AP via WDJT: Wisconsin Attorney General Josh Kaul says he won't enforce any abortion ban.
CNN: Derek Chauvin pleads guilty to civil rights violations in George Floyd killing. Library of Congress: Happy Bill of Rights Day! Love 'em while you've got 'em! Verdict: Why we still like the separation of church and state. This idea of separation is much disputed these days, as religions continue to gain more victories in the courts. The religious keep insisting they have a “right” to live by religion instead of the law. Whether it leads to theocracy or balkanization, the creeping fusion of church and state is disastrous for the public good. The Washington Post: Six Tesla workers file additional suits alleging sexual harassment. Jessica Brooks, who works at the Fremont seat factory, alleged the harassment was so extreme she stacked boxes around her work station to deter men from ogling and whistling at her. In a legal complaint and an interview with The Post, she says she bought flannel shirts at a thrift store to tie around her waist, in an effort to conceal her backside and prevent men from directing lewd comments at her. “I was so tired of the unwanted attention and the males gawking at me, I proceeded to create barriers around me just so I could get some relief,” said Brooks, who lives in Contra Costa County. “That was something I felt necessary just so I can do my job.” Brooks alleges she complained to human resources, but the behavior was not addressed. Instead, she said, she was moved to a different part of the factory. (The Post viewed a message from Tesla human resources dating from November confirming it had investigated Brooks’s complaint.) She is currently on stress-related leave, she said. More links and stories on our Facebook page!
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By Gretchen Schuldt The Wisconsin Supreme Court is accepting comments until Jan. 3 on a petition to prohibit routine shackling of juveniles in court. A public hearing on the matter is scheduled for Feb. 15. Currently, many counties in the state routinely shackle children during their court appearances. Read WJI's previous petition coverage here. Watch the WJI Virtual Salon with Eileen Hirsch and Diane Rondini, the two lawyers who filed the petition with five circuit judges, here. The judges who joined in the request were Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. The petition pending before the court would require that restraints or shackles be removed from children before they are brought into a courtroom unless a judge makes all of the findings listed below. 1. The use of restraints is necessary due to any of the following factors: a. Restraints are necessary to prevent physical harm to the child or another person. b. The child has a history of disruptive courtroom behavior that has placed others in potentially harmful situations, or the child presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior. c. There is a founded belief that the child presents a substantial risk of flight from the courtroom. 2. There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the child or another person, including the presence of court personnel, law enforcement officers, or bailiffs. The petition also would require a judge to allow the child’s lawyer to be heard before the court orders the use of restraints. The full petition and a supporting memo is posted on the State Supreme Court website here. Send any comments on the petition to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688. If possible, email a Microsoft Word version of your response to clerk@wicourts.gov. See comment guidelines at the court's website here. Appeals court's electronic monitoring ruling is in favor of youth but skips the big questions12/14/2021 By Gretchen Schuldt A judge who orally gave one disposition for a juvenile offender but issued a different disposition in writing must adhere to his oral order, the state Court of Appeals ruled Tuesday. The ruling means that Brandon, if still on court-ordered supervision, does not have to wear an ankle bracelet unless the state specifically requests it and the judge agrees. District III Appellate Judge Gregory B. Gill Jr. did not rule on a key issue raised in the case: Is electronic monitoring something the court must order or can it be implemented by a juvenile justice worker as a "case management tool"? Brandon is a pseudonym to protect the juvenile's identity, Gill said in his opinion. Electronic monitoring of juveniles is widespread and controversial. Academics and advocates have expressed numerous concerns about the practice. As the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and the East Bay Community Law Center put it: Although generally perceived as a less punitive alternative to incarceration, electronic monitoring can be overly burdensome: it often entails home confinement, invasive surveillance, and high fees. As the report demonstrates, programs can impose dozens of strict and inflexible rules on participants. Financial burdens imposed by electronic monitoring programs disproportionately hurt low-income families. Personal privacy violations are also a concern. Brandon was on electronic monitoring because of a broken toilet tank cover and toilet paper dispenser. He was arrested in August 2020 after Antigo police received a complaint about damage at a local laundromat. The toilet tank cover was smashed and a toilet paper dispenser was ripped of the wall, resulting in total damages of $150 to $400. Surveillance footage showed Brandon walking into the restroom and leaving a short time later. The footage also showed the broken items on the floor a short time later. Brandon, when questioned by police, said the he punched the toilet paper dispenser because it was not working, Gill wrote. He said the toilet was not flushing properly, so he lifted the tank lid, and it slipped. He eventually admitted to one count of disorderly conduct; both his lawyer and the state recommended formal supervision. Langlade County Circuit Judge John B. Rhode explained during the disposition hearing that he could order electronic monitoring, among other things. Brandon was already on an ankle bracelet ordered during an earlier hearing, asked when he could have it removed. A juvenile justice worker said Brandon would have to show good behavior and then his treatment team would decide when to remove the monitoring. (Most of the records in the case are sealed because a juvenile was involved, so it cannot be determined how long Brandon was on electronic monitoring or when or if the monitoring ended before Tuesday's decision.) Brandon's lawyer requested the ankle bracelet be removed. "During argument, the State noted significant concerns about Brandon, including several hospitalizations for self-harming activities," Gill wrote. "The State further argued that Brandon was able to transition back to his home while being accountable to his supervision...through the use of electronic monitoring. With respect to the electronic monitoring, the State noted that it was not a punishment but, rather, a case management tool." Gill did not address how electronic monitoring would prevent Brandon from hurting himself. Brandon's mother expressed concerns about his behavior and the juvenile justice worker said Brandon did not come right home after school as his mother had instruction the week earlier and on another occasion, had left home without permission. The worker "stated that Brandon was not confined by the electronic monitoring because he was able to go to school, appointments, and places with his mother." The worker also said he "considered electronic monitoring a great management tool," Gill wrote. "Conversely, Brandon’s counsel argued that electronic monitoring was not a case management tool but instead a 'sanction to be given by the Court,' ” Gill wrote. Rhode put Brandon on supervision for a year and declined to order electronic monitoring. (Online court records indicate that Brandon's supervision may have lapsed last month.) "All I will say to both sides if the [S]tate wants me to order it they can schedule further proceedings and we’ll take that up," Rhode said from the bench. "If the defense wants me to order that it stop they can schedule further proceedings and order that it stop or if they think it’s being used inappropriately." When Rhode's written decision came down, however, it adopted the county's juvenile "rules of supervision," which includes a rule that states: “The youth shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.” Brandon appealed, arguing first that the Rhode cannot delegate to the juvenile justice worker the authority for imposing electronic monitoring. He also argued that electronic monitoring was not an appropriate sanction because it was not included in the state statute establishing approved punishments. "We need not address these issues because we conclude that the court's written order was inconsistent with its oral pronouncement," Gill wrote. When oral and written pronouncements conflict, he said, the oral pronouncement rules. Milwaukee Journal Sentinel: U.S. Supreme Court declines appeal challenging Gov. Tony Evers' limits on press event attendance.
Reuters: Johnson & Johnson loses bid to duck talc-ovarian cancer lawsuit. A 2018 Reuters investigation found that J&J knew for decades that asbestos, a carcinogen, was present in its talc products. Internal company records, trial testimony and other evidence showed that from at least 1971 to the early 2000s, J&J's raw talc and finished powders sometimes tested positive for small amounts of asbestos. The company said in May 2020 it would stop selling its baby powder talc in the United States and Canada, citing changes in consumer habits and what it called "misinformation" about the product's safety amid numerous legal challenges. In October, J&J put into bankruptcy tens of thousands of legal claims alleging its talc-based products caused cancer, offloading the potential liabilities into a newly created subsidiary. The Atlantic: The really weak report from President Joe Biden's Supreme Court Commission may spur reform, not kill it. When drafts of the commission’s report dropped in October, the results amounted to a call to think hard and do nothing. In its complexity and length (the document is more than one-fourth footnotes), the report smells of the lamp. Nor did the commission undertake efforts to communicate and defend its findings in order to dramatize the momentous stakes for its fellow citizens. In a snarky moment, Senator Sheldon Whitehouse of Rhode Island dismissed the results as “faculty-lounge pablum.” The Baltimore Sun: Women want U.S. Supreme Court to overturn Ocean City's topless sunbathing ban. CNN: Federal appeals court hears arguments over congressional access to Trump's financial records. More links and stories on our Facebook page! Wisconsin Examiner: Family law bills puts too much power in the hands of prosecutors, advocates say.
