Friday, January 23, 2009

I refer to the woman with whom you have a child but who is not your wife (hereafter "Baby Mama")

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant's failure to get a job, referred to the defendants "baby mama" (who supports him) and wondered how "you guys"(referring to one out of four" defendants who appear before them)find women who are willing to support them in idleness. One of the area's most prominent African American defense attorneys has come to the defense of the sentencing judge suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne'er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a "reasonable person in the position of the defendant that the court was improperly considering Harris’s race?" Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge's remarks but how they would be perceived by an African American defendant.

Tom is correct that this is the standard the majority announced. But is it the right standard? The majority cites no authority for it and the cases (from outside Wisconsin) seem to nave been based on the perceptions of a reasonable observer and not a reasonable observer in the position of the defendant.

More fundamentally, should the question be whether, to use the majority's language, "there is a risk" that a defendant or a generic observer "might" infer that the judge improperly considered race?

Judge Brennan, in her dissent, comes at it in a different way citing Wisconsin law that places upon the defendant the burden of proving that an improper factor influenced the sentence. Now, of course, one way to prove that is through the judge's remarks. But here's the thing: Not one of the three judges concluded that Judge Wall improperly considered race. Even the majority says that "[h]aving examined the entire sentencing transcript, we are satisfied that the trial court did not harbor bias against Harris because of his race."

The majority seems to want to enforce a certain sentencing etiquette and I understand what's behind that. There is resentment in the black community for the justice system and, while we can disagree about the extent to which it is justified or whether it is counterproductive, it ought to be seen as a reality that requires a response.

But sentencing judges are exposed to a parade of defendants who, and, again, we can argue about why, live irresponsible lives that are destructive of themselves and their families. It is reasonable to expect them to, from time to time, comment on that fact. If, in a particular venue, a disproportionate number of those defendants are African-American, it may be possible, as was done here, to tease those remarks and to place upon them a negative construction that might suggest racial bias. But won't too much sensitivity lead to too many false positives and inefficiency? Where, as here. everyone seems to agree that race was not taken into account by the sentencing judge, is there really any value in vacating the sentence because the judge's remarks might be susceptible to being taken in the wrong way?

Cross posted at Marquette University Law School Faculty Blog

23 comments:

gnarlytrombone said...

It is reasonable to expect them to, from time to time, comment on that fact

Fo' shizzle, my nizzle.

William Tyroler said...

Tom Foley's perception (that the role of the standard of review is crucial) is astute. He's also right that the court of appeals came to the correct conclusion, given the SOR it derived.

Professor Esenberg raises an equally interesting point: is this SOR indeed correct? I wouldn't say the answer is clear, but I do think a decent argument could be made that the court got it right.

Typically, sentencing challenges are reviewed under an extremely deferential regime (put bluntly: a near-conclusive presumption the sentence is unassailable). But when the argument is not simply that the sentencing court misused "discretion," but did so in a way to violate some fundamental constitutional principle, then a loosened SOR applies. For example, an earlier case (Fuerst) cited by the court holds that reliance on a defendant's religious practice is generally off-limits absent showing of a "reliable nexus" between his or her criminal conduct and that practice. Race is different, though: think without shuddering about the implications of showing a "reliable nexus" between race and criminal conduct. So that test is out. The test articulated by the court in Harris' case -- whether the judicial comments could reasonably be seen as having racial overtones -- is at least workable. What else would be? Critics ought least to propose something, and I've heard nothing.

I realize that to some extent I'm suggesting that race should be "privileged" when it comes to sentencing review. But why shouldn't race, for all the obivous reasons, be subject to heightened scrutiny? On an abstract level, it might be said that, just as we assign different levels of scrutiny to equal protection claims depending on the nature of the class, so too here.

There is, to be sure, reason for misgiving. We ought to encourage judges to be open about their reasons for locking people up, and this decision might deter frankess. But this concern equally supports loosening the general standard of review, which is overly stringent.

Clutch said...

Modulo the fact that the word "etiquette" rather underdescribes the point at issue -- viz., the appearance of impartiality to a reasonable defendant, over and above the fact of impartiality...

Well said, Rick Esenberg; and well said, William Tyroler.

I'd suggest that the deterrence of frankness might be seen as not so much a concern as a useful heuristic for judges, all things considered. After all, to have occasion to bite one's tongue over how the thing you were about to say might have been received is (perhaps even necessarily; but at least often) to have reason to consider whether it was even the right thing to think, in that situation.

Super Id said...

I'm curious as to what standard of review was included in the appellate briefs. Unfortunatly, I have thus far been unable to obtain copies. But if the Harris' breif included the standard of review cited by the court and the state did not object or provide a different basis for review. I do not think you can fault the Court.

