Wisconsin State Journal: Appeal and request for stay of order rejecting ballot drop boxes

“(Waukesha County Circuit Judge Michael Bohren) says that drop boxes are illegal under Wisconsin law because they’re not mentioned in the statute, but telephones aren’t mentioned in the Bible and nobody thinks that means they are evil and sinful,” (attorney Jeffrey) Mandell said Thursday. “Absentee drop boxes that are secure and properly monitored are an entirely reasonable way for municipal clerks to accept absentee ballot returns. There’s nothing in the state that says to the contrary.”

Wearegreenbay.com: State Assembly passes bills on vaccine tampering, teenagers' work hours, and gun rights.

The Washington Post: Tennessee couple tried to become foster parents but were denied because they’re Jewish, lawsuit says.

On Wednesday, the Rutan-Rams, along with six others, sued the Department of Children’s Services and its commissioner, Jennifer Nichols, claiming it violated the couple’s rights to religious freedom and equal protection in the Tennessee Constitution by using state funds to support agencies that discriminate based on religious beliefs.

“It’s infuriating to learn our tax dollars are funding discrimination against us,” Gabriel Rutan-Ram said in a news release from the Tennessee chapter of Americans United for Separation of Church and State. “If an agency is getting tax money to provide a service, then everyone should be served — it shouldn’t matter whether you’re Jewish, Catholic or an atheist. We’re all citizens of Tennessee, regardless of our religion.”

The Hill: U.S. Supreme Court finds that defendant's right to confrontation was violated.

Marijuana Moment: Biden's marijuana-policy promises still unfulfilled.

Contrary to Biden’s campaign pledges, cannabis has not been federally decriminalized, people remain in federal prison over non-violent marijuana offenses and the plant has yet to be rescheduled under the Controlled Substances Act. Of the cannabis promises that Biden made while running for president, just one has been met so far: the government has continued to let states implement marijuana reform mostly without federal intervention, though ongoing lack of clarity from the administration has caused continuing complications for the industry and consumers.

In one of the more notable positive developments to come out of the Oval Office, however, Biden did sign an infrastructure bill last year that contains language meant to help promote marijuana research.

Milwaukee Journal Sentinel: State Supreme Court hears redistricting case.

Milwaukee Journal Sentinel: Wisconsin U.S. Senate candidate sues over ballots and voting machine software.

Forbes: New Treasury rule nixes use of COVID relief money for jail and prison construction.

At least 17 states across the US are angling to use at least $830 million of their federal Covid relief funds to build new jails and prisons, ranging from tiny $8,000 projects to the hundreds of millions. These funds would all come from the near party-line passage of The American Rescue Plan Act (ARPA).

The Treasury has now released guidance to states essentially saying, “not so fast…” making it clear that new prison construction is not a sanctioned use of COVID relief funds.

Slate: U.S. Supreme Court rejects Trump's claim of executive privilege.

On Wednesday evening, the Supreme Court delivered a crushing blow to Donald Trump’s efforts to keep relevant White House records secret from the House Select Committee to investigate the Jan. 6 attack. In an apparent 8-1 decision, with only Justice Clarence Thomas noting his dissent, the Supreme Court ruled that the U.S. Court of Appeals for the District of Columbia Circuit had not made an obvious error in holding that Trump’s claims of executive privilege over the documents would fail under any test proposed by the former president.

Vox: U.S. Supreme Court hears Ted Cruz's campaign finance case.

The case is Federal Election Commission v. Ted Cruz for Senate, and it involves a federal law intended to prevent campaign donors from putting money directly into the pockets of elected officials. Specifically, the law permits candidates to loan money to their own campaigns, but forbids the campaign from repaying more than $250,000 of that loan from funds raised after the election takes place....

Without a cap on loan repayments, elected officials with clever accountants could profit off of their donors. In 1998, for example, Rep. Grace Napolitano (D-CA) made a $150,000 loan to her campaign at 18 percent interest (though she later reduced that interest rate to 10 percent). By 2009, she’d reportedly raised $221,780 to repay that loan, meaning that she earned at least $71,000 in profits.

NPR: Gorsuch's refusal to mask at oral argument illustrates eroding collegiality at the Supreme Court.

Inquest: Tony Messenger (who spoke at a WJI event in October 2019) discusses a journalist's advocacy.

Journalism that advocates for a position, sometimes in strongly worded terms, may seem anathema these days, but this tradition is as old as the republic. And there’s no telling what might have happened to the antislavery movement had a thriving, abolitionist press not boldly advocated for freedom and the end of human enslavement. Today, for readers’ sake, there may be a wall separating news reporters and opinion journalists in many newsrooms. But this wall, for all its formalities, doesn’t preclude a journalist-advocate from bearing witness to state-sanctioned human suffering and then taking the additional step of bidding others do something about it. To advocate for freedom.

