I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Perhaps Professor O’Hear can straighten me out on this.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant.

Tom is correct that this is the standard the majority announced. But is it the right standard? The majority cites no authority for it, and the cases (from outside Wisconsin) seem to have been based on the perceptions of a reasonable observer and not a reasonable observer in the position of the defendant.

More fundamentally, should the question be whether, to use the majority’s language, “there is a risk” that a defendant or a generic observer “might” infer that the judge improperly considered race?

Judge Brennan, in her dissent, comes at it in a different way, citing Wisconsin law that places upon the defendant the burden of proving that an improper factor influenced the sentence. Now, of course, one way to prove that is through the judge’s remarks. But here’s the thing: Not one of the three judges concluded that Judge Wall improperly considered race. Even the majority says that “[h]aving examined the entire sentencing transcript, we are satisfied that the trial court did not harbor bias against Harris because of his race.”

The majority seems to want to enforce a certain sentencing etiquette and I understand what’s behind that. There is resentment in the black community for the justice system and, while we can disagree about the extent to which it is justified or whether it is counterproductive, it ought to be seen as a reality that requires a response.

But sentencing judges are exposed to a parade of defendants who, and, again, we can argue about why, live irresponsible lives that are destructive of themselves and their families. It is reasonable to expect them to, from time to time, comment on that fact. If, in a particular venue, a disproportionate number of those defendants are African-American, it may be possible, as was done here, to tease those remarks and to place upon them a negative construction that might suggest racial bias. But won’t too much sensitivity lead to too many false positives and inefficiency? Where, as here. everyone seems to agree that race was not taken into account by the sentencing judge, is there really any value in vacating the sentence because the judge’s remarks might be susceptible to being taken in the wrong way?

Cross posted at Shark and Shepherd

This Post Has 3 Comments

  1. Peter Heyne

    Upon reading the Court of Appeals’ dissenting opinion, I find quite interesting that Judge Brennan cites Wikipedia as authority:

    “Because Wikipedia is a communally-created resource tool, its definition of ‘baby mama’ provides some guidance as to the popular (objective) meaning of the phrase.” (¶25, n. 7)

    I wonder if empirical research indicates if Wikipedia editors constitute enough of a representative societal cross-section to provide an “objective” view of linguistics, etc.. My non-empirical guess is Wiki-editors are a definite minority of the US population.

  2. Michael M. O'Hear

    “Perhaps Professor O’Hear can straighten me out on this.”

    I wouldn’t bet the farm on that. I’ve never seen a sentence reversed on this basis, and I have nothing to add to what you say about the legal standards.

    On the other hand, the case does strike me as an interesting one from the standpoint of what the social scientists call “procedural justice” (which is a rather different animal than what the lawyer’s call “due process”). Tom Tyler and other social scientists have spent decades studying why people obey the law (to whatever extent they do), and they find that fear of legal sanctions is less important than perceptions that the law has legitimacy, that is, that the law merits obedience. Percevied legitimacy, in turn, is correlated with perceptions of fair treatment by legal authorities. Tyler and others have identified various ways that legal decisionmakers can promote perceptions of fair treatment, and one strategy they highlight is reassuring “decision recipients” that decisions have been made in a neutral, objective fashion based on the particular facts of the case.

    And research indicates that criminal defendants are like everyone else in this regard: they are more likely to accept and regard as legitimate decisions (even adverse decisions) by police officers, prosecutors, judges, and prison officials if the decisions are rendered in a way that is perceived to be neutral, objective, and based only on the facts of the case. The implication (which I have explored in some of my scholarship) is that crime control objectives are advanced by procedural justice: defendants are more likely to internalize norms of law-obedience when sentences (and other key legal decisions in their cases) are handed out in a procedurally just fashion. (Indeed, my research on the legislative history of the federal sentencing guidelines has revealed that this intuition was an important part of the case that was made for neutral, objective sentencing guidelines as far back as the 1970’s.)

    So, whether or not a legal remedy is warranted, there are good prudential reasons for a sentencing judge to be careful about making stray comments that might be perceived (correctly or not) as indicating some personal bias against the defendant based on some aspect of the defendant’s life that is unrelated to the particular legal decision being made.

  3. Richard M. Esenberg

    Michael makes some good points. His comment reminds me of a friend who once worked in the US Attorney’s office. When the defendant was brought in from custody (in the normal orange garb), he sidled up to him and asked if he was going deer hunting. The judge overheard the comment and sanctioned him.

    I agree (and acknowledged in my post) that there is certainly reason to be concerned about the perception of the system. This is, I think, particularily so in places like Milwaukee where there has been a racial divide around that issue, caused both by police misconduct and the irresponsibility of certain politicians and community leaders who have racialized what ought not to have been racialized.

    Still it seems to me that this case is on the right side of the divide. In the view of the judge, the defendant’s idleness and the way in which he permitted his girlfriend to enable it was relevant. That he chose to speak in a moderately harsh manner commenting on the frequency of such behavior and using a bit of street slang is well short of what ought to mandate resentencing. If this goes up, I think it gets bounced.

    As for Wikipedia, it seems surprisingly accurate to me but the thing is knowing when it ought to be trusted. The more obscure or controversial the subject, the more skeptical we should be. Modern electronic search tools are really robust but sometimes I worry that they are so good that we risk losing the ability to see when they are wrong.

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