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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Toward a Pragmatic Normative Framework for Criminalization, Part 4

December 14th, 2014

My previous post began a consideration of general deterrence.  I view general deterrence through the lens of the criminal-justice system’s overall aim of promoting social trust.  General deterrence is one of four mechanisms by which the system seeks to promote trust.  The existence of deterrent threats to certain kinds of risky or harmful behavior provides greater reassurance to individuals that they can safely move outside of home and family spheres, engage in mutually beneficial transactions with strangers, and generally participate in the economic, political, and cultural life of our national community.

But there is a balance to be struck.  If overly tough deterrent threats are made against an overly broad or ill-defined set of behaviors, then fear of the government may become an impediment to social trust that is as great, or even greater, than the fear of private victimization.

Certain constraints on criminalization may help to mediate this tension.   Read the rest of this entry »

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Toward a Pragmatic Normative Framework for Criminalization, Part 3

November 28th, 2014

In this post, I will begin an exploration of the implications of deterrence aims for criminalization.  By criminalization, I mean the decisions about what conduct to make criminal under what circumstances, and what level of punishment to associate with different crimes.  As I discussed in the previous post in this series, I believe the overarching objective that should animate criminalization decisions should be the enhancement of social trust.  Building trust is a difficult, but critical, objective for a diverse, individualistic society like ours, in which economic and social vitality depend on regular interactions between strangers and near-strangers.  Acute, pervasive fears of victimization in such interactions would cause a social breakdown.

One way that the criminal-justice system builds trust is through the deterrence mechanism — that is, threats of hard treatment for those who harm the persons or property of others.  Let’s call these kinds of injury “primary harms.”

The essential challenge arising from the deployment of deterrent threats is this: punishment itself necessarily includes or gives rise to primary harms, and there is no reason to view state-imposed harm as intrinsically less serious than other types of harm.   Read the rest of this entry »

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Toward a Pragmatic Normative Framework for Criminalization, Part 2

November 26th, 2014

At bottom, our criminal-justice system exists to provide citizens with a sense of security in their day-to-day lives.  In this regard, our criminal-justice system serves the same end as our national-security system. There is, however, a fundamental difference between these systems: while the national-security system focuses on external threats posed by groups who do not belong to our political community, the criminal-justice system focuses on internal threats we pose to one another — there is no clear line distinguishing those whom the system protects from those whom the system protects against.  From this central dilemma arises all of the marvelous and maddening complexity of criminal law.

This observation also explains why criminal justice is so deeply, unavoidably political.  In principle, the system must protect all citizens equally, but social conflict is a pervasive and inevitable feature of life in a nation as large and diverse as ours.  In such a world as that, the system will rarely, if ever, be able to enhance the sense of security of one group without diminishing the security of others.  The system must choose sides, and such decisions are inherently political.

The system focuses on protecting, most obviously, the physical security of our persons and property.  Somewhat less obviously, but perhaps no less importantly, the system is also asked to safeguard certain sorts of psychic security: the individual’s sense of self-respect, of status in society, and of order and predictability in social relationships.   Read the rest of this entry »

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Toward a Pragmatic Normative Framework for Criminalization, Part 1

November 15th, 2014

What conduct should be made criminal, and how should the severity of different crimes be graded?  Consider a few scenarios:

  • A college student grows marijuana in a small garden behind his house.  He and his housemates consume the entirety of the crop.
  • An author writes disturbing fictional stories of child molestation, which he posts on his public blog.  A grown victim of childhood sexual assault comes across one of the stories and reads it, causing intense psychological trauma.
  • A careless (but sober) driver drifts over the centerline of a two-lane highway, colliding with an oncoming vehicle and killing the other driver.
  • A woman hires a hit man to kill her husband, who is having an affair.  Shortly thereafter, she thinks better of it, and cancels the hit.  No one is physically harmed.
  • After being mugged, a woman purchases a handgun for self-protection.  One night, as she is walking alone in a high-crime neighborhood, a panhandler approaches her and asks for money.  She immediately pulls out her gun and kills the panhandler.
  • A man in his home hears a woman outside screaming that she is being raped.  He does not go to his window, call the police, or do anything else to help.
  • A man has a history of becoming violent after drinking.  He has several convictions for disorderly conduct and assault, mostly in connection with barroom fights.  He enters a bar and begins drinking.

Which of these scenarios should be treated as crimes?  Among those, which is most severe and deserving of the greatest punishment?  Which is least severe?

It seems self-evident that such questions ought to be answered by reference to the basic purpose or purposes of criminal punishment. The alternative seems an ad hoc, unpredictable, arbitrary criminal-justice system that often operates at cross-purposes with itself.

Criminal law courses, in any event, traditionally proceed on the assumption that purposes do matter to criminalization, in both a descriptive and normative sense.  Four purposes are conventionally identified: deterrence, incapacitation, rehabilitation, and retribution.

However, I’ve long had the nagging sense that conversations around these purposes — in courtrooms no less than classrooms — are chronically superficial and unproductive.   Read the rest of this entry »

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