Wisconsin Criminal Law & Process – Page 17 – Marquette University Law School Faculty Blog

Wisconsinites Like Truth-in-Sentencing . . . Sort Of

Post author:Michael M. O'Hear
Post published:July 17, 2012
Post category:Criminal Law & Process Marquette Law School Political Processes & Rhetoric Public Wisconsin Criminal Law & Process

The latest edition of the Marquette University Law School Poll includes some interesting data on sentencing policy. I’m grateful to Professor Charles Franklin for collaborating with me in putting the questions together. The results are here (note that the sentencing questions start at Q25a).

The primary purpose of the questions was to determine the attitudes of Wisconsinites toward truth-in-sentencing, which was adopted by the state legislature in 1998. The questions are timely in light of recent political debates over new early release opportunities for prison inmates, which were embraced by the legislature in 2009, but then repealed two years later. Early release undercuts truth-in-sentencing by introducing uncertainty into the actual date that inmates will be released. Indeed, critics of the 2009 reforms complained — in what was probably a bit of an overstatement — that the new early release mechanisms “gutted” truth-in-sentencing.

At first blush, the new poll seems to provide strong support for the 2011 repeal and the return to a purer form of truth-in-sentencing: a decisive 63% majority agreed that “truth in sentencing should continue to be the law in Wisconsin.” (25c) Moreover, only 27% agreed that “many of the people who are locked up in prison do not deserve to be there,” and only 37% agreed that “many of the people who are locked up in prison could be safely released without endangering the community.” (27d, e)

But the story is a little more complicated than might first appear.

Difficulties Arising Out of No-Merit Reports

Post author:David Behm
Post published:February 21, 2012
Post category:Criminal Law & Process Public Wisconsin Criminal Law & Process

Under Wisconsin Statute 809.32(1), an attorney representing a criminally convicted client on appeal must file a no-merit report if he or she:

concludes that a direct appeal on behalf of the [client] would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967), and the [client] requests that a no-merit report be filed or declines to consent to have the attorney close the file without further representation by the attorney.

A no-merit report is essentially as it sounds, a report to the Court of Appeals stating that the client has no arguable case. Once a no-merit report is filed, the client may choose to respond. If the client does not respond, or does and the court finds that there are no meritorious claims, the court will affirm the conviction.

This situation, however, brings to light an interesting predicament for convicted individuals.

Prosecutorial Discretion in the John Doe Investigation

Post author:Edward A. Fallone
Post published:January 28, 2012
Post category:Criminal Law & Process Election Law Public Wisconsin Criminal Law & Process

Over at the Shark and Shepherd Blog, Rick Esenberg has put up a post questioning whether the recently filed criminal complaint in the ongoing John Doe investigation of the County Executive’s Office during Scott Walker’s tenure justifies the time and expense spent thus far on the investigation. I posted several comments in response to Rick’s post, and it seems worthwhile to repeat those same points on the Marquette Law School Faculty Blog.

First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime.