Judging Friday’s SCOWIS Decisions

On Friday, the Wisconsin Supreme Court released two opinions that reflect the court’s new jurisprudential direction. Allow me to focus on the opinion with a much greater discussion of jurisprudence. (The other is State v. Wood, a due process challenge to forced administration of medication in a state-administered facility to a person who had been found not guilty of a crime by reason of mental disease or defect.)

In State v. Smith, the Supreme Court upheld the state’s sex offender registration law for crimes which, in the particular instance, did not have an obvious sexual component. Smith had been convicted of false imprisonment of a minor, which is one of the crimes leading to sex offender registration. Smith brought as-applied equal protection and substantive due process challenges because his act of false imprisonment had no sexual motive or activity. 

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Strong Week for the Wisconsin Criminal Law System

3L Ron Tusler forwards an important bit of news regarding the Wisconsin criminal justice system:

Governor Doyle recognized on Monday that Wisconsin needs to do more to comply with the Sixth and Fourteenth Amendment.  The Sixth Amendment requires that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”  Gideon v. Wainwright applied the Sixth Amendment to the states as a fundamental due process right.  372 U.S. 335 (1963).  The Gideon Court did not define indigency and the states are free to define it as they will.

Until Governor Doyle signed Senate Bill 263 into law, Wisconsin held an extremely low income threshold set in 1987.  As a student practitioner at the Outagamie County Public Defender’s Office last summer, the state required me to turn down individuals with less than $100 income per month.  Imagine telling someone with so little income that they were too wealthy for help.  That is a message many public defenders must deliver every day.  Imagine how many go on to inadequately represent themselves pro se.  Is that Constitutional?  I doubt the Gideon Court would approve. 

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Pondering the Wisconsin Supreme Court’s Criminal Docket

Last week, I was delighted to participate in the Conference on the Wisconsin Supreme Court organized by Rick Esenberg.  The panel I moderated reviewed some of the court’s most significant criminal cases last term.  But “most significant” is a relative term, and I don’t think any of the panelists found the court’s recent criminal cases to offer anything especially bold or innovative.  The court seems to be operating more in an error-correction mode than a law-declaration mode.  Recent decisions generally do not announce new rules of law, but operate within established legal frameworks and decide cases based on the particularities of the facts presented.  (Indeed, an exception to this trend, State v. Ferguson, 767 N.W.2d 187, drew a sharp rebuke from Justice Bradley, who characterized the majority decision as “an unbridled exercise of power.”)  Notably absent is the “new federalism” exhibited in some earlier terms, in which the court interprets state constitutional rights in ways that are more protective than the analogous federal rights.

Fans of judicial minimalism should be happy with the court’s recent criminal decisions.  So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions.  I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system.  Though much in vogue now, minimalism has its vices, too.

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