In my immediate previous post, I highlighted some of the motivating inspirations for creating a particular platform in 2007: the Milwaukee County Community Justice Council. The desire was to examine our criminal justice system and to invite external partnerships to help us identify efforts from different systems that might help inform our desire to improve the Milwaukee “product” of justice.
Hidden in the request for help was a perhaps naive presumption that some system somewhere was “doing justice the right way”—such that our need was to discover it, adopt or adapt it, and make it our own. The reality in 2007 (and today) is that there are approximately 2,330 state-level criminal justice systems representing diverse populations and operating in myriad legal and cultural systems sometimes very different from Milwaukee. All are presumably trying in good faith to justly serve their particular communities. And while many of the dynamics of “the criminal justice system” are similar everywhere in the United States, you will find important nuances just by traveling outside your home county.
In all events, given the complexity and deeply structural challenges of the American legal system, how do you objectively identify a problem in your ecosystem, assess what might fix the problem, implement a reform, measure the impact of the effort, and then demonstrate a narrative of progress? Such a process comes with abundant loaded assumptions, each one challenging enough to derail any effort at reform (which helps explain why so few jurisdictions even try).
But perhaps the biggest issue confronting reform-minded practitioners can be distilled to this essence: the challenge of adequately and accurately capturing meaningful data.
Unifying all criminal justice systems in the past and no less in the present are grossly inadequate information management systems combined with sparse analytical capacity. One of the guiding principles adopted early in the Milwaukee reform process is captured by the phrase “You can’t effectively change what you don’t effectively measure,” and while the information collection process has been revolutionized in a short time, effective analysis remains a challenge to most systems.
The Milwaukee County justice ecosystem circa 2006 was predominately an analog, paper-based system. If you practiced criminal law in the 1960s and returned for a day as late as 2010, you would still recognize all the processes and procedures required to represent a client or prosecute a case. Data and information processing systems (including software at the later date) were a hodgepodge of commercial and proprietary products, with the police departments, sheriff’s office, prosecutors, courts, and corrections system all using different means to capture and store the information needed in their respective sphere, but rarely with any interoperability with other agencies. In a pre-Cloud, pre-AI world, a researcher needed to physically enter the space where the work unfolded to even attempt to capture data, and nonetheless he or she would be disappointed in the quality of the information.
Despite the obstacles, in 2005 the Milwaukee County District Attorney’s Office opened itself to outside, independent researchers. This occurred when the Vera Institute of Justice reached out and asked to be allowed to enter the complicated and risk-averse space of the elected prosecutor. It did so on a topic that was and is considered a third rail of police and prosecution controversy: race.
To the weary descending traveler, the two post-industrial cities on the shore of a Great Lake share enough superficial similarity to induce panic in the first-time visitor, but Cuyahoga County, Ohio, and Milwaukee County, Wisconsin, also share a more profound legacy. They both exemplify a historical theme in American criminal jurisprudence: a recurring (if episodic) commitment to reforming and improving imperfect systems of social control in a democratic republic.
I believe that my laying a historical foundation can help me present reforms attempted in Milwaukee in the past 20 years. I also intend, in a subsequent post, to link those efforts to reform efforts around the country.
The groundbreaking 1922 Cleveland Crime Survey and the creation of the Milwaukee County Community Justice Council in 2007 are separated by 85 years but motivated by similar social forces and dynamics challenging the fair administration of justice. The persistence of these challenges and of the efforts to do better reflect the hope that citizens place in the genuine and perceived power of the state to regulate a complex society. Yet it also raises a question about the limitations of the law as the primary vehicle of that regulation.
