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
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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.  


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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










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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

I am amazed with the police shooting in Kenosha of a black man that some people try to maintain there are no racial disparities in how police use force.  Eliott C. McLaughlin and Alta Spells, CNN "Wisconsin police shoot Black man as children watch from a vehicle, attorney says" August 24, 2020.  https://www.cnn.com/2020/08/24/us/kenosha-police-shooting-jacob-blake/index.html  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; 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.  

There are racial disparities in arrests and use of force:










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Disparities in police stops, in prosecutorial charging, and in bail and sentencing decisions reveal that implicit racial bias has penetrated all corners of the criminal justice system.  Race and Punishment: Racial perceptions of crime and support for punitive policies (The Sentencing Project 2014) p.4, https://www.sentencingproject.org/wp-content/uploads/2015/11/Race-and-Punishment.pdf. 
 
As summarized in Helen A. Neville (Editor), Miguel E. Gallardo (Editor), Derald Wing Sue (Editor), The Myth of Racial Color Blindness: Manifestations, Dynamics, and Impact Copyright © 2016 by the American Psychological Association:

The 2014 killing of Michael Brown symbolizes these later abuses. On August 9 of that year, Michael Brown, an unarmed African American teenager, was shot and killed by a White officer, Darren Wilson, in Ferguson, Missouri.  The African American community erupted in protest after the shooting.  The subsequent disrespectful and shameful handling of the situation: Brown’s lifeless body was left by law enforcement personnel in the street for more than 4 hours, and community members reported that the police desecrated the impromptu memorial site. Police responded to the mostly peaceful demonstrators in riot gear and with military-grade weapons. They even patrolled the neighborhood in armored vehicles and brandished tear gas, a chemical weapon that has been banned in war by most nations, including the United States, since the Chemical Weapons Convention of 1993 (Organisation for the Prohibition of Chemical Weapons, 1993). Cities throughout the nation protested again after the acquittal of Wilson by a grand jury; for some, the acquittal symbolized the mounting injustice of the killing of unarmed Black and Latino people by police officers that have gone unpunished. These incidents provided impetus for the development of the Black Lives Matter movement and other calls to action to affirm the humanity of Black people in the face of racial oppression;
Early in 2015, the U.S. Department of Justice (2015) released an investigative report on the Ferguson Police Department, which described the prevalence of racial bias on the force:

Ferguson’s approach to law enforcement both reflects and reinforces racial bias, including stereotyping. The harms of Ferguson’s police and court practices are borne disproportionately by African Americans, and there is evidence that this is due in part to intentional discrimination on the basis of race. (p. 5)
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The killings of unarmed boys and men of color by police around the United States, including Eric Garner (Bronx, New York), Michael Brown (Ferguson, Missouri), Ezell Ford (Los Angeles, California), and Darrien Hunt (Salt Lake City, Utah)—all of which occurred in the summer of 2014—speak to potential police misconduct directed at communities of color. These were followed by two more deaths in early 2015—those of Walter Scott (Charleston, South Carolina) and Freddie Gray (Baltimore, Maryland); in both cases, police were charged with murder. Although the killing of unarmed girls and women of color by police are less frequent and does not receive attention, they occur and further highlight police misconduct. For example, within a span of 3 months, Tanisha Anderson (37) was killed by Cleveland police in November 2014 and Jessica Hernandez (17) was killed by Denver police in February 2015; both killings were ruled homicides

It is tough being a criminal defense lawyer these days.  So tough that some lawyers have taken second jobs to pay the bills.  For instance, here is a Youtube video of a lawyer  who also works as a Uber driver.  While driving his Ubermobile, he was pulled over by the cops.  Like any attorney is taught, he started to make a record of the encounter by videotaping the police.  This clearly made the cops uncomfortable if not pissed.  They told him a new law had been passed making it illegal to videotape the police.  He is threatened with arrest for videotaping the cops.  Unfortunately, we never see the end of the encounter on this Youtube video.  Last you hear is the cops threatening to get a canine unit.

