A 2013 study published in the Journal of Marriage and Family, “Women’s Education, Marital Violence, and Divorce: A Social Exchange Perspective,” analyzes a nationally representative sample of more than 900 young U.S. women to look at factors that make females more likely to leave abusive relationships.
The study sets out to “determine whether the relationship between a woman’s education and divorce is different in violent marriages.” The study’s findings include:

• The data provide “support for our primary hypotheses that women’s education typically protects against divorce but that this association weakens in abusive marriages. In addition, we found a similar pattern for wives’ proportional income, net of education. Together, these patterns suggest that educational and financial resources benefit women by increasing marital stability in nonabusive marriages and promoting divorce in abusive marriages.”
• Further, the “greater tendency for educated women to leave abusive marriages was substantial. For example, in highly violent marriages, women with a college degree had over a 10% greater probability of divorce in the observed time period than women without a college degree.”
• The study also finds that “women with economic resources were likely to leave unhappy marriages, regardless of whether they involve abuse. Similarly, degree-earning women were more likely than less educated women to leave violent marriages, regardless of their feelings of dissatisfaction.”

The researchers note that, across the U.S. population, more women are attaining college degrees, and given the study’s findings, this suggests “increases in women’s education should reduce rates of domestic violence. In a population with many educated women, violent marriages are likely to break up.” They caution that it is also possible “that our observed patterns reflect husbands’ perceptions and decisions. Perhaps abusive men feel threatened by successful wives, which then increases divorce risk. Nonabusive men may not feel threatened and thus stay with successful women.” On this point, more research is required.

Recently, I litigated whether a client was constitutionally stopped for a missing right mirror on his vehicle despite having a left and center mirror on his vehicle. The evidence submitted by way of stipulation was that my client was completely innocent while he was driving of any legal violation, criminal or traffic, since he did have mirrors. The officer, it was admitted, had made a mistake not of fact, but of law, in pulling him over. Nevertheless, given recent Wisconsin and U.S. Supreme Court decisions, the trial court found innocent people can lawfully stopped by police when the police make a mistake of law.

So what has become of America now? In our lives we have seen that various authoritarian regimes systematize oppression by passing more laws. This practice has long been criticized.  The Roman historian Tacitus observed, "The more corrupt the state, the more numerous the laws."  It continues today.  When journalists like Al Husseini Abu Deif were killed during Egypt's clashes in 2012, it was all done legally. The law was followed. When Fred Korematsu, a Japanese-American man, was interned into America’s Gulag, it was done lawfully and endorsed by the courts. Today, when Black Americans were (and are) told they are not entitled to all the legal protections, it is done legally by various criminal laws which had their origins in Jim Crow.

It makes me wonder if authoritarian regimes rule by lawlessness or by law?

Solzhenitsyn described the history, the methods, and the structure of Soviet forced labor camps in great detail in his long, multi-volume work, The Gulag Archipelago. Article 58 (which was repealed in 1958 in the course of a complete revision of the Penal Code) Solzhenitsyn maintains that the gulag system still existed and was, with the addition of the sentences to psychiatric clinics, even more vicious. There were fourteen sub-sections to Article 58, all of them formulated so broadly (even more broadly than a disorderly conduct statute) that practically any action (or even nonaction) could be, and was, interpreted as "a crime against the state." In fact, virtually all the inmates of the "special" camp described in Solzhenitsyn’s other book, One Day in the Life of Ivan Denisovich had been sent there because of a violation of some provision of Article 58. Clearly, recent history demonstrates that a citizen’s oppression is not done by lawlessness but by the law.

So we now live in an America where the most innocent word or action is a crime. Or, as Solzhenitsyn once put it, "Wherever the law is, crime can be found.

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Middle-class kids don’t get locked up for smoking pot, and poor kids do . . . .  African-American kids and Latino kids are more likely to be poor and less likely to have the resources and support to avoid unduly harsh penalties.  President Obama, David Remnick, Going the Distance, NEW YORKER, Jan. 27, 2014, at 52.


“. . . we have our doubts that imprisonment is an appropriate treatment for a marijuana habit.” 

Judge Posner, United States v. Jesse A. Smith, No. 14-2223 (7th Cir. Decided Oct. 27, 2014) slip at 5.

 

Should laws that were created to discriminate against a group of people be enforced?

 

The truth is that our perceptions of marijuana—and in fact all of our drug laws—are based on early 20th century racism and “science” circa the Jim Crow era. In the early decades of the 20th century, the drug was linked to Mexican immigrants and black jazzmen, who were seen as potentially dangerous.

 

Harry Anslinger, a former railroad cop and Prohibition agent who was the first commissioner of the Federal Bureau of Narcotics (an early predecessor of the DEA), was one of the driving forces behind pot prohibition.  The devil weed and Harry Anslinger, Common Sense for Drug Policy,  http://www.csdp.org/publicservice/anslinger.htm  He pushed it for explicitly racist reasons, saying, “Reefer makes darkies think they're as good as white men.” Kyle Schmidlin, 'War On Drugs' Merely Fights The Symptoms Of A Faulty System, CBS News (Sept. 13, 2008) http://www.cbsnews.com/news/column-war-on-drugs-merely-fights-the-symptoms-of-a-faulty-system/. 

