Recent Marquette Law School polls reflect voters’ contradictory positions on safety and crime.
Although 77% of respondents report feeling personally safe from crime when going about their daily activities, an even larger percentage of respondents nevertheless cite crime as a top concern and want increased police funding.
In the latest poll results, a whopping 85% of respondents are either “very concerned” or “somewhat concerned” about crime. Indeed, 57% of respondents said they are “very concerned” about crime. Only 14% reported little or no concern about crime.
Among those polled, crime ranks third overall among nine issues of concern, behind inflation and public schools.
With respondents sorted by political affiliation, 79% of Republicans and 55% of independents are very concerned about crime, but only 37% of Democrats are very concerned about crime.
Increased police funding is favored by a majority of respondents regardless of political affiliation.
Overall, 78% of all respondents favor increasing state funding for police. By political affiliation, 95% of Republicans, 80% of independents, and 58% of Democrats favor increased police funding.
Charles Franklin, director of the Marquette Law School Poll, announced the latest results at a presentation at the law school on Wednesday.
The poll measured opinions of 802 registered Wisconsin voters and was conducted between Oct. 24 and Nov. 1.
A prior recent Marquette Law School poll, released on Oct. 12, measured opinions on safety. When respondents were asked whether they felt safe from crime when going about their daily activities or whether they were worried about safety, 71% of Republicans, 76% of Independents, and 86% of Democrats responded that they felt safe.
Paru Shah, a political science professor at the University of Wisconsin-Milwaukee, explains the conflicting data on personal safety versus concern about crime.
The significant concern about crime as an issue likely stems not from one’s own sense of safety but from political messaging of who is hard or soft on crime and how one affiliates with political parties, Shah said in an interview with the Wisconsin Justice Initiative.
Those who identify with political talk about being hard on crime will more likely identify crime as an issue to be addressed when asked, she indicated. It’s not about “the actual ‘what’s happening in your neighborhood,’” but rather the messages that people hear about crime happening, she said.
“Crime” can also be coded language for Milwaukee, Shah said. Even someone who does not live in Milwaukee can consider crime to be a problem if Milwaukee is seen as a drain on resources. “People in Wisconsin probably do feel pretty safe,” but the narrative of a “big city that is kind of scary, is out there,” she said.
“Issues matter, but partisanship is the lens in which we look at those issues,” Shah said.
As noted by both Franklin when presenting the latest poll results and Shah after she looked at the numbers, the top three issues cited by Republicans do not overlap with those cited by Democrats.
Republicans cite accurate vote counts, inflation, and crime as their top three issues, while Democrats cite abortion policy, gun violence, and public schools.
Four of those issues — accurate vote counts, crime, abortion policy, and gun violence — may be seen as related to the justice system and recent cases in the courts.
By Margo Kirchner
Russ Feingold and Peter Prindiville are raising concern about the movement toward a constitutional convention and progressives’ failure to take the movement seriously.
The two discussed constitutional amendments and the contents of their book, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It, with Mike Gousha at an “On the Issues” event at Marquette University Law School on Tuesday.
Feingold is president of the American Constitution Society and a former U.S. senator from Wisconsin. Prindiville is a Washington, D.C., attorney and fellow at the Stanford Constitutional Law Center.
Article V of the Constitution sets forth two ways to amend the document: (1) a proposed amendment supported by two thirds of both houses of Congress, or (2) “on the Application of the Legislatures of two thirds of the several States,” a convention.
Either path requires subsequent ratification by the legislatures or conventions of three-fourths of the states.
Since the signing of the Constitution in 1787, only 27 amendments have been ratified, with 10 of those a part of the bill of rights in 1791. As noted by Feingold at the event, there has not been a new proposed and ratified amendment for over 50 years.
No constitutional convention has ever occurred.
However, state legislatures have been quietly passing applications for one.
The Wisconsin Legislature passed a joint resolution in January 2022 calling for a convention to curtail the federal government. Its application for a convention was the subject of a recent dispute between legislators and Secretary of State Doug La Follette about mailing the resolution to federal officials.
