DOJ Changes Its Mind, Seventh Circuit Does Not

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Seventh CircuitLeave a comment» on DOJ Changes Its Mind, Seventh Circuit Does Not

As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses.  In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system.  Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.

The Seventh Circuit’s position followed that of the Department of Justice.  However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity.  Additionally, three other circuits have since rejected the Seventh Circuit’s position.  In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc.  Last week, however, the court announced that the initial ruling would stand.

Continue reading “DOJ Changes Its Mind, Seventh Circuit Does Not”

Singing a September School-Start Song

Posted on Categories Education & Law, Milwaukee Public Schools, Public, Wisconsin Law & Legal System4 Comments on Singing a September School-Start Song

Thursday will be the first day of the new school year for the vast majority of public school students in Wisconsin. Why? Because that’s the law. No, not that school start on a Thursday, but that it not start earlier than September 1. And why is that? Because tourism industry leaders lobbied so hard for it.

In fact, when the law went through the legislature in the late 1990s, it was handled in the tourism committees of the Assembly and Senate, and not in the education committees, even though the subject was school calendars. I’ve always thought that said something about priorities in Wisconsin.

School opening dates in many districts had moved up over the years into late August. This was a problem, in the eyes of those in the tourism business. They said they wanted kids and parents to have the maximum opportunity to take vacations that build healthy family bonds and life-long memories. (As the song from Man of La Mancha put it, I’m only thinking of him.)  Let’s assume they also wanted to maximize their summer season and hold on to their high school student employees longer.

So, since 2000, state law 118.045 has specified “no public school may commence the school term until September 1.”   Athletic contests are exempted, as are in-service days for staff (which is why most teachers went back to work Tuesday or so).  Schools on so-called year-round calendars (which mean they take  shorter summer breaks but have the same total of school days) are exempt. And other schools that convince the state Department of Public Instruction there are “extraordinary reasons” may be granted exceptions. In Milwaukee, that includes several schools that have International Baccalaureate programs that call for starting in August. Private schools and higher-education institutions are not included in the law.

Continue reading “Singing a September School-Start Song”

Divorce Is for the Masses

Posted on Categories Family Law, PublicLeave a comment» on Divorce Is for the Masses

Americans continue to divorce at a high rate, but divorce rates have gotten smaller in recent years.  This is especially true for the professional/managerial class.  According to a study by the National Marriage Project at the University of Virginia, only 11% of college-educated Americans are now divorcing within the first 10 years of marriage, compared with almost 37% for the rest of the population.  It appears that college–educated Americans, who in general are more politically and socially liberal, are developing a greater commitment to getting and staying married.

This trend has economic ramifications and, in particular, contributes to growing disparities in wealth distribution.  In this day and age, both husband and wife are likely to work for pay outside the home, and two-income households are usually better off than single-income households.  It’s further proof, I guess, of the way the private family sphere is always intertwined within the public market sphere.

For more discussion of the topic, see Pamela Paul, “How Divorce Lost Its Cachet,” New York Times, 17 June ’11, Styles 1:


Seventh Circuit Rejects Retroactivity for Padilla

Posted on Categories Circuit Splits, Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on Seventh Circuit Rejects Retroactivity for Padilla

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that a lawyer provides ineffective assistance of counsel by failing to inform a client of the deportation risks that result from a guilty plea.  However, the Court did not clearly indicate whether its holding must be applied retroactively to cases on collateral review, leaving the lower courts to sort out the mess.  A handful of district courts have already split on this issue.  Now, with the Seventh Circuit’s ruling last week in Chaidez v. United States (No. 10-3623), the circuits are also split.  A divided panel in Chaidez rejected both retroactivity and the Third Circuit’s reasoning to the contrary in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011).

As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely provided an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984).  Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity).  Here is how the Chaidez majority characterized the law:

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Fukushima and the Law of the Sea (Part I)

Posted on Categories Environmental Law, International Law & Diplomacy, PublicLeave a comment» on Fukushima and the Law of the Sea (Part I)

Two days ago, Japan’s nuclear regulatory agency disclosed estimates of the volume of radioactive material that has escaped from the Fukushima reactor complex since the March earthquake and tsunami. The agency estimates that the emitted volume of radioactive cesium is approximately 168 times higher than that of the atomic bomb dropped on Hiroshima at the end of WWII, and that the volumes of radioactive iodine and strontium are approximately 2.5 times higher. All are linked to cancer, and the cesium and strontium isotopes can persist in the environment for decades.

