Who Are the Old Folks in Prison? Part II

Posted on Categories Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment» on Who Are the Old Folks in Prison? Part II

An image of a prison guard towerAs discussed in Part I, I have gathered data on the Wisconsin prison inmates who are 70 or older. Out of an initial set of 299 inmates, I selected a representative subset of 100 in order to take a closer look at the inmates’ most recent convictions. Thirty-eight of the 100 were convicted of more than one offense in their most recent felony cases. In these cases, I focused only on the conviction that resulted in the longest sentence[1].

In reviewing the offenses of conviction, what stands out most starkly is the prevalence of sexual offenses.  Continue reading “Who Are the Old Folks in Prison? Part II”

Who Are the Old Folks in Prison? Part I

Posted on Categories Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment» on Who Are the Old Folks in Prison? Part I

An image of a prison guard towerNationally, the number of senior citizens in prison has grown dramatically in recent years. In Wisconsin, for instance, the number of prisoners aged 60 or older grew from just 202 (or 1.2 percent of the total) in 2000 to 1,231 (5.4 percent) by the end of 2016. Such increases should be of public concern for a number of reasons, including the exceptionally high costs of incarcerating the elderly. To a great extent, these costs are related to the prevalence of chronic illnesses and physical and mental disabilities among older inmates. One national study estimated that the average cost of imprisoning a senior is about twice the overall average. In general, it is less costly to manage chronic health problems in the community than in prisons, which are not designed to function as assisted living facilities, and which tend to be located in rural areas at some distance from specialized treatment providers.

Fiscal and humanitarian concerns alike have sparked considerable interest in recent years in “compassionate release” and other mechanisms that might hasten the return of elderly prisoners to the community. On the other hand, there are also countervailing concerns that early release might endanger the public or depreciate the seriousness of the underlying criminal offenses. On both sides of the debate, there seems a tendency to rely on unexamined stereotypes about who the old folks in prison are—the frail, harmless grandparent serving an excessively harsh sentence for a long-ago offense, versus the confirmed predator whose dangerousness can never be fully erased by age.

In order to develop a clearer picture of this population, and with the help of two diligent research assistants[1], I set out to gather some data on the Wisconsin prisoners who are aged 70 or older.  Continue reading “Who Are the Old Folks in Prison? Part I”

Racial Discrimination in Wisconsin Jury Pool Practices

Posted on Categories Alumni Contributor, Civil Rights, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Poverty & Law, Prisoner Rights, Public, Race & Law, Wisconsin Criminal Law & Process1 Comment on Racial Discrimination in Wisconsin Jury Pool Practices
A courtroom is filled with women dressed in long black dresses and wearing hats.
Crowd of women register for jury duty after gaining the right to vote, Portland, Oregon, 1912.

“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)

As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant.  The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.

Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population

The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants. Continue reading “Racial Discrimination in Wisconsin Jury Pool Practices”

New Book on Sentencing and Corrections

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Legal Scholarship, Marquette Law School, Prisoner Rights, Public, Race & LawLeave a comment» on New Book on Sentencing and Corrections

I am pleased to report that my latest book, Prisons and Punishment in America: Examining the Facts, is now in print. Structured as a series of questions and answers, the book synthesizes the law and social science on sentencing, corrections, and prisoner reentry. Individual chapters cover:

  • Sentencing law and practice
  • Alternatives to incarceration
  • Experience and consequences of incarceration
  • Release and life after prison
  • Women, juveniles, and other special offender populations
  • Causes and significance of mass incarceration in the U.S.
  • Race, ethnicity, and punishment
  • Public opinion, politics, and reform

The book is intended to be accessible to readers who do not have training in law or social science, but I also hope that there are some aspects of the book that will be of interest even to those who are already quite familiar with the workings of the criminal justice system.

More Help Urged for Those Making “Re-entry” from Incarceration

Posted on Categories Criminal Law & Process, Marquette Law School Poll, Public, Speakers at Marquette, Wisconsin Criminal Law & Process2 Comments on More Help Urged for Those Making “Re-entry” from Incarceration

“When does the sentence end?“  Albert Holmes says he often faces that question as he works to help people who have been released from incarceration and who are re-entering the general community.

Holmes, president and CEO of My Father’s House, was one of the speakers Thursday, Oct. 4, at a conference at Marquette Law School that focused on what can be done to provide paths for more people in those situations to establish stable lives.

The conference, “Racial Inequality, Poverty, and Criminal Justice,” drew an audience that included two Wisconsin Supreme Court justices, several circuit judges, prosecutors (including Milwaukee County District Attorney John Chisholm),  defense attorneys, and many who work in agencies that try to help those getting out of prison or jail or who are advocates on issues involved with the subject.   Continue reading “More Help Urged for Those Making “Re-entry” from Incarceration”

Violent Crime Versus Property Crime: Law School Poll Reveals Notable Differences in Public Opinion

Posted on Categories Criminal Law & Process, Marquette Law School Poll, Public, Wisconsin Criminal Law & Process1 Comment on Violent Crime Versus Property Crime: Law School Poll Reveals Notable Differences in Public Opinion

Public opinion polls typically find a preference for tougher treatment of defendants in the criminal-justice system. However, few polls attempt to disaggregate types of crime. When laypeople are asked what they think should be done with “criminals,” their responses are likely based on the relatively unusual violent and sexual offenses that dominate media coverage of crime. However, punitive attitudes toward such offenses may not necessarily indicate that similar attitudes prevail more generally.

