The criminal system is a blunt tool used to deal with society’s most delicate problems.

Delicate meaning difficult.  Delicate meaning complex.  Delicate meaning misunderstood.

Problems meaning everything from violence between strangers and family, drug (including alcohol) abuse, theft, homelessness, and the poor.

One of the most common delicate social problems the criminal system is called upon to address is caring for persons who have a mental disease or defect.  According to the Treatment Advocacy Center, “Serious mental illness has become so prevalent in the US corrections system that jails and prisons are now commonly called “the new asylums.” In point of fact, the Los Angeles County Jail, Chicago’s Cook County Jail, or New York’s Riker’s Island Jail each hold more mentally ill inmates than any remaining psychiatric hospital in the United States. Overall, approximately 20% of inmates in jails and 15% of inmates in state prisons are now estimated to have a serious mental illness. Based on the total inmate population, this means approximately 383,000 individuals with severe psychiatric disease were behind bars in the United States in 2014 or nearly 10 times the number of patients remaining in the nation’s state hospitals. . . .A 2004–2005 survey found there were ‘more than three times more seriously mentally ill persons in jails and prisons than in hospitals.’”  Moreover the Treatment Advocacy Center found that mentally ill inmates remain in jail longer than other inmates, cost more to house than other inmates, cause problems that too often result in stays in solitary confinement, and are more likely than other inmates to commit suicide.

The Wisconsin Department of Corrections in May 2018 published its “inmate profile for 2017.”  This publication identified 37% of males and 84% of females as having a “mental health condition.”  The Department of Corrections 2019-21 budget request indicates that among the serious mental illnesses affecting inmates are “major depressive disorder, bipolar disorder, psychotic disorders, and behavioral disorders, which significantly impact the inmate’s ability to function effectively.” 

According to Mental Illness Policy, in Wisconsin as of 2005, there were 36,154 prisoners in jail and prison, the estimated number of those prisoners who were seriously mentally ill was  5785, the number of patients in state or private psychiatric units in general hospitals was 1500 meaning that the odds of a seriously mentally ill person being in a Wisconsin jail or prison compared to in a hospital was 3.9 to 1.  This means that is Wisconsin, more mentally ill persons are in jails and prisons than hospitals.

Using the blunt force of the criminal system to warehouse people is costly to taxpayers.  According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing—one of the most intensive, comprehensive, and successful intervention models in use today—amounts to less than $20,500 annually, just two-fifths the cost of jail.

These numbers are staggering in and of themselves.  However, what is really important from these numbers is what is not said.  All these facts and figures relate directly to mental illness with nothing said about prisoners with a mental defect like intellectual disability.  So it is clear, in the Diagnostic and Statistical Manual of Mental Disorders version 4 (DSM-IV), there was a diagnostic category called "mental retardation." When the new DSM-5 came out in 2013, mental retardation had disappeared; in its place was a new disorder called "intellectual development disorder." This change likely was influenced by congressional action in October 2010 with the passing of Rosa's Law, which required references to “mental retardation” in specified Federal laws to become “intellectual disability,” and references to “a mentally retarded individual” to “an individual with an intellectual disability.” Public Law 111-256.

Rosa's Law is part of a long line of changes that has been ongoing since the early 1900s. Words such as idiot and moron were common in court documents and diagnosis throughout the early 1900s for intellectually disabled persons. See, e.g., Biennial Report of the Commission for Segregation and Control of the Feeble-Minded. This early belief has contributed to this nation's mistreatment of intellectually disabled people which has been described as 'grotesque' by five members of the Supreme Court. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 3262 (1985) (Stevens, J., concurring, joined by Burger, C.J.); id. at 3266 (Marshall, J., concurring in part and dissenting in part, joined by Brennan and Blackmun, JJ.). In the 1960s, changes in the law led to the use of such terms as mental retardation. With the loss of idiot (IQ 0-25), imbecile (IQ 26-50) and moron (IQ 51-75), specific descriptors of IQ-based intelligence were abandoned because of negative public sentiment. Under Rosa's law, these would be described respectively as moderate, profound, and severe levels of intellectual disability. See Letter of Senators Barbara A. Mikulski and Mike B. Enzi urging fellow senators to adopt “Rosa’s Law.”

Intellectually disabled persons often “look normal” and learn to mask their deficits even while suffering from a disability that delays learning, diminishes memory, curtails problem solving and distorts the understanding of cause and effect.  A person with significant intellectual deficits lacks a normal person's ability to reason and understand simple relationships (both similarities and differences) and therefore cannot relate to others on an equal footing.  See generally, White, Critical Influences in the origins of competence, 21 Merrill-Palmer Q 243, 246 (1975), as cited in the amicus brief for the APA in Penry v. Lynaugh, 492 U.S. 302 (1989) at p. 6.  In a nutshell, he is profoundly impaired.  Being intellectually disabled leads to severely debilitated decision making. The result is a person who may appear normal but is, in fact, a very vulnerable person, particularly within the confines of the criminal justice system. See James W. Ellis and Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414 (1985).

For example, many intellectually disabled people are predisposed to 'biased responding' or answering in the affirmative questions regarding behaviors they believe are desirable, and answering in the negative questions concerning behaviors they believe are prohibited. See generally Sigdman, Budd, Stankel & Schoenrock, When in Doubt, Say Yes: Acquiescence in Interviews with Mentally Retarded Persons, 19 MENTAL RETARDATION 53 (1980) The form of a question can also directly affect the likelihood of receiving a biased response, Sigelman, Winer & Schoenrock, The Responsiveness of Mentally Retarded Persons to Questions, 17 EDUC. & TRAINING MENTALLY RETARDED 120, 123 (1982); Budd, Sigelman & Sigelman, Exploring the Outer Limits of Response Bias, 14 SOCIOLOGICAL FOCUS 297, 305-06 (1981), and thus police officers, judges, and lawyers may inadvertently or intentionally cause the susceptible intellectually disabled accused person to answer in an inaccurate manner by asking a question in an inappropriate form. Further, many intellectually disabled persons are reluctant to resist questioners by refusing to answer questions that are beyond their ability. Kernan & Sabsay, Getting There: Directions Given by Mildly Retarded and Nonretarded Adults, in LIVES IN PROCESS: MILDLY RETARDED ADULTS IN A LARGE CITY (R. Edgerton ed. 1984) (Mentally retarded persons were asked for directions to their homes. Fifty-five percent of the sample gave directions which, although complete, proved inaccurate in significant ways.)

According to a Bureau of Justice Statistics report, 30% of jail inmates reported having a cognitive disability—far higher than among the general public, where less than 5% of people self-report a cognitive disability.  This is clear overrepresentation of person’s with a intellectual disability.  The Bureau of Justice Statistics notes this number is an underestimation based on the limits of the questioning.  Id.  Cognitive disabilities—such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders—are among the most commonly reported.  Id.
So why are so many people with disabilities arrested?  Several factors can lead to higher rates of arrest for people with cognitive disabilities, including:

• The ARC explains that people with low IQ and other developmental disabilities can engender suspicion because they lack the necessary social cues that other adults understand, resulting in inappropriate responses—such as becoming overwhelmed by the police presence and running away or hiding. When questioned by police or other authority figures, they often smile inappropriately, fail to remain still when ordered to do so, or act agitated and furtive when they should be calm and polite.
• People with cognitive disabilities may say what they think the police want to hear, even to the point of confessing to crimes they didn’t commit.  Id.
• As reported by the Journal of Psychology and Law, they may waive Miranda rights without realizing the repercussions of doing so, while saying they do understand.

As one police officer put it, “They are the last to leave the scene, the first to get arrested, and the first to confess.”

"It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws."  Aristotle, Politics 3.16

If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. James Madison, Federalist Paper No. 51 (1788).

In his passage on angels and men Madison provides a justification for government itself and, at the same time, offers the reason for constitutional constraints on political authority: government is necessary, but in the words of Aristotle, but must be retrained by the law which governs all.  Even the government.  In the words of Thomas Paine:

[L]et a day be solemnly set apart for proclaiming the charter; let it be brought forth ... [so] the world may know, that so far we approve of monarchy, that in America the law is king.  For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.  Thomas Paine, Common Sense, in Nelson F. Adkins, ed, Common Sense and Other Political Writings 3, 32 (Liberal Arts, 1953).  Emphasis added.
 
The rules of law which restrain the government are set forth in the U.S. Constitution.  In the words of the U.S. Supreme Court, “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”  United States v. United Mine Workers, 330 U.S. 258, 312 (1947) (Mr. Justice Frankfurter, concurring in the judgment).  This allows “[e]very act of government may be challenged by an appeal to law.”  Id. at 308.
 
So does the rule of law allow one person have a legal right to disregard the law because the law is not convenient? Does he have a legal right to disregard human rights?  What happens if that person is the president?  This is precisely the issue in State of Washington and State of Minnesota v. Trump, 847 F.3d 1151 (9th Cir. 2017) where the lawfulness and constitutionality of Executive Order 13769 was challenged.  Judge James L. Robart found that the ‘Muslim ban’ violated four amendments to the US constitution: the First, Fifth, Tenth, and the Fourteenth. Namely, amongst other things, Judge Robart found that Executive Order 13769 violated the requirement of equal protection under the law, finding that the Trump administration showed ‘discriminatory treatment based on their country of origin and/or religion, without lawful justification’. Judge Robart additionally reaffirmed the Tenth Amendment, showing that the Federal Government only has the legal rights delegated to it by the Constitution, and since this Executive Order 13769 was in violation of the constitution, it simply could not be legitimate.
 
During his campaign, President Trump made it clear he was not happy with cities that held themselves out as sanctuaries, suggesting, among other things, that they facilitate crime.  Just five days after taking office, Trump issued an Executive Order—entitled “Enhancing Public Safety in the Interior of the United States”—that directed relevant cabinet officers to deprive “sanctuary jurisdictions” of federal funding and to “take [additional] appropriate enforcement action” against them.  In City and County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) the court was confronted with the issue of whether “in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called "sanctuary" cities and counties.”  Id. at 1231.  The Court found that “under the principle of separation of powers and in consideration of the spending clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization.”  Id.
 
Clearly, America is at its best when it submits to the rule of law not the rule by, in the words of Mr. Justice Frankfurter, a specific tyrant.  As Justice Sonia Sotomayor stated when she was nominated to the U.S. Supreme Court, “the rule of law [is] the foundation for all of our basic rights.”

It happens multiple times in Wisconsin courts on any one day: a criminal defendant is found guilty of dealing in controlled substances and after selling four grams of heroin to undercover police officers.  The defendant may be sentenced to probation with conditional jail time.  But not satisfied with that punishment, in one forum or another, the State of Wisconsin will seek to seize the defendant’s vehicle which he had used to purchase, transport and sell the drugs.

Under Wisconsin law, any property used in the course of, intended for use in the course of, or directly or indirectly derived from or realized through the commission of any crime can be forfeited.  Wis. Stat. Sec. 973.075.  It does not matter if it is a vehicle or scuba gear, Wisconsin can try to seize the property.  Id.  Even if the criminal defendant dies and there is no state or federal conviction, Wisconsin can seize the property and accept proceeds from the sale of the property.  Id.  Not only is this true, but the State of Wisconsin conveniently shifts the burden to the individual to show why the property should not be seized.  Wis. Stat. Sec. 973.077.  This shift in the burden exists despite Wisconsin forfeitures supposedly being done “with due provision for the rights of innocent persons.”  Wis. Stat. Sec. 973.075 (5).

The randomness of the risks to the innocent owner that are posed by forfeiture laws have been identified by Justice Thomas and Ginsburg:

The limits on what property can be forfeited as a result of what wrongdoing -- for example, what it means to “use” property in crime for purposes of forfeiture law – are not clear to me…Those limits, whatever they may be, become especially significant when they are the sole restrictions on the state’s ability to take property from those it merely suspects, or does not even suspect, of colluding in crime.
. . . . .
Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice. When the property sought to be forfeited has been entrusted by its owner to one who uses it for crime, however, the Constitution apparently assigns to the States and to the political branches of the Federal Government the primary responsibility for avoiding that result.  Bennis v. Michigan, 516 U.S. 442, 455-57  (1996) (Justices Thomas and Ginsburg, concurring).

As U.S. Senator Kamala Harris of California, a 2020 Democratic presidential candidate, wrote on Twitter, “Like our broken cash bail system, excessive fines and confiscation of property lead to the criminalization of poverty.”  It should be recalled that the Supreme Court had previously held that forfeitures constitute fines for the purposes of the Excessive Fines Clause. See Austin v. United States, 509 U.S. 602 (1993) (civil forfeitures); Alexander v. United States, 509 U.S. 544 (1993) (criminal forfeitures).  It is true that the poorest citizens carry the burden from fines which include “poverty penalties,” i.e., the cost of the original fine plus late fees, interest and administrative fees and even fees for a payment plan.  Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 2-8 (2018). 

Clearly, the US system of fines and fees has created a  two-tiered legal system that separates those who have the ability to pay from those who don’t with judges and court clerks using fines and fees to punish poor people in unequal and enduring ways. Even small amounts of legal debt can be insurmountable obstacles for people living on the margins.  Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 152 (New York:  Russell  Sage  Foundation,  2016).  As explained in Criminal Justice Policy Program at Harvard Law Sch., Confronting Criminal Justice Debt: A Guide for Policy Reform 15 (2016):

By disproportionately burdening poor people with financial sanctions, and by jailing people who lack the means to pay, many jurisdictions have created a two-tiered system of criminal justice. Unchecked, these policies drive mass incarceration. Excessive fees and fines needlessly enmesh poor people in the criminal justice system by spawning arrests, court proceedings, periods of incarceration, and other modes of supervision for those who lack the ability to pay. Criminal justice debt also contributes to mass incarceration by destabilizing people living at the economic margins and by impeding reentry of formerly incarcerated people who face impossible economic burdens, leading to cycles of poverty and imprisonment.  Id at 1.