The Hill: Justices questioned Boston's refusal to fly Christian flag in free speech case heard Tuesday.

Sopan Joshi, lawyer for the Biden administration, which supported the challengers, argued that Boston had not exercised the degree of control over its flag policy that is typically associated with government speech. He said city officials could fashion a different approach that complies with the First Amendment while weeding out offensive messages — which might transform the flagpole into something akin to a symposium, but not a free-for-all or an “open mic night.”

The Hill: Turnover in Bureau of Prisons director position an opportunity for Biden administration to live up to promises.

MedCity News: Helping those released from custody with healthcare needs may reduce recidivism.

But perhaps the biggest cause of recidivism isn’t what happens inside prison, but rather what happens to individuals once they’re re-adjusting to life in their communities. A growing number of transition programs are focused on healthcare planning – helping formerly incarcerated individuals with enrollment in Medicaid, and supporting them to access covered programs to treat medical and physical health conditions. This is important because justice-involved individuals historically have received very little, if any, support for their behavioral health needs, or basic social needs upon reentry such as housing, employment, and transportation. 

WBAY: Proposal to lower age for concealed carry.

Currently, a Wisconsin resident needs to be 21 before they can apply for a concealed carry permit. The GOP-backed bill would lower it to 18.

Oprah Daily: Claudette Colvin's 1955 arrest record for civil rights protest expunged. 

As a teenager in 1955, (Claudette) Colvin famously protested Alabama's prejudiced bus segregation laws. In March of that year—months before the December Montgomery Bus Boycotts—she refused to give up her seat to a white passenger and was forcibly detained by Montgomery police then held in an adult jail cell. She later said she was inspired by recent school lessons about Harriet Tubman and Sojourner Truth.

“When a white woman got on the bus and the driver told me to get up from my seat so she could sit down, I felt that [Tubman and Truth] each had a hand on my shoulders pushing me down,” Colvin told Oprah Daily in an interview last year. “History had me glued to the seat.” She would later become one of the original plaintiffs in the court case that brought Montgomery’s bus segregation to an end.

Howe on the Court: U.S. Supreme Court hearing free speech case about Boston City Hall flags.

Politico: Fifth Circuit Court of Appeals sends questions to Texas Supreme Court in case challenging abortion law.

The 2-1 court decision held that there was too much ambiguity around the meaning of the Texas law to allow federal courts to continue to act on the legal challenge without definitive guidance from Texas’s top court.

“The unresolved questions of state law must be certified to the Texas Supreme Court,” wrote Judge Edith Jones, an appointee of President Ronald Reagan, in an opinion joined by Judge Stuart Kyle Duncan, who was appointed by President Donald Trump.

Marijuana Moment: Congressman hoping for progress on marijuana banking bill.

Last week the Wisconsin Justice Initiative submitted written comments opposing two bills requiring minimum bail for persons with certain prior convictions.

Assembly Bill 838 would set a minimum bail amount of $10,000 for a defendant previously convicted of a felony or violent misdemeanor. Assembly Bill 840 would require bail of at least $5,000 for anyone previously convicted of bail jumping.

The State Assembly’s Committee on Judiciary held a hearing on the bills on Jan. 12. The Committee is chaired by Rep. Ron Tusler (R-Harrison).

Writing on behalf of WJI, Board President Craig Johnson noted how the recent tragic and heartbreaking events in Waukesha County have prompted an examination of bail laws. He then asked the committee members to keep certain principles in mind as the debate on bail policies moves forward. 

“First and foremost, it’s important to understand that good bail decisions are made by relying on evidence. The problem that led to the tragedy in Waukesha was NOT that the evidence supported the decision to recommend a risky and dangerous person for release. The problem was that the evidence that was available – evidence that flagged the risk for violence and the risk for flight – was ignored,” he wrote.

The process of setting bail in Milwaukee County (and other jurisdictions) is assisted by a risk tool called the Public Safety Assessment (PSA). Each defendant arrested on new charges receives a risk score, and the results are available for prosecutors and defense attorneys who make bail recommendations and for court commissioners and judges who make the ultimate bail decisions. Among the factors that the PSA “scores” are a person’s prior record of convictions, the type of offense they are currently facing, any history of missing court, their history of violence, their age, and their record of prior incarceration.