“This is a pretty clear violation of parents’ constitutional rights,” says Mike Bare, research and program coordinator for Community Advocates, a Milwaukee-based social services organization. “The 14th Amendment guarantees due process. It would be impossible for them to meet this condition to keep their child. There wouldn’t be some process there to make that determination. Basing a TPR on someone’s incarceration status would be a punishment above and beyond the sentence of the crime for which they’re incarcerated. If you were sentenced for something simple, a drug sale, you may not realize your sentence could also result in a termination of parental rights.” The provision would also give a significant amount of power to prosecutors, according to Adam Plotkin, legislative liaison for the Wisconsin State Public Defender. If a person is accused of a crime that comes with a 3-5 year possible sentence, the prosecutor will be able to push people toward taking a plea deal with a three year sentence in order to avoid losing their children. “The biggest concern, especially with the amendment, [is] we’ve created a direct connection between criminal cases and family law cases,” Plotkin says. “If you’re a defendant with a potential sentence between 3-5 years, it puts a tremendous amount of power in the hands of prosecutors. You’ve made the loss of your kids a condition of a criminal conviction. What parent isn’t going to fight to keep the legal right to their own children? Again it’s that coercive aspect of that that puts all the power of the family law system in the hands of the criminal prosecutor.” CNN: After 50 sentencings, debate rages over what justice looks like in Jan. 6 riot cases. NPR: Advocates still waiting for President Biden to revamp the justice system. The advocates say they're happy to give credit where it's due. They praised the Justice Department for rescinding a Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And they're happy the DOJ has launched four big civil rights investigations of police departments. But they've also taken note of this fact: the federal prison population has increased by some 5,000 people during Biden's tenure, according to Nazgol Ghandnoosh, a researcher at the Sentencing Project. Standard-Examiner: Utah firefighter sues over suspension for having a medical cannabis card. The city’s chief administrative officer, Mark Johnson, also chose not to comment on the suit, saying it was being assessed by the city attorney’s office, but he briefly addressed the issue in general. “We have some great concerns policy-wise with public safety individuals taking any form of controlled substances,” Johnson said. “So I think it’s a lot muddier than it’s being made out to be.” The suit said Coleman knew he probably would be put on leave, but he decided to keep his card and challenge the policy. The Guardian: For incarcerated Americans, the pandemic chaos has never ended. More links and stories on our Facebook page! San Fransisco Chronicle: California going after some gun dealers using Texas abortion law strategy.
Politico: U.S. Supreme Court justices respect precedent when it supports conservatives. More profoundly, (Justice Neil) Gorsuch’s opinion is notable for what risks it perceives to the court’s legitimacy and the rule of law. Its silence about Texas’ manifest intention to make an end-run around the constitutional right to an abortion speaks volumes: Disregard for federal law is fine, for some. Instead, Gorsuch harped on at length about the perils of “disregard[ing] the traditional limits on the jurisdiction of federal courts.” NBC: Feds bust mondern-day slavery ring in new immigration enforcement effort. At least two workers died under the working conditions, another was repeatedly raped, while others were kidnapped and threatened with death, according to the allegations in the indictment. Workers were also forced to work at gunpoint, the court documents say, earning 20 cents for each bucket of onions they dug up with their hands. Some were sold to farms in other states. The Washington Post: How contraception could be banned if Roe v. Wade falls. But here’s the more important question: Will women still have access to birth control in a post-Roe world? The limits described above will likely expand and some states will try to ban contraceptive access entirely. There are two reasons for this. First, constitutional protections for abortion and birth control are linked. In Griswold v. Connecticut, the Supreme Court invalidated a law prohibiting birth control, arguing that the prohibition violated a fundamental “right to privacy.” This right to privacy is the foundation for Roe v. Wade.... Further, in recent decisions, the court let religious groups argue that some forms of contraception are “abortifacients.” For instance, in the Hobby Lobby case, the company objected that four FDA-approved contraceptives prevented implantation of a fertilized egg — and that that counted as an abortion. More specifically, the company claimed that the owners’ “religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.” Endgadget: Twitter asks judge to throw out lawsuit over ban. More links and stories on our Facebook page! WBAY: Prison staffing crisis costing state taxpayers millions.
Roll Call: Senators getting impatient with U.S. Justice Department. Slate: The U.S. Supreme Court is getting ready to turbocharge religious liberty litigation. The low point of arguments arrived when Justice Neil Gorsuch seemed to insult more liberal and tolerant religions as “watered down” versions of the real thing. Gorsuch asked Taub if Maine’s rules “favor religions that are more watered down, some might say, or more majoritarian, more comfortable with what a bureaucrat in Bangor might say.” (Maine’s Department of Education is in Augusta, but put that aside.) In other words, religions that have value overlap with public school curricula get a pass, while fundamentalist religions—which, to Gorsuch, are more genuine and undiluted—face discrimination. With this comment, Gorsuch revealed that he sees progressive religions as weak, compromised, and inauthentic because they do not demand the kind of bigotry and indoctrination as hard-line religions. (If a state official made this remark, SCOTUS would probably accuse them of anti-religious animus.) The Washington Post: The pandemic may be producing juries more likely to convict. Reuters: Ohio judge accused of illegally jailing defendants who can't pay fines. Now, defense attorneys around the country say they’ve noticed a new discrepancy since trials have resumed after being suspended at the onset of the pandemic: Covid-consicous people are being excluded from juries, either through self-selection or with dismissals by judges. They worry these juries are even less skeptical of police and prosecutors, and thus are even more likely to convict. There is some evidence to support their concerns. Polling has consistently shown a strong correlation between political ideology and attitudes about covid. Those who are more cautious about covid and supportive of precautions tend to be more liberal; those less concerned tend to be more conservative. (While there was a strong consensus among the public defenders I spoke with that covid has made juries more conservative, it wasn’t universal....) More links and stories on our Facebook page! Vox: The separation of church and state had a very bad day before the U.S. Supreme Court.