Given federal police about to be imported into Milwaukee over Gov. Evers objection and the upcoming Democratic Convention in Milwaukee starting Aug. 17th, you may be wondering if there is a right to record the actions of law enforcement officers? This topic has been the subject of considerable discussion, and no small degree of litigation, in recent years. See, Morgan Leigh Manning, Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement, 78 Tenn. L. Rev. 105 (2010) (surveying case law regarding the arrest and prosecution of photographers for taking photos and recording video of law enforcement officers in public places). 
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Carlos Miller, Carlos Miller, a Miami journalist who runs the blog "Photography Is Not a Crime," said he has documented about 10 arrests since he started keeping track in 2007. Miller himself has been arrested twice for photographing the police. He won one case on appeal, he said, while the other was thrown out after the officer twice failed to appear in court.  "They're just regular citizens with a cell-phone camera who happen to come upon a situation," Miller said  . "If cops are doing their jobs, they shouldn't worry."  

Typical of the situation is Simon Glik.  Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011).  He caught sight of three police officers arresting a young man. Hearing a passerby shout that the officers were hurting the man, Glik turned on his cell phone and began capturing video. The police officers objected to being recorded, arrested Glik and charged him with violating the state's "wiretap" law by recording them without their consent.  This is a common, if rarely successful, gambit used by law enforcement to halt or punish those recording them.  See e.g., American Civil Liberties Union of Ill. v. Alvarez, 679 F. 3d 583 (7th Cir. 2012) (The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (the First Amendment protects civilians who "photograph or videotape" police); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (the First Amendment protects the right "to film matters of public interest," including police activity at a political rally).  Citing decisions of numerous circuit and district courts, the Glik court found that a private individual, like the press, had a “clearly established” First Amendment right to film of government officials, like the police, in public spaces.  Glik, at 83-84.  Incidentally, municipalities should know that Boston agreed to pay Glik $170,000 in damages and legal fees for infringing on his right to record the police.  Boston Settles Suit Over Recording Of Police Officers, WBUR, March 28, 2012, https://www.wbur.org/news/2012/03/27/recording-officers-settlement  This settlement is similar to the result in Phllips v. City of Newark where a High school student taken into police custody for filming a police incident on a public bus with her cellphone.  https://www.aclu-nj.org/cases/phillipsvcityofnewark#:~:text=The%20American%20Civil%20Liberties%20Union,she%20used%20to%20record%20video

Glik also held that the officers violated the Fourth Amendment, because they lacked probable cause to believe that the bystander violated the unusual Massachusetts ban on secret (but not open) audio recording of private and non-private conversations. 655 F.3d at 86-88.

Another typical example is detailed in Glenn Harlan Reynolds, Watching The Watchers: Why Surveillance Is A Two-Way Street, Popular Mechanics (Oct. 1, 2009), http://www.popularmechanics.com/technology/military/4237005.  Brian Kelly of Carlisle, Pa., was a passenger in his friend's car when the police pulled the vehicle over for speeding. When Kelly began videotaping, he was arrested and charged with violating a state wiretap statute and thrown in jail overnight. Charges were dropped when the district attorney recognized that recording police in public isn't much like wiretapping. In addition, the DA said that the police had no expectation of privacy when they themselves were recording the incident. Michael Gannon, of Nashua, N.H., faced similar charges when he used a front-door security camera to record what he considered to be overly aggressive behavior by a detective. The charges against Gannon were dropped.

It is curious that law enforcement for years has used the line, “If you have nothing to hide, what are you afraid of?” to justify their actions.  Suddenly, with the advent of technology, the show is on the other foot and the government does not like it.  If you are interested to see the state by state response to the government being recorded, see Spy files – spying on First Amendment activity- state by state. https://www.aclu.org/other/spy-files-spying-first-amendment-activity-state-state

“Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” - James Madison

Stand up and waive if you have read the US Constitution.  Make sure you read that section about “God.”  If you look, “God” is not mentioned in the Constitution.  And there is a good reason for that omission.

