My New Book Out Soon: “Wisconsin Sentencing in the Tough-on-Crime Era”

I now have a publication date for my new book: January 17. The excessively long, but nicely descriptive, title is Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway. More information (including how to order a copy) is available through the University of Wisconsin Press. I’ll be doing a release event at Boswell Books in Milwaukee on January 17 at 7:00 p.m.

The Sheriff Must Run the Jail, But How Do You Know Whether a Facility Is a Jail?

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.   Continue reading “The Sheriff Must Run the Jail, But How Do You Know Whether a Facility Is a Jail?”

It’s Not a Felony to Be Homeless, Wisconsin Supreme Court Holds

As William Dinkins, a Wisconsin sex offender, approached the date of his release from prison, he was obliged by state law to provide an address at which he would be residing upon his release.  The problem is that he did not have a home, and there was no one willing to take him in.  Despite his efforts and those of a social worker to line up a place for him to live, when he missed the deadline to report a post-prison residence, the state prosecuted him under Wisconsin’s sex-offender registration law, which makes it a felony for a sex offender to “knowingly fail[] to comply with any requirement to provide information.”

The trial court found Dinkins guilty as charged and gave him 90 days in jail.

Although framed as a “failure to provide information,” Dinkins was, for all intents and purposes, convicted and punished for being homeless.  Or more precisely, I suppose, he was punished for being a homeless sex offender.  Either way, this seems functionally a status crime, and status crimes are unconstitutional under Robinson v. California, 370 U.S. 660 (1962).

Continue reading “It’s Not a Felony to Be Homeless, Wisconsin Supreme Court Holds”

Harmless Error and Jury Selection

As jury selection began for the trial of Sharon Sellhausen, it turned out that one of the prospective jurors was the daughter-in-law of the trial judge.  Although the judge could have, and should have, excused such a close relative from service on the jury, he did not do so.  Nor did the prosecution or defense seek the daughter-in-law’s removal for cause.  Perhaps that seemed a perilous course of action after the judge had gone to some effort to create a record that the daughter-in-law would be impartial.  In any event, defense counsel chose to remove the daughter-in-law through the less confrontational method of the peremptory strike, which saved the judge from having to rule on the suitability of his daughter-in-law serving on the jury.

But, of course, the defendant was thereby out a peremptory.  Thus, she could with some reason complain on appeal about the trial judge’s failure to remove the daughter-in-law sua sponte.

Earlier this month, the Wisconsin Supreme Court agreed in State v. Sellhausen, 2012 WI 5, that sua sponte removal would have been preferable, but declined nonetheless to grant the defendant a new trial.  Since the daughter-in-law was eventually struck and did not serve on the jury, the court held that any error was harmless.

The case seems to embrace the broad principle that erroneous failures to excuse a prospective juror for cause will always be regarded as harmless where the prospective juror is later struck.

Continue reading “Harmless Error and Jury Selection”

Can Defendants Get a Fair Hearing in the Wisconsin Supreme Court?

Data from the most recent term confirm that criminal defendants face rough sledding indeed in the Wisconsin Supreme Court.  As reported in the August issue of the Wisconsin Law Journal, Justices Roggensack, Gableman, Prosser, Ziegler, and Crooks essentially vote as a block in criminal cases, with each appearing in the majority at least 95 percent of the time.  With very few exceptions, this block is not supporting defendants.  Indeed, Gableman — elected after a notoriously ugly election battle that played on public fears of crime — went almost three years on the bench before voting for the first time to reverse a conviction at the very end of the last term.

Against a backdrop of election campaigns that focus so heavily on crime, it is hard to avoid the impression that the court is strongly predisposed for political reasons to vote against defendants.  The dynamic seems quite different than on the United States Supreme Court, where even an unquestioned conservative like Justice Scalia will vote for defendants several times each term.  At the federal level, only Justice Alito strikes me as equally predisposed to vote against defendants in all manner of cases as are the Wisconsin conservatives.  To be sure, there are some types of cases where the U.S. Supreme Court seems to vote in an equally predictable, partisan manner as the Wisconsin Supreme Court.  Fourth Amendment cases are probably the best example.  But, even in that area, Scalia “switched sides” and voted with the Court’s liberals recently in at least one high-profile case, Arizona v. Gant.

The Wisconsin Supreme Court’s antidefendant block voting reflects poorly on the court’s neutrality.  It would be one thing if the court’s role were merely to review routine appeals from convictions, but the court controls its own docket and is able to limit its criminal cases to those presenting difficult, important questions of law.  The resolution of the tough questions that reach such a court should not break predictably in just one direction.  The U.S. Supreme Court is a model.  The very different voting pattern on the Wisconsin Supreme Court raises questions about whether justice really is blind in our state system.