The Economist: Fewer Americans are trying to buy guns. News-Medical.Net: College-in-prison programs lead to reduced recidivism, study finds. "Incarceration is bound with systems of poverty and a lack of access to opportunity, especially education and socioeconomic mobility," notes Matthew G.T. Denney, a PhD student at Yale University, who coauthored the study. "Participation and intensity of engagement in programs like BPI might disrupt these cycles." The Harvard Gazette: Prosecutors push for harsher penalties when election time looms. Chika Okafor, a doctoral candidate in economics and the Reginald F. Lewis Fellow at Harvard Law School, recently released “Prosecutor Politics: The Impact of Election Cycles on Criminal Sentencing in the Era of Rising Incarceration,” which looked at the political careers of district attorneys across the U.S. between 1986 and 2006. “Using quasi-experimental economic methods, I found causal evidence that being in a local prosecutor election year increased total admissions rates and total months sentenced per capita on average during the period of the steepest rise in U.S. incarceration,” Okafor said. Okafor noted that evidence showed that election effects are larger when local prosecutor races are contested, as well as when they are in Republican counties or in the southern U.S. “All these factors are consistent with a view that election effects might be arising from political incentives that influence local prosecutors,” he said. Bloomberg: U.S. Supreme Court Justice Brett Kavanaugh says it is "close call" if bad lawyering can be raised as an issue in federal court if it wasn't raised in state court because of bad lawyering. David Martinez Ramirez and Barry Jones were convicted of murder and sentenced to death in separate state-court cases. Arizona officials say the pair had the chance to raise ineffective-assistance-of-trial-counsel claims in state postconviction proceedings, so they’re bound by the state-court record and can’t develop new evidence on federal habeas review. The defendants point out their state postconviction lawyers were ineffective, too, so federal habeas review is the only way to develop their claims. More links and stories on our Facebook page! Joshua Glover escaped from slavery and started a power struggle between two supreme courts12/9/2021
By Margo Kirchner Second of two parts Beginning shortly after his escape from a Milwaukee jail in 1854, Joshua Glover was the catalyst for Wisconsin judicial and legislative declarations that the Fugitive Slave Act of 1850 was unconstitutional and void. “The real emphasis of Glover’s escape comes in the court actions after,” said Clayborn Benson, executive director of the Wisconsin Black Historical Society. Those decisions took the “Glover incident” to a national level, reported in newspapers across the country, he said. As described by author H. Robert Baker in The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War, “[t]he rescue of Joshua Glover became a six-year struggle not only to determine whether the Fugitive Slave Act was unconstitutional but to determine the substance and meaning of the Constitution itself.” Within days of the Glover jail break, Sherman Booth, the publisher of the Free Democrat abolitionist newspaper who helped whip up the crowd that freed Glover, was arrested and charged with aiding the escape of a fugitive slave in violation of the act. Booth appeared before the federal commissioner on March 21 and was released on bail until formal indictment and the next district court trial date in July. He kept reporting in his newspaper about his own case. In late May, the federal court commissioner sent Booth back to jail in the custody of U.S. Marshal Stephen Ableman. Booth applied to Wisconsin Supreme Court Justice Abram Smith for a writ of habeas corpus, arguing that his imprisonment by Ableman was illegal because the Fugitive Slave Act of 1850 was unconstitutional and his warrant was defective. Smith granted the writ, ruling that the act was unconstitutional. Ableman complied with Smith’s order for Booth’s release but appealed the decision to the full Supreme Court, then consisting of three justices: Smith, Chief Justice Edward Whiton, and Justice Samuel Crawford. On July 19, 1854, in a two-to-one decision, the Wisconsin Supreme Court affirmed Smith’s decision to discharge Booth from custody. Whiton and Smith found that the state court had the power to protect the state’s citizens from illegal restraint, the warrant for Booth’s arrest failed to charge a crime, and the Fugitive Slave Act of 1850 was unconstitutional.
