Criminal Law & Process – Page 152 – Marquette University Law School Faculty Blog

Favorite Wisconsin Cases to Teach: State v. Stewart

Post author:Michael M. O'Hear
Post published:February 26, 2009
Post category:Criminal Law & Process Wisconsin Criminal Law & Process Wisconsin Supreme Court

Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee. Three men approach. Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside. They block Kodanko’s exit from the shelter. Stewart says to Kodanko, “Give us some change, man.” When Kodanko refuses, Stewart repeats his request three or four time in an increasingly loud voice. Stewart then begins to reach into his coat. Moore says, “Put that gun away.” At the same time, Levy enters the shelter and tells his companions, “Let’s go.” The three of them enter a restaurant across the street. Moore returns a few minutes later to make small talk with Kodanko. In due course, the police arrest Stewart for attempted robbery. But was it really a robbery attempt, or just aggressive panhandling?

This is the subject of State v. Stewart, 420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course. The case resonates with me on several different levels.

Seventh Circuit Week in Review: Terrible Tragedy=Maximum Sentence?

Post author:Michael M. O'Hear
Post published:February 22, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit had four new opinions in criminal cases last week. The court did not break new ground in any of them, but one raises some interesting sentencing issues. I’ll first discuss that case, United States v. Wise (No. 08-2794), and then briefly summarize the other three, which dealt with the definition of “crack cocaine,” disparity in the sentencing of codefendants, and the constitutionality of a gun possession statute, respectively.

First, the Wise case arose out of terrible tragedy. Wise left a loaded firearm on a window ledge in his girlfrend’s apartment, where it could be reached by children. You can already guess where this is headed: a four-year old left unattended in the room for a few minutes picked up the gun, the gun discharged, and a two-year old was killed. Wise was charged in Illinois state court with reckless endangerment of a child resulting in the child’s death. Wise, however, was a felon, and so his possession of the firearm was a federal crime, too. State charges were apparently dropped, as federal prosecutors charged Wise with the gun possession crime. Wise pled guilty. The sentencing judge decided to sentence Wise above the recommended sentencing guidelines range and give Wise the maximum, ten years. Wise challenged his sentence on appeal, and the Seventh Circuit (per Judge Evans) affirmed.

Meares on Race and Policing

Post author:Michael M. O'Hear
Post published:February 20, 2009
Post category:Criminal Law & Process Race & Law Speakers at Marquette

In delivering the first annual Barrock Lecture on Criminal Law yesterday, Yale Professor Tracey Meares set a high bar for future speakers. (A webcast is available here, and a written version will appear in the summer issue of the Marquette Law Review.) Tracey’s talk was a call for police to move from an emphasis on deterring crime through the threat of harsh punishment to a more holistic approach to crime control that includes promoting more positive attitudes towards the law and legal authorities. She identified procedural justice — basically, treating people with fairness and respect — as an important component of the more holistic strategy. Her particular concern lies with crime and policing in inner-city, minority neighborhoods, where punishment-alone approaches have resulted in shockingly high incarceration rates among young, poorly educated, African-American men. Tracey argues that an approach combining punishment with procedural justice offers better prospects for reducing crime and improving the quality of life in these difficult environments, and points to her own work with Project Safe Neighborhoods in Chicago as an example of the violence-reduction that can be accomplished when the police engage with the community in new ways.

I recently made a similar argument that the same sorts of benefits might be derived from prosecutors paying more attention to procedural justice in plea bargaining. (A copy of my article is available here.)

As Tracey indicated in her talk, there is plenty of evidence indicating that deterrence has limited value as a crime-control strategy.