“Unfortunately, while both bills sound reasonable, they ignore the principle that good bail decisions are not ‘one size fits all,’ but instead are based on individual evidence in specific cases,” Johnson wrote. Individual risk assessments would likely result in cash recommendations for many of the same defendants that would be covered by these bills, but not all, he said.

For example, a person might have a bail jumping conviction for drinking alcohol while out on bail for a misdemeanor case from a dozen years earlier – absolute sobriety is often a condition of release. If they are now charged with another minor offense and are not otherwise a public safety or flight risk, should they be required to post $5,000? The PSA and other risk instruments instead balance the various risk factors in a validated process that is based on examining data from hundreds of thousands of cases across the country. 

Johnson noted that the individual in the Waukesha Christmas parade case should have had high bail because of his elevated score on the PSA. The score resulted from a number of factors, including his history of non-appearance and the fact that he was out on bail already when he was arrested on new charges. “In short, the risk tool worked, but it wasn’t followed. This person should have had high cash bail, but that doesn’t mean that another person charged with (and presumed innocent of) a serious offense can’t be safely released if other risk factors are not present,” he wrote. 

Reliance on evidence rather than emotion in making decisions in the criminal justice system should be encouraged because it results in rational decisions driven rather than decisions based on prejudice and fear, Johnson wrote. 

Well-informed bail decisions are made by experienced prosecutors, defense counsel and judges relying on the evidence in each case, Johnson said. “The key is following the evidence,” he said. That means setting appropriate high cash recommendations when a person’s history warrants it. But it also means releasing someone on recognizance, even in some serious cases, if the evidence shows that the person is not high-risk, Johnson said.

“We must make sure that future bail decisions are the result of an evidence-based, validated risk assessment that provides information to justice system professionals to make smart decisions in each case. The evidence points the way, but it gets the right result only if it’s not ignored,” he wrote. 

Johnson asked committee members to also consider the societal costs of unnecessary pretrial detention and creation of a two-tiered justice system – one for the rich and one for the poor. The $5,000 minimum bail in AB 840 would have a very different impact on a poor person working part-time at minimum wage than a rich person with the money easily available, he said. 

The Guardian: U.S. Supreme Court to hear case about Nazi-looted Pissarro painting.

APG Wisconsin: More criticism of District Attorney John Chisholm on bail issue.

Slate: When Supreme Court justices don't follow the court's own rules.

The big lesson here isn’t about verbal errors at argument or Gorsuch’s lack of concern for his colleagues. The reason his noncompliance with the court’s formal mask rule is news is because it is yet another example of the justices having rules but refusing to apply them to themselves. That’s the real issue with regard to masks, just as it is to judicial ethics, and that’s the reason why this debacle is damaging the court’s public standing. Several smart lawyers have written to ask me why Chief Justice John Roberts cannot simply order his colleagues to follow the same mask requirements imposed on everyone else. The short answer is that he cannot order his colleagues to do anything that falls within the realm of ethical behavior.

Politico: Cannabis legalization hasn't stopped the black market in Oregon.

Oregon’s weed is some of the cheapest in the nation, and Oregonians predominantly purchase weed from licensed dispensaries. Economist Beau Whitney estimates that 80-85 percent of the state’s demand is met by the legal market. But most of the illicit weed grown in southern Oregon is leaving the state, heading to places where legal weed is still not available for purchase such as New York or Pennsylvania — or where the legal price is still very high, like Chicago and Los Angeles. In Illinois, which legalized medical marijuana in 2013, only about a third of the demand for cannabis is satisfied by legal dispensaries, according to Whitney. Differences in tax rate and regulations plays the major role in differences from state to state, Whitney explains. Unlicensed growers aren’t paying any fees or taxes, and they can afford to keep their prices at least 20 percent lower than legal weed — the benchmark Whitney says is the difference in consumers purchasing legal versus illegal products.
“It all comes down to economics,” said Whitney. “If you reduce the price, then there’s no, or little, or less, incentive [for consumers] to participate in [the] illicit market because you’re getting the price that you want … that’s the tipping point.”
​
Vice: Crowdfunding court cases.

A new tech startup plans to become “the stock market of litigation financing” by allowing everyday Americans to bet on civil lawsuits through the purchase (and trade) of associated crypto tokens. In doing so, the company hopes to provide funding to individuals who would otherwise not be able to pursue claims.

“Ryval’s goal is to make access to justice more affordable,” said Kyle Roche, a trial lawyer and one of the startup’s founders. “What I want to do is make the federal court system more accessible for all.”

. . . .

However, on its website, Ryval focuses all of its attention on the potential return for investors. “Buy and sell tokens that represent shares in a litigation and access a multi-billion dollar investment class previously unavailable to the public,” the company states.

