When sentencing someone who has done wrong, judges are very fond of saying words like, “I have to sentence you to this long sentence to hold you accountable for what you have done.”

Apparently judges think it is important to hold someone accountable for their misdeeds.   Similarly, parents teach their children that that the child is being punished as a way for them to learn to not do something again.  In other words, a parent holds even a child accountable for when they do something wrong.

So why do we hesitate to treat the police differently than we treat a child?

We know that taxpayers pay hundreds of millions of dollars each year in the form of settlements for police brutality and other misconduct. The nation’s three biggest cities account for over 80 percent of those costs. But the data on payouts to victims and their families is so spotty and inconsistent—some cities don’t even agree on what constitutes “misconduct”—we can’t tell whether the payments change the bad behavior that prompts excessive force or wrongful death cases in the first place.  “Police misconduct has cost Milwaukee taxpayers at least $17.5 million in legal settlements since 2015, forcing the city to borrow money to make the payouts amid an ever-tightening budget.  That amount jumps to at least $21.4 million when interest paid on the borrowing and fees paid to outside attorneys are factored in.”  Kevin Crowe and Ashley Luthern, "The cost of police misconduct in Milwaukee: $21 million – and growing"  Milwaukee Journal Sentinel (2017), https://www.jsonline.com/story/news/investigations/2017/10/25/cost-police-misconduct-milwaukee-21-million-and-growing/792428001/.  By 2020, that amount erupted to $40 million.  Police Misconduct Cases Costly For Milwaukee (Seehafer News 2020), https://www.seehafernews.com/2020/11/11/police-misconduct-cases-costly-for-milwaukee/. 

Incidentally, when many cities, including Milwaukee, exceed their budgets for settlements and judgments related to police misconduct, they utilize taxpayer-funded bonds with high interest rates to cover the costs of lawsuits. This creates an avenue for banks and investors to profit from police brutality.  Edgar Mendez, Banks earn millions from bonds issued to settle MPD brutality cases, new report finds (Milwaukee Neighborhood News Service June 19, 2018), https://milwaukeenns.org/2018/06/19/banks-earn-millions-from-bonds-issued-to-settle-mpd-brutality-cases-new-report-finds/. 

“As the country has witnessed episode after episode of police abuse, holding police officers accountable for misconduct has become an urgent issue. But despite increased attention, it’s still rare for police officers to face criminal prosecution. That leaves civil lawsuits as victims’ primary route for seeking legal redress and financial compensation when a police encounter goes wrong. The resulting settlements can be expensive for the city, which is generally on the hook for the payouts (meaning ultimately, most are subsidized by taxpayers), and those costs can encourage cities to make broader changes.”  AMELIA THOMSON-DEVAUX, LAURA BRONNER and DAMINI SHARMA, "Police Misconduct Costs Cities Millions Every Year. But That’s Where The Accountability Ends.(The Marshall Project 2021), https://www.themarshallproject.org/2021/02/22/police-misconduct-costs-cities-millions-every-year-but-that-s-where-the-accountability-ends.

We should not accept the false choice of either having a police force or not having a police force.  The reality of today’s society is that a police force is needed.  But there are several commonsense reforms that state and local leaders should pursue to reduce police brutality while protecting the thousands of honest law enforcement officials who risk their lives every day for their fellow citizens.  “STATE SOLUTIONS THAT ADDRESS POLICE REFORM AND ACCOUNTABILITY,” State Policy Network (2020), https://spn.org/blog/state-solutions-that-address-police-reform-and-accountability/?gclid=Cj0KCQiA-OeBBhDiARIsADyBcE554-bsO0PfQ4RzSLp2Kjiyqst1_iFR2e9zl3FQDrh3k7hQY31y2R0aAr7uEALw_wcB.

It is time to hold the police accountable for their mistakes, and not just from the taxpayer’s pocketbook.   We need to quit accepting the fear-mongering that holding police accountable will increase crime.   Police officers are the public officials society has authorized, even obliged, to use force. Ensuring that police officers use that warrant equitably, legally, and economically on behalf of citizens is as basic as discipling your child to make sure the child learns a lesson.

We live our lives by a couple of fundamental concepts.  One fundamental concept is make the punishment fit the crime.  In Wisconsin, we have not endorsed government sanctioned killing by barring the death penalty.  Simply put, in Wisconsin a majority believe you cannot turn a bad act, like killing someone, into a good act by killing again.  After all, if Justice Brandies was right in Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). that “our government is the potent, the omnipresent, teacher,” when the government teaches that a life does not have intrinsic value it approves of killing.   Your government gets to decide some lives just don’t matter so a person needs to be killed.  Of course, history has taught us, whether it be Stalin or Hitler, the actual practice of a government’s decision to kill certain people ends up being used against the politically powerless.

With that in mind, we need to realize that as of February 2021, COVID-19 infects half of Wisconsin inmates, five times the overall state rate.  Vanessa Swales, ‘He shouldn’t have had to die’: COVID-19 infects half of Wisconsin inmates, five times the overall state rate, Wisconsin Watch (February 13, 2021), https://wisconsinwatch.org/2021/02/covid-19-infects-wisconsin-inmates/?mc_cid=5ec3227325&mc_eid=4a5b451b1f  Ms. Swales mentions Calvin Johnson,  a 52-year-old who lived with high blood pressure and asthma and feared a COVID-19 outbreak at overcrowded Prairie du Chien Correctional Facility would kill him. He had been convicted of armed robbery in 2016, an offense which Wisconsin says is not supposed to have a death penalty. 

In October 2020, he asked a judge to modify his 13-year sentence due to the pandemic for health reasons.  Johnson explained to a court that “I was given 13 years for my crime. I was not given a death sentence . . . . I feel that the precautions the Department of Corrections has put into place to stop the spread of (COVID-19) are no more than a facade and my health, safety, and life are at risk here.”

About a week later, finding “no legal basis” to change Johnson’s sentence due to the pandemic, a judge wrote, “While the court recognizes the potential threat of COVID-19 to the inmate population, it also recognizes that the institution has a legal obligation to take the necessary steps to keep inmates safe and healthy.”  https://wisconsinwatch.org/wp-content/uploads/2021/02/Childs-order.pdf

 Johnson died of COVID-19 the next month.  The last thing he said was, ‘I can’t take this shit anymore, I can’t breathe.’ ”  The cause: complications from COVID-19, his autopsy showed.

Reporter Vanessa Swales explains that:

The coronavirus has run rampant across Wisconsin’s state prison system, infecting at least 2,153 staff members at adult institutions who self-reported test results and 10,786 inmates throughout the pandemic — more than half of the current population. The state has detected infections among inmates at a rate more than five times higher than in the general population. The outbreaks have killed at least 25 inmates, according to DOC data. John Beard, an agency spokesman, declined to say whether any prison staff had died of the virus, citing medical privacy considerations.

Ms. Swales continues:

Wisconsin was a laggard in ramping up testing for inmates, meaning its data likely undercounts infections from the early months of the pandemic.  Many of Wisconsin’s aging prisons are poorly designed to keep viruses from spreading. Inmates in some facilities sleep in barrack-like arrangements and cells are cramped. Inmates share toilets, showers and sinks. Prisoners say air typically flows poorly through the facilities — conditions common in prisons nationwide that allow aerosols to remain in the air and circulate throughout the closed environment, according to a National Academies of Sciences, Engineering, and Medicine report that calls for decarceration to limit COVID-19 in prisons.

“It’s not that this virus is behaving differently in correctional systems,” said Dr. Lisa Puglisi, an assistant professor at Yale School of Medicine and expert in post-incarceration care. “It is that the (correctional) systems can’t handle the virus.”

In other words, an overcrowded prison is an overcrowded prison and until you take steps to deal with overcrowding, bandaid solutions do not help.

For instance Prince Rashada, a 52-year-old inmate at Fox Lake Correctional Institution, was among seven   inmates at three prisons who told Wisconsin Watch that soap and sanitizer remained hard to access — or that sanitation was broadly lacking. He was also among eight inmates at five prisons who said infected inmates were not always isolated from others. “The fact remains that they put our lives at risk,” Rashada, who reports having sickle cell trait and other conditions that might make him more vulnerable to COVID-19, said in a phone interview. “I fear for my life, and I feel I’m going to die in prison. I’m having nightmares that I’m going to die in here.”
​
It is time for Wisconsin to make the punishment fit the crime.  Wisconsin needs to stop killing people by prison overcrowding.

The words are sweeping as they are majestic:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” 

 The Declaration of Independence tells citizens their right of citizenship is endowed by the Creator.  It is not dependent on any government declaration.

The Supreme Court says not true.

The Supreme Court’s role in defining American citizenship
By Gabriel Chin on Jan 27, 2021 at 10:23 am

The following is a series of questions posed by Professor Gabriel “Jack” Chin, University of California, Davis School of Law, to Professor Amanda Frost, American University Washington College of Law, on Frost’s new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.

Frost is an expert in constitutional law, immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. She writes the Academic Round-up column for SCOTUSblog, highlighting noteworthy scholarship on the Supreme Court. On Thursday, Jan. 28, at 8 p.m. EST, Politics & Prose will host a virtual book launch. For more info and to register for that event, click here.
* * *
Can you start by describing the book in a few sentences, and what motivated you to write it?

The book describes the events surrounding the legal battles to safeguard citizenship. Over the past two centuries, the government tried, and sometimes succeeded, in revoking citizenship from millions, including disfavored racial and ethnic groups, women who married noncitizens, imprisoned Japanese Americans during World War II, as well as political activists and labor leaders. At times, the Supreme Court defended citizenship, but at others it acquiesced or even led the way in declaring that groups or individuals were no longer entitled to the rights and privileges of U.S. citizenship.

I wrote this book in part because this history is not well known, and I wanted to share this knowledge with a wider audience. The book is a legal history, but it is told primarily through the stories of those who lost their citizenship, using their own words whenever possible. These people were remarkable, and one of my goals was to write an accessible book in order to share their citizenship battles with a broader audience.
 
Those who lose their citizenship often turn to the courts for relief, but as you explain, the Supreme Court has not always protected citizenship. Why has the court protected some individuals from losing citizenship even as it refused to protect others?

Supreme Court decisions often reflect their historical moment. When the political branches choose to revoke citizenship, they do so from those viewed as “un-American” — whether because of their race, ethnicity, speech or even their choice of marriage partner or reading material. Like elected politicians (and the rest of us), the justices are influenced by the public’s perceptions of who is a “real” American entitled to the rights of citizenship, and who is not.

When the court decided Dred Scott v. Sandford in 1857, the nation was debating whether slavery could be reconciled with the Declaration of Independence’s founding principle of equality. Chief Justice Roger Taney thought he had solved that problem when he declared that no Black person, slave or free, could claim the “rights and privileges of citizenship” — in other words, that all Blacks were outside of the social compact. As the dissent pointed out, to reach that conclusion he had to ignore historical precedent supporting Black citizenship, including the fact that some Black residents of the United States had the right to vote, and some had even voted to ratify the Constitution that Taney thought denied them citizenship. But Taney and a majority of the justices could not see beyond their deep-seated assumptions about race and equality.

At other times, though, the court protected citizenship from the political branches’ efforts to take it away, even when it was not politically popular to do so. In its 1967 decision in Afroyim v. Rusk, the court put a stop to the government’s Cold War denaturalization campaign, declaring: “The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.”
 
Was there a Supreme Court decision regarding citizenship stripping that surprised you?
I was pretty taken aback by Mackenzie v. Hare, the 1915 decision in which the court unanimously upheld a federal law revoking U.S. citizenship from American women who married noncitizens.

The story behind that case is almost too good to be true. The plaintiff, Ethel Mackenzie, was a well-known suffragist who had successfully fought for the right to vote in California. But when she tried to vote in the next election, she was barred because she had married a Scotsman. Under the Expatriation Act of 1907, American women who married noncitizens automatically lost their citizenship. Mackenzie challenged the law in the Supreme Court, but none of the (male) justices could understand why it would be important for women to maintain independent citizenship.
​
The happy ending to the story is that two years after the 19th Amendment guaranteed women the right to vote in 1920, the Expatriation Act was partially repealed — though it was not eliminated entirely until 1931. And the credit for getting rid of it goes in part to the newly elected women in Congress.
 