It is simply amazing that local governments and municipalities have learned nothing from what happened in Ferguson where the system was run:

on the backs of their poorest and most politically vulnerable citizens. The municipalities appeared to be targeting low-income and black communities with these practices. For example, fines were collected at rates more than fif-teen times higher in one low-income, majority-black community than in a more affluent neighboring municipality. Ferguson was among the three worst offenders.  Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform, 58 Wm. & Mary L. Rev. 1171, 1174-75 (2017) (footnotes omitted).  See also, Lawyers Comm. for Civil Rights of the San Francisco Bay Area, Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in California, 9 (2016)

There now exists empirical date that shows how low-income defendants are affected by monetary sanctions, which include fees for public defenders and a variety of processing charges. Until these debts are paid in full, individuals remain under judicial supervision, subject to court summons, warrants, and jail stays. As a result of interest and surcharges that accumulate on unpaid financial penalties, these monetary sanctions often become insurmountable legal debts which many offenders carry for the remainder of their lives. Such fiscal sentences, which are imposed disproportionately on low-income minorities, help create a permanent economic underclass and deepen social stratification.  Alexes Harris, A Pound of Flesh:  Monetary Sanctions as a Punishment for the Poor. (New York: Russell Sage, American Sociological Association’s Rose Monograph Series 2016).  And lets not forget that poor citizens are less likely to vote, and to have access to other forms of political power, so governments may find it easier to target fines against them.  It has also been established that police departments often use civil asset forfeiture and other methods to supplement allocated funding.  Worrall and Kovandzic, "Is policing for profit?  Answers from asset forfeiture," 7 Uni. Texas, Dallas, 2 (2008)

The counter-productive nature of imposing excessive fines interferes with society’s need to have a convicted person successfully  re-enter society:

The court’s long-term involvement in [debtor’s] lives [during collections] inhibits reentry: legal or background checks will show an active rec-ord in superior court for individuals who have not fully paid their [criminal debt]. . . . This active record can have serious negative conse-quences on employment, on housing, and on finances. [Criminal] debt also impacts credit rat-ings, making it more difficult to find secure housing.  State v. Blazina, 344 P.3d 680, 684 (Wash. 2015) (citation omitted).  

There may be some hope against the insanity of this system.  In Timbs v. Indiana, 586 U. S. ____ (2019) the US Supreme Court held that the Eighth Amendment’s ban on excessive fines applies to the states.  The decision revolved around an Indiana man whose luxury SUV was seized after he pleaded guilty to selling heroin.  .” Justice Neil Gorsuch explained in a  separate opinion, which joined the majority’s opinion, that “regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.”  This decision may stand as precedent against policing for profit. 

The arrogance of the government is exemplified in the oral argument for Timbs when Indiana Solicitor General Thomas Fisher found himself arguing that the Constitution would let him forfeit luxury cars caught going five miles over the speed limit.  Incredulous of Fisher’s position, Justice Stephen Breyer asked him, “So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy?”  Fisher responded that “there is no excessive fines issue” for in rem civil forfeitures, and were completely outside the protection of this constitutional safeguard. So a speeding Bugatti would be “forfeitable,” adding that in rem forfeitures “have always been harsh.”  Justice Sonia Sotomayor quickly rebuked Fisher, and reminded him that “up to a certain point in our history, we didn’t apply the Bill of Rights to the states,” which “did things that under incorporation were unconstitutional.”

Thomas Jefferson was a lawyer who took many pro bono cases.  For instance in Howell v. Netherland (1770) Jefferson attempted to win the freedom of a mixed-race man he believed to be illegally bound to servitude. The words and ideas he used in that case were to later be found in the Declaration of Independence:

Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because necessary for his own sustenance.

In Blair v. Blair, Jefferson was asked to to look at the possibility of doing something never tried in Virginia before: a divorce.  The marriage between Dr. James Blair, of Williamsburg, and Catherine "Kitty" Eustace, of New York, dissolved quickly amid rumors of Blair's "incompetence" and an affair between Kitty Blair and the governor, John Murray, Earl of Dunmore.

Dr. Blair retained Jefferson to obtain a divorce for him. The problem confronting Jefferson in his representation of Blair was daunting, largely by reason of the fact that a divorce had never been granted in the 155 years that Virginia had been in existence. In order to obtain the result that his client wanted, Jefferson would have to challenge the very foundations of the laws of the colony.  "His research went beyond divorce: it entailed the very relationship of an empire and its colonies and whose law should govern. The Blair case was a test of his emerging theory of self-rule for Virginia."  William Sterne Randall, Thomas Jefferson - A Life, at 201(1993, Harper Perennial) at 163.  Jefferson sought to apply the "...natural rights to the laws of marriage as he had to the relationship between slave and master and church and state."  As he was to do later in the Declaration of Independence, Jefferson looked to the writings of Hume, Locke and Montesquieu.  Id. at 164.  This laid the groundwork for Jefferson to examine as a student of the Enlightenment the natural right of man to terminate relationships whether they be they master and slave, husband and wife, or Great Britain and the colonies.  Unfortunately, Jefferson was never to make these arguments since Dr. Blair died.

It was from cases like these that Jefferson would write in the Declaration of Independence about "the Laws of Nature and of Nature's God." Jefferson later wrote about how, when he wrote summaries, he "sometimes mix[ed] my own reflections on the subject … [T]hey were written at a time of life when I was bold in the pursuit of knolege, never fearing to follow truth and reason to whatever results they led, & bearding every authority which stood in their way."  Jefferson to Dr. Thomas Cooper, February 10, 1814.

In old Western movies with John Wayne, there were water battles between a big rancher who not only wanted to control his land but if a river ran through his land, to control that river.  This resulted in some great Hollywood shoot-outs between these big land owners and some “up and comin’ little pilgrim.”

About the time John Wayne movies were made, in 528 AD, a Roman Emperor, named Justinian, produced a code of law called "Institutes of Justinian” included the phrase, “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.” These same concepts were incorporated into English law in the Magna Carta, in 1225, under which the sovereign --the King --owned the public lands, but held them in trust for the public, and that all citizens had the right to use and enjoy those public resources.

Flash forward to Wisconsin today.  You are fishing on a Wisconsin lake around a homeowner’s pier.  The homeowner says to get away from her pier because she owns the water around her pier.  If you do not move she will call the police.  You do not move.  Police are called.  What should the police do?

Article IX, Section 1 or the Wisconsin Constitution provides that “...the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States....” This language provides the basis for the Public Trust Doctrine in navigable water in Wisconsin.  However, Wisconsin has gone further.  In recognizing the importance for travel, recreation and hunting and fishing. The Wisconsin Supreme Court has said that the “wisdom of the policy which steadfastly and carefully preserved to the people the full and free use of public waters cannot be questioned. Nor should it be limited by narrow constructions.”  Diana Shooting Club v. Husting, 156 Wis. 261 (1914).

Professor Arlen Christenson, a Professor Emeritus of Law and Environmental Studies at the University of Wisconsin-Madison Law School as well as founding Board President of Midwest Environmental Advocates, lays out simply what this the provision means: “It holds that the state is the trustee of the waters of the state for the benefit of the people of the state,” Christenson said. “And so the trustee has a duty to care for, manage, improve and protect the water for the benefit of the citizens. It’s not as if the state owns the water, but the people are the beneficial owners of water, just as the beneficiaries of a trust.”  Brian Weidy, “What is the Wisconsin Public Trust Doctrine?” The Confluence (Jan.16 2015).  See also, Quick, John. 1994. The Public Trust Doctrine in Wisconsin. Wisconsin Environmental Law Journal, Vol. 1, No. 1.  (2) "Champions of the Public Trust, A History of Water Use in Wisconsin" study guide. 1995. Wisconsin Department of Natural Resources Bureau of Water Regulation and Zoning. Champions of the Public Trust, https://dnr.wi.gov/topic/Waterways/factsheets/championsofthepublictrust1995.pdf.

The public trust doctrine gives title of the beds of all lakes and ponds, and of rivers navigable in fact, within the state, up to the line of the ordinary high-water mark, to the state to hold in trust to preserve the rights of the people to enjoy the use of the water. Id. Essentially, the public trust doctrine gives title of the beds of the water to the state to ensure that the public is guaranteed "reasonable use" of the water, including recreational purposes such as boating, swimming, fishing, hunting, and to preserve scenic beauty. State v Bleck, 114 Wis 2d 454, 338 NW2d 492 (1983).

Wisconsin enacted Article I, Section 26 of the Wisconsin Constitution which reads: “The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law.”  As of November 9, 2018, 22 states had constitutional provisions providing for the right to hunt and fish. Vermont was the first state to constitutionalize such a right in 1777. The other 21 states had all adopted right to hunt and fish amendments since 1996.

By statute, no person may interfere or attempt to interfere with lawful hunting, fishing, or trapping with the intent to prevent the taking of a wild animal, or intentionally interfere with or intentionally attempt to interfere with an activity associated with lawful hunting, fishing, or trapping, by doing any of the following:
1. Harassing a wild animal or by engaging in an activity that tends to harass wild animals.
2. Impeding or obstructing a person who is engaged in lawful hunting, fishing or trapping.
3. Impeding or obstructing a person who is engaged in an activity associated with lawful hunting, fishing or trapping.
4. Disturbing the personal property of a person engaged in lawful hunting, fishing or trapping.
5. Disturbing a lawfully placed hunting blind or stand.
6. Disturbing lawfully placed bait or other material used to feed or attract a wild animal.
7. Engaging in a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose and that are intended to impede or obstruct a person who is engaged in lawful hunting, fishing, or trapping, or an activity associated with lawful hunting, fishing, or trapping, including any of the following:
a. Maintaining a visual or physical proximity to the person.
b. Approaching or confronting the person.
c. Photographing, videotaping, audiotaping, or through other electronic means, monitoring or recording the activities of the person. This subd. 7. c. applies regardless of where the act occurs.
d. Causing a person to engage in any of the acts described in subd. 7. a. to c.
8. Using a drone, as defined in s. 941.292 (1), to conduct any activity prohibited under subds. 1. to 7.  Wis. Stat. Sec. 29.083 (2) Interference with hunting, fishing or trapping.  See also, Willow River v. Wade, 100 Wis. 86 (1898) ( public has a right to fish in navigable waters).

Members of the public may use any exposed shore area of a stream without the permission of the riparian (landowner) only if it is necessary to exit the body of water to bypass an obstruction.  Wis. Stat. Sec. 30.134 (2).  Riparian owners are those who have title to the ownership of land on the bank of a body of water. Ellingsworth v Swiggum, 195 Wis 2d 142, 536 NW2d 112 (Wis App Ct 1995). Also, a riparian owner is accorded certain rights based upon title to the ownership of shorefront property. Sea View Estates Beach Club, Inc v Wisconsin Department of Natural Resources, 223 Wis 2d 138, 588 NW2d 667 (1998). Wisconsin also provides that riparian rights include the right to use the shoreline, have access to the waters, the right to reasonable use of the waters for domestic, agricultural, and recreational purposes, the right to construct a pier or similar structure in aid of navigation, and exclusive possession to the extent necessary to reach navigable water. Id.  Weird situations can develop where a waterline recedes and exposes the land that was previously underwater.  In WH Pugh Coal Company v State of Wisconsin, 157 Wis 2d 620, 460 NW2d 787 (1990) the court held that a coal company's riparian rights entitled it to a parcel of land that was created from accretion along the shores of Lake Michigan, even though the state held title to the beds of the lake under the public trust doctrine.

Further, no landowner may prohibit a member of the public from using an exposed shore area (meaning the area of the bed of a navigable body of water that is between the ordinary high-water mark and the water's edge) of a stream. No riparian may charge a fee for the use of an exposed shore area of a stream.  No person may obstruct a highway with the intention to impede or prohibit access by the public to an exposed shore area of a stream.  Wis. Stat. Sec. 30.134 (4).  The right granted to the public under to use an exposed shore area of a stream does not apply to any of the following: to an exposed shore area of an impoundment on a stream, any artificial ditch, any location on a stream where there is no surface water flowing in the stream.  Wis. Stat. Sec. 30.134 (5)
Any person may not (a) Unlawfully obstructs any navigable waters and thereby impairs the free navigation thereof; (b) Unlawfully places in navigable waters or in any tributary thereof any substance that may float into and obstruct any such waters or impede their free navigation; Constructs or maintains in navigable waters, or aids in the construction or maintenance therein, of any boom not authorized by law.  Wis. Stat. Sec. 30.15.  The Wisconsin Attorney General has opined that if an unattended and anchored boat is left on navigable water for an unreasonable length of time, it constitutes a violation. 63 Atty. Gen. 601.  The governing body of a city, village or town may remove any watercraft, float or pier which constitutes an unlawful obstruction to navigation.  Wis. Stat. Sec. 30.16.  See, Claflin v. DNR, 58 Wis. 2d 182(1972); Hixon v. PSC, 32 Wis. 2d 608(1966)

Clearly, therefore an “[a]n owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others....It is not an unreasonable exercise of the [police power] to prevent harm to public rights by limiting the use of private property to its natural uses."  Just v. Marinette, 56 Wis. 2d 7 (1972).  Other decisions also upheld the validity of regulations protecting navigable waters and wetlands include Zealy v. City of Waukesha, 201 Wis. 2d 365 (1996) and R.W. Docks & Slips, 2001 WI 73, 244 Wis. 2d 497.

However in R.W. Docks & Slips v. DNR, 2001 WI 73, ¶18, 244 Wis.2d 497 the Wisconsin Supreme Court stated riparian rights include:
[t]he  right  to  reasonable  use  of  the  waters  for domestic,  agricultural  and  recreational  purposes;  the right  to  use  the  shoreline  and  have  access  to  the waters; the right to any lands formed by accretion or reliction;  the  right  to  have  water  flow  to  the  land without  artificial  obstruction;  the  limited  right  to intrude  onto  the  lakebed  to  construct  devices  for protection   from   erosion;   and   the   right,   now conditioned by statute, to construct a pier or similar structure in aid of navigation

Diana Shooting Club v. Husting, 156 Wis. 261 (1914) recognized the public nature of navigable waters.  So the question becomes what is a “navigable water”?  The test for navigability is :“any stream is 'navigable in fact' which is capable of floating any boat, skiff, or canoe, of the shallowest draft used for recreational purposes.... Navigability is not to be determined by the normal condition of the stream...The test is whether the stream has periods of navigable capacity which ordinarily recur from year to year, e.g., spring freshets.... The test is not whether the stream is navigable in a normal or natural condition, but whether it is in some sense permanently navigable, i.e., regularly recurring or of a duration sufficient to make it conducive to recreational uses." DeGaynor and Co., Inc. v. DNR, 70 Wis. 2d 936, 946-47 (1975).  This definition of navigable water is true for urban or rural property.  Village of Menomonee Falls v. DNR, 140 Wis. 2d 579 (Ct. App.,1987)

When I heard of this argument detailed below by Sarah Fabian I posted on social media that, “Human first. Lawyer second. Not sure she lived up to the potential of either.”  In response, another lawyer asked, “Did we not represent rapists?” 

My answer is simply that defending rapists is not the same as saying children do not need soap and toothbrushes.  But first here is the story of what Sarah Fabian said.

Sarah Fabian is the career lawyer from Department of Justice’s Office of Immigration Litigation who represented the Trump administration argued in the Ninth Circuit Court of Appeals that the federal government wasn’t legally required to provide soap and toothbrushes to detained migrant children in some conditions.  Fabian argued that forcing children to sleep on cold concrete floors in cells is both “safe and sanitary.”  Fabian was challenging an order by U.S. District Judge Gee in Los Angeles, who appointed an independent monitor to ensure that the federal government complies with the Flores settlement and specifically required such items as soap and toothbrushes. Fabian argued that such requirements are not detailed in the original settlement.

It should also be mentioned that the federal government has stopped English language classes, recreational programs like soccer games and legal aid for locked-up children.

The judges were openly hostile, incredulous that the government would argue that a facility is “safe and sanitary” even if the minors confined there have no soap, toothbrushes, or dark places to sleep. “I find that inconceivable that the government would say that that is safe and sanitary,” said Judge William Fletcher.  Likewise, Judge Marsha Berzon asked Fabian: “You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?”  You can’t be sanitary or safe as a human being if you can’t sleep.” Judge A. Wallace Tashima (who as a child in World War II was confined to an internment camp with other Japanese Americans)  said that such items are “within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that?” he asked. “Do you agree to that?”  Fabian: “Well ... maybe.”

The judges ultimately suggested that the United States should consider whether it wanted to maintain the appeal—a signal that litigants ignore at their grave peril.

Various news sources Fabian was arguing that toiletries and related items or services might not be required to meet a condition of “safe and sanitary” in all circumstances, such as if a detainee were only staying in a facility for a matter of hours.  In appealing a 2017 ruling that found the government violated the 1997 consent decree known as the Flores Settlement Agreement, Fabian argued that the decree does not specifically enumerate those items as mandatory for detained (AKA imprisoned) children.  In response, Vice President Mike Pence has also weighed in, telling CNN on Sunday that “of course” detained children should have access to soap and toothbrushes.  Last year Fabian defended the administration’s policy of separating migrant children from their parents by arguing it had occurred by necessity and “not for the purpose of deterrence.”

As reported by news sources, the government’s “safe and sanitary” argument did not arise from a new case generated by Trump-administration policies. It arose in 1985, during the Reagan administration, when a 15-year-old Salvadoran child named Jenny Lisette Flores was detained after entering the United States illegally, hoping to escape her country’s vicious civil war. Flores spent two months at a facility in California, confined with adult strangers in poor conditions and strip-searched regularly. In July 1985, she and three other minors brought a class action against what was then called the Immigration and Naturalization Service, challenging its policies for the care and confinement of minors.

In 1997, after a dozen years of litigation, the parties settled the lawsuit in what became known as the “Flores Agreement.” The Flores Agreement requires, among other things, that the government hold minors in facilities that are “safe and sanitary” and that they be released from confinement without delay whenever possible.
During the Trump administration, United States District Judge Dolly Gee found that Customs and Border Protection (CBP) failed to provide adequate food and water to minors, that it did not maintain the facilities at adequate temperatures, and that it deprived the minors of sleep by confining them on concrete floors under bright lights. Gee also found that CBP’s obligation to provide “safe and sanitary” conditions included providing soap, dry towels, showers, toothbrushes, and dry clothes. Gee ultimately ordered CBP to appoint a monitor to bring its facilities into compliance with the Flores Agreement.

With this background, it is true to say that when I was a public defender, I defended all types of criminal cases, including homicides and sexual assaults.

However, I continue to maintain what Sarah Fabian is not comparable to what I did as a public defender.

The distinction is drawing a line between what a prosecutor does and what a defense attorney does.  As Justice Frankfurter once said, “In law, as in life, lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere.  Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558, 62 S. Ct. 754, 761, 86 L. Ed. 1016 (1942) (Frankfurter, J., dissenting). I draw the line where the government of the United States says children should not have soap or a lawyer to protect them.  Judge Harold R. Medina said, "The more odious and despicable the crime, the more important it is that justice be done."  XII, Lloyd Paul Stryker, The Art of Advocacy (1954). 

The line to be drawn here is the difference between a prosecutor and a defense attorney.  Justice Byron White understood that line and drew it as follows:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. 

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.  United States vs. Wade, 388 U.S. 218 (1967)

Thus a prosecutor “is an administrator of justice.”  As an administrator of justice, a prosecutor has a duty not merely to convict.”

In defending even people who may eventually be found guilty, I acted for justice.  Justice is not served when a representative of the United States government in the department of Justice acts to obscure the ascertainment of these true facts: that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary.
 
 

I still remember the case clearly.  My client had beat another guy until he was bloody in a fight outside of his work.  There was a history of both of the guys arguing at work, taunting each other.  One day after the other guy had taunted my client, my client beat him with a bat until the other guy was bloody.  From the witness stand during trial, the alleged victim testified how he heard one of his break as he was hit.
 
I saw the jury squirm at hearing this testimony. 
 
My client then took the stand.  He admitted he hit the guy.  He admitted he hit him to where he was bleeding.
 
But he said he only did so because the other guy came at him with a tire iron.  He knew from the past taunts the other guy meant business.  He had to hit him to the point he was bleeding because the guy kept coming at him with the tire iron and would not stop. 
 
Client found not guilty at trial.
 
From their first year in law school, lawyers taught there are two things necessary for a crime to exist:  mens rea (guilty mind) and actus rea (guilty act).  Mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. See, e.g. Staples v. United States, 511 US 600 (1994). Mens rea refers to all mental influences and thinking of someone who has engaged in wrongful or harmful conduct deemed to be blameworthy, and, therefore, deserving of punishment.  Mens rea also is understood to comprise the purpose, knowledge, recklessness, or negligence necessary to prove a given element of a crime. See, Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 OHIO ST.J.CRIM.L. 449, 454-60 (2012); Sanford Kadish, The Decline of Innocence, 26 CAMBRIDGE L.J. 273, 274-75 (1968).
 
 
Before proceeding with further discussion, I should mention there are some crimes with no mens rea requirement.  In United States v. United States Gypsum Co., 438 U.S. 422 (1978) the Supreme Court explained "the familiar proposition that '[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' "  Id. at 436.  The Court then emphasized its "generally inhospitable attitude to non-mens rea offenses," id. at 438, except in "limited circumstances." Id. at 437. These "limited circumstances" were regulatory crimes where inquiry into intent was unnecessary. Id. at 440-41.  See, State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977) (to save constitutionality of statute, mens rea element read into statute by court); United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993) (explaining that mens rea requirements “flows from our society’s commitment to individual choice.”).
 
The sole purpose for having a criminal offense without a mens rea requirement is to keep from the jury's consideration a category of evidence that is a fundamental principle of justice, i.e., mens rea, that would help the defendant's case and weaken the government's case.  Such a distortion of the adversary process offends the fragile balance between prosecution and defense which the pursuit of truth and fairness in our adversarial proceedings mandates.  This unfair adversary system will ultimately not advance the public interest in truth and fairness.  Polk County v. Dodson, 454 U.S. 312, 318 (1981).  Anglo-American courts “ha[ve] long considered  a  defendant’s  intention—and  therefore his moral guilt—to be critical to ‘the degree of [his] criminal  culpability.”  Enmund v. Florida, 458 U.S. 782, 800 (1982).  The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty.  Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001, 2003, 2009 (2015); Morissette v. United States, 342 U.S. 246, 251 (1952) (noting that liability requires the “concurrence of an evil-meaning mind with an evil-doing hand”); People v. Valley Steel Prods. Co., 375 N.E.2d 1297, 1305 (Ill. 1978) (“It would be unthinkable to subject a person to a long term of imprisonment for an offense he might commit unknowingly.”).
 
In Wisconsin, defenses to a criminal charge termed “affirmative defenses.”  The baseball bat case I mentioned above illustrates an affirmative defense, self-defense.  When an affirmative defense is used, the defendant is basically affirming he committed the crime of which he is accused (hitting the person with the bat), but is offering an explanation or justification for the incident (I was defending myself).  When successful, an affirmative defense means the defendant is not guilty or help reduce the defendant’s legal liability.
 
WISCONSIN AFFIRMATIVE DEFENSES
 
Self-Defense.  A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what he or she reasonably believes to be an unlawful interference with his or her person by the other.  State v. Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194, 648 N.W.2d 413.  The actor may intentionally use only such force or threat of force as the actor reasonably believes is necessary to prevent or terminate the interference.  Wis. Stat. § 939.48; Wis. J.I.--Criminal 800, 805, 810, 815 (2001), 820 (1994); Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194.  Imperfect self-defense (unnecessary defensive force) is a partial defense to first-degree homicide, reducing the charge to second-degree intentional homicide.  Wis. Stat. § 940.01(2)(b); Head, 2002 WI 99, ¶ 69, 255 Wis. 2d 194.  Imperfect self-defense differs from self-defense in that either the belief that the actor was in imminent danger, or the belief that the force was necessary, is an unreasonable belief.  Head, 2002 WI 99, ¶ 90, 255 Wis. 2d 194.
 
Defense of Others.  A person is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions, and by the same means, as those under and by which he or she is privileged to defend himself or herself, provided that he or she reasonably believes that the third person would be privileged to act in self-defense and that his or her intervention is necessary to protect the third person.  Wis. Stat. § 939.48(4); Wis. J.I.--Criminal 825, 830 (1994); see State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989); State v. Ambuehl, 145 Wis. 2d 343, 425 N.W.2d 649 (Ct. App. 1988).
 
Defense of Property.  A person is privileged to threaten or intentionally use force against another to prevent or terminate what the person reasonably believes to be an unlawful interference with his or her property.  Wis. Stat. § 939.49(1).  It is not reasonable to use intentional force intended, or likely, to cause death or great bodily harm for the sole purpose of defending one's property.  Only that amount of force necessary to prevent or terminate the interference is allowed.  Id.  This defense may be extended to protection of the property of third persons only if the third person is a member of the actor's immediate family or household, or is a person whose property the actor has a legal duty to protect.  Wis. Stat. § 939.49(2); Wis. J.I.--Criminal 855 (1994).
 
Coercion or Duress.  Coercion or duress is a defense if a threat by a person other than the defendant's co-conspirator caused the defendant reasonably to believe that his or her act was the only means of preventing imminent death or great bodily harm to himself or herself or to another, and caused the defendant so to act.  If the offense charged is first-degree intentional homicide, however, successful invocation of the defense will reduce the degree of the crime to second-degree intentional homicide.  Wis. Stat. § 939.46; Wis. J.I.--Criminal 790 (1995); see State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370 (1982); Moes v. State, 91 Wis. 2d 756, 284 N.W.2d 66 (1979); 1975).
 
Accident.  Accident is generally a defense if it negates a state of mind essential to the crime.  It also may be a defense when, in the exercise of a privilege, an unintended result occurs, such as the unintended killing of an innocent third person during a legitimate exercise of self-defense.  Wis. J.I.--Criminal 820 (1994) (privilege:  self-defense:  injury to innocent third party); see Wis. Stat. § 939.48(3); State v. Watkins, 2002 WI 101, ¶ 45, 255 Wis. 2d 265, 647 N.W.2d 244.  Like accident, a mistake is an honest error, whether of fact or of law other than criminal law, is a defense if it negates the existence of a state of mind essential to the crime.  A mistake as to a minor's age, as to the existence or constitutionality of the section under which the actor is prosecuted, or as to the scope or meaning of the terms used in that section is not a defense.  Wis. Stat. § 939.43; Wis. J.I.--Criminal 770 (1998); Flores v. State, 69 Wis. 2d 509, 230 N.W.2d 637 (1975).
Insanity/Mental Disease or Defect.  A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law.  Mental disease or defect excluding responsibility is an affirmative defense that the defendant must establish to a reasonable certainty by the greater weight of the credible evidence.  Wis. Stat. § 971.15; see Wis. J.I.--Criminal 600-662; State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1985).
 
Entrapment.  This defense is available when a law enforcement officer has used improper methods to induce a defendant to commit an offense and, by the use of such methods, has succeeded in inducing the defendant to commit an offense that he or she was not otherwise did not have the intent or disposition to commit.  Wis. J.I.–Criminal 780 (2002); Jacobson v. United States, 503 U.S. 540, 548 (1992); Sherman v. United States, 356 U.S. 369 (1958); Hawthorne v. State, 43 Wis. 2d 82, 168 N.W.2d 85 (1969).
 
Involuntary Intoxication/Involuntary Drugged Condition.  Involuntary intoxication or involuntary drugged condition is a defense if the condition renders the actor incapable of distinguishing between right and wrong with regard to the alleged criminal act at the time the act is committed.  Wis. Stat. § 939.42(1); Wis. J.I.--Criminal 755 (1995); Loveday v. State, 74 Wis. 2d 503, 247 N.W.2d 116 (1976); see State v. Repp, 117 Wis. 2d 143, 342 N.W.2d 771 (Ct. App. 1983), aff'd, 122 Wis. 2d 246, 362 N.W.2d 415 (1985).  Involuntary intoxication also provides a defense when it prevents the state from proving a state of mind necessary for conviction.  Wis. Stat. § 939.42(2).
 
Necessity.  This defense is available when the pressure of natural physical forces causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster or imminent death or great bodily harm to the actor or another.  Necessity is a defense to a prosecution for any crime based on that act; if the prosecution is for first-degree intentional homicide, however, successful use of the defense will reduce the degree of the crime to second-degree intentional homicide.  Wis. Stat. § 939.47; State v. Olsen, 99 Wis. 2d 572, 299 N.W.2d 632 (Ct. App. 1980).

The title of this article is of course a slight modification of a line contained in chapter 4, paragraph 1 of “The Trial” by Franz Kafka.  The picture comes from a leaked photo from a Texas courthouse shows 37 people accused of illegally entering the US being processed all at once.  This leaked photograph shows 37 defendants in orange prison jumpsuits shackled at the hands and feet to be processed en masse as part of the ongoing US clampdown on illegal immigration.  The image, leaked to the media, gives an unfamiliar glimpse into "Operation Streamline," a prosecution system in which up to 70 defendants in immigration cases can be charged and sentenced at once.
 
It is disgusting display in an American court.  Anyone who believes in justice should revolt against such a system that allows this procedure.
 
The initial issue arising from this procedure is whether someone who does not speak English (regardless of their primary language), or has English as a 2nd language, can make a knowing, voluntary and intelligent waiver of rights necessary to enter a guilty plea.
 
Unlike the Fourth Amendment, the Fifth Amendment applies to each "person." Accordingly, the Fifth Amendment applies to all persons within the United States, irrespective of their immigration status.  See Plyler v. Doe, 457 U.S. 202, 210 (1982); Wong Wing v. United States, 163 U.S. 228, 237 (1896).  The Supreme Court has recently reaffirmed that resident aliens in the United States "are entitled to the same protections under the [Self-Incrimination] Clause as citizens." United States v. Balsys, 524 U.S. 666, 671 (1998)  Similarly, Miranda protects aliens, lawfully present or otherwise, against the inherent pressures of custodial interrogation. See United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1449 (9th Cir. 1995); United States v. Henry, 604 F.2d 908, 914 (5th Cir. 1979).
 
This "concept" that has "become part of our national culture" is the notion that individuals enjoy a right to remain silent when questioned by police officials.  Dickerson v. United States, 530 U.S. 428, 443 (2000).  A clear statement of Miranda rights are critical to the integrity of the American legal system.  After all, if someone is not aware of his Fifth Amendment right against self-incrimination, then the right may as well not exist.  Miranda v. Arizona, 384 U.S. 436, 466 ( 1966).  Thus, Justice Scalia, a critic of Miranda, found it "implausible" that in "the modern age of frequently dramatized 'Miranda' warnings," a "person under investigation may be unaware of his right to remain silent[.]"  Brogan v. United States, 522 U.S. 398, 405 (1998).  Clearly, "right to remain silent sounds like a bedrock principle, and everyone knows about it."  Orin Kerr, Do You Have A Right to Remain Silent? Thoughts on the "Sleeper" Criminal Procedure Case of the Term, Salinas v. Texas, THE VOLOKH CONSPIRACY (June 17, 2013).
 
In the case of People v. Gutierrez, 137 Cal. App. 3d 542, 546, 187 Cal. Rptr. 130, 132 (Cal. Ct. App. 1983) it was found that where a trial court's does not allow defense counsel to ask a defendant's exact words in Spanish violated the Sixth Amendment.  This is important because of critical differences between the English language and the Spanish language.
 
For instance, there is the problem of false cognates in the Miranda warnings.  A cognate is an easy word to remember because it looks and means the same thing as a word you already know.  The Spanish verb "apuntar" looks like the English word "to appoint." "Apuntar," however, does not meant "to appoint"; it means "to point to." The proper Spanish verb for "to appoint" is "otorgar."  State v. Santiago,  206 Wis.2d 3, 18, 556 N.W.2d 687, 691  (1996) (discussing the "apuntar" false cognate), see also United States ex rel. Verdin v. O'Leary, 1990 WL 103653, * 7 (N.D. Ill. July 3, 1990) (noting the difference between the Spanish words for "to point to" and "to appoint"), rev'd, 972 F.2d 1467 (7th Cir. 1992).
 
Likewise, there can be a problem in translation if the target language may have two or more different words for two or more different meanings of an English word. In State v. Ramirez, the interpreter used the Spanish word for "the right hand side" ("derecha") instead of the Spanish word for "right" in the legal sense ("derecho"). See State v. Ramirez, 135 Ohio App. 89, 1999 WL 1313670, *4 (Ohio Ct. App. Dec. 27, 1999).Additionally, the interpreter told the suspect in Spanish that he had rights underneath ("bajo") the law in a physical sense rather than on the basis of ("de acuerdo con") the law. Id

Tell me than did this mass appearence in a court allow for free, voluntary and intelligent pleas?

Do not think for a second that the story you are about to hear could not happen in Wisconsin.  Here’s a succinct summary of State v. John S. Finley, 2018AP258-CR, District 2, decided June 12, 2019 : “The Majority supports the government’s  ‘interview,’ which utilized lies, threats, and fabrication of evidence to wrestle a statement from a thirty-six-year-old man, who has the mind of a twelve year old and the social skills of a first grader.” (¶24 (Reilly, P.J., dissenting) (footnote omitted)).

It was Jan. 3, 1989. Keziah Burton had been murdered.  She lay face down on the bed, stabbed twice in the neck.  Her nightgown had been pulled up to her waist. A blue telephone cord was wrapped around her right wrist.   Her son, Huwe Burton, then 16, who had no criminal history and a close-knit relationship with his parents and extended family, said he found his mother murdered when he came home that evening, after having spent the day at school and then at his girlfriend’s house. 

But two days later, after detectives had interrogated him for hours, Mr. Burton confessed to the police that he had stabbed his mother while high on crack during an argument. Police arrested him for murder.  Of course, he denied that confession to the police.  Police had caught a neighbor with a history of violence driving the dead mother's stolen car, but they did not consider him a suspect because Burton had confessed.  

A jury believed the confession to the police and convicted him of murder. He served nearly 20 years in prison before being paroled in 2009.  However, in January 2019, Judge Steven L. Barrett ruled that someone else killed Ms. Burton, and that detectives had used psychologically coercive interrogation techniques to get Mr. Burton to give a false confession. Based on these findings, the recommended that Burton’s conviction be vacated and the charges be dismissed.

This was after a the two-year re-investigation that uncovered newly discovered evidence.   This evidence was gathered by the lawyers for the Innocence Project and the Bronx District Attorney’s Conviction Integrity Unit (CIU) which found new evidence including: (1) scientific and scholarly research confirming that the psychologically coercive techniques used by the detectives produce false confessions; (2) the same detectives who elicited Burton’s false confession also obtained false confessions from two other individuals three months earlier; and (3) the background and prior criminal history of the alternate suspect, Emanuel Green, that strongly supports the defense team’s contention that Green committed the crime alone.  During an interrogation, the police led Mr. Burton to believe that if he confessed to killing his mother he would not be charged with statutory rape for having had consensual sex with his girlfriend, who was only 13 year old.

Burton’s conviction was based largely on a confession he made to three detectives—Frank Viggiano, Stanley Schiffman and Sevelie Jones—from the 47th Precinct who used psychologically coercive techniques that were standard practice at the time. The techniques included isolating Burton from his father, threatening him with additional criminal charges and, ultimately, offering leniency if he confessed to killing his mother. Sleep deprived and traumatized by his mother’s death, Burton provided a written and recorded statement that he’d accidentally stabbed his mother during an argument when she would not give him money to pay a debt to a drug dealer.

Frightenly, Justice Barrett said he had presided over another homicide case in 1988 in which the same detectives who had elicited a false confession from Mr. Burton had coerced phony statements from two men, who implicated a third man in the murder. It later came out the third man was in jail at the time of the killing and could not have been involved.

