By Gretchen Schuldt
Did the state misrepresent data it used to argue that convicted felons should never be allowed to own guns?
State Supreme Court Justice Brian Hagedorn said yes, and a WJI analysis suggests the state's presentation was misleading, at best.
It is unclear, though, that having more accurate data would have changed the court's ruling in State v. Roundtree upholding the gun possession ban law that courts had also previously upheld.
Assistant State Attorney General Sarah Burgundy and Attorney General Josh Kaul contended in a brief that a Department of Corrections study showed that "Public-order offenders had a significant rate of recidivating with violent crimes. For example, based on data from prisoners released in 2011 for public order offenses, 21.4% recidivated with a violent offense..."
WJI, based on the data contained in the report, determined that 6% of public-order offenders recidivated with violent crimes.
Reached by email for comment, Burgundy simply referred WJI to the DOC study.
Public-order offenses, the study said, included non-property, non-violent crimes such as fifth- or sixth-offense drunk driving, felony failure to pay child support, possession of a firearm by a felon, and felony bail jumping.
The appellant in the gun case, Leevan Roundtree, was convicted in 2003 of felony failure to pay child support and was placed on probation, which he completed; in 2015, police found a gun under his mattress, and he was convicted of felon in possession of a gun and sentenced to 18 months in prison and 18 months of extended supervision.
Roundtree argued unsuccessfully that the gun ban was unconstitutional when applied to non-violent offenders like him.
DOC defined recidivism in its report as "Following an episode of incarceration with the Wisconsin DOC, to commit a criminal offense that results in a new conviction and sentence to Wisconsin DOC custody or supervision."
Burgundy and Kaul, in their brief, also said the study's data showed that "the 21.4% of public-order offenders recidivating with a violent crime was higher than that of property offenders (16%) and drug offenders (17.9%)," they wrote. "And it was just seven percentage points lower than the rate of violent offenders (28.3%).
WJI determined that 6.6% of property offenders, 5.5% of drug offenders, and 7.7% of violent offenders recidivated with violent crimes.
The DOC study did not measure the released offenders who recidivated with violent crimes, as the brief suggested. It measured instead the share of recidivists who committed such crimes, as Hagedorn said in his dissent.
The state's brief did not make clear that the percentages it cited so prominently represented a percentages of percentages.
Justice Ann Walsh Bradley cited the state's figures in the majority opinion upholding the gun possession ban.
"This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence," Walsh Bradley wrote.
Hagedorn, in dissent, disagreed.
"That's simply not what the study says, and it is an egregious error in light of its almost singular prominence in the State's effort to prove the requisite connection," Hagedorn wrote in a dissent
"It should be obvious, then, that this (21.4%) statistic offers no assistance in establishing the relationship between past crime and a person's risk to commit gun-related violent crime in the future, which is the core inquiry of the intermediate scrutiny analysis," he said.
Note: We are trying something new here, crunching Supreme Court of Wisconsin decisions down to size. (Left to themselves, some of our justices do go on so.) The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for for ease of reading, but have linked to important cases cited or information about them. In this case, we've omitted a concurrence by Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, because it addresses a secondary issue.
Majority: Ann Walsh Bradley, joined by Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. (20 pages)
The petitioner, Leevan Roundtree, seeks review of an unpublished per curiam decision of the court of appeals affirming his judgment of conviction and the denial of his motion for postconviction relief. He asserts that the felon-in-possession statute under which he was convicted is unconstitutional as applied to him.
Specifically, Roundtree contends that Wisconsin's lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction over ten years ago for failure to pay child support does not justify such a ban. He maintains that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm....
We determine that Roundtree's challenge to the felon-in-possession statute requires the application of an intermediate level of scrutiny.
Under such an intermediate scrutiny analysis, we conclude that his challenge fails. The statute is constitutional as applied to Roundtree because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence.....
In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days. As a consequence of these felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm.
Milwaukee police executed a search warrant at Roundtree's home on October 30, 2015. Under his mattress, officers located a revolver and ammunition. A record check of the recovered gun revealed that it had been stolen in Texas. Roundtree claimed that "he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen."
The State charged Roundtree with a single count of possession of a firearm by a felon contrary to Wis. Stat. § 941.29(2). He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision.
Roundtree's as-applied challenge is based on the contention that his conviction for failure to pay child support is a nonviolent felony and thus is insufficient to curtail his constitutional right to bear arms. He argues that "[d]isarming [him] does not in any way advance public safety, but deprives him of his right to keep and bear arms for self-defense." As this is an as-applied challenge, he must demonstrate that his constitutional rights specifically were violated, not that the statute is unconstitutional in all applications....
The United States Supreme Court has made clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." The same is true of the right provided by our State Constitution. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
In Heller, the Court struck down a regulation barring residential handgun possession as contrary to the Second Amendment. Id. In doing so, the Court observed "that the Second Amendment conferred an individual right to keep and bear arms." It was careful, however, to delineate the reach of its analysis:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Roundtree was convicted of failure to support a child for over 120 days. In his view, this is different in kind from the crime at issue in Pocian, where the defendant was convicted of uttering a forgery as the underlying felony. Put frankly, he suggests that failing to pay child support is not as bad as "physically taking a victim's property."
But failure to pay child support is every bit as serious as uttering a forgery if not more so. Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. Roundtree chose to keep money for himself that rightly belonged to his children. And, to further add to the egregiousness of his offense, he committed this crime repeatedly by failing to support for at least 120 days. By all accounts this is a serious offense.
Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree. The Seventh Circuit determined as much in Kanter when it concluded that "the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence." The legislature did not... create a hierarchy of felonies, and neither will this court.
Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here.
Such assertions are echoed by data from the Wisconsin Department of Corrections (DOC). For example, DOC data indicate that among recidivists who committed public order offenses, such as failure to pay child support, and were released from prison in 2011, 21.4 percent recidivated with a violent offense. As the State strikingly observes in its brief, "the 21.4 percent rate of public order offenders recidivating with a violent crime was higher than that of property offenders (16 percent) and drug offenders (17.9 percent). And it was just seven percentage points lower than the rate of violent offenders (28.3 percent)." This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence."
Further, the fact that Roundtree's conviction occurred over ten years ago does not affect the result. Roundtree asserts that he poses no danger to public safety and should be able to possess a firearm as a result. However, the record indicates that the gun Roundtree possessed was stolen and purchased off the street. Supporting street level gun commerce is hardly the benign action Roundtree would have us believe it is.
By Gretchen Schuldt
The federal government's drug battle goes on.
From pushing new technology that differentiates legal hemp from increasingly legal marijuana to funding opioid treatment, the government is spending billions in an effort to control the use and supply of illegal drugs in the country. If the War on Drugs has been lost, the federal government hasn't surrendered.
There is a piece of good news. The bill prohibits the Justice Department from using its resources to prevent Wisconsin and other states "from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana."
In a move just a step or six behind the times, the new appropriation bill directs the U.S. Drug Enforcement Administration to make available to state and local law enforcement kits that can distinguish between hemp and marijuana so marijuana busts are easier for police agencies.
Marijuana is legal in 35 states.
Hemp, in general, is cannabis without the high. In Wisconsin, legal hemp must contain less than 0.3% of THC, the active ingredient in marijuana. Marijuana and hemp smell the same and look similar, leading to confusion and errors in arrests and prosecutions.
The appropriations measure, better known as the "Coronavirus Relief Bill," tells the DEA to work to "ensure state and local law enforcement have access to this field test technology so they can more efficiently conduct their drug interdiction efforts at the local level," according to a congressional summary.
The bill also directs the agency to make periodic reports to congressional committees on DEA's success in sharing the technology.
An earlier post on justice-related programs funded through the bill is here.
The bill also includes:
By Gretchen Schuldt
State Rep. Scott Allen (R-Waukesha) this week introduced a resolution that suggests that problems with administering the 2020 election could lead to the loss of governmental legitimacy.
"When the executive branch or administrative agencies charged with enforcing the laws instead choose to step outside of the law, or go beyond the law, or stretch the law to something other than what is written, the legitimacy of the government begins to erode....Without legitimacy, the government of the people, by the people, and for the people shall not stand," he said in his resolution. "Instead, our government will devolve into a system of coercion and bribery that seeks to use the guise of elections to hold a degree of credibility."
The resolution would establish as the Assembly's top priority dealing with alleged election administration flaws. It's unclear why Allen introduced the resolution rather than propose legislation that would actually address the problems he says exists.
Most of them were also cited in the Trump campaign's unsuccessful effort before the State Supreme Court to invalidate ballots in Milwaukee and Dane Counties.
Allen said there were numerous instances where election officials did not follow "the letter of the law," including those below. The wording in the list is taken directly from Allen's resolution.
1. Clerks provided absentee ballots to electors without applications, as required by Wis. Stat. § 6.86.
2. Clerks and deputy clerks authorized by the municipal clerk failed to write on the official ballot, in the space for official endorsement, the clerk's initials and official title, as required by Wis. Stat. § 6.87 (1).
3. Clerks issued absentee ballots to electors who were required to enclose a copy of proof of identification or an authorized substitute document, but who failed to do so under Wis. Stat. § 6.87 (1).
4. Clerks failed to enter initials on ballot envelopes indicating whether the elector is exempt from providing proof of identification, as required by Wis. Stat. § 6.87 (2).
5. Clerks in Milwaukee and Dane Counties declared electors in their counties to be “indefinitely confined” under Wis. Stat. § 6.86 (2), causing chaos and confusion, and failed to keep current the mailing list established under that subsection; more than 215,000 electors thus avoided identification requirements and safeguards that the legislature has established.
6. Clerks and the boards of canvassers permitted absentee ballots returned without the required witness address under Wis. Stat. § 6.87 (2) to be counted in contravention of Wis. Stat. § 6.87 (6d).
7. Clerks who received absentee ballots with improperly completed certificates or no certificates filled in missing information in contravention of Wis. Stat. § 6.87 (9).
8. The Wisconsin Elections Commission, in contravention of Wis. Stat. § 6.875, barred special voting deputies from entering qualified nursing homes and assisted living facilities, instead mailing ballots to residents directly, thereby avoiding safeguards the legislature put in place to protect our most vulnerable citizens and loved ones.
9. The clerk of the City of Madison ignored Wis. Stat. § 6.855 and created an event named “Democracy in the Park” and, of her own accord, designated alternate sites where absentee ballots could be collected; these ballots were counted in contravention of Wis. Stat. § 6.87 (6).
By Gretchen Schuldt
The coronavirus relief bill signed by President Trump last month was the fifth longest bill in the history of the United States, according to govtrack.us. The bill actually deals with a lot more than the COVID crisis and $600 stimulus checks.
It funds the government for the next fiscal year, including the Department of Justice and all of its many arms and related agencies; federal courts, the Department of Homeland Security, and a host of justice-related entities.
Below are some highlights from the Department of Justice's general administration section. The information and quotes are taken from the House Rules Committee Joint Explanatory Statements. We'll be posting more information over the next few weeks.
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