You argue that citizenship stripping has “served as a proxy for overt discrimination.” Can you elaborate on what you mean by that, and how citizenship stripping fits in with more familiar forms of discrimination?
Citizenship stripping has been used to discriminate in ways otherwise prohibited by law. The Supreme Court has held that the right to vote, serve on a jury, own property, criticize the government, work in a variety of professions and remain in the United States cannot be denied on the basis of race, religion, gender, speech and other protected grounds. But, as the court explained in Mathews v. Diaz in 1976, it is legally permissible to discriminate against noncitizens in a variety of ways. I argue that at times the government has taken advantage of that distinction, using access to citizenship as a facially neutral means of accomplishing unconstitutional goals.
 
Is there a Supreme Court justice whose vote in a citizenship case you view as particularly significant?
I was struck by Justice Felix Frankfurter’s 1944 opinion for the court reversing the denaturalization of Carl Wilhelm Baumgartner, a German immigrant who had become a naturalized U.S. citizen in 1932.
Baumgartner supported the Nazis, made anti-Semitic statements and declared publicly that “he would be glad to live under the regime of Hitler.” Frankfurter was the court’s only Jewish member, and the case was decided on June 12, 1944 — just a week after D-Day, at a time when Nazi Germany still posed a very real threat to the world. Nonetheless, Frankfurter wrote that U.S. citizenship came with the “freedom to speak foolishly” without fear of expulsion for doing so. By authoring the opinion, Frankfurter drove home his point that citizenship could not be lost even for expressing abhorrent speech and beliefs.
 
Access to law and to lawyers has been essential for many litigants, especially the Chinese at the turn of the 20th century, and imprisoned Japanese Americans during World War II. How did these disempowered groups get access to the judicial system?
Chinese immigrants in the United States pooled their resources to hire high-profile, establishment lawyers, who filed thousands of cases on their behalf — a massive pro-bono effort comparable to that of the NAACP during the civil rights movement in the 20th century. In fact, the Chinese should get more credit for pioneering a legal strategy that is still used today.
ACLU lawyer Wayne Collins was dogged and passionate in fighting to restore the citizenship of the nearly 6,000 imprisoned Japanese Americans who had been coerced into renouncing their citizenship. After 15 years of litigation, the government finally admitted its errors and restored their citizenship. Collins is proof of the difference one lawyer can make.
 
How has race affected the Supreme Court’s citizenship decisions?
Not surprisingly, race plays a big role in this story all the way through.
Citizenship stripping was often intertwined with questions about race, membership and political power. Dred Scott’s declaration that Blacks could not be citizens epitomized the view that the United States was a white nation. The 14th Amendment’s citizenship clause overruled Dred Scott, declaring that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Supreme Court played a vital role in implementing the 14th Amendment’s citizenship guarantee. In the 1890s, Solicitor General Holmes Conrad argued that the native-born children of Chinese immigrants did not qualify for birthright citizenship. Conrad was an un-Reconstructed former Confederate officer who rejected every aspect of the 14th Amendment. He even went so far as to argue before the Supreme Court that the amendment was itself unconstitutional because the southern states had been coerced into ratifying it — a startling claim even in 1898. But the court rejected that view, holding in United States v. Wong Kim Ark that birthright citizenship applied to all, regardless of race or ethnicity.
 
Is there a justice whose views on citizenship came as a surprise?
Justice John Marshall Harlan’s dissent in Wong Kim Ark startled me.
Harlan’s stance in favor of civil rights for Blacks led Frederick Douglass to declare him “a moral hero.” In 1896, just a year before Wong’s case reached the court, Harlan had written an angry dissent in Plessy v. Ferguson — the case establishing “separate but equal” accommodations for whites and Blacks, cementing Jim Crow racial segregation into U.S. law until the Supreme Court’s 1954 decision in Brown v. Board of Education finally began to put an end to it. The court’s lone dissenter in Plessy, Harlan had passionately argued that “our constitution is color-blind.”
But then just two years later, he was one of only two justices to conclude that the native-born children of Chinese immigrants were not citizens, despite the clear language in the 14th Amendment granting citizenship to all born on U.S. soil. As you have written, Jack, Harlan’s dissent in Wong Kim Ark complicates his legacy as an advocate for racial equality.
 
As you explain, citizenship stripping lives on today. Donald Trump questioned birthright citizenship for the children of undocumented immigrants and threatened to end it by executive order. The State Department refused to give passports to those born near the southern border and outside of institutional settings. Citizens are mistakenly detained and deported by immigration officials, and proving citizenship is getting harder. What do you think the Supreme Court would do now if people were told by their own government, “You Are Not American”?

 In recent years, the Supreme Court has been more protective of citizenship than the political branches. In Afroyim, the court thought it had put an end to the government’s aggressive denaturalization campaigns, and for a while it succeeded. But a footnote in that opinion allowed for denaturalization in cases of fraud or mistake — a tiny loophole that the Trump administration used as grounds to launch an investigation of over 700,000 naturalized citizens. Whether the government’s expansive interpretation of that footnote is legally permissible never reached the Supreme Court.

I think if and when new cases come before the court, the justices are likely to be skeptical of the government’s power to lightly revoke citizenship. In 2017, in Maslenjak v. United States, the government argued before the court that it could denaturalize anyone found to have made even a minor error in a naturalization application. At oral argument, Chief Justice John Roberts asked Assistant to the Solicitor General Robert Parker if failing to admit to having driven at 65 miles per hour in a 60-mile-per-hour zone would be grounds for denaturalization. Parker responded yes, and the government lost its case in a unanimous opinion.
 
Does the story you tell show that the United States is basically a bigoted, racist country? Or is it the opposite, given humane outcomes like the quick repudiation of Dred Scott, the rejection of racial limits on birthright citizenship in Wong Kim Ark, and the opportunity for women who were expatriated because they married noncitizens to regain their citizenship?

It is both at once. On the one hand, the United States claims to be an open, tolerant country that welcomes immigrants — and at times it lives up to that ideal. But citizenship stripping is evidence of our nation’s schizophrenia. The government has repeatedly passed laws casting out its own citizens, both native-born and naturalized. Women who married noncitizens, Chinese Americans at the turn of the century, Japanese Americans during World War II, even labor leaders and political activists have all been declared “un-American” — not just rhetorically but as a matter of their legal status. Some were even deported. And as I explain in the last chapter, citizenship stripping lives on today.

Happily, though, the story doesn’t end there. As I describe in the book, those groups successfully fought back, sometimes (though not always) with the help of the Supreme Court. So the book is in part about the nation’s constant struggle to live up to its stated ideals.

