“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”
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.
New research highlights the importance of friends in determining whether returning prisoners will commit new crimes. A considerable body of prior research has demonstrated the importance of family relationships to the returning prisoner, but a new study John Boman and Thomas Mowen suggests that peer relationships may exert an even greater influence over success or failure.
Boman and Mowen collected data on a sample of 625 serious and violent male offenders, including their self-reported substance abuse and new criminal activity over a fifteen-month period after release from prison. The data also included the offenders’ assessment of their family support and the criminal histories of their closest friends.
Somewhat lost amidst the wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined. The August 30 grants, however, had special significance for me and a small group of recent Marquette Law School graduates.
Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Reinforcing the negative perceptions, President Bill Clinton’s pardon of financier Marc Rich and President George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby seemed to confirm that clemency was mostly used to benefit wealthy, powerful defendants.
When he was a graduate student at the University of Wisconsin-Madison, Matthew Desmond searched for research on the impact of evictions on low-income people. He found close to nothing written by academics, policy makers, or journalists.
No more. Almost a decade later, Desmond has written a book that is already attracting major attention nationwide and changing the conversation about evictions and related housing issues for low-income people.
The book, which was officially released on Tuesday, is set in Milwaukee and is based on Desmond’s emersion in the lives of renters and landlords in 2008 and 2009 and on his research into tens of thousands of records on evictions.
While in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction. 559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.
Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.
The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence. Continue reading “Wisconsin’s Narrow Interpretation of Padilla v. Kentucky”
I was surprised to learn recently from an Irish law professor that Ireland gave its prisoners the right to vote in 2006. Felon disenfranchisement is such a pervasive fact of life in the United States that many Americans might assume, as I did, that this is the accepted practice everywhere. This turns out not to be the case. Ireland is hardly alone, even among the common-law countries, in giving prisoners the right to vote, although the case of Ireland may be unusual in that its legislature acted in the absence of a court directive. Canada and South Africa, by contrast, required court rulings before their prisoners were enfranchised. The Irish story is nicely recounted in an article by Cormac Behan and Ian O’Donnell: “Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility,” 48 Brit. J. Criminology 319 (2008).
My practice is nearly exclusively a criminal appellate practice, and it’s been that way for almost 10 years. Being a one-trick pony, I can’t help but think about legal issues in the news in the context of an imaginary appeal. Of course, recently the news was flooded with stories about the Boston Marathon bombing. The issue that grabbed my interest the most was all of the talk centered on not informing captured suspect Dzhokhar Tsarnaev his Miranda rights pursuant to the public safety exception.
The idea behind the public safety exception makes sense: gathering information from a suspect to ward off an immediate threat. The exception was originally created nearly 20 years ago, but in the past 10 years or so, has become stretched (some say past recognition) to deal with terrorist threats. But that’s neither here nor there — the public safety exception and the suppression of evidence obtained from it is a trial lawyer’s concern.
First, told or not told, Tsarnaev has all of the same rights every American citizen has, including the right to remain silent and the right to an attorney. In this era of cop and robbers television (“Law & Order” in all its various forms has been on the air for 23 years), it seems self-evident that a person has those rights. But still, whether he knows he has those rights or not, the government has an obligation to inform a suspect he has them. But what happens when the defense persuades a court that law enforcement interrogated a person in violation of Miranda? That evidence is suppressed and so are the fruits of it. This is the part that really interests the appellate lawyer in me, because the question I keep coming back to here, is: so what?