The estimates are truly alarming. Some have argued that the impact on humans will be limited because the vast majority of the material has fallen or leaked into the ocean, where it will disperse and substantially dilute. But dilution is not a great reassurance. Given the extended half-lives of some of these materials, there is reasonable concern that radiation from Fukushima will damage marine habitats for years and, in turn, harm the citizens of Japan and other proximate countries. Continue reading “Fukushima and the Law of the Sea (Part I)”

Does Marijuana Possession Equal Child Neglect?

Posted on Categories Family Law, Public3 Comments on Does Marijuana Possession Equal Child Neglect?

According to a recent NewYork Times article, many New York parents who have been caught with marijuana or who have admitted using it have found themselves charged with child neglect and have even, in some cases, lost custody of their children.  In many of these cases, the amounts of marijuana in question have been too small to bring even misdemeanor charges against the parents for possession.  Nevertheless, the parents have been deemed neglectful and their children have been removed by child protective services, which have placed the kids in foster care for days, weeks or months.

These cases illustrate one of the most difficult problems in child protection law: how do we define what is “good enough” parenting, and what is child abuse or child neglect? Continue reading “Does Marijuana Possession Equal Child Neglect?”

Why Confess?

Posted on Categories Criminal Law & Process, Legal Scholarship, Public1 Comment on Why Confess?

Why do suspects confess to the police? Researchers Allison Redlich, Richard Kulish, and Henry Steadman set out to answer this question by interviewing 65 jail inmates who had confessed, slightly more than half of whom claimed to have falsely confessed. The results are reported in their new article “Comparing True and False Confessions Among Persons With Serious Mental Illness,” 17 Psych., Pub. Pol’y, & L. 394 (2011). As the title indicates, the researchers were particularly interested in individuals with serious mental illness, which is a group that has been identified in the literature as especially likely to confess.

What I found most intriguing about the results was the importance of “internal pressure” as a motivation for confessing. This refers to feelings of guilt about the crime, a desire to “get it off one’s chest,” and a belief in the importance of honesty. Among the “true confessors,” guilt/honesty-type answers were the most common when the interviewer asked the open-ended question, “Tell me in your own words, why you confessed?” (403) (Not surprisingly, almost none of the ”false confessors” cited such reasons.) By contrast, “external pressure” (e.g., bullying by the police) was rarely cited by either true or false confessors. (The most common reason given for false confessions was a desire to protect someone else.)

Similarly, when subjects were asked to rate various suggested motivations on a seven-point scale (1 was “not at all” a reason to confess, and 7 was “very much so”), the true confessors rated guilty feelings as among the more important, with an average score of 3.52. (407)  Continue reading “Why Confess?”

Baseball Hall of Fame Dedicates Selig Center for Archives of MLB Commissioners

Posted on Categories Marquette Law School History, Public, Sports & LawLeave a comment» on Baseball Hall of Fame Dedicates Selig Center for Archives of MLB Commissioners

On August 17th, the National Baseball Hall of Fame and Museum in Cooperstown, New York, dedicated the Allan H. “Bud” Selig Center for the Archives of Major League Baseball Commissioners. Commissioner Selig is a member of the Law School’s adjunct faculty, holding the title of Distinguished Lecturer in Sports Law and Policy; he and I co-teach Professional Sports Law. Considering the many things he has done to advance the game of baseball during his nineteen-year tenure as commissioner (both interim and permanent) and as the owner of the Milwaukee Brewers for more than three decades, I believe this is a very appropriate and well deserved tribute to Commissioner Selig.

