Racial Discrimination in Wisconsin Jury Pool Practices

Posted on Categories Alumni Contributor, Civil Rights, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Poverty & Law, Prisoner Rights, Public, Race & Law, Wisconsin Criminal Law & Process1 Comment on Racial Discrimination in Wisconsin Jury Pool Practices
A courtroom is filled with women dressed in long black dresses and wearing hats.
Crowd of women register for jury duty after gaining the right to vote, Portland, Oregon, 1912.

“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”

The Mirror of Racial Tyranny in The Civil Rights Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Legal History, Public, Race & Law, U.S. Supreme CourtLeave a comment» on The Mirror of Racial Tyranny in The Civil Rights Cases
Political cartoon from the nineteenth century showing an African American holding a copy of the Civil Rights Act of 1875 while standing at the Gates of Heaven
This 19th Century Thomas Nast cartoon shows an African American at the Gates of Heaven, telling Saint Peter that the Civil Rights Act of 1875 opens all gates for him.  Nast’s caption calls on white churches to desegregate.

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”

New Book on Sentencing and Corrections

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Legal Scholarship, Marquette Law School, Prisoner Rights, Public, Race & LawLeave a comment» on New Book on Sentencing and Corrections

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.

Deconstructing Our Segregated Reality

Posted on Categories Alumni Contributor, Civil Rights, Legal Profession, Marquette Law School, Milwaukee, Political Processes & Rhetoric, Public, Race & Law1 Comment on Deconstructing Our Segregated Reality
A map of the city of Milwaukee and surrounding counties illustrating the racial segregation of residents per the 200 census.
Black residential segregation as reflected in 2000 Milwaukee Census

In his commentary on May 24, 2018, Bucks guard Sterling Brown is lucky he wasn’t killed by Milwaukee Police,” Martenzie Johnson casually observes that “Milwaukee is one of the most segregated cities in America, is one of the worst cities for black Americans, economically, the worst city for African-American children to grow up in and is home to the zip code with the highest incarceration rate in the country.”

I moved to Milwaukee in 1984 to become a Marquette Lawyer.  I took my first law school exam on my 30th birthday – Torts by Professor James Ghiardi.  In May of 1987, like every Marquette lawyer graduating before me and after me, I took the attorney’s oath.  I swore to “support the Constitution of the United States,” the one ordained and established in order to “form a more perfect Union.”  I never left Milwaukee and I am proud to say I am from Milwaukee.  Yet I am at a complete loss of words to describe how it is that we, my law school and my fellow Marquette lawyers, go about our busy daily lives virtually unconscious of living in “one of the most segregated cities in America.”  If you believe you can frame the types of questions that, if answered properly and acted on, will help us deconstruct our segregated Milwaukee, then I strongly encourage you to write and to weigh in now.

In October 2015, I was involved in a three week medical malpractice trial in Outagamie County.  Judge Mark McGinnis was presiding, who is one of the best trial judges currently on the bench.  I came home Friday to rest and prepare for the final week of trial.  A little after 1 am on October 31, 2015 the incessant ring of the telephone pulled me from a deep slumber.  The voice of a woman said, “Mr. Thomsen, we tried for 45 minutes, but we couldn’t save your son.”  My wife, Grace, sitting up asks:  “What did they say?”  “He’s gone.”  “Noooooo…” turned into a mourning howl.  It is unforgettable.  And so it is that in one instant the eye of a category 5 hurricane shreds your bed, your son’s mother, your wife, his sister, his fiancé, his daughter, his uncles, aunts, cousins, grandmothers, friends — my life and theirs too.  Judge McGinnis and defense counsel all agreed to a mistrial if I asked for one.  I returned to finish the trial.  The case had progressed and in a way that could not have been replicated.  The lawyer’s oath is a demanding one.