Whiton wrote the Act illegally conferred power on appointed commissioners, rather than judges. Second, he said, it denied the alleged fugitive the right to have his or her case tried to a jury in violation of the right to due process. Whiton focused on the danger to a free citizen of being taken into slavery when the evidence determining whether the person was a slave was presented in the state of the slave owner, with no opportunity for cross-examination of witnesses or submission of contrary evidence. The certificate of that court was then taken as conclusive in the state where the person was captured, causing the commissioner to order the person’s return. “We are at a loss to perceive how this proceeding, by virtue of which a freeman becomes a slave, can be justly called ‘due process of law,’” Whiton wrote. Smith concurred in a lengthy opinion based on the Constitution’s reservation of rights to the states. States, he wrote, retained the right to determine their own process for a slave owner’s claim. “In Virginia he may be, indeed, a chattel; but in Wisconsin he is a MAN. . . the laws of Wisconsin regard him as a person here,” Smith wrote. Moreover, he said, there was no basis for federal law enforcement or court officials’ involvement in the return of slaves. He continued: Had the Northern States imagined, that by assenting to this clause of the Constitution, they were thereby conferring upon the federal government the power to enter their territory in pursuit of a runaway negro, . . . to subject their houses to search, and to override their own laws and municipal regulations, and that they were parting with all power to regulate the mode of procedure by which that clause was to be carried into effect; does any sane man believe that they would ever have assented to it? Crawford dissented, writing that the Wisconsin courts should decline to interfere with federal custody and that Congress had the constitutional power to pass the act. The dissent is thought to have caused his loss to Orsamus Cole in the 1855 election. Ableman, the marshal, sought review in the U.S. Supreme Court. The state Supreme Court clerk forwarded the record to the U.S. Supreme Court when ordered. This is the second of two posts about Joshua Glover. Read the first one here. Meanwhile, in July 1854, Booth, and two other men who assisted Glover were indicted on criminal charges of aiding a fugitive slave in violation of the 1850 act. One, John Messenger, who had spirited the just-escaped Glover to a abolitionist's home in Waukesha, died shortly after his arrest and release on bail. The other, attorney John Rycraft, who had created a "vigilance committee" to ensure Glover's rights were protected, was tried and convicted in November 1854 and sentenced to ten days in jail and a fine of $200. Booth’s criminal trial took place in early January 1855. The jury found him guilty, and Miller sentenced him to one month of imprisonment and a fine of $1,000, with Booth to remain in custody until the fine was paid. A few days later Booth and Rycraft applied to the Wisconsin Supreme Court for writs of habeas corpus, arguing that the federal court trial proceedings were void. The Wisconsin Supreme Court held, this time 3-0, that Booth’s and Rycraft’s convictions were illegal and ordered them discharged from imprisonment. All three justices agreed that the indictments in the cases failed to charge and the evidence at the federal trial failed to prove any offense within the jurisdiction of the federal court. Slate: The U.S. Supreme Court's new religious liberty case could destroy public education.
Public education is a bedrock of American democracy. A bad decision in Espinoza would shake the foundation of the nation’s education system, spurning the notion that state-funded schools should teach students how to engage in diverse and pluralistic self-governance. The Christian schools that would receive a windfall from Maine operate as prejudice academies, instructing students to hate people who are different from them. They reject equality in favor of intolerance, preaching a fundamentalist ideology that’s incompatible with multicultural democracy. Marijuana Moment: Congressman slams Senate after marijuana banking reform dropped from defense bill. Milwaukee Journal Sentinel: Local governments, including Milwaukee County, sue McKinsey and Co. over its role in the opioid epidemic. Vox: The obstacles the U.S. Justice Department faces in suing Texas over its gerrymandering. Yet it’s uncertain whether the Justice Department is capable of prevailing in this lawsuit, no matter what evidence it presents at trial. That’s how hostile the Supreme Court’s Republican appointees are toward the Voting Rights Act. The Hill: Reboot of "Remain in Mexico" policy reopens wounds for advocates. But in broad strokes the policy is still the same, leaving migrants from around the globe waiting for months on end in Mexico through a program experts say violates international and U.S. law requiring admittance of asylum-seekers. “The MPP policy constitutes the pounding into submission of those who, if found to qualify for asylum, we are obliged by international law to admit, protect, and afford numerous fundamental rights," The Roundtable of Former Immigration Judges wrote in an open letter Monday. More links and stories on our Facebook page! |
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