Drug Courts, Racial Disparities, and Restorative Justice

Posted on Categories Criminal Law & Process, Legal Scholarship, Race & LawLeave a comment» on Drug Courts, Racial Disparities, and Restorative Justice

I have a new paper on SSRN dealing with drug courts, focusing particularly on their (poor) prospects as a mechanism to address racial disparities in the prison population.  Here is the abstract:

Specialized drug treatment courts have become a popular alternative to more punitive approaches to the “war on drugs,” with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation’s prison population – disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a “do-no-harm” innovation. Drug courts can produce both winners and losers when compared to conventional court processing, and there are good reasons to suspect that black defendants are considerably less likely to benefit from the implementation of a drug court than white defendants. As a result, drug courts may actually exacerbate, rather than ameliorate, racial disparities in the incarceration rate for drug crimes. Thus, the concerns of inner-city minority communities with the war on drugs may be better addressed through a different sort of innovation: a specialized restorative justice program for drug offenders. Although treatment may be part of such a program, the real centerpiece is the “community conferencing” process, which involves mediated dialogue and collective problem-solving involving drug offenders and community representatives. Where the drug treatment court gives a dominant role to criminal justice and therapeutic professionals, the community conferencing approach empowers lay community representatives, and is thereby capable of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates.

The article is forthcoming in the Stanford Law & Policy Review.

Meares on Race and Policing

Posted on Categories Criminal Law & Process, Race & Law, Speakers at MarquetteLeave a comment» on Meares on Race and Policing

In delivering the first annual Barrock Lecture on Criminal Law yesterday, Yale Professor Tracey Meares set a high bar for future speakers.  (A webcast is available here, and a written version will appear in the summer issue of the Marquette Law Review.)  Tracey’s talk was a call for police to move from an emphasis on deterring crime through the threat of harsh punishment to a more holistic approach to crime control that includes promoting more positive attitudes towards the law and legal authorities.  She identified procedural justice — basically, treating people with fairness and respect — as an important component of the more holistic strategy.  Her particular concern lies with crime and policing in inner-city, minority neighborhoods, where punishment-alone approaches have resulted in shockingly high incarceration rates among young, poorly educated, African-American men.  Tracey argues that an approach combining punishment with procedural justice offers better prospects for reducing crime and improving the quality of life in these difficult environments, and points to her own work with Project Safe Neighborhoods in Chicago as an example of the violence-reduction that can be accomplished when the police engage with the community in new ways.

I recently made a similar argument that the same sorts of benefits might be derived from prosecutors paying more attention to procedural justice in plea bargaining.  (A copy of my article is available here.) 

As Tracey indicated in her talk, there is plenty of evidence indicating that deterrence has limited value as a crime-control strategy.  Continue reading “Meares on Race and Policing”

I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Posted on Categories Criminal Law & Process, Race & Law, Wisconsin Court System, Wisconsin Criminal Law & Process3 Comments on I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Perhaps Professor O’Hear can straighten me out on this.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant. Continue reading “I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)”

A Heartbreaker Named Detroit

Posted on Categories Milwaukee, Race & Law1 Comment on A Heartbreaker Named Detroit

As a native Milwaukeean, Detroit breaks my heart. There are just a few cities that you can go to that you remind you of home. Chicago and Cleveland are the big two. Cincinnati is reminiscent, but a bit too southern. Detroit — or what used to be left of Detroit — was another. (Minneapolis is an entirely different kind of place.)

So pieces like Matt LaBash’s recent cover piece for the Weekly Standard disturb me. Websites like this one are fascinating and frightening chronicles of how bad urban decay can get. I have always thought that a conservatism that has no concern for places like the inner-city of Detroit is not a conservatism that I want to be part of.

But one cannot, I think, make a great city by litigation or subsidy. Here in Milwaukee, the ACLU has filed a complaint with the Federal Department of Transportation alleging that actions of the Wisconsin Department of Transportation in approving the certain aspects of the reconstruction of I-94, including the partial closure of a city interchange and the construction of a new suburban interchange, violate the anti-discrimination provisions of Title VI and its implementing regulations. It also complains of a decision to widen the freeway (which runs through the city) from six to eight lanes instead of using the money for commuter rail. Continue reading “A Heartbreaker Named Detroit”

Time for Racial Impact Statements in Wisconsin?

Posted on Categories Criminal Law & Process, Race & Law4 Comments on Time for Racial Impact Statements in Wisconsin?

As reported in the new issue of Sentencing Times, Iowa and Connecticut adopted new laws earlier this year that call for the preparation of racial impact statements as sentencing bills are working their way through the state legislative process.  In many states, it is already required that fiscal and environmental impact statements be prepared for new legislative proposals, but Iowa and Connecticut are the first to adopt a similar policy with respect to racial concerns.  This seems like a good idea for other states to consider–particularly states like Wisconsin with glaring racial disparities in their prison populations.  Of course, the fact that a sentencing proposal might exacerbate racial disparities would not (and should not) necessarily preclude its adoption, but the debate over such proposals would benefit from more self-conscious and well-informed attention to their racial impacts.

Responding to Racial Disparities in the Criminal Justice System

Posted on Categories Criminal Law & Process, Milwaukee, Race & Law, Wisconsin Criminal Law & Process1 Comment on Responding to Racial Disparities in the Criminal Justice System

The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities.  This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation.  As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed.  Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.

Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted.  For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted.  Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.

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