Wisconsin Prisoners, c. 1960

As part of my ongoing research into the origins of mass incarceration, I’ve been spending some quality time recently with a voluminous, fifty-year-old government report by the Federal Bureau of Prisons, Characteristics of State Prisoners, 1960.  This was a once-a-decade production by the BOP in those days, and it contains a wealth of information.

I find it fascinating to have this window into 1960, for at that time — unbeknownst to the report’s authors, of course — everything in American criminal justice was just about to change forever.  In fact, crime was already on the rise in the Northeast United States, foreshadowing a nationwide swell of violence that would continue to gather force until well into the 1970′s.  Even today, we have yet to return to the historically low levels of criminal violence of the mid-twentieth century.  And then, on the heels of the crime wave, came the great imprisonment boom — a period of unprecedented growth in American incarceration that began in about 1975 and continued uninterrupted for more than three decades.

Yes, it is easy to imagine 1960 as a more innocent time!

Using the state breakdowns from the 1960 report, I’ve drawn some comparisons between the Wisconsin of then and now:  

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The Cop on My Porch

On December 1st, the Azana Salon and Spa in Brookfield reopens for business. Unless you have been out of the country for the last five weeks, you no doubt know that the salon was the scene of a mass shooting on October 21, 2012. A gunman entered the building and killed three women, including his wife, who was a salon employee. He wounded four other women and then killed himself. The shooter’s wife had recently obtained a temporary restraining order against him after numerous domestic violence incidents including, according to the Milwaukee Journal-Sentinel, an incident where the shooter slashed his wife’s tires in the spa parking lot.

Domestic violence has always been a devilishly difficult crime to prevent or prosecute. Abusers tend to be controlling and manipulative, and the visible physical injuries they inflict often pale by comparison to the emotional injuries. Victims are often psychologically abused and controlled to the point that they may feel responsible for the attacks, and they often stay in their relationships hoping for change in their partners. Abused women—and it is most often women—are afraid to leave their abusers and rightfully so. The time immediately after a woman leaves is the most dangerous time, since the abusers often succumb to rage and the need to control their victims. This may cause them to escalate the violence, and while Zina Houghton’s death is tragic, it is sadly not unusual for a battered woman to die at the hands of her abuser.

This tragedy reminded me of an experience I had last spring. The doorbell rang at 8 o’clock one night, and I flipped on the porch light so as to peer out before opening the door. A uniformed police officer was standing on my porch. This is almost never a good thing.

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Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. The purpose of this post, and of the series of which it is a part, is to identify and examine such anomalies in an effort to acquaint readers with the metes and bounds of Federal Indian Law, while shedding some light on the origins and perhaps the future of this unique legal realm.

The prior post examined one such anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. In this, the second installment in the series, another topic of significant contemporary interest will be surveyed. This is the oddly diminished character of Indian tribal sovereignty and, in particular, the extent to which tribes, in their own territories, lack criminal and civil authority over non-Indians or non-tribal members.

The capacity to enact and enforce laws is, of course, one of the hallmarks of sovereignty within the Western political tradition. This includes both criminal laws and civil laws, the latter often being divided into powers of regulation, taxation, and adjudication. It is typically accepted, moreover, that the reach of a sovereign’s laws extends along two axes: citizenship and territory. That is, the sovereign has the authority to govern not only its citizens but also all others who enter its territory. Thus, for example, inquiries into the jurisdiction of courts over a person or his property ordinarily entail an examination of the person’s citizenship and/or the relationship between the person’s conduct or property and the territory of the sovereign to which the courts belong.

In recent decades, however, Indian tribal sovereignty has increasingly been confined to a single axis—that of citizenship—leaving tribes largely powerless to enforce their laws against non-Indians who, within the tribe’s territory, commit criminal conduct or engage in activities that would normally be susceptible to regulation, taxation, or adjudication. Perhaps surprisingly, the institution primarily responsible for this diminishing conception of tribal sovereignty is not Congress, which the Supreme Court has repeatedly described as having “plenary power” over Indian affairs, but rather the Court itself.

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