In fact, according to Saul Kassin, a psychologist at the John Jay College of Criminal Justice in New York City who is one of the world's leading experts on interrogation.  Kassin explained that false confessions are not rare: More than a quarter of the 365 people exonerated in recent decades by the nonprofit Innocence Project had confessed to their alleged crime. Drawing on more than 30 years of research, Kassin has explained how standard interrogation techniques, known to police as the John Reid techniques, combine psychological pressures and escape hatches that can easily cause an innocent person to confess. Kassin also explains how young people are particularly vulnerable to confessing, especially when stressed, tired, or traumatized, as Burton was. Kassin has said confessions that look real can actually be false, even if they’re corroborated by informants and forensic science.

Kassin makes perhaps the most crucial point: confessions are often the first piece of evidence collected by police. Once the police had a confession, all the other evidence lined up to support it so the case can be quickly “cleared.”  Psychological research calls this behavioral confirmation bias.  See Rosenthal, Covert communication in classrooms, clinics, courtrooms and cubicles, 57 American Psychologist 839-49 (2002); Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in many guises 2 Review of General Psychology 175-220 (1998).  Interestingly, people without a criminal record are more likely to give a confession.  Leo, Inside the interrogation Room, 86 J. Crim. L. & Criminology 266 (Winter 1996).

Kassin points out a really sad consequence of this tunnel vision: when confessions have turned out to be false, appeals courts have ruled that the other evidence is strong enough to support the conviction.  In Kassin’s words: "The courts completely missed out that the other evidence was corrupted."

SOURCES: “He Spent 19 Years in Prison for Murder. Now Prosecutors Say His Confession Was Coerced. N.Y. Times” (Jan. 24, 2019); This psychologist explains why people confess to crimes they didn’t commit, Science June 13, 2019

Multiple Democratic presidential candidates have staked their campaigns on promises to fight for economic justice and protect low-income people from ruin. So it's mysterious and frustrating that none of these candidates have proposed to end our justice system's criminalization of poverty — at least beyond the occasional nod to ending money bail.
These candidates are missing an opportunity. The incomes of people in U.S. prisons and local jails are overwhelmingly low, and one in two American adults has had a close relative incarcerated, meaning that a candidate who understands the criminalization of poverty could propose transformative reforms and speak to a huge number of voters. In particular, candidates are missing an opportunity to speak to Black voters, who are hit hardest by policies that punish poor people.
To be sure, many Democratic candidates have alluded to economic inequality in connection with criminal justice reform — and Bernie Sanders even uses the phrase "criminalizing poverty" on his campaign website — but I've seen no indication that any of the candidates can speak to either the specifics or the scale of this problem. Candidates must go beyond criticizing money bail, and promise to end the unequal treatment of poor people at every stage of the justice process:

1. End poverty-related arrests and jail bookings. Far too many Americans who can't afford housing, drug treatment or mental health services are instead arrested on minor charges related to their homelessness or illness. Many others end up in jail because they can't afford burdensome fines and fees. An unfortunate downstream effect is jail overcrowding, which leads counties — largely in rural areas — to spend public money on harmful jail expansion rather than social welfare.
Presidential candidates should commit to helping state and local governments shift their priorities, making it easier to support low-income people and harder to jail them:

• Equip cities and towns with universal housing, mental health services, and drug treatment, and invest in public schools and after-school programs in cash-strapped school districts.
• Whenever appropriate, redirect federal funding for county jail expansion to instead fund these critical public goods.
• Decriminalize possession and low-level sales of all drugs, and expunge the criminal records of people convicted of these offenses.
• Incentivize states to decriminalize behaviors stemming from homelessness, such as sleeping outside.
• Stop county courts from imposing fees without first considering one's ability to pay, and incentivize states to abolish court-imposed fees and discharge all fee debt.

 
2. Guarantee poor people equal justice before trial. Two major injustices — pretrial detention and lack of access to counsel — ensure that low-income people are disproportionately convicted. Pretrial detention doesn't just make defendants more likely to plead guilty; it also puts them at risk of losing their jobs and homes, and imposes huge costs on their families, before they're ever convicted.
Candidates should promise to:

• Ensure that local public defender systems are fully funded, that they no longer charge co-pays to defendants, and that counsel is guaranteed at any hearing that could result in detention.
• Incentivize counties to drastically reduce pretrial detention by ending commercial money bail, and replacing it with release on recognizance, unsecured bonds, and other alternatives.
• Use the power of the Federal Communications Commission to regulate the cost of phone calls from jail, which can strain public defenders' resources, not to mention those of family members.
• Subsidize county-level pretrial services to help low-income people make their court dates, such as text reminders and free childcare at court.
  

3. Stop forcing low-income families to subsidize the prison system. When someone goes to prison, their loved ones become their source of financial support. The financial pressure on these families grows when prisons fail to provide basic services, often driving families into debt. It shouldn't be on relatives — disproportionately women — to pay for phone calls, medical care, nutritious food and educational resources for those behind bars, often when they've just lost a breadwinner.
Presidential candidates should commit to paying for incarcerated people's needs to lift this burden on families:

• End the Medicaid exception for people in prison, and abolish all charges for doctor visits and over-the-counter medication. Ensure that all federal and state prisons offer medication-assisted opioid treatment.
• Incentivize states and counties to pay for the cost of phone calls, email, and other technologies that allow incarcerated people to stay connected to their families.
• Use the muscle of federal agencies like the Consumer Financial Protection Bureau and Federal Trade Commission to regulate the market for prison services, such as money transfer services (which currently charge families exorbitant deposit fees).
• Restore Pell Grants to incarcerated people, and fully fund in-prison programs granting high school and college degrees.
• Require state departments of correction to provide nutritious meals that meet daily caloric requirements, instead of forcing incarcerated people to supplement their meals by buying from the prison commissary.
  

4. Protect people from going back to prison just because they're poor. Incarcerated people who come from under-resourced neighborhoods tend to return to those same neighborhoods after prison, now saddled with criminal records and far poorer than before.
Presidential candidates should avoid old narratives about how more surveillance, monitoring and job training are needed to "reduce recidivism" among people leaving prison. Instead, they should call the reentry process what it is: a period of extreme vulnerability that mostly affects impoverished people, and that can't be improved without serious investments in formerly incarcerated people's welfare. They should commit to:

• Identify the communities to which most formerly incarcerated people return, and subsidize additional low-income housing, drug treatment and mental health services in those communities.
• Help states create Departments of Reentry that connect people nearing release to permanent housing, medical care, and other resources.
• Incentivize states to pass laws expanding criminal record expungement, including automatic expungement for people convicted of minor offenses.
• End the harmful restrictions on association that prohibit formerly incarcerated people from helping each other rebuild their lives.
• Restore welfare benefits, including housing assistance, to people with criminal records.
• Urge states to abolish probation and parole fees, including fees for ankle monitors. End so-called "pay-only" probation schemes, which extract fees without providing any "services" at all.
• Incentivize states to "ban the box" on job applications, and to end restrictions on occupational licenses that lock people with criminal records out of good jobs.
• Expand federal tax benefits for businesses that hire people with criminal records.
• Incentivize states to end laws suspending driver's licenses for non-driving offenses.

To be sure, there are many other policy changes that could help end the criminalization of poverty; this list is only a starting point. But it should be alarming that most of these policy options have gone unmentioned by any presidential candidate. Until the candidates commit to ending our criminal justice system's abuse of poor people from arrest to release (and afterwards), their visions for economic justice won't be complete.

by Wanda Bertram
https://www.prisonpolicy.org/blog/2019/06/12/criminalization_poverty/