Common Sense Could Have Saved NFL from Domestic Abuse Furor

Ray Rice. Adrian Peterson. These names used to cause fans to wax poetic about on-field performances the previous Sunday or potential blockbuster fantasy football trades. Now, mentioning them conjures up nothing but negativity.

The recent revelation of domestic violence issues in the National Football League has given the league something serious to think about. Once the beacon of how profitable and well-run a professional sports league can be, the NFL is now operating under a cloud shrouded in darkness. The league’s actions, or lack thereof, are coming under fire, and rightfully so. It is impossible to predict exactly what the investigation being headed by former FBI Director Robert Mueller will reveal, but it is likely that it will reveal missteps on the part of the NFL in handling the domestic violence issue.

What further inflames the matter is that domestic violence involving NFL players is not a new controversy, yet a specific policy is just now being put forth. According to a database compiled by USA Today, domestic violence issues account for 85 of the 713 total NFL player arrests since 2000. A CNN story also recounted past NFL handling of domestic abuse episodes. Knowing this, it is bewildering that the Ray Rice situation was the catalyst for implementing a league-wide policy.

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Good Time in Wisconsin: Why and How

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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Thoughts on Mwani v. Al Qaeda

A federal magistrate judge issued a noteworthy decision yesterday in Mwani v. Al Qaeda—a case filed several years ago by victims of the 1998 truck bombing of the U.S. Embassy in Nairobi, Kenya. Six Kenyan nationals alleged jurisdiction under the Alien Tort Statute (ATS) and asserted claims for wrongful death, assault, and battery. The court found Al Qaeda liable on two of the claims and awarded compensatory and punitive damages.

Two aspects of the decision seem significant. First, the court reaffirmed a prior holding that jurisdiction was appropriate even under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, which established that ATS jurisdiction is available only for claims that “touch and concern the territory of the United States” with “sufficient force” to displace the presumption against the extraterritorial application of U.S. law. The magistrate judge concluded that Mwani satisfied Kiobel because Al Qaeda carried out part of the planning within the United States and directed the attack against the U.S. Embassy and its employees. It’s fairly common for an ATS case not to survive Kiobel these days, but the conclusion here seems reasonable.

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