Yet somehow in the eye of the hurricane you can find love: the love of my son’s fiancé, of my now daughter-in-law Sydney, and my granddaughter, Sienna.  They are proudly biracial.  Sydney is considering law school.  I suggested that she become a Marquette Lawyer.  She said “no” because Milwaukee and Milwaukee County are too segregated.  The truth hurts so much. Continue reading “Deconstructing Our Segregated Reality”

Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs

Posted on Categories Civil Rights, Constitutional Law, Criminal Law & Process, Human Rights, Milwaukee, Public, Race & Law, Student ContributorLeave a comment» on Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Andrea Jahimiak.

On February 22, 2017, six individuals who identify as either Black or Latino filed a class‑action lawsuit against the City of Milwaukee, the Milwaukee Fire and Police Commission (“FPC”), and Police Chief Edward Flynn. The plaintiffs allege that their constitutional rights were violated when they were unlawfully stopped, frisked, or both, by Milwaukee Police Department (“MPD”) officers.

Together, the plaintiffs are seeking relief by way of the court: (1) declaring that the defendants’ stop and frisk policies, practices, and customs are unconstitutional; and, (2) ordering immediate and permanent suspension of such policies, practices, and customs.

Allegation of a Named Plaintiff

One of the plaintiffs alleged that her teenage son has been unlawfully stopped by an MPD officer on at least three occasions. The first unlawful stop took place when he was ten years old.

Around noon in October 2010, D.A. walked to his friend’s home. When D.A. arrived at his friend’s home, he rang the doorbell, but no one answered. D.A. then used his cellphone to call his friend.

While on the phone, an MPD officer walked up to D.A., put his arms around D.A. shoulder’s and walked D.A. to his squad car located in the nearby alley. The officer then forcibly removed D.A.’s phone from him, patted him down, and made D.A. put his hands on the hood of the squad car.

The father of D.A.’s friend, a white male, ran out of the home. The father immediately asked the officer what was going on and asked why he was searching a child. The officer replied that he was making sure nothing was wrong. The officer then left.

D.A.’s mother called the associated MPD district and spoke to the sergeant. D.A.’s mother demanded to know why a police officer stopped and frisked her ten-year-old son. The sergeant said that it was MPD policy to stop and frisk young men walking through alleys.

Expert Reports Confirming MPD

Almost a year after filing suit, the ACLU of Wisconsin released three expert reports regarding the MPD’s stop and frisk policies, practices, and customs. The expert reports were conducted in relation to the ongoing class‑action lawsuit.

The expert reports concluded that the MPD has unconstitutional policies, practices, and customs. And that MPD officers routinely conduct unconstitutional stops and frisks procedures, motivated by race and ethnicity. Continue reading “Class-Action Lawsuit Seeks Permanent Suspension of the Milwaukee Police Department’s Alleged Unconstitutional Policies, Practices, and Customs”

Playwright Aims to Prod Thinking About the Aftermath of Ferguson

Posted on Categories Public, Race & Law, Speakers at MarquetteLeave a comment» on Playwright Aims to Prod Thinking About the Aftermath of Ferguson

Dael Orlandersmith says she does not have the right to speak for the people who were affected when a police officer, Darren Wilson, shot and killed 18-year-old Michael Brown on a street in Ferguson, Missouri, on Aug. 9, 2014.

But she can speak about them, and she does want people to think about themselves, their own communities, and the issues that were raised by the Ferguson incident and its powerful aftermath. The St. Louis Repertory Theater invited Orlandersmith, a well-known poet, playwright, and performer from New York City, to create a play focused on Ferguson. That led her to interview dozens of people in Ferguson and to write “Until the Flood,” a play that includes eight characters she sees as composites of people she interviewed.

Orlandersmith is currently performing “Until the Flood” as a one-woman show at the Milwaukee Repertory Theater. She described her approach to the play – and more broadly, to her artistic work – in an “On the Issues with Mike Gousha” program at Eckstein Hall on Thursday. Continue reading “Playwright Aims to Prod Thinking About the Aftermath of Ferguson”

Mission Week Speakers Encourage Deep Efforts to Learn About Others

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The relationship between Sharon Morgan and Thomas DeWolf did not get off to a good start. They met at a conference in Virginia. She was a black woman from Chicago, a successful communications writer with a strong interest in genealogy. The descendant of people deeply involved in the slave trade, he was a white man who was the executive director of a West Coast-based nonprofit that focused on the continuing impact of slavery in America.

