 Chemerinsky 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.  Chief Justice John Roberts: the Court's next "centrist"? 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.
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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.  Vukmir 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." By Margo Kirchner The automatic aftereffects of a criminal conviction – exclusive of the sentence – can hit someone like “a ton of bricks,” according to Gabriel “Jack” Chin, a law professor at the University of California-Davis. Chin delivered the Marquette University Law School’s annual Barrock Lecture on Criminal Law last week. Chin noted that about 60% of felons are sentenced to probation instead of prison, not warranting severe punishment as part of the sentence. But the collateral consequences of a felony conviction hit hard across the board. Collateral consequences differ from state to state but, according to Chin, can include:
Significantly, such collateral consequences last a lifetime, except for the rare pardon or expungement. And the number of consequences a person faces can grow, as new ones can be imposed on old convictions. A felon’s move to another state can mean additional restrictions. Modern courts generally view collateral consequences as civil regulatory measures rather than as punishment. As a result, except as to deportation, neither defense counsel nor a judge accepting a plea deal is required to inform a defendant of any of the myriad collateral consequences the conviction will bring.  Chin The scattering of collateral consequences throughout federal and state statutes and regulations adds to a defendant’s or attorney’s difficulty in grasping their full scope, in Chin’s view, and efforts are underway in many states to compile them. (In Wisconsin, the State Public Defender, in partnership with the Collateral Consequences Resource Center, maintains a compilation at http://wisconsin.ccresourcecenter.org/.)
Chin estimated that about 75 million adults in America have criminal records, so these consequences affect a substantial portion of the country’s population. He noted the cost to society when a person who could make a living and contribute cannot due to collateral consequences. He noted as well the cost to society in denying forgiveness and redemption to felons, citing President George W. Bush’s 2004 speech stating that America is the land of the second chance. Chin said that he is not a “prison abolitionist”; he prosecutes sex offenders in addition to his job in academia. But he believes that at some point people should be allowed to move on. He noted some of the common reforms suggested in recent projects and studies: that attorneys and judges during criminal cases advise defendants about collateral consequences; that each state maintain a compilation of all collateral consequences; that a judge consider collateral consequences at sentencing and have the power to waive some of those consequences; and that after a number of years felons be allowed to request and obtain an end to those consequences. Chin also suggests that courts reform ex post facto clause legal doctrine to stop the addition of new consequences years after a sentence was imposed and served. The U.S. Constitution’s ex post facto clause prohibits prosecution for action that was legal when taken, but later made illegal. It also prohibits laws that increase the punishment for crimes already committed. According to Chin, the modern U.S. Supreme Court has misinterpreted long-standing precedent to view collateral consequences as civil forfeitures rather than as punishment. As a result, under current U.S. Supreme Court case law, Chin said, new consequences can be added at any time (until the death of the offender). He advocates instead for a return to principles discussed by the Supreme Court in the late 18th and early 19th centuries, which allowed for application of the ex post facto clause to any law that adds a collateral consequence to an offense after the offense is committed. In his 2004 State of the Union address, President George W. Bush stated: Tonight I ask you to consider another group of Americans in need of help. This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work or a home or help, they are much more likely to commit crime and return to prison. So tonight, I propose a four-year, $300 million Prisoner Re-Entry Initiative to expand job training and placement services, to provide transitional housing and to help newly released prisoners get mentoring, including from faith-based groups. America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life. WJI is reposting reporting from the old storyhill.net website and affidavits from County Jail inmates unfortunate enough to be booked during Sheriff David Clarke's tenure to show just what kind of malfeasance the public can expect if President-elect Donald Trump gives Clarke a federal job. The affidavits were part of a court case alleging thousands of men and women were improperly detained in the jail under excessive lengths of time, in violation of a 2001 consent decree. Milwaukee County Circuit Judge Clare Fiorenza eventually found the county in contempt of court for the violations. County says 16,000 