President James Madison and the other Founding Fathers would be happy to know the Constitution they signed 233 years ago today is still in place, but they might also be dismayed over the lack of knowledge Americans have of the “people’s document.”  Montpelier’s Center for the Constitution released results of a national survey conducted this summer to gauge knowledge of constitutional principles. Although 79 percent of those surveyed said they understood at least some of the Constitution, only 28 percent of the 988 people surveyed said they have actually read the entire document.

Because so many people have not read the Constitution, they may be surprised to learn the word “God” is not used in the US Constitution.  Unlike the Declaration of Independence, the United States Constitution contains no reference to God. At first, this may seem odd.  But is not odd if one considers the different purposes of the two documents.

The Declaration was about explaining to the world why America was rebelling.  The Declaration calls upon a  non-sectarian concept of divinity to support  rights set forth as unalienable, with liberty as inviolable.  The phrase “laws of nature and of nature’s god” is associated with eighteenth century deism, a “rather vague Enlightenment-era belief . . . in a Creator whose divine handiwork was evident in the wonders of nature” but not “a personal God who interceded directly in the daily affairs of mankind.  WALTER ISAACSON, AMERICAN SKETCHES: GREAT LEADERS, CREATIVE THINKERS, AND HEROES OF A HURRICANE 29 (2009); see also STEVEN WALDMAN, FOUNDING FAITH: PROVIDENCE, POLITICS, AND THE BIRTH OF RELIGIOUS FREEDOM IN AMERICA 88–89 (2008) (“This was the language of the Enlightenment theology that grew up in the eighteenth century as a result not only of philosophical innovations—John Locke, David Hume, and others—but also, more important, of scientific innovations.”).  The term “nature’s god” is consistent with Jefferson’s deistic beliefs. William D. Gould, The Religious Opinions of Thomas Jefferson, 20 MISS. VALLEY HIST. REV. 191, 199 (1933) (“Jefferson was not a deist. . . .  [H]e was a decided Unitarian.”), with 3 DUMAS MALONE, JEFFERSON AND HIS TIME: JEFFERSON AND THE ORDEAL OF LIBERTY 481 (1962) (“Actually, he was a deist, not an atheist.”).

The Constitution outlines a republican government in a free country. The Preamble to the Constitution declares that its purposes are “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.” These are wholly secular objects.  A religious reference is therefore extraneous in a document drafted to further those goals. 

The absence of references to “God” in the Constitution is consistent with the strict religious neutrality of the entire document.  There is no state religion and Article VI of the Constitution provides that “no religious Test shall ever be required as a qualification to any Office or public Trust under the United States.” The First Amendment to the Constitution, ratified in 1791, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

As creatures of the Enlightenment, the writers of the Constitution were keenly aware of the threat to the principle of universal freedom of religion.  Indeed, shortly before the Constitution was proposed and ratified, Thomas Jefferson and James Madison squared off against Patrick Henry and his bill for “Establishing A Provision for Teachers of the Christian Religion” for Virginia in the mid-1780s. Jefferson and Madison won the day, and the Virginia legislature did not enact Henry’s bill. 
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Thus, when Madison drafted the Constitution he left out the term “God” since he wanted no part of religious intolerance and bloodshed, and established the first government in history to separate church and state.

After stepping down as a lobbyist for the cable industry, Robert L. Johnson decided to launch his own cable television network. Johnson would soon acquire a loan for $15,000 and a $500,000 investment to start Black Entertainment Television (BET), launched on January 25, 1980.  Black Entertainment Television (BET) is an American pay television channel targeting African American audiences.  As of Feburary 2015, approximately 88,255,000 American households (75.8% of households with television) receive the channel.  It is interesting to note, therefore, that Robert Johnson, has said those who are toppling Confederate and other statues across the nation as "borderline anarchists" -- while challenging the notion that black Americans support pulling down statues.  Johnson believes tearing down a statue means "absolutely means nothing."

I have no way of knowing whether Johnson’s belief is a representative belief of the black community.  But I do know Johnson’s belief serves to highlight my own ambivalence on the topic.

