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Milwaukee Criminal Defense Law Blog

The US arrests 10.5 million each year. Is that really necessary?

When researchers examined arrest data from 1997 to 2008, a third of all young adults and almost half of all African-American men had arrest records by age 23. Yet most arrests are for low-level crimes like disorderly conduct, public drunkenness and drug possession. Nevertheless, America's 18,000 police agencies arrest about ten and a half million people every year.

If we are to reduce mass incarceration, we're going to have to change that -- especially because an arrest now almost always means jail time.

What can we gain from pretrial risk assessments?

One of the great injustices in today's justice system is that so many people are punished long before they have been found guilty.

They are punished by being kept in pretrial detention for months or even years, either because they were denied bail or because they could not afford it. They routinely lose their jobs, housing and even custody of their children. Many, even innocent people, feel immense pressure to plead guilty because it will get them out of jail.

Lie-detector tests are unscientific, produce faulty evidence

Polygraph tests, often called "lie-detector tests," are not admissible as evidence in the courts. This is because they have never been shown to produce reliable proof of whether the subject is lying.

Nevertheless, they continue to be popular as an employment screening tool and, sometimes, as a way to assess suspects and witnesses in criminal investigations. Many probation agents are also allowed to employ polygraphs to assess whether their clients are being truthful with them, though because they are not admissible in court a failed test cannot (alone) result in probation revocation. 

It would be immensely convenient if lie-detectors worked. They seem to promise a fair, objective way of determining whether someone is telling the truth. They were first developed by psychologists at the beginning of the 20th century, then refined by law enforcement and private businesses in the 1920s.

Genetic genealogy database leads to exoneration of Idaho man

We've discussed on this blog how genealogy databases like GEDmatch warehouse the DNA results of huge numbers of people who have taken part in genetic testing for genealogy purposes.

GEDmatch and similar databases collect DNA profiles from 23andMe, Ancestry.com and other commercial DNA testing sites and publish them online. There, law enforcement can search the DNA results for matches to DNA in cold cases. They can potentially extrapolate a cold-case DNA match to even distant relatives who might be in the database.

Police are relying on sealed arrest records in new cases

New York City is infamous for its "stop-and-frisk" policy, which allowed officers to perform a pat-down search on anyone they suspected of carrying a firearm. This resulted in tens of thousands of innocent people, the vast majority of whom were African-American or Latino, being stopped, frisked, and given an arrest record despite having done nothing wrong.

Luckily, New York law requires police to seal or destroy old arrest reports that resulted in no charges. But according to a new lawsuit, police and prosecutors still have access to those old records and are using them to justify arrests, more serious charges or longer sentences.

Do police gang databases violate people's rights?

Around the country, there have been calls to significantly reform or even end the practice of keeping police gang databases, along with other gang policing practices. Last year, the nonprofit newsroom ProPublica found glaring errors in the Chicago Police Department's gang database, including people who were not gang members, people who were deemed members of multiple, rival gangs, and people who were elderly or even dead.

More troubling is the fact that people who are included in gang databases have no way to prove they're not gang members -- and that has serious consequences. Inclusion in a gang database has been considered enough to prove gang affiliation in bail hearings, sentencing, deportation hearings and other legal proceedings. This is true even though the gang databases merely represent allegations.

Study: Risk-assessment algorithms are fraught with racial bias

The Center for Court Innovation, a New York-based criminal justice reform agency, recently released a study on supposedly race-neutral risk assessment tools. These tools are widely used by courts to determine whether defendants should be granted bail or held in jail until trial.

The tools parse each defendant's demographics and criminal history, the seriousness of the current charge, and any past interactions with the justice system, such as arrests without charges. They then spit out a number corresponding to the theoretical risk that the defendant will commit another crime if released on bail.

Supreme Court: New charges require new jury trials

Once you've been found guilty of a crime, can the government just assert that you're guilty of new crimes without having to prove it to a jury beyond a reasonable doubt?

No. A plurality of the U.S. Supreme Court recently upheld the basic right to a jury trial when you're being accused of a new crime. The government cannot simply impose new punishments on parolees without empaneling a jury of their peers and requiring the prosecution to prove their guilt beyond a reasonable doubt.

SCOTUS voids death sentence after finding racist jury selection

The Montgomery County, Mississippi, prosecutor seems to have made it his career mission to convict Curtis Flowers for four 1986 murders in a small-town furniture store. Over the past two decades, he has tried Flowers for the murders six times.

For each trial, the prosecutor worked hard to remove any Black jurors, who might be more sympathetic to Flowers. Over the course of those six trials, there were only 43 potential jurors who were African-American. The prosecutor made sure only two actually served, even though the town where the murders occurred is 53% Black.

Criminal restitution orders leave juveniles languishing in debt

When we think of people being ordered to pay restitution to the victim of their criminal act, we typically picture that victim being an ordinary person who lost valuables in, say, a burglary. We imagine the restitution is directly tied to the criminal behavior, with simple justice requiring the victim to be repaid. It's often a lot more complicated than that.

For example, in one Arizona case, a 15-year-old boy damaged his parents' car while driving it without permission. There was no need for criminal charges, but the insurance company refused to pay unless the parents agreed to prosecute their own son. It then sought restitution from the boy.

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