

With a little over three weeks to go until the Nov. 4 election, the debate Sunday, in the Appellate Courtroom of Eckstein Hall, may have helped give awareness of the race a boost. The debate, co-sponsored by Marquette Law School and WISN-TV, was broadcast live across Wisconsin. The candidates are scheduled to take part in two more debates. 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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“Good Time” in Washington: A Model for Wisconsin?

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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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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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.”

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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Violence in the Heartland, Part V: Wisconsin’s Cities

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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Since 1985, Wisconsin’s seven largest cities have followed markedly different paths in their rates of reported violent crime.  Two, Waukesha and Appleton, have consistently had lower rates than the state as a whole, while two others, Milwaukee and Racine, have typically had rates that are two to three times higher than the state as a whole.  Kenosha and Racine have significantly reduced their rates of violence since the 1980s, while the other five cities have experienced sizable net increases.

Here are the overall trends, in the form of reported violent crimes per 100,000 city residents:

Cities year by year

In recent years, as you can see, Waukesha has easily had the lowest rates and Milwaukee the highest.  Earlier, Appleton used to compete with some success for lowest and Racine for highest.

Here are the net changes in the cities’ crime rates from 1985-1987 to 2010-2012:   Read more »

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Imprisonment Inertia and Public Attitudes Toward Truth in Sentencing

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I’ve posted a number of times about the interesting results of the Marquette Law School Poll regarding the attitudes of Wisconsin voters toward truth in sentencing and early release from prison (e.g., here and here).  I’ve now finished a more in-depth analysis of the survey data with Professor Darren Wheelock of Marquette’s Department of Social and Cultural Sciences.  Our results are discussed in a new paper on SSRN (available here).  The abstract sets forth a little more of the context and key findings:

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors analyzed the results of public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.

Entitled “Imprisonment Inertia and Public Attitudes Toward ‘Truth in Sentencing,’” our paper will be published in early 2015 in the BYU Law Review.

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Wisconsin Assembly Responds to “Child Exchange”

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Category: Family Law, Public, Wisconsin Law & Legal System
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Adoption is intended to create lifelong parent-child relationships, and irrevocable parental obligations, no matter the challenges the newly-formed family might face in integrating an adopted son or daughter. However, in a tragic number of cases, parents decide not to keep the adopted child. Perhaps the highest-profile failed adoption in recent years was that of Artyem Savaliev/Justin Hansen, a seven year old Russian adoptee who in 2010 was put on a flight to Moscow by his Tennessee adoptive mother with a note explaining why she no longer wanted him. The case sparked concern and outrage in both Russia and the US.

Post-adoption family breakdowns are occurring in other less visible ways, including in Wisconsin. Last fall, Reuters published a five-part expose on “private re-homing,” a euphemistic term for advertising one’s unwanted adopted children on the Internet in order to find them a new home. This allows the parents of international and domestic adoptees to effectively, and beyond the supervision of child safety networks, pass off their parental obligations to strangers. Read more »

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Violence in the Heartland, Part III: City Trends

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Category: Criminal Law & Process, Legal History, Milwaukee, Public, Wisconsin Criminal Law & Process
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In earlier posts (here and here), I have explored state-level violence trends since 1960 in the seven midwestern states of Iowa, Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.  This post focuses on the data from the largest city of each of these states.  Since Chicago does not report its rape numbers in conformity with FBI standards, it is omitted from the analysis.

Here are the city trends since 1985 (reported violent crimes per 100,000 residents):

city data

What stands out most is the very wide, persistent gap between Detroit at the top of the chart and Des Moines at the bottom.   Read more »

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Wisconsin Adopts the Uniform Trust Act

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On December 14, following the signature of Governor Scott Walker, Wisconsin trust law took on a dramatically new look when 2013 Wisconsin Act 92 took effect.  This act adopted the Uniform Trust Code, with minor modifications, as the law of the Badger state.

Introduced into the legislature on November 4, after almost a decade of study, the proposed revision of the state’s trusts laws sailed through both the Senate and the Assembly with very little opposition. Read more »

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