SOURCE:  ​https://www.scotusblog.com/2021/01/the-supreme-courts-role-in-defining-american-citizenship/

"Lies, damned lies, and statistics" is part of a phrase attributed to the 19th Century British Prime Minister Benjamin Disraeli, among others, and later popularized in the United States by, among others, Mark Twain: "There are three kinds of lies: lies, damned lies, and statistics." The statement refers to the persuasive power of numbers, the use of statistics to bolster weak arguments, and the tendency of people to disparage statistics that do not support their positions. 

Unfortunately, all too often courts rely on racist statistics in pronouncing sentence.  Courts use computer generated risk assessments in sentencing defendants.  As has been pointed out, the term "risk" is a proxy for Race.  Bernard E. Harcourt, Risk As a Proxy for Race (2010), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1265&context=public_law_and_legal_theory.  See also, Algorithmic Injustice: How the Wisconsin Supreme Court Failed to Protect Due Process Rights in State v. Loomis (2016), https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1332&context=ncjolt and  Racist Algorithms: How Code Is Written Can Reinforce Systemic Racism (2020), https://www.teenvogue.com/story/racist-algorithms-testing-policing

 

” Do you defend n_______, Atticus?” [Scout] asked him that evening.
“Of Course I do. Don’t say nigger, Scout. That’s common.
“That’s what everybody at school says”.
“From now on, it’ll be everybody less one—”
“Do all lawyers defend Negroes, Atticus?”
“Of course they do, Scout.”
“Then why did Cecil say you defended niggers? He made it sound like you were running a still”.
” I am simply defending a Negro. It’s a peculiar case- wont come to session till Summer”.
” If you shouldn’t be defending him, then why are you doing it?”
” For a number of reasons, Scout. The main one is, if I didn’t I couldn’t hold up my head in town, I couldn’t represent this county in the legislature, I couldn’t even tell you or Jem not to do something again.”
” You mean, if you didn’t defend that man, Jem and me wouldn’t have to mind you any more?”
” That’s about right”
” Why?”
” Because I could never ask you to mind me again. Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects him personally. This one’s mine. You might hear some ugly talk about it at school, but do one thing for me if you will: you just hold your head high and keep those fists down. No matter what anybody says to you, don’t you let them get your goat. Try fighting with your head for a change…”
​

The Court of Appeals for District 4 decided in State & T.A.J. v. Alan S. Johnson, 2019AP664-CR, 10/29/20 (recommended for publication) that “Marsy’s Law” gives a crime victim standing to get involved in Shiffra-Green litigation.  This decision is in conflict with well established case law which defines the role of a public prosecutor in a criminal case and why a private attorney cannot assist in a criminal prosecution.

The role a prosecutor plays in a criminal case has long been clearly established.  Ethically, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”  SCR 20:3.8.  Special responsibilities of a prosecutor, ABA Comment [1].  Thus, a prosecutor is not like an ordinary party to a case.  Unlike a private party’s attorney, a prosecutor is an:

independent administrator of justice in the criminal justice system, which can only be accomplished through the representation and presentation of the truth. The primary responsibility of a prosecutor is to seek justice……A prosecutor should zealously protect the rights of individuals, but without representing any individual as a client. A prosecutor should put the rights and interests of society in a paramount position in exercising prosecutorial discretion in individual cases. National Prosecution Standards, 1-1.1 and 1-1.2.  National District Attorneys Association (Third Edition Updated 2009).  Emphasis added.  See also ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION standard 3-2.1, at 19 (3d ed. 1993) (“[t]he prosecution function should be performed by a public prosecutor who is a lawyer subject to the standards of professional conduct and discipline.”); Neil M. Peretz, The Limits of Outsourcing: Ethical Responsibilities of Federal Government Attorneys Advising Executive Branch Officials, 6 CONN. PUB. INT. L.J. 23, 35-36 (2006) (discussing higher ethical burden on prosecutors to preserve justice)


A public prosecutor has the power of the State behind her.  Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987) (“[The prosecutor] has the power to employ the full machinery of the state in scrutinizing any given individual.”).  This makes a criminal prosecution an exercise in state sovereignty.  See, e.g., JONATHAN SIMON, GOVERNING THROUGH CRIME 33 (2007) (noting nexus between law enforcement, prosecutorial authority, and sovereign power); PAUL R. VERKUIL, OUTSOURCING SOVEREIGNTY: WHY PRIVATIZATION OF GOVERNMENT FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT 14 (2007) (“[S]overeignty is the exercise of power by the state.”).

Prosecutors are public officials who serves not a private party but the interest of the sovereign.  Marshall v. Jerrico, Inc., 446 U.S. 238, 249 (1980).  See also, Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law, 33 LAW & SOC. INQUIRY 387, 390 (2008) (prohibitions of criminal law represents a “fragment of sovereignty.”).  A prosecutor is not the servant of any one citizen but is a “servant of the law” whose obligation is not to win a case but see “that justice shall be done.”  Berger v. United States, 295 U.S. 78, 88 (1935).  With the awesome power of the State at their disposal in the prosecution of a case, “those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice.”  Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987).  Even private attorneys appointed to prosecute a criminal case are representatives of a private party but is a representative of the State.  Id. at 804. 

Thus, in Wisconsin it is wrong to put a defendant on trial by the district attorney with the assistance of another individual.  A person accused of a crime involving his confinement cannot be tried by the use of private parties as prosecutors. The fact that a private party was paid to aid the district attorney warrants a new trial.  Biemel v. State, 71 Wis. 444; 37 N.W. 244 (1888):

public policy, and the fair, just, and impartial administration of the criminal law of the state, make it the duty of the courts to exclude the paid attorneys of private persons from appearing as prosecutors. That public policy is against permitting them to prosecute.  Id at 446.  See also, State v. Eldridge, 951 S.W. 2d 775, 782 (Tenn. App. 1997) (private attorney who represented victim in civil matter could not serve as special prosecutor since this violates due process); Cantrell v. Virginia, 329 S.E. 2d 22 (Va. 1985) (private attorney who represented victim’s parents seeking custody of father who was defendant assisted public prosecutor presents overwhelming probability of a conflict of interest)