The presement of a case is directly related to its outcome. The public loves to bash judges over what they consider "bad" decisions. Perhaps, some credit should be given to the advocates that obtain those decisions. May the best lawyer win.

Dad29 said...

So there is nothing wrong with the sentence itself.

The only thing "wrong" is the possibility that the remarks will be perceived as tinged with animus?

So if the guidlines stipulate 10 years and the judge gives 5 years and makes the remarks, what then?

Hmmmmmmm?

Clutch said...

The only thing "wrong" is the possibility that the remarks will be perceived as tinged with animus?

No. Not the mere possibility; not merely the remarks; not merely tinged; not merely animus. Maybe you should read the opinion before inveighing.

So if the guidlines stipulate 10 years and the judge gives 5 years

Then you'd need to explain what "stipulate" means.

Near-total misstatements of the opinion and incoherent what-ifs are a bad way of determining how these issues could play out. It's a serious topic -- meriting serious thought.

William Tyroler said...

So there is nothing wrong with the sentence itself.

Depends on one's perspective. All I know about the background details rests on the decision's very skeletal recitation: Harris wasn't yet 21; the crime was simple possession (as opposed to delivery) of cocaine; and, he had no prior record at all, adult or juvenile. Judge Wall imposed a 5 year sentence, the 1st two to be served in prison. It strikes me (admittedly knowing nothing else about the case) that the sentence is at least arguably harsh. How many black males do we want to take out of circulation -- to be blunt about it -- for drug possession? I might be biased about our (misguided) war on drugs, but even so it's a bit jarring to see a 1st-time, very youthful offender sent to prison.

I am certain, though, that the test for sentence-review being what it is, no appellate court in Wisconsin would ever agree with my tentative assessment. Maybe, if appellate courts actually put teeth into the review process they wouldn't have to do what was done here: parse the judge's words so finely in order to discern some misstep.

So if the guidlines stipulate 10 years and the judge gives 5 years and makes the remarks, what then?
Wisconsin's not a "guideline" state (with a very minor, highly technical exception not worth getting into). Very good, interesting question nonetheless. The key point of the guideline movement (as I gather anyway) was to reduce if not eliminate sentencing disparities. It's a worthy goal, of course, but for complex reasons, some legal, some "political" in the broadest sense (a number of judges resented this entrenchment on their authority; they pushed back, hard), guidelines may no longer be considered binding. But the problem of disparity remains, and if I were a black male 1st-time defendant I'd wonder whether a similarly-situated white defendant would be sent away for a couple of years on a relatively minor drug offense. And that gets us back to the test applied by the court of appeals in Harris' case. If nothing else, it at least offers some protection against (unjustifiably) disparate treatment.

Super Id raises a great point about access to the briefs. We'd know a good deal more about the background details if we had ready access to the briefs. On July 1, our appellate system enters the 21st century when a rule requiring electronic filing of briefs goes into effect. Briefs filed after that date will be readily available; the ones in Harris's case, unfortunately, aren't.

illusory tenant said...

Copies of the briefs should be under the stairwell in the Marquette law library, I think.

William Tyroler said...

Ah, but if the alternative is watching Marquette play DePaul (or UWM, Butler) from the comfort of your living room), who wants to skulk about underneath the law library stairwell? Other than the truly hard-core, I mean.

Super Id said...

Usually, you can get pdf copies of briefs at UW Madison's website, which is much faster than going to MU. I searched there but the briefs for this particular case were not yet posted.


http://library.law.wisc.edu/eresources/wibriefs/

William Tyroler said...

Super Id's right, but while the UW Law School provides a great service in posting briefs, there's a considerable lag. After July 1, new briefs should be immediately available at the court's site

William Tyroler said...

I see I was wrong about the nature of Harris' offense: it was possession with intent to deliver, not simple possession. (The court's website has been down for a period of time, but the decision is also posted at the State Bar site.) That makes the offense more aggravated, of course. But the fact remains that he was a 1st-time offender, and caselaw requires that the sentence be "the minimum amount of custody or confinement" consistent with overall sentencing goals, with probation given first consideration. Two years in prison hardly shocks the conscience, but would probation with significant time at the House of Correction have done the job equally? That question becomes a whole lot harder to answer given the judicial comments at issue.

Anonymous said...

I wonder if the 2 year jail time was not meant more for debt relief for the 'baby mama'. He seems to have been thinking heavily enough about their plight to include them in his comments. In the sense that he would be a continued burdern for 2 extra years had he received no jail time... just a thought.

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