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