Biemel recognized, as did Young, Eldridge and Cantrell that there is a clear opportunity for interested private counsel to base prosecutorial decisions on a private party’s best interests and not on the public’s best interests.
​ 
An example of the problem created by a private party acting as part of the prosecution is illustrated by the story of Tobias E. Diamond, who was both a private attorney and the United States Attorney for Iowa.  He resigned his position in November 1952.  After unsuccessfully settling a claim that his client had against a Florida company, Diamond obtained a grand jury indictment against the company and two of the company’s officers.  See House Probers Told Justice Dept. Denounced U.S. Attorney with $67,000 Private Practice, WASH. POST, Dec. 18, 1952, at 9; Murrey Marder, Justice Aide Quits During Investigation — Iowa U.S. Attorney Probed for Alleged Outside Practices; Second in Month, WASH. POST, Nov. 8, 1952, at 1.  Based on what happened Tobias E. Diamond, the Justice Department prohibited outside law practice by its attorneys.  See Luther A. Huston, M’Granery Limits Aides’ Activities — 15,000 in Justice Department May Not Do Outside Work Interfering with Duties, N.Y. TIMES, Dec. 19, 1952, at 25.

And that’s why a private attorney cannot serve as a public prosecutor.  

I am against burning or stepping on the American flag.  The flag to me is symbolical of what my belief in what America is : “We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”  “No American …. ever looks upon [the flag] without taking pride in the fact that he lives under this free Government.”  Halter v. Nebraska, 205 U.S. 34, 41 (1907) (in a ruling that did not address free-speech rights but property rights only, law restricting flag on bottle of “Stars and Stripes” beer upheld)

It is curious to me that the same people who worry about burning or stepping on the flag endorse using the flag to sell guns or clothes.  To me this type commercialization is stepping on the symbol of the people of the United States to make a buck.  It is even more ironic when much of the clothing bears the tag, “Made in China.”  Do the “Blessings of Liberty to ourselves and our Posterity” really amount to so little that we allow our national symbol to be used to sell socks and underwear??  Such commercialization does more to trivialize the sacred banner than any flag burning.

​

I would humbly suggest that there are far greater sins committed against our country than the burning of a flag.  As President Lyndon Johnson said in his message that accompanied his request that Congress enact a voting rights bill, “In the world, America stands for-and works for-the right of all men to govern themselves through free, uninhibited elections. An ink bottle broken against an American Embassy, a fire set in an American library, an insult committed against the American flag, anywhere in the world, does far less injury to our country and our cause than the discriminatory denial of any American citizen at home to vote on the basis of race or color.”  Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 277 (1999) 
 
Repeated congressional attempts to ban flag desecration have been invalidated by the US supreme court because the symbolic act of burning the flag has been ruled a type of expression protected by the First Amendment.  Indeed, some of the supreme court's most eloquent words in defense of free speech have been written in cases involving the flag: in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), while striking down a law requiring schoolchildren to salute the flag, the court ruled:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.  Emphasis added.

The interest a person has in protecting the "physical integrity" of a privately owned flag rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the belief we have in the symbol itself in any way.  United States v. Eichman, 496 U.S. 310, 316 (1990)
Moreover, the First Amendment does not permit regulation of flag burning or destruction because of the message to be sent.  Boos v. Barry, 485 U.S. 312, 320 (1988)  In other words, the State cannot forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role.  A content-based law or regulation discriminates against speech based on the substance of what it communicates and is therefore unconstitutional.  Texas v. Johnson, 491 U.S. 397, 416-17 (1989).
​
Bottom line?  Hold dear you belief in American ideals which should be firm enough to not worry about attacks on a symbol of that belief.

​ 
Given Donald Trump's refusal to promise a peaceful transition of power and tweets about delaying the election, it is understandable that Senator Diane Feinstein asked Supreme Court nominee, Amy Coney Barrett, if the constitution gave Trump the right to delay the election.

The answer, without question, is no. According to the Constitution, only Congress can delay or change the date of an election.
 
Being a constitutional law professor at a prestigious law school, you would hope that Barrett would be able to give a clear and concise answer to this direct question capable of being answered by a first year law school student. However, she did not:
 
"Well Senator, if that question ever came before me, I would need to hear arguments from the litigants, and read briefs, and consult with my law clerks, and talk to my colleagues, and go through the opinion writing process. So, you know, if I give off-the-cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits."
 
This was anything but a clear and concise answer to this direct question.  Her evasive answer to this question should frighten us all.  It is a clear answer that Barrett wants to be an activist judge refusing to follow the Constitution and rewrite the Constitution to fit her personal beliefs.
 
Then it got worse: Senator Patrick Leahy asked Barrett if she would recuse herself from any case involving the presidential election outcome she said "I can't offer a legal conclusion right now about the outcome of the decision I would reach," in other words no, she would not recuse herself.

Trump and other Republicans have strongly implied that they are rushing Barrett's confirmation because they expect a conservative-leaning Supreme Court to be the ultimate decision maker on the presidential election -- not the voters.
This is why faculty members of the University of Notre Dame wrote a letter asking Amy Coney Barrett to “halt” her Supreme Court nomination process until after the November presidential election.  The members noted the "rushed nature" of the nomination process, which "may effectively deprive the American people of a voice in selecting the next Supreme Court justice."
 
"You are not, of course, responsible for the anti-democratic machinations driving your nomination," the letter read before mentioning Senate Republicans' refusal to take up former President Obama's nomination of Merrick Garland during the 2016 presidential election.
 
The letter also stated that stopping the confirmation process now would fulfill Justice Ruth Bader Ginsburg's dying wish to leave her seat on the bench open until after the November election.  