At the On the Issues event Feingold and Prindiville called any Article V convention dangerous for several reasons.
First, the Constitution provides no rules on how such a convention would be held, they said. The Constitution does not clearly state how delegates are appointed, they said. Nor does it indicate what the parliamentary rules would be or whether anything higher than majority vote would be required to pass new language. “There are no rules for this,” Feingold stated, while Prindiville added that there are is no prescribed forum to resolve disputes that may occur—nothing indicates that the Supreme Court would have any involvement, for instance.
Feingold and Prindiville pointed out that Article V does not provide for involvement of “We the People.” Delegates could be chosen by legislatures, with no citizen involvement, vote, or approval. Feingold noted that the governor “has nothing to do with this.” It’s just the legislatures, and gerrymandered legislatures may not reflect the will of the people, he said.
“There are no rules for this,” Feingold stated.
Also, nothing in the Constitution restricts what gets discussed or reworked at a convention. Except as to equal voting in the Senate (specifically noted in Article V), everything could be “on the table” and “fair game,” Feingold and Prindiville said. Nothing in the Constitution provides a means for reining in what gets discussed and decided at a convention, they said.
A “runaway convention” could include lawyers altering language and rights that would have a profound effect, they warned. Prindiville identified as an example possible elimination of federal-court jurisdiction over civil rights cases.
Then there is the issue of the groups currently pushing for a convention—groups that Feingold and Prindiville say are well funded and aim to gut the federal government.
In addition to state legislatures’ under-the-radar applications for a convention, various groups pushing for a convention have been holding mock events, grooming people to be convention delegates. According to Feingold, the “far right is very good at long-term planning.”
Feingold and Prindiville warned that Americans need to take this movement seriously. Progressives cannot assume that Article V will not be used, they said. Article V is in the Constitution and needs to be discussed and debated now, they said. They want to make amending the Constitution a topic of political debate and even discussion at the dinner table.
Feingold said that those who may call him alarmist have not learned from history. He pointed to the lack of importance given to the “archaic” Second Amendment for years as an example.
To progressives who may support a convention to eliminate the electoral college or proclaim that corporations are not people, Feingold again pointed to the lack of involvement by “the people” in the convention process and the likely control by legislatures and well-funded interest groups.
In addition to raising concern about the movement toward a convention, Feingold and Prindiville propose a way forward by altering Article V to make amendment easier and available to the people rather than just legislators. Feingold noted that the U.S. Constitution is one of the hardest to amend, and Prindiville noted that even George Washington admitted that the Constitution as first ratified had flaws.
By Margo Kirchner
With courthouse closures and postponements of jury trials and other proceedings for weeks and months, at what point does justice delayed become justice denied?
Legal experts brought together telephonically by the American Constitution Society recently discussed the issue in a briefing titled “Pandemic at the Courthouse.”
The experts described effects of coronavirus social-distancing measures on the justice system to date, warned of dangers to constitutional rights, and noted a few bright spots that may lead to system improvement.
The experts’ comments follow court orders around the country bumping jury trials for weeks or months; the U.S. Supreme Court’s postponement of April and May oral arguments; and the Ninth Circuit’s recent decision to suspend federal Speedy Trial Act requirements until April 2021.
Elaine Poon, managing attorney of the Legal Aid Justice Center in Charlottesville, Virginia, noted that on the civil side, courts continue to work on several types of cases, especially cases brought by victims of domestic abuse.
Nevertheless, Poon worries that with court slowdowns comes a decrease in protection of educational requirements for children with disabilities, fewer reviews of the status of children in foster care and conditions in immigration detention centers, and lack of attorney access to detainees. She is seeing juveniles in detention held in cells for too many hours each day due to social-distancing policies. And she worries about hearings being moved online when not everyone owns computers or phones.
She noted, though, a “paradox” in that legal aid attorneys are in some cases celebrating court shutdowns. Many jurisdictions have stayed proceedings regarding eviction, debt collection, deportation, and termination of benefits activity. In her view, because of the lack of a right to counsel in most civil cases, for decades judges heard only one side of the issues in eviction and debt collection cases, and court decisions reflected that one-sidedness. With odds stacked against defendants in those cases, court shutdowns constitute a “ceasefire.”
