Insights on Judiciary and Tech Industry Highlight New Marquette Lawyer Magazine

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Category: Criminal Law & Process, Environmental Law, Federal Law & Legal System, Marquette Law School, Public, Speakers at Marquette, U.S. Supreme Court, Wisconsin Criminal Law & Process
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Marquette Lawyer Summer 2017 CoverTwo pairs may not be the most powerful hand in poker, but they are definitely a winning combination for the Summer 2017 edition of Marquette Lawyer, the Marquette Law School magazine.

One pair in the magazine focuses on how long U.S. Supreme Court Justices should serve and, more broadly, how to assure confidence in the judiciary. Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit focused on this in the E. Harold Hallows Lecture he delivered at Marquette Law School in 2016. The magazine offers a lightly edited text of the lecture by Diaz, including his advocacy of ideas he presumes that few of his fellow judges would support. Paired with the text is a comment from Diaz’s colleague on the Fourth Circuit, Judge James Wynn, L’79. An interview and profile of Wynn accompany his comment. The Diaz text may be read by clicking here and the Wynn comment (and interview) here.

The other pair in the magazine offers provocative insights from two people who play leading roles in the tech world. Brad Smith, president and chief legal officer of Microsoft, made two appearances at Marquette Law School on November 15, 2016, delivering the Helen Wilson Nies Lecture on Intellectual Property and participating in an “On the Issues with Mike Gousha” program. A selection of his thoughts may be found by clicking here.

Ted Ullyot is currently a partner at Andreessen Horowitz, a leading venture capital firm in Silicon Valley, and he was formerly general counsel for Facebook—indeed, the lawyer who led the company in the process of going public. An edited version of Ullyot’s remarks at the Law School in a Helen Wilson Nies Lecture in April 2016 may be found by clicking hereRead more »




The Curious Nature of Expunged Offenses

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Roughly six years ago the Wisconsin Legislature amended the expunction statute to permit certain felonies to be expunged. At the same time, the Legislature also permitted expunction for older offenders. Previously, defendants had to be under 21 to secure the benefits of expunction. Under the newly revised statute, defendants under 25 could now have certain crimes removed from their record.

Since the expunction statute was altered, Wisconsin law has been in disarray when it comes to analyzing the framework of expunction. For decades, judges had always “reserved” a defendant’s right to seek expunction. This was logical – judges naturally wanted to see how a defendant would do on probation before making the final decision. But the Court of Appeals, in an unfortunate ruling, found that the expunction statute barred such an approach. Now, judges have to do their best to analyze the proverbial “crystal ball,” making the decision to confer expunction at the time of sentencing, as opposed to making the decision after two or three years of probation. Read more »




After Thirty Years, It Is Time To Raise The Compensation for SPD Appointments

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Category: Criminal Law & Process, Legal Practice, Legal Profession, Public, Wisconsin Criminal Law & Process
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Statue entitled "The Spirit of Justice" outside of the Rayburn Huse Office Building in Washington, D.C., showing a seated woman with a small child.I’ve been asked to be the alumni blogger for the month of May. It’s about time!

For those who don’t know me, I am a criminal defense attorney in Wisconsin. I am currently the President of the Wisconsin Association of Criminal Defense Lawyers (WACDL). Because of this position, and the fact that I’ve practiced exclusively in the criminal defense field for 12 years, my posts will generally focus on defense-related issues.

In that vein, perhaps the most pressing criminal defense-related issue in Wisconsin remains the unconscionably low rate of compensation paid to lawyers who take appointments from the State Public Defender’s Office (SPD).

Here’s the nutshell version of what currently happens. Indigent defendants are constitutionally guaranteed representation by lawyers who work for the SPD. But the SPD obviously can’t handle all of the cases assigned to the agency. For one, there are cases with co-defendants, where ethical rules preventing conflicts of interest would preclude one “firm” from representing both defendants. In other situations, a flood of criminal prosecutions renders the SPD staff unable to handle all of the cases. Consequently, private attorneys will sometimes step up to the plate, and agree to take these cases.

These cases, known as SPD appointments, are paid at a rate of $40 an hour. Read more »




Chicago, New York Heading in Opposite Directions on Crime; Where Does Milwaukee Stand?

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Category: Criminal Law & Process, Milwaukee, Public, Wisconsin Criminal Law & Process
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To judge by some of the political rhetoric last fall, violent crime must be surging in our nation’s cities. Is that true? The answer may depend on which city you are talking about, and which neighborhood within that city.

Consider the contrast between Chicago and New York. The Windy City had about 762 homicides in 2016, while the Big Apple had just 334. The difference is shocking, especially when you consider that New York has three times Chicago’s population.

To some extent, the contrasting figures from 2016 reflect longstanding trends. Although murders did spike in Chicago last year, New York has been doing better than Chicago on this score for a long time. The two cities had essentially identical per capita homicide rates in the late 1980s, but New York’s fell much faster and further than Chicago’s in the 1990s. New York has maintained a wide advantage ever since.

Still, the dramatic widening of that advantage in 2016 should be of great concern to Chicagoans. The chart below indicates the trends in recent years, based on FBI data. Note that the two cities moved in sync from 2013 through 2015: homicides down the first year, basically unchanged the next, and then up a little in 2015. However, in 2016, even as Chicago’s homicides shot up, New York’s dropped back down to where they had been in 2013 and 2014.