A few years ago, several dozen young men gathered on the steps of the courthouse in Baraboo, Wisconsin, to take pictures before their high-school prom. It is not clear what was going through each of their heads—though one could guess—when most of them extended their right arms, mimicking the Nazi salute as a parent snapped a picture. The students dropped their arms and went to prom.  The head of the Baraboo School District issued a public apology and condemned the photograph.  https://www.jsonline.com/story/news/education/2018/11/14/nazi-salute-photo-baraboo-school-chief-issues-apology/2006409002/  Two years before the picture was taken, students filed 12 harassment complaints with the Baraboo district during the 2016-2017 school year, 11 of which were based on the victims' race.  Keegan Kyle and Eric Litke, Before Nazi salute picture, Baraboo schools saw a rise in racial complaints, Appleton Post-Crescent Nov. 20, 2018, https://www.postcrescent.com/story/news/2018/11/20/before-nazi-salute-picture-baraboo-schools-racial-complaints-rise/2016640002/

Despite the racially based harassment complaints, white students nonetheless stated that they had not noticed any problem with the culture at the school. White students also expressed surprise and confusion about why the picture was taken in the first place.  Another white student excused the conduct saying while the gesture was upsetting it was just a joke.  Susan Endres and Ben Bromley, Parents address school board as Nazi salutes in Baraboo High School prom photo spark outrage online Baraboo News Republic, WISC NEWS Nov. 13, 2018, https://www.wiscnews.com/baraboonewsrepublic/news/local/parents-address-school-board-as-nazi-salutes-in-baraboo-high-school-prom-photo-spark-outrage/article_3224ea4a-7423-5fc1-b2ca-20159f7129e5.html  Various parents suggested education would be the answer to help students understand the gravity of their actions and the symbolism in which they partook.  Id.

As the Baraboo parent suggested, we need to educate ourselves and make ourselves aware of our hidden biases that we have so that we recognize them and how they affect our thinking.  Just as the white students expressed surprise and confusion about the picture showing fellow classmates doing a Nazi salute, we may be surprised by our own hidden biases in this case.  If you are curious about your own biases, test yourself for hidden biases at the Implicit Association Test. https://implicit.harvard.edu/implicit/takeatest.html  The test measures racial prejudices that we cannot consciously control. I have taken it three times now.  My hidden bias, while present, has come in significantly below the average for white people like me.

IMPLICIT BIAS
People are not born with hidden biases or racial prejudices. We may never even have been “taught” them.  Rather, prejudice draws on many of the same tools that help our minds figure out what is good and what is bad.  In evolutionary terms, it is efficient to quickly classify a grizzly bear as “dangerous.”  The trouble comes when the brain uses similar processes to form negative views about groups of people.  As Justice Brennan explained, “racial bias inclines one to disbelieve and disfavor the object of the prejudice, and it is similarly incontestable that subconscious, as well as express, racial fears and hatred operate to deny fairness to the person despised.”  Turner v. Murray, 476 U.S. 28, 42 (1986) (Brennan J., dissenting). 

Our tendency to link individuals to the stereotypes associated with their group(s) is automatic and occurs outside of conscious awareness.  These are “blink responses”; they reflect our “thinking without thinking.”  Implicit bias is “an automatic and unconscious process, (and) people who engage in this unthinking discrimination are not aware of the fact that they do it.”  Implicit biases can manifest even in people who, at the conscious level, reject prejudice and stereotyping.  Greenwald, A. G., Mcghee, D. E., & Schwartz, J. L. K. (1998). Measuring Individual Differences in Implicit Cognition: The Implicit Association Test. Journal of Personality and Social Psychology, 74(6), 1464–80 (p. 1474), https://www.isu.edu/media/libraries/aaeo/drc/brown-bag-resources/Measuring-Individual-Differences-in-Implicit-Cognition---The-IAT---Greenwald-et-al.pdf;  

Understanding implicit bias for police officers is recognizing that “officers might have biases that influence their behavior, judgments, and decisions, even if they are not explicitly or overtly biased against a particular group of people.”  Renee J. Mitchell and Lois James, “Addressing the Elephant in the Room: The Need to Evaluate Implicit Bias Training Effectiveness for Improving Fairness in Police Officer Decision-Making,” Police Chief Online, November 28, 2018, https://www.policechiefmagazine.org/addressing-the-elephant-in-the-room/  “Police officers are likely to be just as susceptible to implicit bias as any other professional group—perhaps more so, given the nature of their work, which often focuses on negative aspects of human behavior.”  Id.

Police Chief Magazine, the publication for the International Association of Chiefs of Police, has stated:
Perhaps the most salient example of implicit bias among police comes from widespread allegations of racially motivated policing. Cases in which police officers shoot unarmed black citizens typically result in public outcry, with the belief that officers were driven by racial bias. Officers, on the other hand, tend to assert that they were, in fact, responding to threat cues that they perceived. Interestingly, both groups might be correct. An illustrative example comes from George Fachner and Steven Carter’s threat perception failures (TPF).  These researchers showed that implicit bias can influence an officer’s decision to shoot or not to shoot, by influencing the officer’s perception of reality. In this case, an officer incorrectly perceives that the suspect poses a deadly threat, due to the misperception of an object (such as a cellphone) or an action (such as reaching for a cellphone). When these researchers analyzed officer-involved shootings by the Philadelphia, Pennsylvania, Police Department (PPD), they found that TPF more frequently explained the shootings of unarmed African Americans compared to unarmed whites, speculating that officers may be subconsciously “on guard” with African American suspects.  Renee J. Mitchell and Lois James, “Addressing the Elephant in the Room: The Need to Evaluate Implicit Bias Training Effectiveness for Improving Fairness in Police Officer Decision-Making,” Police Chief Online, supra.  See, George Fachner and Steven Carter, COLLABORATIVE REFORM INITIATIVE An Assessment of Deadly Force in the Philadelphia Police Department (Office of Community Oriented Policing Services, U.S. Department of Justice 2015), https://www.phillypolice.com/assets/directives/cops-w0753-pub.pdf

Various studies have examined the Black-crime implicit bias.  The studies found that subjects shot an armed male more quickly if he was Black than if he was White. Conversely, they more quickly decided not to shoot an unarmed White than an unarmed Black. The most common errors were shooting an unarmed Black man and not shooting an armed White man.  L.A. Fridel, The Science of Implicit Bias and Implications for Policing, in Producing Bias-Free Policing A Science-Based Approach, Chap. 2, p. 7-30 (Springer Briefs in Translational Criminology 2017), https://www.springer.com/gp/book/9783319331737  Black suspects are more than twice as likely to be killed by police than are persons of other racial or ethnic groups.  Fagan and Campbell, Race and reasonableness in police killings, 100 Boston Univ. L. Rev. 951 (2020), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3660&context=faculty_scholarship.  Individuals misidentified tools as guns more often when primed with a Black face than with a White face.  Payne, Prejudice and perception: The role of automatic and controlled processes in misperceiving a weapon. Journal of Personality and Social Psychology, 81(2), 181–192 (2001), http://web.missouri.edu/~segerti/capstone/PayneBias.pdf.