This ceasefire signals a silver lining of the current crisis, Poon said. The pandemic has caused judges and government officials to think about people’s health and wellbeing, which she considers a welcome change of perspective. Though she anticipates a flood of evictions and debt collection activity when COVID-19 restrictions are lifted, “we are seeing judges, we’re seeing lawmakers look at the law through the lens of public health and safety, and that’s an opportunity for us to continue to bend the system towards humanity,” she said.
She cited as another positive the reconsideration of what constitutes an emergency. As an example, prior to COVID-19 restrictions evictions were considered emergencies for the landlords. The pandemic has changed that; evictions are now nonemergency matters that can be stayed for a tenant’s benefit.
Jonathan Smith, attorney and executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs in Washington, D.C., and Shira Scheindlin, retired federal judge from the Southern District of New York, addressed the immediate and long-term effects of the pandemic on the criminal justice system.
Scheindlin noted that although courthouses have been physically closed, state and federal courts in her home state have worked hard to remain open remotely. Jury trials, however, are on hold. According to Smith, as most courts are operating on a limited basis, many are restricting criminal work to felony arraignments and reviews of custody.
Smith noted the work being done to reduce the flow of individuals into custody. The risk of COVID-19 spreading in jails and prisons is high; physical separation is impossible in such settings, and staff enter and exit the facility every day. And in the event of the spread of coronavirus in a prison, those infected may need to be transported to hospitals for treatment, he said.
One method to reduce custody inflow that Smith is observing is police issuing summonses for future hearings rather than arresting individuals on the spot. For those arrested, Scheindlin opined that judges should be more willing to allow pretrial release if a case will be delayed.
Nevertheless, Smith noted the troubling problem of unequal enforcement of stay-at-home orders in minority and low-income neighborhoods as opposed to white, privileged communities. He questioned whether enforcement strategies are being applied equally.
According to Smith, a major focus of COVID-19 crisis advocacy has been reducing the numbers of those already in prisons and jails.
Most success to date has occurred regarding jail populations. District of Columbia prisoners have been granted extraordinary good-time credits to achieve release, Smith said. The South Carolina Supreme Court permitted release of those in local jails unless release would create an unreasonable danger or extreme risk of flight, while the Massachusetts Supreme Court ruled that all pretrial detainees held on nonviolent offenses have a rebuttable presumption of release. The Kentucky Supreme Court told lower courts to review all cases in which the defendants may be susceptible to virus complications.
The prison system has been more sluggish, said Smith. Petitions for release have been filed across the country, with little progress.
The federal prison system notably has been slow to act; only a few individuals have been released to home confinement. In the face of the federal Bureau of Prisons’ lack of action, there is a groundswell of support for compassionate release of those over age 60 or with underlying medical conditions.
Under the First Step Act, the BOP no longer controls compassionate release, said Smith. Instead, cases go back to sentencing judges, who are already recognizing the risk of COVID-19 as an extraordinary circumstance meriting release for those over 60 or vulnerable due to medical conditions. According to Smith, hundreds of attorneys are taking these cases to help secure release, though the BOP is opposing with alternate arguments: if COVID-19 is not present in a facility, the BOP argues lack of risk to the individuals in custody; if COVID-19 is present, the BOP argues that it is too dangerous to the community to order release.
On a positive note, said Smith, these pandemic response efforts to reduce prison populations may be a test-run to show that de-carceration can work.
Both Scheindlin and Smith noted complex issues regarding speedy trial rights. Though Scheindlin understands the inability to hold a trial with a panel of potential jurors, parties, and court staff in close proximity during a pandemic crisis, she worries that the pandemic will be used to erode protection of statutory and constitutional guarantees of a speedy trial.
Disasters such as hurricanes or the 9-11 attacks previously closed courts for a short time ─ up to 30 days, for instance. Current court closures and pandemic response policies are lasting much longer, which raises concerns, said Scheindlin. She questioned in particular the lifting of Speedy Trial Act protections for a year. Pretrial detainees, in particular, she said are “presumed to be innocent and they could be stuck for a very long time incarcerated . . . unless we find a way to move the system along more quickly.”
“We have to be careful and vigilant that [the pandemic] doesn’t become an excuse to take away our constitutional rights,” she said.
Scheindlin also noted the need to safeguard the right to counsel in hearings held by telephone or video conference.
“It’s one thing to have a conference with your lawyer before the proceeding . . . but things happen during a proceeding where you need to consult with counsel,” she said. Though some technologies permit a virtual breakout room for attorney and client to confer, not all do. And valuable information is gathered by judge and parties being together in the same physical space, agreed Smith and Sheindlin.
Said Smith: “It makes an enormous difference to have that physical presence” in a courtroom; remote proceedings can be artificial and uncomfortable for defendants.
Scheindlin predicts a post-pandemic push to continue conducting many proceedings remotely. She sees dangers if that occurs. For instance, in criminal cases, judges in virtual hearings may rely heavily on documentation and possibly biased assessment tools rather than the judge’s personal assessment of the defendant in court. In addition, she said, remote proceedings will impact the public’s right to observe what is happening. “There’s nothing like the public being able to be there and participate in the system.”
Smith and Scheindlin, like Poon, expressed concern over how courts will process the backlog of hearings and trials when they reopen. Scheindlin suggested that courts recruit a cadre of volunteer special masters to handle civil pretrial matters like discovery disputes.
A recording of “Pandemic at the Courthouse Doors” is available as a podcast at https://www.acslaw.org/podcast/pandemic-at-the-courthouse-doors/.
By Margo Kirchner
Sentences in criminal cases in excess of plea-bargained terms should cease, says a Wisconsin attorney in an article written for the University of Illinois Law Review.
Kenosha criminal defense lawyer Michael D. Cicchini labels as “deal jumping” the practice by which a judge accepts a defendant’s guilty plea yet hands down a sentence harsher than agreed upon by the defendant and prosecutor. Judges who so act are “deal jumpers,” which is the name of Cicchini’s article.
According to Cicchini, deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system, as more than 95% of cases are resolved by plea bargains. Yet the practice is permitted in several states, including Wisconsin, which is Cicchini’s focus.
Cicchini advocates for state legislative reform to eliminate deal jumping by requiring judges to either (1) approve or reject sentence concessions at the same time they approve or reject plea agreements, or (2) allow defendants to withdraw their pleas if the judge plans to exceed the agreed-upon sentence.
But if legislative change fails to occur, judges should act on their own to end deal jumping and defense attorneys should protect their clients from the practice. Cicchini provides defense lawyers with practical ideas to ensure that defendants receive the benefits of their plea bargains.
To illustrate a deal jump, Cicchini describes a situation in which a defendant charged with multiple counts agrees to plead guilty to one count in exchange for the prosecutor’s dismissal of the other counts (a charge concession) and recommendation of a fine instead of probation or incarceration (a sentence concession). Deal jumping involves sentence concessions.
In some states, says Cicchini, the judge would be required by law to either sentence this defendant to a fine or, if the judge plans to impose a penalty more severe, allow the defendant to withdraw the guilty plea.
However, in other states, such as Wisconsin, regardless of the plea agreement the judge may impose whatever punishment the judge wishes up to the maximum allowed by law, and the defendant has no recourse to withdraw the guilty plea.
Cicchini asserts that Wisconsin “freely permits the most egregious forms of deal jumping when it comes to the sentence.”
More Milwaukee County judge shuffling: Kristy Yang to Children's Court; Dan Gabler to misdemeanors
By Gretchen Schuldt
Milwaukee County Circuit Judge Kristy Yang will move at the end of this month from presiding over misdemeanors to handling juvenile cases, Milwaukee County Chief Judge Maxine White ordered Friday.
Yang's tenure in misdemeanor court was marked by a large number of substitutions filed against her. For the year ended July 31, for example, 227 substitutions were filed against Yang, while just five were filed against Circuit Judge Jean Kies and 40 were filed against Circuit Judge Hannah Dugan, both of whom also served in misdemeanor court.
New judge Daniel Gabler, meanwhile, will spend just a few weeks in Children's Court before taking over Yang's misdemeanor calendar. His stint in Children's Court begins Monday and ends Jan. 28, when he takes over Yang's misdemeanor calendar.
Paul Dedinsky, a former Children's Court prosecutor, will return as a judge to that same court.
Gabler and Dedinsky were appointed to the bench by Gov. Scott Walker.
Gabler, a former assistant district attorney, ran unsuccessfully for judge as a tough-on-crime candidate in 2009. He won the primary, but lost support when he ran an ad accusing judges of being lazy and portrayed two election opponents – one a career prosecutor – as having records of defending accused criminals.
He also ran into trouble when he failed to show up for court on a case, leading to the dismissal of felony drug charges against the defendant. Gabler said he was busy with another case, but others said he may have been involved in a non work-related matter. There were two other court cases where Gabler-related errors got the DA's office in hot water, according to the MIlwaukee Journal Sentinel.
Gabler lost the general election to J.D. Watts.
Walker appointed Gabler to head the Parole Commission in 2017. Under Gabler's leadership, the commission was best known for its stinginess in granting parole. In 2017, for example, 181 inmates were released on parole, according to the Department of Corrections.
Dedinsky has worked since May 2017 as chief legal counsel for the State Department of Agriculture, Trade and Consumer Protection. He was a Milwaukee County assistant district attorney for 20 years prior to that, a job that included serving as the Milwaukee Public Schools restorative justice coordinator from 2008 to 2014.
White's order Friday follows an earlier shuffling announced in November.
By Gretchen Schuldt
District Attorney John Chisholm says he will push for a statewide initiative that would increase state aid to counties that successfully reduce the number of people they are sending to state prisons.
He also said that the high turnover rate among attorneys and support staff in his office "is the single biggest administrative challenge I face."
On the prison alternative initiative, Chisholm, the Milwaukee County prosecutor, said that other states, such as Minnesota and Oregon, "have engaged in this work and have seen dramatic improvements in their criminal justice systems."
Minnesota had about 10,000 prison inmates as of July 1, 2018; Oregon had about 15,000; and Wisconsin had about 24,000, according to figures from each of those states.
The initiative, if it is to work, would require more equitable state revenue sharing and commitments from counties to develop alternatives to incarceration, Chisholm said.
Under the plan, the state would absorb the cost of a certain number of new inmates from each county.
"If they (the counties) send more than their share, then they have to pay the costs associated with it," he said. A state-county cost share already exists in the juvenile corrections area.
Expert says defense lawyers need to make better use of childhood trauma evidence
By Margo Kirchner
Defense attorneys are failing their clients if they neglect to understand, investigate, and present evidence of childhood trauma in criminal cases, says a legal and neuroscience expert.
Deborah W. Denno, a professor and founding director of the Neuroscience and Law Center at Fordham University School of Law, spoke last week at Marquette University Law School.
Denno obtained her law degree and a Ph.D. in sociology from the University of Pennsylvania and has taught at Fordham Law, the London School of Economics, Columbia Law School, and Princeton University.
She visited Marquette Law to give the annual Barrock Lecture on Criminal Law, presenting her research and conclusions about the use of childhood-trauma evidence in adult criminal cases.
Denno studied criminal cases reported nationwide, investigating how defense attorneys introduced and how courts assessed the mitigating and aggravating impacts of neuroscience evidence. Neuroscience is the branch of life science focusing on the brain and nervous system.
Denno researched written court decisions reported in the online legal databases Westlaw and Lexis from 1992 to 2012. She found 800 criminal cases involving neuroscience evidence. She reviewed those and then narrowed her focus to the 266 cases involving childhood trauma.
Denno acknowledged that written opinions reported in Westlaw and Lexis are predominantly from appellate courts, so her research similarly involved mostly appellate court decisions. Further, almost all of the 266 cases she reviewed in depth were homicide cases, and most involved the death penalty.