Over 100 years ago, Felix Frankfurter, Harvard law professor and future U.S. Supreme Court justice, wrote the preface for a report titled Criminal Justice in Cleveland. This was a detailed 700-page examination of Cleveland’s justice process, commissioned by the non-government Cleveland Foundation, which had invited leading national legal experts and scholars to conduct an independent examination of the inner workings of the scandal-ridden Cleveland justice system. The incident itself seems strangely contemporary, as it involved reckless intoxicated driving, a fatal shooting, and compromised witnesses. What made it exceptional was that a perpetrator was the judge of the Cleveland Municipal Court, responsible for adjudicating criminal matters.
Frankfurter wrote:
For some time previous to this survey Cleveland had been restive under a growing feeling of insecurity of life and property. The fifth largest city in the country entertained a wide-spread conviction of its failure in the most primitive function of government. In the spring of 1920 this feeling was brought to a head. An atrocious and sordid crime, implicating the chief judge of the city’s municipal courts, stirred to action dormant civic pride. With rare self-restraint and self-knowledge the leaders of the community realized that the city had the feeling, but not the understanding, for action. They had the insight to realize that this sensational case was but symptomatic of deeper causes. In a word, a problem in social sanitation and social engineering was presented. Therefore, in the winter of 1920, a number of civic organizations, headed by the Cleveland Bar Association, requested the Cleveland Foundation to undertake a survey of the administration of criminal justice in Cleveland.
The yearlong examination resulted in a report: Criminal Justice in Cleveland. Samuel Walker, in Popular Justice: A History of American Criminal Justice, described the entity that prepared the report as “the single most important crime commission” in American history. “It established the model of examining a complete criminal-justice system and was copied by numerous state and federal crime commissions,” Walker explained. “The co-directors of the Cleveland survey were two of the most significant figures in the history of American law: Roscoe Pound and Felix Frankfurter.”
In fact, the now-reflexive habit of speaking of the criminal justice process as a system arguably dates from this 1922 report. As Walker has noted, the report also had the salient effect of unmasking for the first time the reality and pervasiveness of plea bargaining in the justice system.
The Cleveland study broke down and examined the critical decision points of the city’s justice apparatus progressively: closely examining police, prosecutors, judges, defense bar, corrections, juvenile justice, forensic sciences, and even the role of the press. It then made constructive recommendations on how to improve the system.
Roscoe Pound’s ending summation in the report is titled “Criminal Justice in The American City” and is fascinating reading that would be instructive for every participant in criminal law administration today. What stands out in the 1922 examination is how many of the dynamics present at that time are with us today. Hear Pound:
We may say that the three chief factors in the administration of justice are—(1) the men by whom it is administered; (2) the machinery of legal and political institutions by means of which they administer justice; and (3) the environment in which they do so. One who surveys the workings of a legal system with these three things in mind will not go far wrong.
[¶] Yet his picture will not be complete nor wholly accurate. He must take account also of certain practical limitations and practical difficulties inherent in the legal ordering of human relations, at least by any legal institutions thus far devised. The purposes of law, as we know them, and the very nature of legal institutions as we have received and fashioned them, involve certain obstacles to our doing everything which we should like to do by means thereof, and even to our doing well many things which we have been trying to do thereby for generations. These practical limitations on effective legal action explain much that, on a superficial view, is ascribed to bad men or bad legal machinery.
[¶] Hence a fourth factor must be added, namely, (4) the bounds within which the law may function effectively as a practical system.
The report exposed an overburdened criminal docket, chaotic court environment, uninterested and disengaged prosecutors, inadequately trained police, an unprofessional defense bar, and a lack of any objective rigor in the forensic sciences. The report’s approach enhanced awareness of the criminal justice process as an ecosystem, where each component of the system influenced, and in turn was influenced by, the system’s other parts.
The problems in Cleveland were not unique. The system troubles examined in Cleveland were also present in the Milwaukee Municipal Court system of the era: consider a 1922 grand jury investigation involving corrupt practices in the district attorney’s office and the court systems. The proliferation of crime commissions following the Cleveland survey demonstrate that many other cities shared similar attributes.