FBI Director James Comey encouraged police departments to confront their own implicit biases, “Much research points to the widespread existence of unconscious bias. Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face.”  Director James B. Comey Federal Bureau of Investigation, "Hard Truths: Law Enforcement and Race" Georgetown University Washington, D.C. February 12, 2015, official transcript, https://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and-race

EFFECTS ON THE INDIVIDUAL POLICE OFFICER WHEN CONFRONTED WITH A USE OF FORCE SITUATION
The dangers of a police officer shooting to bystanders is known.  When police fired 16 times at an armed man, they hit nine bystanders and left 10 bullet holes in the suspect.  This data shows what any police officer who has ever been involved in a shooting can tell you–firing accurately in a stressful situation is extremely hard.  Amanda Ripley, Your Brain in a Shootout: Guns, Fear and Flawed Instincts, Time January 16, 2013, https://swampland.time.com/2013/01/16/your-brain-in-a-shootout-guns-fear-and-flawed-instincts/  This is true whether the officer is an experienced officer or officers with minimal experience.  Lewinski et al., The real risks during deadly police shootouts: accuracy of the naive shooter, 17 Intl. Jrl. of Police Science & Mgmnt 117 (2015), https://pdf4pro.com/view/the-real-risks-during-deadly-police-shootouts-22ead5.html 

In most cases, officers involved in shootings experience a kaleidoscope of sensory distortions including tunnel vision and a loss of hearing. Afterward, they are sometimes surprised to learn that they have fired their weapons at all.  Rostker, Hanser, Hix, Jensen, Morral, Ridgeway, Schell, Evaluation of the New York City Police Department Firearm Training and Firearm-Discharge Review Process (RAND Center on Quality Policing 2008), https://www.rand.org/content/dam/rand/pubs/monographs/2008/RAND_MG717.pdf

Under sudden attack, the brain does not work the way we think it will.  As happens for most people in life-or-death situations, an officer’s brain manipulate’s his perception of time, slowing down the motion.  Id.  For instance, one experienced officer in the middle of a gunfight raised his hands to shoot his weapon at an attacker only to realize he had dropped his weapon.  Id.  Without being aware of it, the officer had dropped his gun in the hallway when he reached over to help another wounded officer. In moments of extreme stress, the brain does not allow for contemplation; it does not process new information the way it normally does. The more advanced parts of the brain that handle decisionmaking go off-line, unable to intervene until the immediate fear has diminished.  Id.  “Race stereotypes can lead people to claim to see a weapon where there is none. Split-second decisions magnify the bias by limiting people’s ability to control responses. Such a bias could have important consequences for decision making by police officers and other authorities interacting with racial minorities. The bias requires no intentional racial animus, occurring even for those who are actively trying to avoid it.”  Payne, Weapon Bias: Split-Second Decisions and Unintended Stereotyping, 15 Current Directions in Psychological Science 287 (2006), https://journals.sagepub.com/doi/pdf/10.1111/j.1467-8721.2006.00454.x
​
Racial bias can influence the “gut feelings” and conclusions about the amount force police perceive is needed in a situation.  Awareness of these biases will help officers, like anyone else, fight them.  See, Anthony Greenwald & Linda Krieger, Implicit Bias: Scientific Foundations, 94 Calif. L. Rev. 945, 948-51 (2006), https://pdfs.semanticscholar.org/c7b0/f3376d8e153cd7725de479447aa4c113ec8b.pdf?
_ga=2.256171468.639383428.1594653929-1128881295.1594653929  Research suggests that once we understand the psychological pathways that lead to prejudice, we just might be able to train our brains to go in the opposite direction.  Janice Gassam Asare, Does Unconscious Bias Training Really Work? Forbes (Oct 29, 2018) ("The first step towards impacting unconscious bias is awareness.") https://www.forbes.com/sites/janicegassam/2018/10/29/does-unconscious-bias-training-really-work/#4141efb0b8a2

the Wisconsin Office of Justice Assistance, a division of the Wisconsin Department of Administration, has stated without qualification that “[r]acial disparities permeate the entire criminal justice continuum, in the number of arrests, cases charged, sentences and probation and parole revocations.”  Wisconsin Office of Justice Assistance, Racial Disparities, http://oja.wi.gov/section.asp?linkid=1344&locid=97.  Since racial disparities permeate the entire criminal justice continuum, it would be foolish to argue racial disparities do not extend to how police use force: “Black men tend to be stereotyped as threatening and, as a result, may be disproportionately targeted by police even when unarmed.”  Wilson, J. P., Hugenberg, K., & Rule, N. O. Racial bias in judgments of physical size and formidability: From size to threat. Journal of Personality and Social Psychology, 113(1), 59–80 (2017), https://psycnet.apa.org/record/2017-11085-001; Frank Edwards, Hedwig Lee, and Michael Esposito, Risk of being killed by police use of force in the United States by age, race–ethnicity, and sex PNAS (2019) (“people of color face a higher likelihood of being killed by police than do white men and women.”) https://www.pnas.org/content/pnas/116/34/16793.full.pdf; Hehman, Flake, and Calanchini, Disproportionate Use of Lethal Force in Policing Is Associated With Regional Racial Biases of Residents, Social Psychological and Personality Science Volume 9 Issue 4, May 2018 (only the implicit racial prejudices and stereotypes of White residents, beyond major demographic covariates, are associated with disproportionally more use of lethal force with Blacks relative to regional base rates of Blacks in the population.) https://journals.sagepub.com/doi/pdf/10.1177/1948550617711229; Using data on over 2 million police stops in New York City from 2007 to 2014, findings show that Black and White civilians experience fundamentally different interactions with police. Black civilians are particularly more likely to experience potential lethal force when police uncover criminal activity and this disparity is greatest for black youth compared to white youth. Rory Kramer and Brianna Remster, Stop, Frisk, and Assault? Racial Disparities in Police Use of Force During Investigatory Stops, Law and Society Review Vol. 52, Issue 4 Dec. 2018, p. 960-93, https://onlinelibrary.wiley.com/doi/abs/10.1111/lasr.12366.  


​

The Conference of Chief Justices adopted a resolution which states that “despite increasing use of incarceration and greater spending on corrections, recidivism rates have continued to escalate” so that the “the public desires and deserves criminal justice systems that promote public safety while making effective use of taxpayer dollars.” Resolution 12 In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism, CONFERENCE OF CHIEF JUSTICES CONFERENCE OF STATE COURT ADMINISTRATORS, https://ccj.ncsc.org/__data/assets/pdf_file/0023/23657/08012007-support-sentencing-practices-promote-public-safety-reduce-recidivism.pdf.  

