Judges & Judicial Process – Page 15 – Marquette University Law School Faculty Blog

Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

Post author:Nora Demleitner
Post published:November 22, 2016
Post category:Criminal Law & Process Federal Sentencing Judges & Judicial Process Public

My recent article, “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” examines judicial decisions that reflect an increasing dissatisfaction with harsh criminal penalties and severe collateral consequences for nonviolent offenders. Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

A full copy of the article can be downloaded at the New York University Law Review Online.

Nora Demleitner is the 2016 Boden Visiting Professor at Marquette University Law School.

ACS Panel Explains Voting Rights Litigation in Wisconsin

Post author:Edward A. Fallone
Post published:October 21, 2016
Post category:Civil Rights Constitutional Interpretation Constitutional Law Election Law Judges & Judicial Process Marquette Law School Political Processes & Rhetoric Public Speakers at Marquette Wisconsin Law & Legal System

On October 20, I had the honor of moderating a panel discussion at the Law School devoted to Voting Rights Litigation in Wisconsin. The event was co-sponsored by the Marquette University Law School Student Chapter of the American Constitution Society and the Milwaukee Chapter of the American Constitution Society (ACS). A crowd of approximately 60 persons witnessed a lively presentation on the right to vote under the U.S. Constitution, recent legislation in Wisconsin that places burdens on the ability of some people to vote in our State, and the status of litigation in the federal courts challenging these state laws.

The event began with a welcome from the Chair of the Milwaukee Chapter of the ACS, Attorney Craig Mastantuono. Attorney Mastantuono began with a description of the mission of the American Constitution Society and the benefits of membership. He also noted the excellent timing of the day’s event, given the attention currently being given to the integrity of the American voting system. Then Attorney Mastantuono introduced the Mayor of Milwaukee, the Honorable Tom Barrett.

Mayor Barrett began his remarks by providing the Marquette University law students in attendance with a bit of career advice: namely, the importance of being nice to your colleagues in the workplace. Turning to topic of the federal judiciary, Mayor Barrett criticized lawmakers who impose litmus tests on judicial appointees, in a misguided attempt to ensure that there is “only one type of thinking in our court system.” Mayor Barrett also expressed his disappointment in the fact that Wisconsin is no longer a national leader in ensuring access to the ballot, and criticized recent state laws that have made it more difficult to vote in the City of Milwaukee. Finally, while he touted the benefits of early voting as a means of improving ballot access, the Mayor explained that there are limits to the City’s ability to expand the early voting process due to the City’s interest in maintaining a well-administered voting process.

What Happens if Trump Drops Out?

Post author:Edward A. Fallone
Post published:October 8, 2016
Post category:Constitutional Law Election Law Judges & Judicial Process Political Processes & Rhetoric Public U.S. Supreme Court

What happens if Donald Trump drops out of the presidential race? Some Republican politicians have begun to call on Mr. Trump to step down as the Republican nominee for President (he cannot be forced out). If this happens, the Republican Party would then select a new nominee for President.

It might be conceivable for Donald Trump to voluntarily step down, and for the Republican Party to select an alternative nominee. However, the real issue is whether the name of the alternative nominee would appear on the ballots of a sufficient number of states to permit an Electoral College victory. At this late date in the election cycle, the names of presidential candidates on absentee ballots have already been finalized in many states. In fact, early absentee voting using the final ballots already is underway in Wisconsin and many other states such as California, Ohio and Indiana. Every day, more state deadlines for placing names on the ballot pass, and it is probably already too late to prevent Donald Trump’s name from appearing as the Republican nominee on a majority of the ballots used by states across the country. To get state officials to print new ballots and then allow re-voting of ballots already turned in would require 1) litigation in state courts across the country and 2) the willingness of a large number of these state court judges to adopt an unprecedented procedure based upon vague “emergency” arguments. Such a high stakes multi-state litigation effort would make the combative Bush v. Gore lawsuit look like a law school moot court competition in comparison.

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