Fast forward, if you will, to 2007. The convening and creation of the Milwaukee County Community Justice Council that year was similarly driven by experienced community and system participants who shared, in Frankfurter’s words, “the feeling, but not the understanding, for action.”
To be more precise, there was a generalized understanding that Milwaukee County’s criminal justice system needed to change in four important ways:
How we treated the drug-addicted
How we treated the mentally ill
How we treated traumatized people
How we treated people in our detention facilities
Unifying those four areas of concern was the strong perception that Black Milwaukeeans were disproportionately present in the system as defendants and victims.
Three significant events of the time helped form that “feeling.” First was the savage off-duty police beating of Frank Jude in 2004; second, a court’s ruling that the Milwaukee County Sheriff’s Office was noncompliant with a consent decree requiring improved jail conditions (the Christensen decree); and, finally, the pending release of a national study showing that Wisconsin had the second highest incarceration rate for Blacks in the nation.
There was less understanding of how to accomplish change. While Milwaukee justice leaders certainly would have benefited from a review of Cleveland’s historical template, the path to reform is perhaps better described as a confluence of several organic relationships with events that occurred in 2006, merging in 2007 to support the creation of what is now known as the Milwaukee Community Justice Council (CJC).
For one thing, 2006 was a transitional year, with Milwaukee County’s first open-seat election for district attorney since 1968. During that year as a candidate, I spent significant time talking to practitioners such as Tom Reed, the regional manager of the State Public Defender’s Office; criminal defense attorney Craig Mastantuono; and community members including Kit McNally, Reverand Joe Ellwanger, and members of the Community Brainstorming Conference such as Dr. Pam Malone.
So much was flowing together. My colleague Jeff Altenburg was working in the D.A.’s office as a community prosecutor, and my soon-to-be Chief Deputy Kent Lovern was on the boards of both the National Alliance on Mental Illness and Sojourner Family Peace Center (as it is now known). E. Michael McCann, in his last year as district attorney, invited me to join him in a discussion with the Vera Institute of Justice about conducting the first internal review of data from a D.A.’s office focused on racial disparity. In addition, in 2006 the Milwaukee County Circuit Court found that the Sheriff’s Office was not in compliance with the Christensen consent decree requiring improvement in jail conditions for pretrial detainees.
All these streams—and any number of others—came together after the election, in 2007, when we gathered system leaders ostensibly to address the problems in the jail through regular convening. The Milwaukee County Community Justice Council (here’s an early profile in 2011) could have been a limited-term, narrowly focused exercise to reduce jail overcrowding and improve jail conditions. In fact, in part because of the relationships formed during those crucial months, the CJC instead was converted into a vehicle for data-informed, practical, best-practice reform even beyond taking on the need for improved conditions in the jail.
The succeeding years saw the CJC deliberately invite numerous external academic and public policy groups to help examine and implement better policy in the Milwaukee County judicial system. The list is impressive and continues to this day. Some examples: The Wisconsin Policy Forum helped us envision a screening process for everyone arrested and brought to jail; a visit by the chief judge of the Buffalo (New York) drug treatment and veterans’ court resulted in the launching of a Milwaukee program shortly afterwards. The National Institute of Corrections accepted us in a competitive bid to implement an evidence-based decision-making (EBDM) framework to inform us of our intake procedure to deflect people with drug, alcohol and mental health issues. The Arnold Foundation helped develop a risk-assessment tool, and the Homicide Review Commission was brought into the CJC. The District Attorney’s Office completed a first in the nation study in a D.A.’s office of race and charging, with the Vera Institute, and was enrolled in the MacArthur Foundation’s Safety and Justice Challenge. (The list goes on, to include such developments as convening the Emergency Operation Center for COVID, which transformed into the current Violence Reduction Public Health and Safety Team, and the opening of Sojourner Family Peace and the Alma Center, etc.)