If any of the news reports are to be believed, and obviously those outside of the parties won’t know until the trial, if there is one, the government has built a relatively strong case against Tsarnaev without his help. So even if some of his statements are suppressed, it doesn’t really matter because the government will still have plenty of evidence to go around. Presumably, the people who did the interrogating had a really good sense of what evidence they already had against him. Perhaps, sure in its case (even though the investigation was in the infancy), the government opted to question Tsarnaev and ask him everything it could think of. Worst case scenario, some cumulative evidence gets suppressed. Continue reading “The Boston Case: Moving the Line on the Public Safety Exception”
The Bureau of Justice Statistics has released the latest installment in its annual series on imprisonment in the United States, Prisoners in 2011. The BJS report is a treasure trove of data, but what does it all add up to? The authors make clear from the start what they see as the lead “story” in the numbers:
During 2011, the number of prisoners under the jurisdiction of state and federal correctional authorities declined by 0.9%, from 1,613,803 to 1,598,780. This decline represented the second consecutive year the prison population in the United States decreased.
As one reads on, however, it becomes clear that this declining prison population story is really just a California story. Over calendar year 2011, California’s prison population dropped by 15,493 inmates. During that same time, the overall U.S. drop was 15,023. Absent California, then, the real national story is one of stability in imprisonment, not decline.
The function of the penal institutions is protection of society. To this end all efforts must be bent and all administrative methods be adapted. All judgment upon the functioning of our prison system, or any unit within in, must be in terms of protection of society. This raises the question of how penal institutions can best contribute to this objective. There seems but one answer possible — by the reformation of the criminal. Nearly all prisoners, even within the longterm institutions, are ultimately released. . . . Unless these prisoners are so readjusted before release that they are more likely to be law-abiding citizens than before they were arrested and sentenced, then the prison has not served its purpose. If the prison experience not merely fails to improve the character of the inmate but actually contributes to his deterioration; if, as is charged, our prisons turn the less hardened into more hardened criminals, then the prison has not only failed in its duty to protect society but has in turn become a contributor to the increase of crime within the community. Stated positively, it is the function of the prison to find the means so to reshape the interests, attitudes, habits, the total character of the individual so as to release him both competent and willing to find a way of adjusting himself to the community without further law violations. (6-7)
Under O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), prison officials may restrict inmates’ religious practices, but such restrictions are constitutionally limited to those that reasonably relate to legitimate penological objectives. The Religious Land Use and Institutionalized Persons Act offers additional, statutory protections. But talk of a religious practice normally conjures up the image of an organized religious group acting pursuant to shared beliefs. What are we to make of an inmate who seeks an accommodation based on an indiosyncratic “religious” belief that is not actually espoused by his or her sect? Must an inmate’s belief be officially supported by an organized religious group in order to receive legal protection?
Choosing form over substance, the Seventh Circuit ruled earlier this week that dismissals of a prison inmate’s repeated “unintelligible” complaints do not count as strikes under the Prison Litigation Reform Act, even though the cases should have been dismissed with prejudice for failure to state a claim. Paul v. Marberry (No. 10-3670). The PLRA requires prepayment of all filing and docket fees by inmate-plaintiffs who have three strikes — a requirement that may effectively doom lawsuits by indigent inmates. The PLRA specifies that a strike should be assigned for each action brought by an inmate that was dismissed for failure to state a claim.
Paul filed a series of complaints, each of which was initially dismissed without prejudice under FRCP 8(a)(2) for failure to provide a “short plain statement of the claim showing that the pleader is entitled to relief.” In none of the cases did Paul take advantage of the opportunity to file a new complaint in compliance with the rule. The district court then dimissed each case for failure to prosecute. Paul finally obtained the assistance of a fellow inmate who had better drafting skills and managed to file a complaint that did state a claim. However, the district court dismissed the new complaint based on the PLRA three-strikes rule and Paul’s failure to prepay his fees.
On appeal, the Seventh Circuit indicated that the earlier cases should have been dismissed for failure to state a claim instead failure to prosecute (5). But, given that the dismissal orders nowhere used strike-triggering language, the court held that they should not be counted against Paul:
[W]e think the plaintiff was entitled to take the previous dismissals at face value, and since none of them was based on any of the grounds specified in section 1915(g), to infer that he was not incurring strikes by the repeated dismissals. The statute is explicit, and the case law confirms, . . . that classifying a dismissal as a strike depends on the grounds given for it; since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. (7-8)