consent decree violations shouldn't count Sept. 2, 2005 -- The Sheriff's Department substantially complied with a legally-binding consent decree governing jail conditions despite more than 16,000 violations of one of the decree's provisions, lawyers for the county say. Meanwhile, a lawyer for the Legal Aid Society of Milwaukee Inc. said a key apect of the county's effort to control the jail population -- moving pre-trial inmates to the House of Correction -- "is not a solution...in the short run or the long run." "Of immediate concern is whether jail inmates transferred to the HOC are at risk of being held in overcrowded and unsafe conditions at the House of Correction," attorney Peter Koneazny wrote. The Sheriff's Department, over a two-year period, held more than 16,000 inmates more than 30 hours in the jail’s booking room in violation of the consent decree. The practice ended in April 2004, shortly after the Legal Aid Society of Milwaukee Inc. and the American Civil Liberties Union of Wisconsin Foundation Inc. uncovered it. Legal Aid and the ACLU are seeking to have the Sheriff's Department held in contempt for the violations. The county argues since it ended the violations, it cannot be ordered to pay damages for the violations that did occur. "While this Court certainly has inherent contempt powers, the Legislature has reasonably regulated the use of those powers to preclude the imposition of a remedial sanction such as money damages in a situation such as the case at bar, where the allegedly comtemptuous conduct ended at least some 15 months ago," the county said in Circuit Court filings. The county also said it did not believe the Sheriff's Department was in contempt, as the ACLU and Legal Aid allege. The Sheriff's Department did what it could to control overall inmate population, the county said. Crowding throughout the jail contributed to the long booking room stays because there was no place available to assign people in booking. Sheriff David Clarke, for example, tried to control crowding by agreeing in March 2004 to hold at the jail a maximum of 125 state inmates accused of violating probation or parole, the county lawyers say. Clarke, however, was not required to accept any of those inmates, and the county was silent on why housing 125 inmates at the jail that didn't have to be there helped control the facility's population. Clarke also agreed, in January 2004, to lease to the state up to 64 beds for state inmates nearing the end of their prison sentences. The county did not even mention that agreement in its response.  Clarke WJI is reposting reporting from the old storyhill.net website and affidavits from County Jail inmates unfortunate enough to be booked during Sheriff David Clarke's tenure to show just what kind of malfeasance the public can expect if President-elect Donald Trump gives Clarke a federal job. The affidavits were part of a court case alleging thousands of men and women were improperly detained in the jail under excessive lengths of time, in violation of a 2001 consent decree. Milwaukee County Circuit Judge Clare Fiorenza eventually found the county in contempt of court for the violations. Thousands held improperly in crowded jail booking room through scroll bar error Could cost county, insurers June 27, 2005 --Thousands of men and women were improperly detained for more than 30 hours each in a crowded county jail booking room because a sheriff's deputy never moved his computer scroll bar, court records show. "I think if -- if I may impose on court and counsel's experience, sometimes when the information presented is wider than the screen, there's a little slide bar at the bottom of the computer," Assistant Corporation Counsel John Schapekahm told Circuit Judge Clare Fiorenza. "He never push the slide bar apparently." While Sheriff David Clarke's department has been in the spotlight for letting convicted drug dealer Cesar Lira escape by walking out the door after posting bond, the lawsuit over jail population shows that the Lira case is not the only major blunder that Clarke has overseen. Fiorenza suggested that training that deputies received may be an issue in the jail case. The improper detentions, which violated a 2001 consent decree, occurred over a 1 1/2-year period of Clarke's tenure. There were more than 13,000 such violations, according to the American Civil Liberties Union of Wisconsin Foundation Inc. and Legal Aid Society of Milwaukee, Inc. Information about how long inmates were held in booking was available via computer, Schapekahm said. But that particular piece of information was in the eighth column of a table, and only seven columns showed on the computer that a deputy used to track inmates. The failure to properly operate a scroll bar could cost the county or its insurers -- a judge already has said the Sheriff's Department may well be liable for damages. The county for months denied held inmates for more than 30 hours in the booking room. The scroll bar discovery quickly prompted it to change its story. Officials "were appalled see this, of course," Schapekahm said. "It's not a pretty sight. County Executive Chris Abele rejected Sheriff David Clarke's request for a 50% tax levy increase for 2017 and is instead recommending an increase of 2.1%.
