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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Prisoner Enfranchisement in Ireland

February 20th, 2015

I was surprised to learn recently from an Irish law professor that Ireland gave its prisoners the right to vote in 2006.  Felon disenfranchisement is such a pervasive fact of life in the United States that many Americans might assume, as I did, that this is the accepted practice everywhere.  This turns out not to be the case.  Ireland is hardly alone, even among the common-law countries, in giving prisoners the right to vote, although the case of Ireland may be unusual in that its legislature acted in the absence of a court directive.  Canada and South Africa, by contrast, required court rulings before their prisoners were enfranchised.  The Irish story is nicely recounted in an article by Cormac Behan and Ian O’Donnell: “Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility,” 48 Brit. J. Criminology 319 (2008).

Before proceeding with the Irish story, a little on the American situation:  Read the rest of this entry »

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Milwaukee Arrests Rarely Involve Force, But Incidents Are Concentrated in Some Districts

February 12th, 2015

Last week, the Milwaukee Fire and Police Commission released its annual report on police uses of force for 2013.  The report counts 895 incidents in 2013, employing a very broad definition of “use of force” that does not require either an injury or the use of a weapon.  To put that number into perspective, the Milwaukee Police Department made more than 30,000 arrests in 2013.  For each arrest in which force was used, there were about thirty-six arrests in which force was not used.

In nearly three-quarters of the use-of-force-incidents, no weapon was used by the police officer.  In the remaining incidents, the most commonly used weapons were Tasers and pepper spray.  Firearms were used on forty occasions, most commonly on dogs.  Firearms were used against human subjects in fourteen incidents; eleven of the subjects were hit.

Data from previous years indicate that Taser and pepper spray use is in sharp decline.   Read the rest of this entry »

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Milwaukee Residents Give Solid Marks to Police

January 28th, 2015

Last week, the Milwaukee Fire and Police Commission (of which I am a member) released the results of its first-ever survey of citizen attitudes toward the police.  Although the survey identified a few areas of concern, the overall tenor of citizen attitudes seems positive.

Conducted for the FPC by UWM’s Center for Urban Initiatives & Research last summer, the survey involved telephone interviews of 1,452 Milwaukee residents.  As detailed in the CUIR’s report, the survey respondents were reflective of the city’s diversity in racial composition and in other respects.

The report’s lead finding is that about three-quarters of Milwaukee residents report that they are at least somewhat satisfied with the Milwaukee Police Department, while only about nine percent said they were “not at all satisfied.”  These findings are notable for a number of reasons, not the least of which is that fully one-quarter of the respondents reported being stopped by the police in the past year.  One might suppose that this group would be predisposed to negative evaluations of the police.  However, the vast majority (71%) of those stopped felt that they were treated fairly.  The MPD has significantly increased its number of stops in recent years, but it does not appear that involuntary contact with the police normally leads to hard feelings by the person stopped.

Given recent racial tensions in Milwaukee and nationally regarding policing practices, it is especially important to note the racial patterns in survey responses.   Read the rest of this entry »

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A Social Trust Theory of Criminal Law

January 7th, 2015

Last fall, I started a series of posts here on substantive criminal law theory.  I wasn’t satisfied with the way they were framed, though, and decided to approach the topic differently through a series of posts on the Marquette Law School Faculty Blog.  They are here: Part I, Part II, and Part III.  I think that will be all I do with the topic for awhile.

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