Channel 3000: Wisconsin Department of Corrections suspends in-person visitation due to increase in COVID cases.

WPR: Judge rules absentee ballot drop boxes not allowed under Wisconsin law.

A Waukesha County Judge has ruled that absentee ballot drop boxes are not allowed under Wisconsin law, a ruling that could potentially remove an option for voting ahead of the state's midterm elections.

Ruling from the bench Thursday, Circuit Court Judge Michael Bohren ordered the Wisconsin Elections Commission to rescind its guidance to clerks on how to use the drop boxes, saying the WEC had exceeded its authority when it issued the recommendations.

"In looking at the statutes, there is no specific authorization for drop boxes," Bohren said.

CNBC: U.S. Supreme Court blocks Biden Covid vaccine mandate for businesses but allows health-care worker mandate.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court wrote in an unsigned opinion.

“Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the court wrote.

NOLA: Federal court sends case accusing oil companies of damage to Louisiana coastline back to state court for the third time.

Business Insider: Kentucky judge sentencing prison guard for sexual assault of a shackled woman gives him choice of jail or joining the military. 

Despite the judge's request, though, enlistments are subject to military regulations that would require Price to seek a waiver for his sexual-assault conviction from military officials. The military has spent more than a decade struggling to limit sexual assault among troops and punish perpetrators. 

Associated Press: Virginia Beach police used forged DNA reports in interrogations.

The bogus pieces of paper included a seal and letterhead from the state agency, the AG’s office said. In two instances, the documents included the signature of a fictitious employee from the department, and in at least one instance, a forged report was presented to a court as evidence, the AG’s office said.

Milwaukee Journal Sentinel:  Acting Mayor Cavalier Johnson announces plan to reduce gun violence, car thefts, and reckless driving.

Milwaukee Journal Sentinel: Milwaukee County Clerk John Barrett to retire.

The Progressive Magazine: Electronic monitoring is not reform.

First, electronic monitoring is not so much an alternative to incarceration as it is an alternative form of incarceration. All that electronic monitoring changes is the location where the incarceration is taking place. 

Under electronic monitoring, defendants are surveilled constantly (many monitoring devices come with surveillance microphones attached), and they are confined to their homes unless they receive pre-approval to go out. Pre-approval often must be sought days in advance and is inconsistently granted even for the most routine activities. 
During my time working as an academic advisor to incarcerated people, there were a number of occasions when defendants on electronic monitoring told me they had been forced to fail their slate of classes for the semester because they could not obtain permission to attend. Further, they were frequently denied permission to go to work, causing them to lose their jobs and become unable to financially support themselves.

Much like a traditional prison, electronic monitoring restricts defendants’ movements, revokes their privacy, and jeopardizes their jobs and social relations. 
​
Vox: U.S. Supreme Court to hear campaign finance case brought by Ted Cruz.

And that brings us back to the Ted Cruz for Senate lawsuit. Sen. Ted Cruz (R-TX) wants the Supreme Court to strike down the limit on loan repayments to federal candidates. That decision could potentially enable any lawmaker to make a high-dollar, high-interest loan to their campaign, and then use that loan as a vehicle to funnel donations directly into their pocket. 

NBC: Rep. Matt Gaetz's ex-girlfriend testified to a grand jury on Wednesday.

The Hill: Legal aid groups want no part of Remain-in-Mexico policy

When forced by court order to reimplement the Trump-era Remain in Mexico policy, the Biden administration pledged to improve the program by connecting those enrolled with free legal services. 

But many of the nation’s nonprofits that provide legal services to migrants have told the Biden team they won’t assist with what they see as an immoral policy, leaving the administration kicking off the first round of hearings for asylum seekers last week without any assurances they’ll be able to secure legal assistance for them.  

Protocol: Bringing tech’s worst secrets to light

New York Times: Supreme Court considers jailed immigrants’ rights to bail hearings

Justice Stephen G. Breyer said allowing people to seek release as their cases work their way through the legal system is a bedrock principle with deep historical roots. “Given the history of this nation and Britain, where you’re going to detain a person, not even a criminal, you know, for months and months and months, why aren’t they at least entitled to a bail hearing?” he asked. “That’s all that’s at issue.”
​
Curtis E. Gannon, a lawyer for the federal government, responded that “Congress can make rules for noncitizens that it can’t for citizens and that detention during removal proceedings is constitutionally permissible.”

Protocol: FTC antitrust lawsuit against Meta (Facebook) to continue

WiscNews: Evers' attorney says complaint against Milwaukee County DA is invalid