On one hand, pointing a finger at a person from history because they do not hold the enlightened beliefs we have today seems unfair to me.  To blame specific historical individuals for not supporting progressive causes that no one else at the time that we know of was even proposing is basically unfair.  This concerns the doctrine of “presentism” which is explored in the book, Presentism: Reexamining Historical Figures Through Today's Lens which is described as a book about how removing statues has brought the reassessment of historical figures to the fore. “It has raised questions about whom we choose to venerate; how historical narratives form; and whether it is best to erase problematic figures from the historical record, present a new interpretation on them, or attempt to be as unbiased as possible by contemporary attitudes when regarding them. Readers will learn more about this timely and complicated issue through a wide range of perspectives.” 

Presentism is the anachronistic introduction of present-day ideas and perspectives into depictions or interpretations of the past. Some modern historians seek to avoid presentism in their work because they consider it a form of cultural bias, and believe it creates a distorted understanding of their subject matter.  The practice of presentism is regarded by some as a common fallacy when writing about the past.  The historian David Hackett Fischer in his book Historian’s Fallacies, Toward a Logic of Historic Thought, identifies presentism as a fallacy also known as the “fallacy of “nunc pro tunc.” It is the mistaken idea that the proper way to do history is to prune away the dead branches of the past, and to preserve the green buds and twigs which have grown into the dark forest of our contemporary world.

For instance, many believe that our democratic ideas have origins with the ancient Greeks.  But the ancient Greeks supported slavery.  Interesting enough, outside an isolated reference to slavery as being “contrary to nature” and “unjust” in Aristotle’s Politics 1.1253b, translated by H. Rackham, there is no mention of slavery as being wrong and certainly nowhere is there a working plan to abolishing slavery (say by a civil war) in Greek texts.
It  seems to me to be unfair, therefore, to blame Aristotle for not supporting progressive causes that no one else at the time that we know of was even proposing.  Even great thinkers of a time live in that time, not our time.

So it is clear, however, I am not saying “Well, slavery was ok in ancient Greece because, you know, morals were different back then and slavery was acceptable.” That is an endorsement of a form of moral relativism that can take us to some seriously dark, disturbing places.  If morality is dictated solely by society and whatever society says is just must therefore be just, this would mean that, if most people suddenly decided—for no apparent reason—that raping and murdering people was morally good and that not raping and murdering people was evil, then it would actually become morally good to rape and murder people and anyone who did not rape and murder anyone would be not only considered wicked, but actually wicked. Clearly, this is an absurd conclusion.  Clearly, social conformity does not necessarily equate to morality.

So does this excuse people like Thomas Jefferson who boldly proclaimed that “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” but had slaves?  No.  Like many Founding Fathers, it has to be admitted Jefferson was a liar on the question of slavery.

As stated by Spencer Alexander McDaniel, B.A. Classical Studies & History, Indiana University Bloomington, Jefferson hypocritically owned slaves but Jefferson authored numerous treatises in which he unambiguously condemned slavery as immoral. He deplored slavery as a “moral depravity,” an “abominable crime,” and a “hideous blot.” He even claimed that it was the greatest threat to fledgling American democracy.  Jefferson supported the gradual abolition of slavery, believing that slavery could not simply be abolished all at once. Like many of the other Founding Fathers, Thomas Jefferson believed that slavery would eventually die out on its own without any form of government intervention.  Jefferson himself only ever set a few slaves free over the course of his entire lifetime. Unlike Washington, Jefferson did not even set his slaves free in his will.  Nor can it be said that in his own lifetime Jefferson was unaware of his hypocrisy.  Black abolitionist writer Benjamin Banneker wrote an eloquent letter to Thomas Jefferson pointing out to him his own blatant hypocrisy over slavery by quoting the words of the Declaration of Independence back to Jefferson.  So the determination of Jefferson as a hypocrite on the issue of slavery is not made from the point of view of today, but from the point of view of yesterday.  Does that mean Jefferson was an evil man?  No.  It means he was a flawed person like any other person.

