On Point blog, page 34 of 96
Expunctions actually reduce crime
Professor Murat Mungen, Florida State University College of Law, just published this article explaining how expunging a person’s criminal record reduces the chances that he will reoffend.
Defendant’s docs didn’t disprove out-of-state OWI prior
State v. Joseph C. Risse, 2015AP586, District 3, 1/12/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Risse pled to an OWI, but was it his first or second? The state, armed with a Wisconsin Certified Driving Record, says he had a 2008 chemical test refusal in Connecticut. Risse, bearing a collection of documents from Connecticut and elsewhere, submits that they prevent the state from showing the prior beyond a reasonable doubt.
SCOTUS: Jury, not judge, must decide whether to impose death penalty
Hurst v. Florida, USSC No. 14-7505, 2016 WL 112683 (January 12, 2016); reversing and remanding Hurst v. State, 147 So.3d 435 (Fla. 2014); Scotusblog page (includes links to briefs and commentary)
In Florida the jury makes a recommendation as to whether to impose the death penalty, but the judge then holds a separate sentencing hearing and decides whether there are sufficient aggravating circumstances to justify the death penalty. This sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” (Slip op. at 1).
Seventh Circuit cracks open a door for juveniles challenging non-mandatory, de facto life sentences
Bernard McKinley v. Kim Butler, 7th Circuit Court of Appeals Case No. 14-1944, 1/4/16
McKinley failed to raise an Eighth Amendment claim in his state court challenges to the sentence he received for a murder he committed at the age of 16. That means he procedurally defaulted the claim for purposes of his federal habeas challenge to the sentence. But instead of affirming the district court’s dismissal of McKinley’s habeas petition, a majority of this Seventh Circuit panel stays the habeas proceeding and, based on reasoning that could be useful to other juveniles seeking to challenge long sentences, gives McKinley a chance to go back to state court to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012).
Cutting work hours for fear of in-home day care supports restitution
State v. Frank E. Pilarski, 2015AP425, District 2, 12/23/15 (not recommended for publication); case activity (including briefs)
Pilarski sexually assaulted a child in his in-home day care; the court of appeals upholds a restitution award for the child’s mother’s reduced work hours necessitated by her unwillingness to use any other in-home day care after the assaults.
Plea withdrawal and ineffective assistance claims based on sentence credit error rejected
State v. Stephen Toliver, 2014AP2939-CR, 12/15/15, District 1 (not recommended for publication);case activity
Here, in Wisconsin’s very own Jarndyce v. Jarndyce, the court of appeals upholds the denial of Toliver’s motion to withdraw his guilty plea, the circuit court’s refusal to vacate his felony murder plea, and the circuit court’s denial of his ineffective assistance of counsel claim.
Defendant not entitled to credit for custody in another case that was considered at sentencing
State v. David Aaron Piggue, Jr., 2016 WI App 13; case activity (including briefs)
Under State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, ¶¶14-18, 25-27, 606 N.W.2d 155, a defendant is entitled to sentence credit for time in custody on charges that are dismissed and read-in for sentencing purposes. The court of appeals declines to extend Floyd to require credit for time the defendant was in custody on a charge for which he was acquitted, even though the acquitted conduct is used by a judge to fashion a sentence for a different crime.
Cecilia Klingele on evidence-based practices
UW Law Professor Cecilia Klingele just published “The Promises and Perils of Evidence-Based Corrections” in the Notre Dame Law Review. The article lays out the history of corrections reform, the emergence of evidence-based practices (including actuarial risk assessments), and cautions policymakers and practitioners about the potential for misuse of them. Click here to read the full article.
As it happens, SCOW has accepted review of a case that challenges the use of COMPAS assessments at sentencing.
Exposé on sentencing disparity in Wisconsin: how harshly does your judge sentence?
GannettWisconsin.com has posted an extensive study of sentencing in Wisconsin during 2005-2014. Click here for “Scales of Justice or Roulette Wheel?” Investigative reporters extracted data from CCAP and created searchable databases that allow the user to see: (1) on a scale of 1 to 10 how harshly a particular judge sentences for certain crimes compared to other judges in his/her county and in the state, (2) the average sentences imposes for certain types of crime,
Expunction: Not quite the “fresh start” that Hemp advertised
State v. Christopher Joseph Allen, 2015 WI App 96, petition for review granted 4/7/16, affirmed, 2017 WI 7; case activity (including briefs)
How often does SCOW issue unanimous decisions for the defense these days? Not too often. So you’d think that after being reversed 7-0 in State v. Hemp, District 1 might approach §973.015, with a “once bitten, twice shy” mindset. But with this published decision, D1 seems more determined to rein in Wisconsin’s expunction statute.