May 13th, 2013
Last week, the U.S. Bureau of Justice Statistics issued a new report compiling nearly two decades of data on gun crime, Firearm Violence, 1993-2011. No doubt, many readers will pore over the report’s abundant tables and graphs looking for support for their views on gun control. However, I was most struck by a breakdown of firearm violence based on population size (table 5). Among the six size-based categories, the most dangerous places were cities of 500,000-999,999 — the category containing Milwaukee (pop. 597,867). These mid-large cities not only have rates of gun crime that are about four times higher than cities of less than 100,000, but they are also forty-four percent higher than cities of one million or more.
More specifically, according to the National Crime Victimization Survey, there were 4.6 nonfatal firearm victimizations per 1,000 persons age twelve or older in the mid-large cities in 2010 and 2011. (Nationally, homicides constitute only two percent of all gun-related crimes, so the NCVS numbers would not change much if fatalities were included, too.) The second-highest rate was 3.9, for cities with 250,000-499,999.
The numbers look very different today than they did in 1996-1997, when the Milwaukee-sized cities were tied for second place with 7.3 victimizations per 1,000, and the medium-sized cities (250,000-499,999) led with 10.3.
I have two reactions to the data. First, the relationship of community size to gun violence is in some respects predictable, and in others quite puzzling. Read the rest of this entry »
May 6th, 2013
Last week, the Circuit Court in Milwaukee County rejected the effort of Sheriff David A. Clarke to maintain control over the County Correctional Facility South. (Judge Van Grunsven’s ruling is available here.) Although the CCF-S (formerly known as the House of Corrections) was run for decades by a superintendent who was independent of the Sheriff, the County transferred control over the CCF-S to the Sheriff in 2009 as a result of security concerns at the facility. However, the new management proved less than satisfactory to some important stakeholders.
Conflict over Clarke’s administration of the CCF-S seems connected to a wider ideological conflict between Clarke and other County leaders over the incarceration of relatively low-risk criminal offenders, with Clarke taking a very critical position regarding various criminal-justice initiatives that might be grouped under the heading “evidence-based decision making.” (Background on the conflict is here; my critique of some of Clarke’s views is here.) Clarke has been unsupportive of treatment programs and alternatives to incarceration, and his administration of the CCF-S has apparently reflected this perspective. Finally, through its 2013 budget, the County Board decided to transfer control of the CCF-S back to a superintendent. Clarke’s control over the downtown jail, which has been his all along, remains unaffected.
Clarke sued the County in order to block the transfer. Read the rest of this entry »
April 29th, 2013
At the conclusion of a semester spent discussing a mountain of Supreme Court opinions in my Constitutional Law class, one of my students asked a few days ago which Justice I identify with most closely. The question caught me off guard; I’m not sure I’ve ever really thought about that before. After a moment’s hesitation, and to my surprise, I found myself answering “Justice Kennedy.”
I’m no less exasperated by Kennedy’s Delphic pronouncements than the next guy, and I disagree strongly with many of his specific votes. (For instance, his approval of life without parole for a first-time drug offender in Harmelin v. Michigan comes to mind.)
But here’s why I identify with Kennedy anyway: I think that he brings to the task of judging a particular moral vision that resonates a great deal with me. To be sure, this moral vision often seems at war in Kennedy’s heart with the values of judicial modesty and restraint (competing values that also tend to resonate with me). The tension contributes to the frustrating character of many of his opinions, in which high-minded rhetoric is combined with holdings that seem to get narrower and increasingly equivocal the more closely you examine them.
Consider, for instance, Kennedy’s opinion for the Court in Graham v. Florida (the subject of an article on which I have been working for the past few months). Read the rest of this entry »
April 20th, 2013
A new report from the UWM Employment and Training Institute shows that Wisconsin leads the nation in incarcerating black males. Based on data from the 2010 U.S. census, Wisconsin incarcerates about one in every eight of its black men between the ages of 18 and 64. This includes individuals held in state and local correctional facilities. The Badger State’s black incarceration rate is, in fact, about one-third higher than that of the second-place state, Oklahoma, and nearly double the national average.
Wisconsin also leads the nation in incarcerating Native-American males, but its white-male incarceration rate (one-tenth of the black rate) closely tracks the national average. Wisconsin’s Hispanic incarceration rate is actually below the national average.
The Milwaukee County data are particularly striking: more than half of the County’s black males between the ages of 30 and 44 have been or currently are housed in a state correctional institution.
Is this a recent phenomenon? I’ve taken a look at some historical data on racial disparities for my three-states research. The following graph indicates that Wisconsin has been above Indiana and Minnesota for some time in black imprisonment (that is, black prisoners per 100,000 black residents), but that the current wide gap did not really open up until after 1990:
Read the rest of this entry »
April 15th, 2013
Sharon Dolovich is one of my favorite writers on prisons. I’ve especially appreciated her work on the K6G unit of the L.A. County Jail. This is a segregated unit reserved for gay men and transgender women. Her latest article on K6G explores the relatively positive experience of inmates in the unit so as to illuminate the core pathologies of life elsewhere in the Jail, and by extension in most male penal institutions across the country.