A person from history lived in history not today.  And even flawed persons have a place in history.  If for no other reason than for us to learn from their mistake.  

​COVID-influenced federal sentence reductions

We can now confidently state that there have been over 500 federal sentence reductions grants in the just the last three months.  Some of those grants are detailed in some of the posts below, and I am hopeful the US Sentencing Commission or someone else "official" might have a truly comprehensive report on these matters before too long.
In United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:
We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.
Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).
For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”
These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”
Download Rodriguez Memorandum
 
Here are a few more:
United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")
United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")
United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")
United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")
 
United States v. Lynn, No. 89-0072-WS, 2020 WL 3229302 (SD Ala. June 15, 2020)
 
United States v. Liew, No. 11-cr-00573-JSW-1, 2020 WL 3246331 (ND Cal. June 15, 2020)

United States v. Miller, No. 3:15-cr-132-2 (VLB), 2020 WL 3187348 (D Conn. June 15, 2020)

United States v. Head, No. 2:08-cr-00093-KJM-2, 2020 WL 3180149 (ED Cal. June 15, 2020)
 
United States v. Rivera, No. 3:13-cr-71-1 (VLB), 2020 WL 3186539 (D Conn. June 15, 2020)
 
United States v. Acevedo, No. 18 CR. 365 (LGS), 2020 WL 3182770 (SDNY June 15, 2020)

United States v. Lavy, No. 17-20033-JAR, 2020 WL 3218110 (D Kan. June 15, 2020)
 
United States v. Patel, No. 3:17cr164 (JBA), 2020 WL 3187980 (D Conn. June 15, 2020)

Segars v. United States, No. 16-20222-3, 2020 WL 3172734 (ED Mich. June 15, 2020)
 
United States v. Madrigal, No. 5:18-cr-00356-EJD-3, 2020 WL 3188268 (ND Cal. June 15, 2020)
 
United States v. Knox, No. 2:16-cr-00116-MHH-JHE-3, 2020 WL 3207799 (ND Ala. June 15, 2020)

United States v. Reed, No. 12-CR-161 YGR, 2020 WL 3128904 (ND Cal. June 13, 2020)

United States v. Bikundi, No. 14-30-2 (BAH), 2020 WL 3129018 (D D.C. June 12, 2020)
 
United States v. White, No. 2:17-cr-00198-4, 2020 WL 3244122 (SD W. Va. June 12, 2020)

United States v. Heitman, No. 3:95-CR-0160(4)-G, 2020 WL 3163188 (ND Tex. June 12, 2020)
 
 
United States v. Fields, No. 2:05-CR-20014-02, 2020 WL 3129056 (WD La. June 11, 2020)
United States v. Halliburton, No. 17-cr-20028, 2020 WL 3100089 (CD Ill.  June 11, 2020)
United States v. DeBartolo, No. 14-016 WES, 2020 WL 3105032 (D R.I. June 11, 2020)
 
REPRINTED FROM: By  Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law
https://sentencing.typepad.com/sentencing_law_and_policy/
 
 

In this image by Goya, a person, asleep at his drawing table, is besieged by creatures associated in Spanish folk tradition with mystery and evil. The title of the print, emblazoned on the front of the desk, is often read as a proclamation of Goya’s adherence to the values of the Enlightenment—without Reason, evil and corruption prevail.
 
Wisconsin is now under an order from state government to "stay at home" to slow the spread of the new coronavirus.  It is not understatement this order has restricted the lives of people in unimaginable ways.  Gov. Tony Evers issued this order after hearing health care professionals tell him it was the only way to slow the spread of COVID-19.  In other words, there was scientific proof for the uncomfortable order issued by Gov. Evers.
 