She was put off by him. He was not sure how to deal with her. But step by step, they got to know each other and had break-through conversations about their backgrounds.

During an “On the Issues with Mike Gousha” program at Marquette Law School on Tuesday, DeWolf said, “What we got to was revealing ourselves to each other in ways that we were taking off the masks. . . . The masks, if you’re willing, can come off.” Continue reading “Mission Week Speakers Encourage Deep Efforts to Learn About Others”

On Overstating the Case for Confederate Monuments

Posted on Categories Civil Rights, First Amendment, Political Processes & Rhetoric, Public, Race & Law, UncategorizedLeave a comment» on On Overstating the Case for Confederate Monuments
Statue of Confederate Army General Robert E. Lee sitting astride a horse.
The Robert Edward Lee statue in Emancipation Park

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two. Continue reading “On Overstating the Case for Confederate Monuments”

“Diversity” in the Law: Savvy Business, Self-Motivation, or Both?

Posted on Categories Legal Practice, Legal Profession, Public, Race & LawLeave a comment» on “Diversity” in the Law: Savvy Business, Self-Motivation, or Both?

“Diversity” is a term to qualify something diverse, which the American Heritage dictionary defines as “made up of distinct characteristics, qualities, or elements.” Diversity in the work environment of law firms, agencies, in-house counsels, and non-profits usually relates to the genetic makeup of the employees’ gender, race, national origin, and sexual orientation, but for purposes of brevity and, frankly, your time, this post focuses solely on race.

In 2007, per the ABA National Lawyer Population Survey, the racial demographic of the attorney population consisted of 77.6% Caucasian/White, 3.2% African American, 3.1% Hispanic and even lower numbers for the other categories of races and ethnicities. Not surprisingly, this disparity has not made much progress in the past decade which is displayed in the 2017 percentages that show attorneys consisting of 66.8% Caucasian/White, 4.1% African American, and 3.9% Hispanic. Accordingly, these statistics create more questions than answers, such as: Why is there such a low presence of minorities in the law? Is this disparity due to a systemic problem in the American education system or attributed to employers’ implicit bias? Do schools/employers care about these statistics? If not, should they? Continue reading ““Diversity” in the Law: Savvy Business, Self-Motivation, or Both?”

Bill Cosby and American Popular Culture

Posted on Categories Criminal Law & Process, Media & Journalism, Popular Culture & Law, Public, Race & LawLeave a comment» on Bill Cosby and American Popular Culture

Bill Cosby and Keisha Knight Pullman walk together outside of the courtroom where he faced trial on charges of rape.Bill Cosby has made two distinctly different splashes in American popular culture.  He starred in “The Cosby Show” (1984-92), a sitcom that was America’s most highly rated television show for five consecutive years.  Then, his trial for sexual assault in the spring of 2017 became the most recent “trial of the century.”  Ironically, the immense success of the former prevented the latter from attracting the attention many had predicted.

As for “The Cosby Show,” it featured the Huxtables, a fictional upper middle-class African American family living in a brownstone in Brooklyn Heights.  Cliff Huxtable, played by Cosby, was a jolly obstetrician, while his wife Clair Huxtable was a successful attorney.  The Huxtables has four daughters and one son, and although each episode had its tender tensions, they always dissipated by the end of the hour.  “The Cosby Show” was about a happy, loving ideal family, and Cliff Huxtable became the nation’s fantasy father.  When TV Guide ranked the 50 greatest dads in television history, the magazine named Cliff Huxtable “The All-Time Greatest Dad.”

While the show rarely addressed race directly, it was what the show left unsaid that was important.  Cosby and the show’s producers consciously set out to “recode blackness.”  They turned stereotypes upside-down by presenting a tightly-knit African American family that was affluent, had friends and neighbors of different races, and was headed by a married couple, with each member belonging to a learned profession.  In the midst of the Reagan-Bush years, Americans took to the portrayal, and it, if only for a moment, obfuscated the nation’s shoddy racist inequality.