The linkage among the four problem areas I described above seems obvious today. We have come a long way as a community and nation to understand that trauma, mental health, addiction, and poverty are all closely correlated. We still have a long way to go in implementing effective solutions outside the criminal justice system. In subsequent posts, I hope to expand in more detail upon the reforms initiated by the CJC and examine what worked, what didn’t work and what the future may hold.
Any report prefaced by Felix Frankfurter and concluded by a summary from Roscoe Pound should, I believe, at least occasionally be dusted off and revisited. My colleagues have often heard me say that stored energy—the energy that comes from analysis, deliberation, and review—is important, but kinetic energy, even if imperfectly released, creates change. The 1922 Cleveland report is the kind of stored energy that the academy expertly creates so that practitioners can release the energy of reform in a focused, purposeful, examined manner. The Community Justice Council—at its best—is the mechanism for kinetic change.
Now that I have introduced myself in my first blog post, let me make good on some of my promises to look back on—and forward to—the criminal justice system in this region and beyond. This is an appropriate place to do so: Marquette University and the Milwaukee County District Attorney’s Office played a significant yet mostly unknown role in improving how witnesses in criminal cases have been treated in our country during the last 50 years.
The heart of the adversarial justice system in the United States is the direct involvement of citizens in a structured process that peacefully resolves conflict by balancing the rights of individuals with the collective needs and responsibilities of the community. People reluctantly encounter the criminal justice system in four general categories: as defendants, victims, witnesses, and jurors. Each category shares one thing in common: almost no one volunteers or wishes to be so identified. And while the resources directed toward victims and witnesses and defendants have improved over time, a strong need persists to reexamine and refresh how we treat our community members in the contemporary court system. A new generation of lawyers should embrace that challenge, because how we treat people in our justice system is among the clearest mirrors of who we are as a community.
In 2008 Professor Dan Blinka moderated a panel at the Law School that discussed criminal plea bargaining in Wisconsin and asked about the role of victims in that process. One of the panelists, recently retired Milwaukee County District Attorney E. Michael McCann, answered a question about the victim’s role in plea negotiations and how much things had changed in his 38 years as District Attorney, by saying, “I recommend that you read an article out of the Notre Dame Law Review from about the early 1970s.”
Mr. McCann was referring to an article authored by then Milwaukee County First Assistant District Attorney Michael Ash in 1972, when Ash was only five years out of law school. On Witnesses: A Radical Critique of Criminal Court Procedures, 48 Notre Dame L. Rev. 386 (1972), was a scathing assessment by Ash that, despite longstanding calls for reform of how witnesses were treated in criminal court systems, “the witness, especially the witness in criminal courts, is more abused, more aggrieved, more neglected, and more unfairly treated than ever before.” Id. at 388 (footnote omitted).
Ash called for action and focused on seven possible areas of reform, many of which are now standard practice in court systems and district attorney offices throughout the country—and arguably others that should be. They included:
First, Ash advocated for what he called “witness’ appearance-control projects,” which emphasized reducing unnecessary court appearances by collecting demographic information that would allow witnesses to be placed on call and to come to court only when needed. He also recognized the need to provide witnesses with information in appropriate languages.
Second, he proposed the creation “witness liaison and support squads,” with dedicated specialists to act as information bridges between victims and the court process. This suggestion is now directly embodied in dedicated victim/witness advocates who work in every district attorney’s office in the country.
Third, he promoted the concept of “early screening and diversionary devices,” predicated on the idea that many of the cases presented to prosecutors for charging could be better handled by deflection to rehabilitative processes rather than the criminal court system—what is now called the “early intervention” process in the Milwaukee County District Attorney’s Office.
Fourth, this young lawyer argued for mandatory pretrial conferences between prosecutors and defense attorneys within a short time after the first appearances in court. The idea was that prosecutors would offer one-time best deals for quick acceptance of responsibility. The hope was to dramatically reduce the number of appearances by witnesses and victims in overcrowded trial dockets.