In order to develop a better understanding of the extent to which public attitudes differ based on crime type, I collaborated with Professor Darren Wheelock of the Marquette Social and Cultural Sciences Department on a set of questions in the most recent Marquette Law School Poll. Rather than asking respondents about crime in general, we posed questions regarding violent crime and property crime. Our results were consistent with the expectation that members of the public see these two types of crime in a rather different light.

Continue reading “Violent Crime Versus Property Crime: Law School Poll Reveals Notable Differences in Public Opinion”

Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs

Posted on Categories Civil Rights, Constitutional Law, Criminal Law & Process, Human Rights, Milwaukee, Public, Race & Law, Student ContributorLeave a comment» on Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Andrea Jahimiak.

On February 22, 2017, six individuals who identify as either Black or Latino filed a class‑action lawsuit against the City of Milwaukee, the Milwaukee Fire and Police Commission (“FPC”), and Police Chief Edward Flynn. The plaintiffs allege that their constitutional rights were violated when they were unlawfully stopped, frisked, or both, by Milwaukee Police Department (“MPD”) officers.

Together, the plaintiffs are seeking relief by way of the court: (1) declaring that the defendants’ stop and frisk policies, practices, and customs are unconstitutional; and, (2) ordering immediate and permanent suspension of such policies, practices, and customs.

Allegation of a Named Plaintiff

One of the plaintiffs alleged that her teenage son has been unlawfully stopped by an MPD officer on at least three occasions. The first unlawful stop took place when he was ten years old.

Around noon in October 2010, D.A. walked to his friend’s home. When D.A. arrived at his friend’s home, he rang the doorbell, but no one answered. D.A. then used his cellphone to call his friend.

While on the phone, an MPD officer walked up to D.A., put his arms around D.A. shoulder’s and walked D.A. to his squad car located in the nearby alley. The officer then forcibly removed D.A.’s phone from him, patted him down, and made D.A. put his hands on the hood of the squad car.

The father of D.A.’s friend, a white male, ran out of the home. The father immediately asked the officer what was going on and asked why he was searching a child. The officer replied that he was making sure nothing was wrong. The officer then left.

D.A.’s mother called the associated MPD district and spoke to the sergeant. D.A.’s mother demanded to know why a police officer stopped and frisked her ten-year-old son. The sergeant said that it was MPD policy to stop and frisk young men walking through alleys.

Expert Reports Confirming MPD

Almost a year after filing suit, the ACLU of Wisconsin released three expert reports regarding the MPD’s stop and frisk policies, practices, and customs. The expert reports were conducted in relation to the ongoing class‑action lawsuit.

The expert reports concluded that the MPD has unconstitutional policies, practices, and customs. And that MPD officers routinely conduct unconstitutional stops and frisks procedures, motivated by race and ethnicity. Continue reading “Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs”

If You Want to Be a Defense Attorney, be a Prosecutor

Posted on Categories Criminal Law & Process, Legal Practice, Marquette Law School, Public1 Comment on If You Want to Be a Defense Attorney, be a Prosecutor

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Naomi Tovar.

As of earlier this week, I was one of the few people in law school that had never watched Making a Murderer. I did not even know what it was about. Then last night, I decided to watch the first episode. I thought it was finally time to watch the show, considering that I had recently decided the criminal law field is where I want to grow professionally.

Those decisions (to pursue criminal law and to watch the documentary) were easy. The more difficult decision I have to face, however, is whether I should be a prosecutor or a defense attorney. At first blush, the answer is simple: defense. A defense attorney protects the rights of those who, according the founding law of our country, are innocent until proven guilty. Many times, defense attorneys represent the poor, the marginalized, and the disenfranchised of our society. I came to law school to do exactly that.

Then I binged watched the first six episodes of Making a Murderer and my thoughts changed. Continue reading “If You Want to Be a Defense Attorney, be a Prosecutor”

Prominent Sociologist Spotlights Community Organizations’ Role in Crime Reduction

Posted on Categories Criminal Law & Process, Lubar Center, Milwaukee, Milwaukee Area Project, Public, Speakers at MarquetteLeave a comment» on Prominent Sociologist Spotlights Community Organizations’ Role in Crime Reduction

America’s cities overall have experienced a remarkable decline in crime that began in the 1990s and that has brought improvements in civic life in some surprising ways.

But the strategies that played a significant part in reducing crime – including stop and frisk policing and mass incarceration – are fading, and different approaches are needed to sustain safety improvements.