She looked particularly at the types of childhood trauma defendants had suffered, conditions caused by or related to the trauma, how evidence of the trauma or conditions was presented to courts, and the courts’ responses. From the 266 cases she identified 20 types of trauma, which she grouped as either family, developmental, or external trauma. On average, each defendant in the 266 cases had suffered five different types.
By Margo Kirchner
President Trump's next U.S. Supreme Court appointment likely would make Chief Justice John Roberts the ideological middle of the court, according to the dean of the University of California, Berkeley, Law School.
Dean Erwin Chemerinsky noted that Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer are all older than the average age at which past Supreme Court justices have retired.
Roberts becoming the "center" would show the Court's continued movement toward the conservative viewpoint, he said.
Chemerinsky, a well-known scholar on constitutional law, spoke as part of a panel hosted by the American Constitution Society. He discussed the progression of the median or swing justice from Justice Lewis Powell to Justice Sandra Day O’Connor to Justice Anthony Kennedy.
He said another Trump appointment would most likely have an effect on affirmative action laws, criminal penalties, and the exclusionary rule (which generally prohibits the admission of illegally obtained evidence).
In addition, he sees five votes to overrule Roe v. Wade should another Trump appointee make it to the Court.
He also expects, however, that if Democrats take the Senate in November 2018 they would sit on any Trump Supreme Court nominee until after the 2020 elections, as pushback after President Barack Obama’s failed Merrick Garland nomination. Senate Republicans refused to vote on Garland's nomination for 10 months, until Obama's term expired.
Law professors Melissa Murray and Pamela Karlan joined Chemerinsky on the panel, moderated by Caroline Frederickson, president of the American Constitution Society. Murray, a professor and faculty director of the Center on Reproductive Rights and Justice at Berkeley Law School, discussed a second Trump appointee’s potential effect on reproductive rights and the frequent chipping-away of Roe. Karlan, a professor at Stanford Law School, speculated on the status of LGBTQ rights if another Trump nominee joins the Court.
Karlan noted the importance of getting the public to understand how court decisions affect their lives.
By Gretchen Schuldt
While State Sen. Leah Vukmir expressed outrage that John Doe investigators cataloged some of her personal emails and Attorney General Brad Schimel said he did not understand why they would do that, the Doe investigators were just following good protocol, according to publications on digital investigations.
"If the case ever comes to trial, the investigator presenting the case must be able to prove ... the data was not modified during acquisition or analysis (chain of custody)," forensic analyst Michael Graves wrote in The Anatomy of a Digital Investigation.
Vukrmir (R-Brookfield), a candidate for U.S. Senate, said in a statement that “The upsetting news that my privacy was violated as personal emails between my daughter and I were obtained, read and kept by those who ran the John Doe investigation is absolutely appalling. This criminal behavior is inexcusable, and the individuals involved in this belong in prison."
Vukmir's emails were seized during the John Doe investigation into Gov. Scott Walker's campaign, according to Schimel's report, which indicated investigators had a warrant.
Attorney General Brad Schimel, in his new report on his Justice Department's investigation into the Doe investigation, said that Doe seized emails included "private medical information and other highly personal information. DOJ was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child. ... ”
But Adam Stone, writing for Govtech Works, said, "One final word of advice from the FBI: Keep it all."
"Without the right protections, digital files can be easily deleted, edited, even fabricated," he wrote. "So documenting a digital chain of custody is all the more important. A compromised chain can undo a legal proceeding and lay waste to years of investigation. And all a defense attorney has to do is successfully raise concerns about potential tainting of evidence – that alone is enough, let alone demonstrating actual taint."
"One final word of advice from the FBI: Keep it all."
Keith Chval, in the article How to Preserve Digital Evidence in Case of Legal Investigation, says that each item seized in an investigation should be catalogued.
He quotes Patrick Zeller, a former high-tech prosecutor and litigator: "Because digital evidence is more susceptible to intentional or inadvertent alteration or destruction than many forms of evidence, it is critical that a witness be able to offer evidence upon which the judge can conclude that the data is in substantially the same condition as when it was seized."
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