Once a Sexually Violent Person . . .

When civil commitment laws for sexually violent persons first appeared in the early and mid-1990’s, they were justified in part based on the provision of treatment and the expectation that institutionalized SVPs might one day be “cured” and returned to the community. When these constitutionally questionable laws were first challenged in court, their rehabilitation and reentry components helped them to survive judicial review. But, as time has gone on, it has become increasingly clear that SVP commitments are really just a crude form of more-or-less permanent incapacitation – de facto life sentences. And it seems that legislatures and courts have now fully embraced this model.

Consider, for example, the Wisconsin Supreme Court’s decision last week in State v. West, 2011 WI 83. Wisconsin’s SVP law provides two distinct mechanisms for return to the community: discharge and supervised release. Originally, the statute expressly allocated the burden of proof to the state in resisting petitions for supervised release. However, a 2005 amendment removed this express language from the law.

West, held as an SVP, petitioned for supervised release under the amended statute. The lower courts determined that the burden now lies with SVPs and denied West’s petition. West then argued to the Wisconsin Supreme Court that (a) despite the 2005 amendment, the statute should still be interpreted to place the burden on the state, and (b) if interpreted otherwise, the statute was unconstitutional. The court rejected both arguments.

Continue reading “Once a Sexually Violent Person . . .”

SCOWIS Muddies the Pleading Waters for Collateral Attacks

As regular readers of this blog — yeah, both you — probably realize, my pet peave about habeas law is that there are so many unnecessary, arcane procedural requirements.  Yes, I understand that things are different after the regular criminal process has played itself out, and it should be harder for a defendant to overturn a conviction than to avoid a conviction in the first place.  But we can accomplish that simply by placing all evidentiary burdens on the defendant.  I’m even open to the idea that the defendant should in all cases be required to make a substantial showing of actual innocence in order to win a new trial.  But why layer on one additional procedural requirement after another?  These requirements just spawn more layers of collateral litigation that lead reviewing courts further and further away from the questions of substantive justice that ought to be the focus.

The Supreme Court of Wisconsin may have added to the procedural complexity and uncertainty of Wisconsin postconviction law with its decision last week in State v. Balliette, 2011 WI 79.  It’s a bit hard to say what the significance of the decision is, but the court’s emphasis on the pleading requirements that must be satisfied before a § 974.06 movant can get an evidentiary hearing does not bode well.

Here is the relevant language:

Continue reading “SCOWIS Muddies the Pleading Waters for Collateral Attacks”

SCOWIS to Consider Required Notice for Mandatory Minimum

Late last month, the Wisconsin Supreme Court agreed to decide whether a defendant’s conviction should be set aside when he was not informed either by the complaint or by his lawyer that he would be subject to a twenty-five-year mandatory minimum if convicted.  The unpublished Court of Appeals opinion in State v. Thompson is here, courtesy of On Point.

Thompson apparently went to trial on a sex assault charge without realizing that he faced the long minimum sentence.  Although this seems like a rather big thing to spring on a defendant only after he has been convicted, it is not at all clear there is a viable legal theory to support post-conviction relief on this basis.

The court will consider three possibilities:

Continue reading “SCOWIS to Consider Required Notice for Mandatory Minimum”

Utter Disregard for Human Comprehension

Wis. Stat. § 940.23(1)(a) defines first-degree reckless injury as follows: “Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.”  Earlier this week, in State v. Burris, 2011 WI 32, the Wisconsin Supreme Court considered the relevance of post-crime conduct to the determination of “utter disregard” and how the jury should be instructed on this question.  I’m not sure they succeeded in clarifying much, though.

Here’s what happened:

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SCOWIS Approves LWOP for 14-Year-Old Killers

Today, in State v. Ninham, 2011 WI 33, the Wisconsin Supreme Court approved the sentence of life without possibility of parole for fourteen-year-olds who are convicted of first-degree intentional homicide.  The decision rests on a narrow reading of the U.S. Supreme Court’s landmark holding last year in Graham v. Florida, in which the Court outlawed LWOP for juveniles convicted of nonhomicide crimes.  Since Graham, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.

Ninham’s challenge was framed as a categorical challenge to the use of LWOP against fourteen-year-olds.  As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of Graham, (1) determining whether there is a national consensus against the challenged practice, and (2) exercising independent judgment as to whether the practice constitutes an unconstitutionally severe punishment.

As to the first prong, although a large majority of states authorize LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed:

Continue reading “SCOWIS Approves LWOP for 14-Year-Old Killers”