And the strategies that should be pursued include building up the number and resources of community organizations that serve in many different ways to increase the quality of life in neighborhoods and doing as much as possible to encourage residents to take roles in helping that quality of life.

A leading figure in American thinking on how to improve the quality of life in urban areas presented that provocative perspective at a conference at Eckstein Hall on Wednesday. Patrick Sharkey, a professor of sociology at New York University, told an audience including leaders of many Milwaukee non-profit organizations that research and data back-up his assertion that such organizations are valuable. There is “really strong evidence” to show the value of community organizations, he said. Continue reading “Prominent Sociologist Spotlights Community Organizations’ Role in Crime Reduction”

Loophole in Drunken Driving Law Should be Closed

Posted on Categories Alumni Contributor, Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment» on Loophole in Drunken Driving Law Should be Closed

An ignition interlock device (IID) is a breathalyzer installed in a vehicle that prevents a driver from operating the vehicle until first providing an adequate breath sample. In Wisconsin, an IID is required in one of three circumstances after being convicted of either Operating While Intoxicated (OWI) or Operating with a Prohibited Alcohol Concentration (PAC): the defendant is a repeat drunk driver, the defendant refused a chemical blood or breath test under Wisconsin’s implied consent law, or the defendant is a first time drunk driver and had a blood alcohol concentration (BAC) of 0.15 “at the time of the offense.” Because OWI 1st’s are not crimes in Wisconsin, defense attorneys specializing in OWI cases try to negotiate with prosecutors to stipulate that the defendant’s BAC was 0.149 to avoid the costly and cumbersome IID requirement. This arbitrary threshold creates an obvious loophole.

The state legislature should revise this language in the IID statute because its vague language is leading to ridiculous results in court and does not promote consistency in OWI cases. As a matter of syntax, the statute as its currently written is arguably ambiguous. The legislature specifically used the phrase “at the time of the offense” as opposed to “at the time of driving.” The most common interpretation (and one favored by defense attorneys) is that the word “offense” only encompasses the physical act of driving and nothing after it. However, if that is what the legislature intended, then it would have been clearly to use the word “driving” instead. Further, the current language is in clear conflict with the OWI statute that penalizes drunk driving. A second reasonable interpretation is that “offense” includes everything from the driving to when the police officer issues the citations. However, this reading appears to cast too wide a net. Continue reading “Loophole in Drunken Driving Law Should be Closed”

Restorative Justice and Clergy Abuse

Posted on Categories Criminal Law & Process, Judges & Judicial Process, Public, Religion & LawLeave a comment» on Restorative Justice and Clergy Abuse

Several people sit in chairs in a "healing circle" discussing instances of abuse by clergy.My trip to Rome in spring 2016 triggered a return visit this past November, when I again taught a segment of a certificate program addressing the Catholic sex abuse scandal.

The Pontifical Gregorian University’s Center for Child Protection offers the four-month graduate certificate program to religious sisters, brothers and priests from around the world who are assigned to head up Protection for Children offices. The program goals: to teach how to deal with past abuse and prevent further incidents.

I spent a full day with 19 students representing four continents. While there were some language barriers to overcome, the group was able to comprehend the power of Restorative Justice (“RJ) presented in different contexts — particularly its value regarding sexual abuse within the Church.

I explained how in past clergy abuse cases, it is not often possible to bring victims and offenders face-to-face in dialogue because many offenders are in denial, deceased or too old, with limited memory. We, therefore, explored the hope that RJ offers in addressing “secondary victimization” by members of the Church’s hierarchy.

Continue reading “Restorative Justice and Clergy Abuse”

Restorative Justice and the Language of Hope

Posted on Categories Criminal Law & Process, Judges & Judicial Process, PublicLeave a comment» on Restorative Justice and the Language of Hope

Professor Janine Geske standing at a podium with an open laptop as she addresses an audience in Germany.Regardless of one’s language, Restorative Justice (“RJ”) translates as hope. That was evident from my experience in Germany last October at a conference hosted by the University of Göttingen, which was titled “Victim Orientation in the Criminal Justice System: Practitioners’ Perspectives.”

I was invited to be one of the keynote presenters at the two-day conference. My presentation to the attendees — most of whom were criminal justice professionals including probation and parole agents — addressed how the United States actively uses RJ processes within the criminal justice system. Oh, and my presentation was the only one in English, with real-time translation provided in German through the marvels of headset technology.

I have become used to speaking internationally, so the language difference is not a daunting barrier for me, especially given the immediacy of RJ as an understandable concept and successful tool. I described the process and impact of victim/offender dialogue sessions in cases of violent crime and the value of restorative circles, particularly for schools and community organizations. Although Europe does not have much experience in using circles, I could tell that the conference attendees were eager to hear more about that process and about victim/offender dialogues in the context of juvenile RJ. As usual, most of my explanations were told through the stories of actual cases. I know that by describing the poignant experiences of real victims and offenders, the audience will better understand the transformational experience of an RJ process.

Continue reading “Restorative Justice and the Language of Hope”