As discussed in Part I, I have gathered data on the Wisconsin prison inmates who are 70 or older. Out of an initial set of 299 inmates, I selected a representative subset of 100 in order to take a closer look at the inmates’ most recent convictions. Thirty-eight of the 100 were convicted of more than one offense in their most recent felony cases. In these cases, I focused only on the conviction that resulted in the longest sentence.
Nationally, the number of senior citizens in prison has grown dramatically in recent years. In Wisconsin, for instance, the number of prisoners aged 60 or older grew from just 202 (or 1.2 percent of the total) in 2000 to 1,231 (5.4 percent) by the end of 2016. Such increases should be of public concern for a number of reasons, including the exceptionally high costs of incarcerating the elderly. To a great extent, these costs are related to the prevalence of chronic illnesses and physical and mental disabilities among older inmates. One national study estimated that the average cost of imprisoning a senior is about twice the overall average. In general, it is less costly to manage chronic health problems in the community than in prisons, which are not designed to function as assisted living facilities, and which tend to be located in rural areas at some distance from specialized treatment providers.
Fiscal and humanitarian concerns alike have sparked considerable interest in recent years in “compassionate release” and other mechanisms that might hasten the return of elderly prisoners to the community. On the other hand, there are also countervailing concerns that early release might endanger the public or depreciate the seriousness of the underlying criminal offenses. On both sides of the debate, there seems a tendency to rely on unexamined stereotypes about who the old folks in prison are—the frail, harmless grandparent serving an excessively harsh sentence for a long-ago offense, versus the confirmed predator whose dangerousness can never be fully erased by age.
“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”
Next week from November 5th to November 11th, Wisconsin is celebrating its Startup Wisconsin Week. Cities across the entire state of Wisconsin will be hosting programs and events geared toward helping Wisconsin grow its startup community. For the entrepreneurial-minded, this week provides an array of opportunities to network, learn tricks of the trade, and become more involved in the startup process. For transitionally focused attorneys, this week offers a variety of opportunities to meet new potential clients and learn more about how entrepreneurs can affect Wisconsin.
“When does the sentence end?“ Albert Holmes says he often faces that question as he works to help people who have been released from incarceration and who are re-entering the general community.
Holmes, president and CEO of My Father’s House, was one of the speakers Thursday, Oct. 4, at a conference at Marquette Law School that focused on what can be done to provide paths for more people in those situations to establish stable lives.
The conference, “Racial Inequality, Poverty, and Criminal Justice,” drew an audience that included two Wisconsin Supreme Court justices, several circuit judges, prosecutors (including Milwaukee County District Attorney John Chisholm), defense attorneys, and many who work in agencies that try to help those getting out of prison or jail or who are advocates on issues involved with the subject. Continue reading “More Help Urged for Those Making “Re-entry” from Incarceration”
Public opinion polls typically find a preference for tougher treatment of defendants in the criminal-justice system. However, few polls attempt to disaggregate types of crime. When laypeople are asked what they think should be done with “criminals,” their responses are likely based on the relatively unusual violent and sexual offenses that dominate media coverage of crime. However, punitive attitudes toward such offenses may not necessarily indicate that similar attitudes prevail more generally.
In order to develop a better understanding of the extent to which public attitudes differ based on crime type, I collaborated with Professor Darren Wheelock of the Marquette Social and Cultural Sciences Department on a set of questions in the most recent Marquette Law School Poll. Rather than asking respondents about crime in general, we posed questions regarding violent crime and property crime. Our results were consistent with the expectation that members of the public see these two types of crime in a rather different light.
Recently, I authored a post on this same blog discussing the first of two frequent observations I’ve made since joining the Milwaukee County District Attorney’s Office as a prosecutor and rookie lawyer in February of last year. There, I expressed my belief that we must do more to educate the nonlegal public about what it is we do as lawyers. Here, however, I wish to share what is perhaps as much a personal conclusion as it is an observation—appellate work is where it’s at.
In the last six or so months, I’ve been tasked on several occasions to represent the State before the Wisconsin Court of Appeals. These experiences have been enjoyable for several reasons—not the least of which is that I do enjoy writing about the law.
More generally, I have come to prefer legal argument over arguing facts. For these reasons, I expect that my career in the law will naturally gravitate toward appellate work. This is not to say I that I don’t enjoy trying cases to juries, but rather it is acknowledgment of one introspective observation.
As I’ve arrived at this conclusion, I’ve also realized that I’m most interested in getting the law right—regardless of whether doing so helps or hurts any particular position I’ve taken in a case. That said, what I find most appealing about appellate work is that I’ve come to believe that appellate courts generally prioritize getting it right above all else. Continue reading “Appellate Work: Getting the Law Right”
Just over fourteen months have passed since I first appeared in a Milwaukee County courtroom as a newly minted (Marquette) lawyer. Rolling the clock back another two and a half years, I recall my first few days as a law student. In all, I’m nearly four years into what I hope will be a long and eventful career in the law.
