New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)

Posted on Categories Criminal Law & Process, Environmental Law, Lubar Center, Marquette Law School, Marquette Law School History, Milwaukee Public Schools, Prisoner Rights, Race & Law, Speakers at MarquetteLeave a comment» on New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)

A drawing of a policeman sitting on a badge. This third and final post reflecting the “In Search of Better Outcomes” theme of the new Marquette Lawyer magazine begins with a third pair of articles, the one that actually provides the quoted phrase (see here and here for the previous posts and previous pairs). These last two articles, with a brief introduction, look at the impact of law enforcement on people on different sides of the badge—and at possibilities for better outcomes both for those in law enforcement who are affected negatively by the cumulative trauma with which they deal and for offenders upon release, after they have served time in incarceration.

“Behind the Badge: A Growing Sense of the Need in Law Enforcement to C ope with Trauma” is an edited transcript of a panel discussion involving four people who have served in law enforcement. They offer insights on the need for better avenues for getting help for those who see so much violence and extreme behavior as part of their jobs protecting the public. The discussion was part of Law School’s Restorative Justice Initiative conference on November 9, 2018, titled “The Power of Restorative Justice in Healing Trauma in Our Community.”

“Putting a Period at the End of the Sentence,” an article by Alan Borsuk, draws on a conference, on October 4, 2018, of the Law School’s Lubar Center for Public Policy Research and Civic Education. Titled “Racial Inequality, Poverty, and the Criminal Justice System,” the gathering focused on issues facing people who are returning to the general community after incarceration. The story features some of the keynote remarks by Bruce Western, a sociology professor at Columbia University and author of Homeward: Life in the Year After Prison (2018). It also reports on observations by leaders of programs in the Milwaukee area that aim to help people leaving incarceration establish stable lives in the community.

Continue reading “New Marquette Lawyer Magazine Discusses the Search for Better Outcomes in the World of Law Enforcement (Post 3 of 3)”

Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)

Posted on Categories Civil Rights, Marquette Lawyer Magazine, Milwaukee Public Schools, Public, Race & LawLeave a comment» on Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)

Judge John W. Reynolds sitting in a chairA previous blog post discussed a pair of stories in the Summer 2019 Marquette Lawyer magazine and concluded by quoting one of them: specifically, an observation by Professor David Strauss of the University of Chicago, based on the Boden Lecture at Marquette Law School by Duke’s Professor Ernest Young, that “in the end, there is only so much the law can do to save a society from its own moral failings.” This post takes up a second pair of stories in the magazine, from which one might draw the same conclusion.

While it remains a fact about the large majority of schools in the Milwaukee area now, segregation of Milwaukee school students by race was the subject of great energy—attention, advocacy, and controversy—in the 1960s and 1970s. Two pieces in this summer’s Marquette Lawyer focus on the Milwaukee education scene of that earlier era.

In one, Alan Borsuk, the Law School’s senior fellow in law and public policy, writes about the decision issued in January 1976, by U.S. District Judge John W. Reynolds, which ordered that the Milwaukee Public Schools be desegregated. “A Simple Order, a Complex Legacy” touches upon the legal history of school desegregation cases, Reynolds’ 1976 ruling itself, and the legacy of that Milwaukee ruling. To borrow a phrase from Professor Young’s Boden Lecture, there is scarcely “an optimistic, onward-and-upward feel” to the account. Continue reading “Marquette Lawyer Magazine Looks at the Milwaukee Public Schools—and Seemingly Timeless Societal Problems, Especially Segregation (Post 2 of 3)”

New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

Posted on Categories Civil Rights, Constitutional Interpretation, Federalism, Judges & Judicial Process, Legal History, Marquette Lawyer Magazine, Popular Culture & Law, Race & Law, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

This cover of the summer issue of the Marquette Lawyer. The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.

The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.

Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.

In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”

A future post will discuss another pair of articles in the magazine that would support the same reaction. Click here to read both Young’s lecture and Strauss’s comment.

Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi

Posted on Categories Alumni Contributor, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Public, Race & Law, U.S. Supreme CourtLeave a comment» on Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers.  The most recent appeal marks the sixth time that Mr. Flowers has been tried for charges arising from a quadruple homicide that occurred at the Tardy Furniture Store in Winona, Mississippi.  Mr. Flowers has been incarcerated for over 20 years, as he awaits trial.  Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black.  Douglas Evans, the prosecuting attorney of all six trials, is white.

APM’s investigative podcast titled In the Dark conducted an in-depth analysis of the case.  The podcast explores the nature of the circumstantial evidence that the prosecution relied upon.  It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered.  But, for the purpose of the appeal, sufficiency of evidence is not at issue.  The narrator, Madeleine Baran, explains that “we’ve talked to hundreds of people who live in this part of Mississippi and it’s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.”  And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court. Continue reading “Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi”

Israel Reflections 2019–Immigration, Racism, & Refugees

Posted on Categories Civil Rights, Human Rights, Immigration Law, International Law & Diplomacy, Public, Race & LawLeave a comment» on Israel Reflections 2019–Immigration, Racism, & Refugees

On our first full morning in Tel Aviv, we turned to some (other) hard issues facing different parts of the population in Israel. Our first speaker was Mazal Bisawer, a PhD candidate and student leader at Tel Aviv University. Mazal spoke to us about the Ethiopian population in Israel—a minority within a minority—most of whom immigrated to Israel in the 1970’s and 1980’s. We’ve had visits with other Ethiopian Jews over the years (see blogs from 2017 here and 2015 here) dealing with the issue of diversity in Israel. And even on the main street in Tel Aviv, the concept of refugees is front and center with this beautiful mosaic:

Refugees mosaic

Shayla Sanders identified with Mazal’s comments:

She spoke broadly about police brutality against young Ethiopian men and emphasized that while only 2% of the population in Israel, Ethiopian young people make up 60% of the population in juvenile detention facilities. I was struck in this moment with a sickening, yet somehow validating sense of déjà vu. I recognized these statistics. I know that African Americans in the US face a similar plight. In hearing her speak to some of these issues, I heard some of the same emotions I myself experience when discussing racial issues here in the US. I heard in her the same passion I feel when discussing instances of injustice against my people. I heard her pain when she told us how people would say that Ethiopians should feel lucky to only be experiencing minor levels of racism because they are the only group of black people not brought by force into a country and compelled into slavery. I felt her frustration when she emphasized that speaking out on these issues, she is often met with the same reaction as if she had stated a belief in little green aliens and UFOs… I have myself been written off as a radical idealist who plays the race card all too frequently. I have been faced with those who would rather police my tone than address and confront the truth in my statements. So, imagine my utter lack of shock when our very own tour guide immediately dismissed Mazal as radical and gave an open invitation to our tour group to take her opinion with a grain of salt not granted to any of the other speakers we had seen thus far.

Continue reading “Israel Reflections 2019–Immigration, Racism, & Refugees”

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

Posted on Categories Public, Race & Law, Speakers at MarquetteLeave a comment» on Mission Week Speakers Encourage Deep Efforts to Learn About Others

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”