Earlier this week, a panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision in In Re Sherwin-Williams Co. The court upheld Judge Lynn Adelman’s decision not to recuse himself from a case pending before him in the Eastern District of Wisconsin, Burton v. American Cyandamid, et al.
Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129. (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446.
Based on this characterization, S-W sought his recusal in this case. Continue reading “What’s Good for the Goose . . .”
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. Continue reading “Judging Friday’s SCOWIS Decisions”
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. Continue reading “Strong Week for the Wisconsin Criminal Law System”
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.
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. Continue reading “Drug Courts after Twenty Years: What Next?”
I 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. Continue reading “The Long Arm of the Law”
In January of this year, the Wisconsin Supreme Court unanimously affirmed the defendant’s conviction for stalking in State v. Warbelton, 2009 WI 6, 759 N.W.2d 557. In doing so, the court held that a defendant in a stalking case cannot prevent the State from submitting evidence of the existence of the defendant’s prior violent felony conviction, an element of the crime, by stipulating to the conviction before trial.
Stipulations to prior convictions became a powerful tool for defense attorneys in Wisconsin following State v. McAllister, 153 Wis. 2d 523, 451 N.W.2d 764 (Ct. App. 1989). A precursor to the United States Supreme Court’s ruling in Old Chief v. United States, the McAllister court held that the State could not submit evidence of the details of the defendant’s prior felony conviction if the defendant offered to stipulate to that element before trial. The court concluded that the details of the conviction were no longer relevant once the defendant stipulated to it. The State could satisfy the element by submitting a certified record of the defendant’s conviction to the jury.
The court in State v. Alexander addressed the derivative question left by McAllister: may the defendant completely prevent the jury from considering the prior conviction element by stipulating to the prior conviction before trial? Continue reading “Prior Conviction as an Element of a Crime: The Effect of Stipulations After State v. Warbelton”
I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.” As I observed in a recent post, I’ve become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences. My forthcoming article in the Florida State Law Review focuses on “explanation review” in the federal system. The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.
As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range. In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts. My proposal seeks to promote engagement with both guidelines and purposes.
I presented the paper earlier this month at the Marquette Criminal Appeals Conference. It will appear in a symposium issue of the Marquette Law Review this winter. The abstract appears after the jump. Continue reading “Explaining Sentences in Wisconsin and Federal Court”
Today the Wisconsin Supreme Court accepted three new cases for review, two criminal cases and one civil case.
One of the criminal cases, State v. Smith, 2008AP1011, asks the court to determine whether the sex offender registration statute, Wisconsin Statute section 301.45, is unconstitutional in its application to a defendant whose crime, false imprisonment of a minor, concededly had no sexual component whatsoever. The Defendant Smith was convicted of falsely imprisoning a minor in connection with a drug crime. That conviction triggered application of the sex offender registration requirements in section 301.45. Smith did not register, and was charged with failing to register as required. He argues that the sex offender registration requirement violates his due process and equal protection rights because his crime had no sexual component. Continue reading “Wisconsin Supreme Court Accepts Three New Cases, Including a Case That Will Determine Whether a Crime with No Sexual Component May Trigger Sex Offender Registration Requirements”
On March 2, the Wisconsin Supreme Court accepted six new cases for review, five criminal cases and one civil case.
The first case, State v. Henley, 2008AP697, presents an interesting issue regarding the authority of the courts of appeal, or the supreme court, to grant a new trial to a criminal defendant in the interests of justice, without regard to the passing of the time for appeal. As Judges Vergeront, Lundsten, and Bridge explained in their certification of the questions in the case, Continue reading “Wisconsin Supreme Court Accepts Six New Cases, Including Issue of Inherent Authority of Wisconsin Appellate Courts to Grant a New Trial in the Interests of Justice”
This past week, the 2009 Marquette Law School Public Service Conference focused on the efforts of communities across the nation to rethink criminal justice policy with a greater emphasis on community involvement in both planning and implementation. Over the past two decades, Wisconsin has more than quintupled its public expenditures for corrections. At the same time, local communities have struggled with increasing jail populations and declining resources for treatment and reentry services. At the core of this challenge is the desire to keep communities safe while providing more effective alternatives to long term incarceration.
These challenges are not unique to Wisconsin. As keynote speaker Jeremy Travis pointed out,
As our nation has reacted to rising crime rates over the years, the response of many elected officials has been to turn to the funnel [arrest, prosecution and incarceration,] as a crime control strategy. . . . We have invested enormous sums of money in these crime control strategies, with profound consequences. . . . Most strikingly, the national rate of incarceration has more than quadrupled over the past generation so that America now has the highest rate of incarceration in the world.
This approach has been accompanied by a drop in the crime rate. It also has had other sociological consequences which are not as easily quantifiable. Continue reading “Justice Involves Communities”
Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee. Three men approach. Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside. They block Kodanko’s exit from the shelter. Stewart says to Kodanko, “Give us some change, man.” When Kodanko refuses, Stewart repeats his request three or four time in an increasingly loud voice. Stewart then begins to reach into his coat. Moore says, “Put that gun away.” At the same time, Levy enters the shelter and tells his companions, “Let’s go.” The three of them enter a restaurant across the street. Moore returns a few minutes later to make small talk with Kodanko. In due course, the police arrest Stewart for attempted robbery. But was it really a robbery attempt, or just aggressive panhandling?
This is the subject of State v. Stewart, 420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course. The case resonates with me on several different levels. Continue reading “Favorite Wisconsin Cases to Teach: State v. Stewart”