Marquette Poll Reveals Support for Rehabilitation of Prisoners

October 4th, 2015

For the past four years, Darren Wheelock and I have collaborated with Charles Franklin and the Marquette Law School Poll on a series of surveys of public attitudes toward sentencing and corrections policy in Wisconsin.  Our 2015 results, released last week, seem to show remarkably high levels of support for prisoner rehabilitation.  Of those who were asked, more than 80% expressed support for each of the following:

  • Expanding counseling programs for prisoners
  • Expanding job training programs for prisoners
  • Expanding educational programs for prisoners
  • Helping released offenders find jobs

At the same time, there are also indications of substantial, if somewhat lower, levels of support for various punitive policies:

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Rodriguez v. United States: Supreme Court Says No to Prolonged Traffic Stops

June 27th, 2015

Earlier this week, the Supreme Court decided City of Los Angeles v. Patel, the fourth and final of its search-and-seizure cases this term. In Patel, the Court overturned a city ordinance requiring hotel operators to share information about their guests with the police.

Patel confirmed this as a good term for Fourth Amendment rights, joining Grady v. North Carolina (GPS tracking of sex offender counted as search for Fourth-Amendment purposes) and Rodriguez v. United States (police improperly extended traffic stop to conduct dog sniff of car). Less favorable, though, was Heien v. North Carolina (no suppression of evidence obtained after traffic stop that was based on officer’s reasonable mistake of law).

The remainder of this post will focus on Rodriguez, which strikes me as the most interesting of the Fourth-Amendment series. Broadly speaking, at issue was the extent to which the police can go on a fishing expedition when they pull over a driver for a traffic violation.   Read the rest of this entry »

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Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

June 25th, 2015

By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial.  Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature.  A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered.  Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.   Read the rest of this entry »

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Elonis v. United States: SCOTUS Again Adopts Narrowing Construction of Criminal Statute

June 2nd, 2015

As I noted in my post last week, the Supreme Court has a variety of interpretive tools at its disposal to rein in the ever-expanding reach of federal criminal law.  Right on cue, the Court demonstrated the use of one of these tools this week in Elonis v. United States.  

Elonis, a self-styled rapper, posted a variety of lyrics with violent themes on his Facebook page.  Some of these lyrics related to his wife, some to coworkers, and some to law-enforcement personnel, among others.  Elonis was eventually convicted under 18 U.S.C. §875(c), which prohibits individuals from transmitting in interstate commerce “any communication containing any threat . . . to injure the person of another.”

The Supreme Court reversed, ruling that Elonis’s jury had been improperly instructed.

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Yates v. United States: Overcoming Plain Meaning

May 26th, 2015

As we enter the home stretch of the Supreme Court term, I have been reviewing the criminal cases already decided by the Court this year. For my money, the most interesting is Yates v. United States, which presents a classic statutory interpretation problem. This was the fish case that got a fair amount of whimsical press coverage when it came out. Even the Justices proved incapable of avoiding fish puns in their opinions, but I’ll do my best not to get caught in that net. (Oops.)

Yates captained a commercial fishing vessel that was catching undersized grouper in violation of federal law. Following an inspection, some of the illegal catch was thrown back into the sea on Yates’s orders, presumably to avoid penalties. Yates was eventually convicted under 18 U.S.C. §1519, which authorizes a prison term of up to twenty years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter.”

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Final Version of Good Conduct Time Paper Is Now Available

April 6th, 2015

The new issue of the Marquette Law Review includes my paper, “Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release.”  This paper expands considerably on my article on the same topic in the Wisconsin Lawyer.  My full corpus on GCT is here.

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Deadly Force in Philly (and Milwaukee)

April 3rd, 2015

Last month, the U.S. Department of Justice issued a voluminous report on uses of deadly force by the Philadelphia Police Department.  In recent years, there has been a drop in both violent crime and assaults on police officers in the City of Brotherly Love, but officer-involved shootings (OISs) have remained stubbornly high.  Amidst media coverage of rising OIS numbers in 2013, the Police Department requested assistance from the DOJ in order to assess the problem.

The new report, authored by George Fachner and Steven Carter, finds there were 394 OISs in Philadelphia between 2007 and 2014, for an average of 49 per year.  The suspects were unarmed in 15% of the cases.  Fachner and Carter provide a wealth of data regarding the 394 OISs and dozens of recommendations for the Department.

One recommendation is, “The PPD should publish a detailed report on use of force, including deadly force, on an annual basis.  The report should be released to the public.”

I’m pleased to say that we are already doing such annual reports here in Milwaukee.  How do the numbers compare?

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Decline in Wisconsin Prison Population Results From Fewer Drug Offenders Behind Bars

March 15th, 2015

As I discussed in this post, Wisconsin has achieved one of the nation’s higher rates of reduction in imprisonment over the past decade.  To be sure, New York, California, and a few other states have far outpaced Wisconsin in this regard, and Wisconsin’s prison population remains nearly ten times larger than it was in the early 1970s.  Still, we may appreciate some overall net progress in the Badger State’s numbers since the mid-2000s.  As indicated in the following chart, reduced imprisonment of drug offenders has played a central role in driving this trend:

drug prison graph

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More on Good Conduct Time

March 11th, 2015

Over the past few months, on this blog and elsewhere, I’ve been  arguing that Wisconsin should consider reinstituting good conduct time for prisoners, which provides for accelerated release based on good behavior behind bars.  My writing on this topic is collected here.  Earlier this week, Wisconsin Lawyer published my latest piece on GCT.  I also did two short videos for Wisconsin Lawyer on GCT: here and here.

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Mercenary Justice?

March 6th, 2015

Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri.  Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants.  For instance, the DOJ charges:

Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)

I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of fines, surcharges, fees, forfeitures, and the like.

Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175).   Read the rest of this entry »

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