As Dolovich sees things, hypermasculinity is the defining characteristic of life in the general inmate population. Here’s how she describes life in the GP units: Read the rest of this entry »
April 6th, 2013
As noted here a few weeks ago, my forthcoming article comparing imprisonment trends in Indiana, Minnesota, and Wisconsin in now available on-line. Due to space constraints, I was unable to include in the article all of the interesting data I have collected on the three states. I’ll present some of that additional material in an occasional series of posts here.
Today, let’s take a look at the supervised populations of the three states. The supervised population is comprised of four subgroups: those in prisons, those in jails, those on probation, and those out on post-imprisonment supervised release (a status that goes by different names in different jurisdictions, but which I will call parole). As is well known, Minnesota has a remarkably low imprisonment rate (at least by U.S. standards), although all three states have experienced an imprisonment boom since the 1970s. Here are the imprisonment numbers, reflecting the number of prisoners per 100,000 state residents:
As the graph indicates, Minnesota has maintained a consistently lower imprisonment rate than the other two states since the mid-1960s. Indeed, the Minnesota advantage has tended to widen over time. By contrast, Indiana has generally had the highest imprisonment rate, although Wisconsin has been close at times, and even took the lead for a few years.
The story is quite different, however, if you consider the supervision numbers more broadly. Read the rest of this entry »
April 1st, 2013
My Constitutional Law class this semester has been focusing on Hollingsworth v. Perry, the California same-sex marriage case. We’ve been following the case through the Supreme Court litigation process, and I’ve also assigned some of the key precedent, including Romer v. Evans, the 1996 decision in which the Supreme Court overturned a Colorado law prohibiting local governments from treating sexual orientation as a protected status.
At the same time, I’ve been hard at work on an article about the Court’s recent decisions limiting the sentence of life without the possibility of parole, Graham v. Florida (2010) and Miller v. Alabama (2012). In doing so, I’ve been struck by the similarities between the Court’s opinions in Romer and Graham, both of which were authored by Justice Kennedy. And, although it is certainly not obvious or conventional to do so, I am starting to see Romer as a case that is about punishment.
In order to appreciate the connections between Romer and Graham, it is important to realize that Romer was decided before Lawrence v. Texas (2003), which recognized for the first time a constitutional right for same-sex partners to engage in what the Court described as “certain intimate sexual conduct.” Read the rest of this entry »
March 25th, 2013
When legislatures create new crimes, they sometimes fail to specify what mental state must be proven with respect to each element. These gaps in substantive criminal law give real significance to deafult rules or presumptions that certain levels of mens rea are required in certain circumstances. The Model Penal Code, for instance, specifies that some form of mens rea (purpose, knowledge, recklessness, or negligence) must be proven as “each material element of the offense.”
The Supreme Court has also recognized a mens rea presumption, although in a somewhat more limited form than the MPC. This was made clear, for instance, in Dean v. United States, 556 U.S. 568 (2009), in which the Court held that a ten-year mandatory minimum sentence could be triggered by the entirely accidental discharge of a firearm during a bank robbery. The relevant statute did not specify any mental state, and Dean argued that the government should be required to prove that the discharge was knowing or intentional. However, the Court indicated that its mens rea presumption only applied to elements that made a defendant’s conduct criminal, not to aggravating factors (like the discharge of a weapon) that merely made the defendant’s illegal conduct even worse.
Now, in an interesting new article, Eric Johnson seeks to defend and elaborate on Justice Stevens’ dissent in Dean. Read the rest of this entry »
March 18th, 2013
I’ve never read the work of the Victorian judge and legal scholar James Fitzjames Stephen, but I am familiar with his famous statement that “it is morally right to hate criminals.” Richard Posner contextualizes this statement with some interesting commentary about Stephen in a new essay in the Ohio State Journal of Criminal Law.
As Posner reads Stephen’s work (principally, his three-volume history of English criminal law), Stephen was not really a moralist, but a utilitarian who saw practical value (for him, the same thing as moral rightness) in harnessing the public thirst for vengeance against wrongdoers. Posner puts it this way: Read the rest of this entry »
March 11th, 2013
In the course of being arrested on drug charges, Freddy Alexander took a couple of swings at a police officer. As Alexander’s sentencing judge saw things, these punches boosted his guidelines offense level by six under §3A1.2(c)(1), which applies when a defendant creates a substantial risk of serious bodily injury to a law enforcement officer. This despite the fact that Alexander only connected with one of his punches and caused only a minor injury that did not require medical attention.
The Seventh Circuit nonetheless affirmed Alexander’s sentence earlier today in United States v. Alexander (No. 12-1084) (per curiam). The court observed that “§3A1.2(c)(1) applies to substantial risk of serious injury and does not require that the defendant actually have inflicted serious injury.” Fair enough, but why think that Alexander’s punches posed such a risk? I don’t know anything about Alexander’s size and strength, but I’m pretty sure that if I took a couple of swings at someone, I’d be much more likely to injure myself than my opponent. Read the rest of this entry »