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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Drug Courts after Twenty Years: What Next?

I’ve been meaning to blog about the interesting new report from the National Association of Criminal Defense Lawyers on drug courts, but alum Tony Cotton (a member of the NACDL Board of Directors) has beaten me to the punch.  (For my own take on drug courts — voicing some of the same concerns as Tony — see this recent article.)  Tony offers these insightful and timely thoughts on drug courts:

This year marks the twentieth anniversary of a criminal justice innovation that was supposed to help solve the drug problem in this country and reduce the mass incarceration of men and women whose substance abuse habits lead them toward criminal behavior and, more often than not, to prison.

In 1989, then-State’s Attorney for Miami-Dade County, Florida (later United States Attorney General) Janet Reno designed a new approach to mitigate the crushing loads of drug-related criminal cases in South Florida. Defendants charged with low-level drug felonies would be diverted into treatment programs instead of prison. The idea caught on, and today there are 2,100 such “problem solving” courts around the country, receiving federal funds and dealing with not only drug abuse, but also drunk drivers and domestic violence offenders. 

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The Long Arm of the Law

PolanskiIFFKVI want to begin by thanking Dean O’Hear and Marquette University Law School for the opportunity to be October 2009’s “Alum Blogger of the Month.”

Roman Polanksi, a famous director of movies such as Chinatown and The Pianist, was recently arrested in Switzerland 32 years after he fled the United States after pleading guilty to a child sex offense in California.  According to Grand Jury testimony given by then 13 year-old Samantha Gailey, (viewable at the Smoking Gun website), Polanksi approached her to take pictures to be published in a magazine.  Gailey and her mother agreed and she went with him to Jack Nicholson’s home on March 10, 1977 to take pictures (apparently Jack wasn’t home that day, just an unknown woman).  After giving Gailey champagne while taking additional pictures of her, Polanski then gave her a Quaalude, which is a sedative similar in effect to barbiturates. 

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