“The Selig Center for the Archives of Major League Baseball Commissioners will ensure a permanent home for the documentation and preservation of the Office of the Commissioner’s contributions to baseball history,” said Jane Forbes Clark, Chairman of the National Baseball Hall of Fame and Museum’s Board of Directors. “This archive will provide a central location for the study and research of the importance of the Office of the Commissioner, and its role in shaping and advancing the National Pastime for nearly a century.” Continue reading “Baseball Hall of Fame Dedicates Selig Center for Archives of MLB Commissioners”

Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel

Posted on Categories Criminal Law & Process, Public, Race & Law, Seventh CircuitLeave a comment» on Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel

A defendant’s right to reasonably competent legal representation is violated when the defendant’s lawyer discriminates on the basis of gender during jury selection, the Seventh Circuit ruled last week inWinston v. Boatwright (No. 10-1156).  The court’s reasoning would presumably apply equally to racial discrimination.  However, because of the peculiarities of federal habeas law, the particular defendant who presented the claim in Winston was unable to obtain any relief.

Here’s what happened.  Winston was charged with sexual assault of a fifteen-year-old girl and convicted by an all-woman jury.  His lawyer had used his seven peremptory strikes to remove six men and one woman from the jury.  As Winston’s post-conviction counsel later discovered, the trial lawyer struck the male jurors because he thought that females would be more critical of the victim.

Apart from the fact that such gender discrimination is illegal, trial counsel’s strategy may actually have been a good one.  Indeed, the jury acquitted Winston of an intercourse charge.

No matter, the Seventh Circuit ruled.  Competent counsel (in the constitutional sense) does not discriminate against men in the exercise of peremptory strikes.  Period.

Continue reading “Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel”

ICC Jurisdiction Over Gaddafi

Posted on Categories International Law & Diplomacy, PublicLeave a comment» on ICC Jurisdiction Over Gaddafi

Last week I wrote that the International Criminal Court (“ICC”) is unlikely to try Syria’s President Assad for crimes against humanity because the Court would probably lack jurisdiction. The Rome Statute—the ICC’s founding treaty—empowers the Court to exercise jurisdiction only with respect to crimes (1) committed within the territory of a state-party, (2) committed by a national of a state-party, (3) referred to the Court for prosecution by the UN Security Council, or (4) committed within a non-state-party’s territory or by one of its nationals, if referred to the Court by that non-state-party. In Assad’s case, jurisdiction is unlikely because Syria is not a state-party to the Rome Statute, and the UN Security Council is unlikely to refer the matter to the ICC because Russia and China would object. While it is possible that a post-Assad regime could refer Assad’s crimes to the Court for prosecution, Syrian domestic politics would probably push strongly in favor of domestic prosecution.

The question of ICC jurisdiction is also relevant to ongoing events in Libya. With Muammar Gaddafi’s regime in the midst of collapse and the Colonel himself in hiding, we should consider what role, if any, the ICC will play once Gaddafi is found. Here, the prospect of ICC prosecution seems significantly higher. Like Syria, Libya is not a state-party to the Rome Statute. But in February 2011, the Security Council passed a resolution referring Gaddafi’s use of military force against regime opponents in early 2011 to the ICC. The resolution ordered “Libyan authorities” to “cooperate fully with and provide any necessary assistance to the Court,” and “urge[d] all [other] States” to cooperate fully as well. Several months later, the Court issued arrest warrants against Gaddafi and two other Libyan officials for offenses including crimes against humanity.

Now that Gaddafi has lost control of the government and is in hiding, it will be interesting to see whether the ICC is able to make use of its established jurisdiction. With the Libyan government obliged to adhere to the Security Council’s resolution and all other states urged to do likewise, Gaddafi may have few places to hide.

The Constitutional Right of Recall

Posted on Categories Constitutional Interpretation, Federalism, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System5 Comments on The Constitutional Right of Recall

The largest newspaper in Wisconsin, the Milwaukee Journal-Sentinel, continues to take the editorial position that the public’s right to recall elected officials should only be exercised in cases of misfeasance in office or of criminal conduct.  The editorial page actively disparages the use of the recall process in cases where voters simply disagree with the policy choices of their elected representatives.  Recent examples of this editorial position can be seen here, and in the decision to excerpt a similar editorial published by the newspaper USA Today here.  On this past Sunday, Steven Walters commented in the Journal-Sentinel on possible amendments to the Wisconsin Constitution intended to modify the existing recall provisions and to bring them into line with the more limited scope advocated by these editorials.

I have commented on this issue before.   The editorial position of the Milwaukee Journal-Sentinel is misguided.  In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country.  The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.” Continue reading “The Constitutional Right of Recall”