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(The court's website has been down for a period of time, but the <A HREF="http://www.wisbar.org/res/capp/2009/2008ap000810.htm" REL="nofollow">decision is also posted</A> 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.William Tyrolerhttps://www.blogger.com/profile/03964907089960326249noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-27411795466101269282009-01-25T08:38:00.000-06:002009-01-25T08:38:00.000-06:00Super Id's right, but while the UW Law School prov...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 siteWilliam Tyrolerhttps://www.blogger.com/profile/03964907089960326249noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-78646990661530847822009-01-24T19:24:00.000-06:002009-01-24T19:24:00.000-06:00Usually, you can get pdf copies of briefs at UW M...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. <BR/><BR/><BR/>http://library.law.wisc.edu/eresources/wibriefs/Scot1andhttps://www.blogger.com/profile/05560353521307181651noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-36994533185719444212009-01-24T13:56:00.000-06:002009-01-24T13:56:00.000-06:00Ah, but if the alternative is watching Marquette p...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.William Tyrolerhttps://www.blogger.com/profile/03964907089960326249noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-29359291789954942862009-01-24T11:54:00.000-06:002009-01-24T11:54:00.000-06:00Copies of the briefs should be under the stairwell...Copies of the briefs should be under the stairwell in the Marquette law library, I think.illusory tenanthttps://www.blogger.com/profile/08524761974822871419noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-34730612366840268732009-01-24T10:36:00.000-06:002009-01-24T10:36:00.000-06:00So there is nothing wrong with the sentence itself...<I>So there is nothing wrong with the sentence itself.</I><BR/><BR/>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.<BR/><BR/>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.<BR/><BR/><I>So if the guidlines stipulate 10 years and the judge gives 5 years and makes the remarks, what then?</I><BR/>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.<BR/><BR/>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.William Tyrolerhttps://www.blogger.com/profile/03964907089960326249noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-81362074649928056742009-01-24T08:59:00.000-06:002009-01-24T08:59:00.000-06:00The only thing "wrong" is the possibility that the...<I>The only thing "wrong" is the possibility that the remarks will be perceived as tinged with animus?</I><BR/><BR/>No. Not the mere possibility; not merely the remarks; not merely tinged; not merely animus. Maybe you should read the opinion before inveighing.<BR/><BR/><I>So if the guidlines stipulate 10 years and the judge gives 5 years</I><BR/><BR/>Then you'd need to explain what "stipulate" means.<BR/><BR/>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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-46526038733778802202009-01-23T20:00:00.000-06:002009-01-23T20:00:00.000-06:00So there is nothing wrong with the sentence itself...So there is nothing wrong with the sentence itself.<BR/><BR/>The only thing "wrong" is the possibility that the remarks will be perceived as tinged with animus?<BR/><BR/>So if the guidlines stipulate 10 years and the judge gives 5 years and makes the remarks, what then?<BR/><BR/>Hmmmmmmm?Dad29https://www.blogger.com/profile/08554276286736923821noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-57717258188985715322009-01-23T17:30:00.000-06:002009-01-23T17:30:00.000-06:00I'm curious as to what standard of review was incl...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. <BR/><BR/>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.Scot1andhttps://www.blogger.com/profile/05560353521307181651noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-59750620460274240062009-01-23T13:05:00.000-06:002009-01-23T13:05:00.000-06:00Modulo the fact that the word "etiquette" rather u...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...<BR/><BR/>Well said, Rick Esenberg; and well said, William Tyroler.<BR/><BR/>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 <I>think</I>, in that situation.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-40470588033157022662009-01-23T12:44:00.000-06:002009-01-23T12:44:00.000-06:00Tom Foley's perception (that the role of the stand...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.<BR/><BR/>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. <BR/><BR/>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 (<I>Fuerst</I>) 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. <BR/><BR/>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.<BR/><BR/>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. 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