Over these last four years—this last year, in particular—I’ve found myself often making the same two observations. Though I don’t suspect that either of my observations are especially unique, both are surely the product of spending so many of my days in and around our state’s most active courthouse.
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 2L Grace Gall.
“How do you spell their last name?”—That is often the question my mother used to ask me when I was a kid and asked to spend the night at a new friend’s house. Like many Wisconsin parents or employers, my mother often would use the public record cite called CCAP to search criminal and civil records of individuals. As a child, I simply got used to my mother’s question and as I grew older and started working in the legal field myself, I became more and more acquainted with CCAP. Recently this year, I heard about changes being made to the CCAP record system. The Director of State Courts voted in March of this year to change the time limits for dismissed or acquitted cases to have them removed from the public record site after two years from the final order. Continue reading “Changes to Wisconsin’s CCAP Shortens the Time that Some Records are Online”
An ignition interlock device (IID) is a breathalyzer installed in a vehicle that prevents a driver from operating the vehicle until first providing an adequate breath sample. In Wisconsin, an IID is required in one of three circumstances after being convicted of either Operating While Intoxicated (OWI) or Operating with a Prohibited Alcohol Concentration (PAC): the defendant is a repeat drunk driver, the defendant refused a chemical blood or breath test under Wisconsin’s implied consent law, or the defendant is a first time drunk driver and had a blood alcohol concentration (BAC) of 0.15 “at the time of the offense.” Because OWI 1st’s are not crimes in Wisconsin, defense attorneys specializing in OWI cases try to negotiate with prosecutors to stipulate that the defendant’s BAC was 0.149 to avoid the costly and cumbersome IID requirement. This arbitrary threshold creates an obvious loophole.
The state legislature should revise this language in the IID statute because its vague language is leading to ridiculous results in court and does not promote consistency in OWI cases. As a matter of syntax, the statute as its currently written is arguably ambiguous. The legislature specifically used the phrase “at the time of the offense” as opposed to “at the time of driving.” The most common interpretation (and one favored by defense attorneys) is that the word “offense” only encompasses the physical act of driving and nothing after it. However, if that is what the legislature intended, then it would have been clearly to use the word “driving” instead. Further, the current language is in clear conflict with the OWI statute that penalizes drunk driving. A second reasonable interpretation is that “offense” includes everything from the driving to when the police officer issues the citations. However, this reading appears to cast too wide a net. Continue reading “Loophole in Drunken Driving Law Should be Closed”
Joseph A. Ranney says his interest in almost two centuries of Wisconsin’s legal system stands on two things. One is as simple as this: “I love history.” The other is the large amount of time he has spent reading old volumes of Wisconsin legal records as a student and as a lawyer.
His passion for the subject has made Ranney, the Adrian P. Schoone Fellow in Wisconsin Law and Legal Institutions at Marquette University Law School and a partner with the firm of DeWitt Ross & Stevens in Madison, an expert on Wisconsin’s legal history. His most recent book, Wisconsin and the Shaping of American Law, was published in 2017 by the University of Wisconsin Press.
Our system of justice rests upon two pillars: equal treatment and independent judgment. Every person who appears before our state courts expects to be treated equally to every other litigant. In addition, every party to a lawsuit expects to have his case heard by a judge who is free to exercise their own independent judgment. Recently, the state legislature in Madison and Governor Walker approved legislation – a $3 billion package luring Foxconn Technology Group to build a flat-screen TV factory in Racine County — that seriously undermines these two fundamental principles.
The principle of equal treatment commands that the same rules should apply to all parties appearing before the court. No one should receive special status. It is true that the two sides in a case might not be evenly matched, and that one might have more financial resources or a more skilled legal team. But, even then, both parties in the case should be subject to the same set of laws and procedures, and have the same opportunity to argue that the law supports their claim.
The Foxconn legislation creates special treatment for Foxconn whenever that corporation is sued in Wisconsin courts. The law forces the Wisconsin Supreme Court to directly take appeals involving “Electronics and Information Technology Manufacturing Zones” (EITM) from the circuit courts. By law there is only one such zone, and that zone is home to Foxconn. Typically, the high court would hear appeals at their discretion, and then only after the case was heard by an intermediate court. The reason for placing cases involving Foxconn on a “fast-track” to the Wisconsin Supreme Court should be obvious. That Court currently boasts a majority of Justices who were elected with the financial support of Wisconsin’s largest trade and manufacturing lobbyists. The drafters of the legislation expect these Justices to be sympathetic to the concerns of manufacturers like Foxconn.
We expect our state court judges to be free to exercise their independent judgment when deciding the merits of a case. It is the trial judge that hears the facts and the evidence, and who determines the appropriate remedy should the plaintiff prevail. It is not the state legislature’s job to decide which party in a case should win, or what remedy should be imposed in an individual case. Continue reading “Foxconn Deal Tips the Scales of Justice”