Despite this resolution which courts were urged to follow, Wisconsin sentencing courts continue to rely too heavily on incarceration to solve its crime problem at great cost to Wisconsin taxpayers.  Wisconsin incarcerates 716 people for every 100,000 of its residents: more than countries like Cuba (510) and Rwanda (492).   Even the Russian Federation incarcerates less of its residents per capita than Wisconsin at 475.  States of Incarceration: The Global Context (Prison Policy Initiative 2014), http://www.prisonpolicy.org/global/.  Sadly, a 2019 analysis of state prison populations by the Legislative Audit Bureau showed the state's adult prison inmate population increased by 7.9 percent between 2011 and 2018, from nearly 22,000 people to about 23,600.  "When compared with six other Midwestern states," the report's authors wrote, "only Wisconsin experienced an increase in its inmate population from 2009 to 2018."  Adult Corrections Expenditures, State of Wisconsin, Report 19-4 (May 2019), p. 4, http://legis.wisconsin.gov/lab/media/2845/19-4full.pdf  Emphasis added.  As of 2015, Outagamie County was one of the top ten of 72 counties contributing to Wisconsin’s prison population explosion.  Incarceration trends in Wisconsin (Vera Institute of Justice December 2019), https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-wisconsin.pdf










​
​
How much does imprisonment cost Wisconsin’s taxpayers?  Total operating expenditures for adult correctional institutions increased from an estimated $909.3 million in FY 2013-14 to $933.9 million in FY 2017-18, or by 2.7 percent. This cost was mostly funded by general purpose revenue (GPR) at more than 93 percent of total expenditures in both years.  Id.  To provide a more complete accounting of the costs of imprisonment, researchers from the Vera Institute of Justice collected and analyzed data from forty states (including Wisconsin).  Their findings were published in the Federal Sentencing Reporter at 25 Fed. Sent. Rep. 68 (2012).  In calculating average cost per inmate, the Vera researchers found Wisconsin imprisonment cost the state’s taxpayers $37,994 a year.  Unlike Wisconsin, other states have found a way to trim their prison budgets.  For instance, Wisconsin spent over one billion dollars on corrections in 2010, in comparison with Minnesota’s $439 million.  Marquette Law Professor Michael O’Hear, “Thoughts on Imprisonment in Wisconsin: Past, Present, and Future,” Life Sentences Blog, http://www.lifesentencesblog.com/?p=6700#_ftn1 (“Thoughts on Imprisonment in Wisconsin”).
 “If Wisconsin had Minnesota’s imprisonment rate, hundreds of millions of dollars would be freed up for other valuable purposes, such as tax relief, education, and infrastructure improvement.  Savings could also be directed to other purposes that might reduce crime and violence more effectively than institutional warehousing, such as increased funding for community policing, problem-solving courts, and treatment for addiction and chronic mental illness.”  Id.  
 
Unfortunately, evidence shows that while spending on education, treatment, and other services that help people improve their well-being have been shown to be a more effective public safety strategy than locking people up, between 2005 and 2009 state spending on corrections grew faster than any other category, including education, Medicaid and public assistance such as Temporary Assistance for Needy Families (TANF), a program providing temporary financial assistance for pregnant women and families.  Sarah Lyons and Nastassia Walsh, “Money Well Spent: How Positive Social Investments Will Reduce Incarceration Rates, Improve Public Safety, and Promote the Well-Being of Communities,” Justice Policy Institute (2010), http://www.justicepolicy.org/research/1904  Investments in job training, employment and education have been associated with heightened public safety as well as community well being. Id.  In addition, people who are incarcerated are more likely to report having had extended periods of unemployment and lower wages than people in the general population.  Id. 
 
Incarceration also imposes significant costs beyond the criminal system to society and families.  The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility (Washington, DC: Pew Charitable Trusts, 2010), https://perma.cc/XHL8-KHVA.  For instance, imprisonment encourages unemployment which leads to crime.  Wells, Lenard, Ph.D., “The effects of a criminal history and race on the willingness to hire ex -offenders in the labor market,” (Cardinal Stritch University 2008) publication number 3313857 http://gradworks.umi.com/33/13/3313857.html.  See also, Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (University of Chicago Press 2007) (based on her work with the Transitional Housing Authority in Madison, WI, the author finds the criminal system is not a peripheral institution in the lives of young black disadvantaged men who are asked more often by job interviewers if they have a criminal record than white applicants). 
 
Requiring cost effective criminal sentencing is not some “pie in the sky” liberal babble.  A Pew Report quotes a number of US business leaders across various states “adding their voices to calls for more cost-effective ways to protect public safety and hold offenders accountable, while also providing the education and infrastructure they need for a thriving economy.”  Right Sizing Prisons: Business Leaders Make the Case for Corrections Reform (Pew Center on the States 2010), https://www.pewtrusts.org/-/media/legacy/uploadedfiles/pcs_assets/2010/rightsizing20prisonspdf.pdf  As Dave Adkisson, Chairman of the Board, American Chamber of Commerce Executives, put it, “I began talking with other business leaders about whether we were spending our corrections dollars effectively…. we were alarmed that money was being siphoned off from education and channeled into the growing cost of corrections, and we knew we needed to address this issue.”  James R. Holcomb Vice President for Business Advocacy and Associate General Counsel, Michigan Chamber of Commerce added “every dollar spent on incarceration is a dollar that is unavailable for tax relief or other economic revitalization efforts.”

The clear message to a sentencing court, as put by Dr. Glenn C. Loury, Merton P. Stolz Professor of the Social Sciences, Department of Economics, Brown University, is that “[t]he amount of public safety ‘purchased’ for society by using prisons on the scale that we are now using them does not justify the cost incurred to hold prisoner behind bars, let alone the cost we're imposing on prisoners and the communities from which they come.”  Responsive Testimony to Questions from Representative Robert C. ``Bobby'' Scott before the Joint Economic Committee Hearing of the 110th Congress, First Session (October 4, 2007) , p.54, https://www.govinfo.gov/content/pkg/CHRG-110shrg39645/html/CHRG-110shrg39645.htm