One should not get the sense, however, that one faces a dramatically elevated risk of violence throughout the Windy City.   Read more »




U.S. Prison Population Continues Slow Decline; Wisconsin’s Inches Up

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Wisconsin Criminal Law & Process
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Ringing in the new year, the U.S. Bureau of Justice Statistics recently released its data on prisoners in the United States in 2015. After rising consistently for about four decades, the U.S. prison population (state and federal combined) peaked at a little over 1.6 million in 2009. Since then, the population has declined steadily, but very slowly. For 2015, the total was a little over 1.5 million, or about 35,000 less than 2014. The continued reductions are encouraging, but must be kept in perspective: the population remains many times above its historic norms. The current rate of 458 prisoners per 100,000 U.S. residents is over four times greater than the long-term rate of about 100 per 100,000 from before the imprisonment boom. We are still very much in the era of mass incarceration.

The Wisconsin numbers continue to be lower than the national norms, but are moving in the opposite direction. At yearend 2015, Wisconsin’s prison population numbered 22,975, up 1.7 percent from 2014. This amounts to 377 prisoners per 100,000. By comparison, Minnesota’s rate was just 196 per 100,000.

Here are a few additional observations:   Read more »




“On the Issues”: Former Avery Attorney Criticizes Criminal Justice System

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Category: Criminal Law & Process, Public, Speakers at Marquette, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System
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Nine months ago, Dean Strang’s life changed. A well-known criminal defense attorney from Madison, he had been involved in cases that attracted public attention, especially the murder trial a decade ago of Steven Avery, who was accused of murdering a freelance photographer, Teresa Halbach, in 2005 in Manitowoc County.  The case attracted attention especially because it came two years after Avery was exonerated and freed after serving 18 years for a previous, unrelated murder. Strang and Jerry Buting, a Waukesha attorney, defended Avery in a trial that ended with Avery being convicted in 2007.

But nothing that happened at that time or in connection with any other case he had worked on prepared Strang for the impact on his life when a Netflix series, “Making a Murderer,” began running in December 2015 and became an international sensation. The case went into great detail in documenting the Avery case. It was widely regarded as supporting the argument that Avery was unfairly convicted.

Strang and Buting found themselves the centers of enormous attention. “It’s sort of like Jerry and I had been handed a microphone,” Strang said at an “On the Issues with Mike Gousha” program at Marquette Law School on Monday.  “Now, what are you going to do with the microphone?”   Read more »




Strong Support for Marijuana Legalization in Law School Poll, But Results for Other Drugs Harder to Interpret

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Category: Criminal Law & Process, Marquette Law School Poll, Milwaukee, Public, Wisconsin Criminal Law & Process
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In the Marquette Law School Poll conducted earlier this month, fifty-nine percent of registered Wisconsin voters agreed that marijuana “should be fully legalized and regulated like alcohol.” Only thirty-nine percent disagreed.

Support for legalization in Wisconsin follows the recent decisions to legalize marijuana in Colorado and Washington in 2012, and in Oregon and Alaska in 2014. Nationally, support for legalization has grown steadily since the early 1990s and finally crossed the fifty-percent threshold in 2013. (On the local level, the Public Policy Forum published a thoughtful assessment of the costs of marijuana enforcement in Milwaukee earlier this year.)

In the Law School Poll, respondents were asked which arguments for legalization they found most convincing.

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Marquette Poll Reveals Support for Rehabilitation of Prisoners

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For the past four years, Darren Wheelock and I have collaborated with Charles Franklin and the Marquette Law School Poll on a series of surveys of public attitudes toward sentencing and corrections policy in Wisconsin. Our 2015 results, released last week, seem to show remarkably high levels of support for prisoner rehabilitation. Of those who were asked, more than 80% expressed support for each of the following:

  • Expanding counseling programs for prisoners
  • Expanding job training programs for prisoners
  • Expanding educational programs for prisoners
  • Helping released offenders find jobs

At the same time, there are also indications of substantial, if somewhat lower, levels of support for various punitive policies:

  • About 47% supported making sentences more severe for all crimes
  • About 45% supported locking up more juvenile offenders
  • About 62% supported increasing the use of mandatory minimum sentences for repeat offenders
  • About 45% supported trying more juvenile offenders as adults

It is puzzling that many respondents expressed support for both pro-rehabilitation and tough-on-crime policies. We have also seen this phenomenon in earlier rounds of our polling.   Read more »




Decline in Wisconsin Prison Population Results From Fewer Drug Offenders Behind Bars

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As I discussed in this post, Wisconsin has achieved one of the nation’s higher rates of reduction in imprisonment over the past decade. To be sure, New York, California, and a few other states have far outpaced Wisconsin in this regard, and Wisconsin’s prison population remains nearly ten times larger than it was in the early 1970s. Still, we may appreciate some overall net progress in the Badger State’s numbers since the mid-2000s. As indicated in the chart after the jump, reduced imprisonment of drug offenders has played a central role in driving this trend.   Read more »




New Article on Good Conduct Time

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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I have a new article in the Wisconsin Lawyer about good conduct time, a program that permits prisoners to earn accelerated release based on how well they do behind bars.  Most states offer GCT to their prison inmates, but Wisconsin does not.  (Inmates in local jail facilities here may earn GCT, but not the 20,000+ longer-term inmates in state prisons.)  In the new article, I argue that Wisconsin policymakers should consider adopting a GCT program for prisoners as part of their ongoing efforts to reduce the size of the state prison population, which remains near historic highs.  For readers interested in more on this topic, I’ve created a page on my personal blog that collects my writings on GCT.




Good Time in Wisconsin: Why and How

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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.




“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 »