Nonetheless, around May 2nd, protesters gathered near Brookfield Square to protest Gov. Evers orders despite the scientific basis for the orders.  Also, Wisconsin Republican lawmakers have asked the state Supreme Court to block the order, telling justices that Evers' administration broke the law in its effort to stop the spread of COVID-19.  Despite the scientific evidence to support this order, Justice Rebecca Bradley viewed those powers as too broad and compared them to tyranny.  "One of the things this order does is allow people to go to prison for leaving their homes unless it's OK with the DHS secretary," said Bradley.

So the bottom line is members of the public and Republican lawmakers have rejected scientific evidence from health care professionals that the only way to slow the spread of COVID-19 is by the stay at home orders.

Apparently, Wisconsin is in a rush to embrace beliefs not supported by science but public opinion alone.  As exemplified by the stay at home protests, its a path that’s not just anti-scientific, but self-destructive. The scientific solution to a pressing social problem is sought to be disregarded in favor of bumper-sticker simplicities and blind faith.  It seems coronavirus and ignorance are contagious.  Wisconsin believes the scientific basis for combating COVID 19 is just so impractical.  The danger is that totalitarian governments manipulate and apply anti-intellectualism to repress political dissent.  For example, in 2019, academics Adam Waters and E.J. Dionne stated that U.S. President Donald Trump "campaigned for the presidency and continues to govern as a man who is anti-intellectual, as well as anti-fact and anti-truth."  America hits peak anti-intellectualism: Majority of Republicans now think college is bad". Salon.;"Is Anti-Intellectualism Ever Good for Democracy?". Dissent.
Can unscientific beliefs be quarantined?

Of course not.  But unscientific thinking presents problems for criminal defense.  After all, some of the anti-scientific protestors at Brookfield Square will be jurors.  How will jurors who contemptuous of science decide cases where “common sense” does not square with scientific evidence?

Take for instance the case of America’s favorite “little tramp,” Charlie Chaplin.  See also, Arthur John Keeffe et al., Sense and Nonsense About Judicial Notice, 2 STAN. L. REV. 664, 670-71 (1950).  In the Stanford Law Review, Professor Keeffe explained that Chaplin had to defend against a paternity claim that was based on the woman saying she slept with no other man besides Chaplin during the period in question.  Chaplin’s defense consisted of unchallenged blood tests excluding Chaplin as a possible father.  The jury found for the woman.  Berry v. Chaplin, 169 P.2d 442, 450 (Cal. Dist. Ct. App. 1946) (jury having heard all the evidence made its determination and the verdict will not be disturbed.

If you think juries have somehow become more sophisticated scientifically, consider People v. Rivera, 962 N.E.2d 53 (Ill. App. Ct. 2011).  Rivera was prosecuted on charges of rape and murder of a young girl.  There was a DNA test result which excluded him as a possible source of semen in the girl's vagina.  But the prosecution had a jailhouse informant and a confession given after Rivera had endured four days of unrecorded interrogation and had suffered what a nurse described as a "psychotic episode.”  The prosecution explained that the presence of the other man's semen in the vagina must have resulted either from her coincidentally having had consensual sex with another man shortly before Rivera raped and killed her, or from contamination of the rape kit sample with sperm of another man sometime in the twenty-four hours after the girl's autopsy.  The state offered no evidence of contamination, and its only evidence of consensual sex was that the girl had been forced to perform oral sex at age eight, knew how to masturbate, and was wearing "red lace panties" the day of her murder.  Jury found Rivera guilty.

Rivera’s case unfortunately is not unique.  Cases examined on the CBS News show 60 Minutes the state obtained convictions of five juveniles in a rape-murder of a fourteen-year-old girl in Chicago based on their stationhouse confessions.  The juveniles say they were forced or tricked into confessing to violent crimes they never committed.  Semen recovered in the rape kit had a single-male DNA profile that failed to match any of the five defendants, but the prosecution continued.  The state's attorney explained that the five men did not ejaculate and that the semen may have been the result of necrophilia - of an unrelated man having sex with the corpse.  Each of the juveniles spent nearly half their lives in prison before being released.

Scientific ignorance in the criminal system, like real life is a dangerous thing.  In the criminal system, ignorance results in wrongful convictions.