When twenty-five years later in time two dozen women claimed Cosby had drugged, sexually assaulted, and raped them, America was shocked.  When Cosby went on trial in the spring of 2017 for sexually assaulting Andrea Constand, many thought the public would be obsessed with the proceedings.  Coverage of the trial seemed likely to equal that for celebrities such as O.J. Simpson in 1994 and Michael Jackson in 2005.  Trials of the rich and famous, after all, have been pop cultural delights since the days of the penny dailies in the early nineteenth century. Continue reading “Bill Cosby and American Popular Culture”

Race and Risk Assessment

Posted on Categories Criminal Law & Process, Public, Race & LawLeave a comment» on Race and Risk Assessment

Risk-assessment has become all the rage in American criminal justice. In jurisdictions across the country, criminal-justice officials are utilizing increasingly sophisticated risk-assessment tools, which can be used to predict a given offender’s likelihood to reoffend based on his criminal history and a number of other variables. These predictive evaluations can be brought to bear at several important decisional points in the criminal process: pretrial release, diversion into treatment, sentencing, and others.

Although risk assessment has been widely applauded for its potential to support increased efficiency in the use of scarce criminal-justice resources, a recurring criticism has been that leading risk-assessment tools have built-in racial biases. A particular concern has been the heavy reliance on criminal history; to the extent that criminal history reflects biased actions by police or others in the past, then predictions based on that history may tend to overestimate the relative risk posed by minority defendants. Thus, for instance, a black defendant and a white defendant whose actual risk levels are identical could potentially receive quite different risk scores, leading to quite different bail or sentencing decisions.

Such concerns find some support in the empirical research.

A new study, however, reaches more reassuring conclusions, at least with respect to one risk-assessment tool used in federal court.  Continue reading “Race and Risk Assessment”

Israel Reflections 2017–Race and Diversity

Posted on Categories Human Rights, Marquette Law School, Political Processes & Rhetoric, Public, Race & LawLeave a comment» on Israel Reflections 2017–Race and Diversity

Close up photo of Ethiopian member of the Israel Defense Forces kissing the Western Wall in Israel.Another new meeting this year was with Oshra Friedman of Tebeka legal services, an organization that provides specialized legal services for the Ethiopian immigrants to Israel.  As we learned on our last trip, Israel has welcomed thousands of immigrants from Ethiopia of Jewish heritage and assimilation into the modern society of Israel can be very challenging.   As we also saw last time, these challenges can remind us and cause us to reflect on the challenges of race here in Milwaukee.  From Student Sheila Thobani:

Before we even discussed paper topics prior to departing for Israel, thoughts about the conflict were already flooding my mind. Not the cliché thoughts of the obvious conflict, the talked about every day in the media conflict, but one that I had a more personal association with: identity. I believe that is why Oshra Friedman’s narrative engaged my curiosity.

With the constant comments in public about my physical characteristics, one-second longer than comfortable gazes, and second-guess pseudo interrogations by people of authority—I was waiting at the edge of my chair to see how someone who looked different than every other person on the streets of Israel dealt with her diversity. An immigrant from Ethiopia, whose parents refused to assimilate, who jumped forward too far because her community was too backwards, who didn’t succumb to gender norms, who married an Ashkenazi Israeli- this was a story I was all too familiar with; a familiarity not by exposure but by experience.

Whereas, over the border and across the sea, America has heard Friedman’s story of diversity for generations, Israel is still becoming familiar with this narrative. By no means do I mean to convey that because in America the story is heard that it is accepted and internalized- I only mean that it is there that there is the exposure and familiarity. As Friedman spoke about her mixed race children handling the innocence of childhood and the ignorance of adults, and agave accounts of situations they faced, I relived my own childhood memories of confusion colored by pride. Continue reading “Israel Reflections 2017–Race and Diversity”