Finally (in this list), Ash argued for justly compensatory witness fees and creating facilities for the comfort and convenience of the witnesses and victims—what we would now refer to as witness waiting rooms.
Michael Ash’s analysis, critique, and call for action came at a unique and opportune time. The Federal Law Enforcement Assistance Administration (LEAA) focused on the conditions of witnesses in the criminal courts around the country in the early to mid-1970s. Influenced by Ash’s article, LEAA funded the first victim/witness pilot programs in the district attorney’s offices in Brooklyn and Milwaukee. Titled “Project Turnaround,” the express purpose of the funding was to create model assistance programs for victims, encourage victim cooperation, and improve prosecution.
Like most great ideas that catch fire, Mike’s focus was a confluence of factors, and it still needed someone with passion and drive to make the abstract a reality. Here, Mike Ash’s great idea was blessed not just by the confluence with LEAA but by a friendship formed at Marquette University.
In 1975, Jo Kolanda, a Marquette University graduate and a social worker in the Milwaukee County welfare department, heard about Project Turnaround from Ash, who encouraged her to apply but recused himself from the hiring process because of their friendship. In her 2002 oral history interview, Kolanda recounted her experience forming the first victim-coordinator program in the country. She related the challenges that she initially experienced in piercing the courthouse culture that centered around the judges and the attorneys—but not the people brought into that environment.
Kolanda’s perseverance paid off because when the three-year demonstration project ended, she had objectively demonstrated the value of the program, which Milwaukee County adopted at the urging of District Attorney McCann. Her contribution was not finished there. In 1980, she and others convinced the Wisconsin Legislature to pass the country’s first statutory crime victim bill of rights—what is now Chapter 950 of the Wisconsin Statutes.
The success of the Milwaukee and Brooklyn projects led to widespread adoption of the concept of dedicated victim/witness assets within district attorney’s offices in the country. The focus on the citizen has led to a gradual evolution in improving conditions and services for witnesses that continues to this day.
Recent examples of continued innovation from the Milwaukee District Attorney’s Office include the creation of the first restorative justice component in a DA’s office in the 1990s; the development of an in-house dedicated witness-protection program in 2008 to address intimidation and dissuasion of crime witnesses and victims; and helping envision and advocate for the creation of the Sojourner Family Peace Center, with comprehensive services for victims in a dedicated facility devoted to therapeutic intervention. And arguably the state’s adoption of Marsy’s Law into a constitutional protection is an extension of the work pioneered by Ash and Kolanda in the ’70s.
I started by saying that Marquette played an outsized role in changing how victims are treated in the country. A core value of a Jesuit education is aspiring to uplift human dignity and being a courageous voice for the powerless, the oppressed, and the dispossessed. Michael Ash was a polio survivor. He lost the use of his legs when he was a sophomore at Marquette University High School but fought his way back to graduate as his class president and then to graduate from Marquette University and, thereafter, from Harvard Law School. Jo Kolanda was a single mother who graduated from Marquette University and was working as a social worker in Milwaukee County’s welfare department when she got the call from Mike.
Treating people with dignity and compassion was not an abstraction for either; it was a core part of their identity and values they advanced with humility and courage. The network of relationships that Marquette undergraduates and Marquette law students make is not just a transactional advantage. It is a recognition that your friend, your colleague, your alum shares your calling to devote a part of his or her life to making communities better.
If Ash and Kolanda were here today and spent a day in the Milwaukee County Circuit Court, they would see some of the same challenges they saw in the late 1960s and early 1970s. But they would also acknowledge (modestly, because they were profoundly humble, generous people) that their vision for change had an impact, even if their contribution is mostly hidden, forgotten, or taken for granted today. They should be remembered and uplifted as models of young professionals, one a new lawyer and one a new social worker—who overcame challenges in their personal lives, and perhaps because of those challenges, helped make the quality of justice better for millions.