Abele's recommended levy to support the 2017 Sheriff's Department budget is $60.5 million, up from $59.3 million. Abele is proposing a $70.5 million departmental budget, up $362,612, or 5.1%, from this year's budget. Abele is not recommending any changes in the numbers of Sheriff's Department deputies; Clarke requested 206 new positions, the bulk of them deputies. The budget figures are adjusted to reflect changes in 2017 county budgeting methods. The city's Public Safety Action plan, Sister Rose Steitz said at a public hearing Monday, is perceived in the community as "a page out of Sheriff (David) Clarke's playbook." The plan did not have support, she said. Chris Ahmuty, executive director of ACLU-Wisconsin, said some Police Department practices are "undermining...the trust in the community." The Police Department in February reported to the Fire and Police Commission the department's compliance with the President's Task Force on 21st Century Policing recommendations, Ahmuty said. The task for recommended that "Law enforcement agencies should consider the potential damage to public trust when implementing crime fighting strategies," Ahmuty said. The Police department reported: "Not currently being done." "Will they ever do it?" he asked Monday. All in all, the Common Council's Public Safety Action Plan, which is heavy on compliance and coercion and calls for hundreds of millions of dollars in new spending, was not warmly received by community group representatives who testified. During the first 90 minutes of the hearing, not a single speaker endorsed the plan. Monday's hearing was the first of four scheduled to get input on the Action Plan and was designed specifically to get input from community groups. The next hearing is scheduled for 9:30 a.m. Saturday at Marshall High School, 4141 N. 64th St. Wisconsin Justice Initiative Executive Director Gretchen Schuldt said in written testimony that "the plan is deeply flawed. It is unaffordable and puts too much emphasis on control and coercion." (See WJI's full testimony below.) Joseph Ellwanger, representing Milwaukee Inner City Congregations Allied for Help, said the answer to the city's problems "is not more police" and that "all the segments of our communities" need to "work together as partners for the common good of all." Fred Royal, president of NAACP-Milwaukee, said, "We should be getting better outcomes than we're getting from our Police Department." And R.L. McNeely, chairman of the Chaney Community Advisory Board, asked "Haven't we learned here in Wisconsin...that we can't incarcerate ourselves out of crime?" Still reeling by accusations of abuse and cover-up at its juvenile institutions, the Department of Corrections now is proposing to sharply curtail public input into the creation of new prison industries. It's all about making money faster, DOC says in its 2017-19 budget proposal. "If the Department is more quickly able to establish a new industry, it may be able to realize the profits of the industry sooner," DOC said in its budget proposal. DOC must now hold a public hearing before it launches a new industry. Under the department's proposal, DOC would simply submit plans for new industries to the Legislature's Joint Finance Committee. The committee could, within 15 working days, call a meeting to consider the matter. If the committee does not notify the department that a meeting is necessary, the department could go ahead and implement the industry without public input. David Liners, state director of WISDOM, which is deeply involved in state prison reform issues, criticized DOC's effort to curtail public involvement. "The biggest problems with the Department of Corrections stem from a lack of transparency and external accountability," Liners said. "Whether the concern is solitary confinement, procedures that affect parole-eligible prisoners, revocation policy, or prison industries, the Legislature needs to call for greater accountability. This measure seems to be an unexplained, unjustified move in an exactly the opposite direction," he said. "Changes to procedure for the Department need to include increased oversight by people outside of the department itself," he said.  Prison industries remain controversial, with some critics alleging they exploit incarcerated people while others say the industries unfairly compete with the private sector.
In Wisconsin, according to a 2015 Legislative Fiscal Bureau paper, the Department of Corrections' corporate arm, Badger State Industries, runs businesses in textiles, including laundry and upholstery; imaging, including sign shops and printing; fabricating, including furniture and license plant manufacture; and a distribution center. In 2013-14, according to LFG, the Badger State prison industries paid an average hourly inmate wage of 94 cents per hour, and ranged from 79 cents to $1.41 per hour. DOC proposed in the spring adding an inmate canteen industry at Taycheedah Correctional Institution. That business would pay inmates 95 cents an hour, LFB said in a June report. Prisons that operated their own canteens paid an average of 11 cents an hour. Adding 280 police officers to the city's payroll, as called for in a public safety plan, would cost $31.7 million per year by the fifth year of the surge, according to city budget figures. That amount dwarfs $23.6 million budget for the entire Milwaukee Public Library system.  Adding 280 new cops would cost $31.7 million per year. The additional cops would cost $29 million in the first year, then increase as officers receive annual step increases, city Budget and Management Director Mark Nicolini said in an email.
The costs include initial equipment costs of $7,285 per officer and a new $57,000 squad car for every five additional officers. And while Common Council's Public Safety Action Plan says adding the 280 officers would restore police staffing to 2008 levels, figures from the city's budget office indicates that the increase would boost staffing levels well past those seen in 2008. That year, there was an average of 1,994 sworn officers. This year, there is an average of 1,888 sworn officers, or 106 fewer than in 2008, Nicolini said. Adding 106 officers to the Police Department would cost $11 million the first year, increasing to $13 million in year five, according to the budget office figures. Conflict watch: Schimel, investigator of Milwaukee police shooting, gobbles police union cash8/22/2016  Schimel, police shooting investigator, took police union cash Attorney General Brad Schimel, heading up the investigation into the fatal shooting of Sylville Smith, has received $2,500 from the Milwaukee police union's political action committee since 2014. Schimel promised a transparent investigation, but thus far has failed to deliver, according to the American Civil Liberties Union. "To date you have promised transparency, but provided little information on your investigation to the community and Mr. Smith’s grieving family and friends, who seek understanding of the deadly incident that transpired on August 13," the civil rights organization said in a letter to Schimel. Smith's shooting led to unrest and arson around the Sherman Park neighborhood. Schimel announced Monday that events related to Smith's shooting were captured by two police body cameras, not just one. He declined to release the videos. Schimel has receive five different $500 donations from the Milwaukee Police Association's PAC, according to the Wisconsin Democracy Campaign.  |
AuthorGretchen Schuldt is executive director of the Wisconsin Justice Initiative. Sign up for the free WJI newsletter.
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The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.
The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.