 

Likewise, Mr. Anslinger testified before a Senate Hearing on marijuana tax in 1937 (Marijuana Tax Act, Pub. L. No. 75-238, ch. 553, 50 Stat. 551 (1937) (repealed 1969)) that "There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others."  United States: A Stain On Our Integrity (Harry J. Anslinger and the Marijuana Tax Stamp Act of 1937) http://hemp.org/news/book/export/html/626  The main reason to prohibit marijuana, he said was “its effect on the degenerate races.”  Id.  See also, Amanda Reiman, 75 Years of Racial Control: Happy Birthday Marijuana Prohibition, (Sept. 28, 2012) http://www.huffingtonpost.com/amanda-reiman/marijuana-prohibition-anniversary_b_1923370.html

 

Other research indicates that the desire to criminalize marijuana in the 1930s by connecting marijuana use to poor Mexican and black workers. Sam Kamin, The Challenges of Marijuana Law Reform, in ASPATORE SPECIAL REPORT, THE IMPACT OF THE DECRIMINALIZATION AND LEGALIZATION OF MARIJUANA 5, 22 (Melanie Zimmerman ed., 2010).  Two scholars succinctly explain that  “since [marihuana’s] users— Mexicans, West Indians, blacks, and underworld whites—were associated in the public mind with crime, particularly of a violent nature, the association applied also to marihuana.”  RICHARD J. BONNIE & CHARLES H. WHITEBREAD, II, THE MARIHUANA CONVICTION: A HISTORY OF the federal Ways and Means Committee marijuana hearings also focused on the use of marijuana by Mexican immigrants.  During the hearings, Harry Anslinger, the Commissioner of the Federal Bureau of Narcotics, read aloud a letter from a Colorado newspaper editor referencing the violent effects he believed marijuana had on what he called the state’s “degenerate Spanish-speaking residents.”  See DAVID E. NEWTON, MARIJUANA: A REFERENCE HANDBOOK 163 (2013) (quoting Harry Anslinger’s writings)

This racial fear mongering of the past in the name of marijuana prohibition has not subsided in America.  For example, Rep. Steve King, Republican of Iowa, when discussing comprehensive immigration reform said “hundred[s]” of immigrant children with “calves the size of cantaloupes [from] hauling 75 pounds of marijuana across the desert.”  Juliet Lapidos, Steve King Still Stands by ‘Cantaloupe’ Comments, N.Y. TIMES, Aug. 12, 2013, http://takingnote.blogs.nytimes.com/2013/08/12/steve-king-still-stands-by-cantaloupe-comments/

 

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Wisconsin courts are now consistently facing the dilemma of having to sentence persons addicted to drugs for non-drug crimes. Such as when an addict commits a burglary to sell property to supply his/her habit. The prosecution may then try to argue that the defendant’s addiction does not matter since it is a burglary case, not a drug case.

The sentencing court must understand what drug addiction means. Some people betray a terrible misunderstanding of addiction when they suggest that if an addict is involved in the criminal justice system they can be simply ordered to stop using a drug. That thinking demonstrates ignorance about drug addiction. Drug addiction is a brain disease that affects behavior due to “brain changes, which accompany the transition from voluntary to compulsive drug use, affect the brain’s natural inhibition and reward centers, causing the addicted person to use drugs in spite of the adverse health, social, and legal consequence.” Principles of Drug Abuse Treatment for Criminal Justice Populations - A Research- Based Guide, (U.S. Dept. of Health and Human Services, revised April 2014) p.15. http://www.drugabuse.gov/publications/principles-drug-abuse-treatment-criminal-justice-populations-research-based-guide/are-all-drug-abusers-in-criminal-justice-system-good. That is why those in the criminal system interested in really solving addiction issues do not seek punishment immediately for the addict who uses while in the criminal system. Instead, honesty is seen as the key to rehabilitation. Heroin addicts, for instance, should not punished for using heroin as long as they don't lie about it. But if they challenge a positive drug test, they should face a jail sanction. Gilman Halsted, Drug courts give heroin users an alternative to prison, Wisconsin Public Radio, Monday, July 22, 2013, http://www.wpr.org/drug-courts-give-heroin-users-alternative-prison. Finally, many in the legal system confuse forced abstinence with treatment. “Forced abstinence (when it occurs) is not treatment, and it does not cure addiction. Abstinent individuals must still learn how to avoid relapse, including those who may have been abstinent for a long period of time while incarcerated.” Principles of Drug Abuse Treatment for Criminal Justice Populations - A Research- Based Guide, id.

The defense should remind the court that the label which the court sees fit to attach to a case (“Counsel, this is a burglary case not a drug case!”) does not matter as much to the defense as solving the problem of defendant’s addiction which lead the person to commit crimes. As Dane County Judge John Markson once explained, criminality is fueled by drug addiction. If a court can treat their addiction and remove the root cause of the problem, we're being smarter about how we deal with criminality. Gilman Halsted, Drug courts give heroin users an alternative to prison, Wisconsin Public Radio, Monday, July 22, 2013, http://www.wpr.org/drug-courts-give-heroin-users-alternative-prison.

Determining the appropriate sentence in this straight forward manner causes one to ask the obvious question: can treatment for heroin addiction still benefit society and defendant after s/he committed robberies? The National Institute on Drug Abuse has explained that “drug abuse treatment is effective for offenders who have a history of serious and violent crime, particularly if they receive intensive, targeted services. The economic benefits in avoided crime costs and those of crime victims (e.g., medical costs, lost earnings, and loss in quality of life) may be substantial for these high-risk offenders. Treating them requires a high degree of coordination between drug abuse treatment providers and criminal justice personnel to ensure that the prisoners receive needed treatment and other services that will help prevent criminal recidivism.” Principles of Drug Abuse Treatment for Criminal Justice Populations - A Research-Based Guide, (U.S. Dept. of Health and Human Services revised April 2014) p.18. http://www.drugabuse.gov/publications/principles-drug-abuse-treatment-criminal-justice-populations-research-based-guide/are-all-drug-abusers-in-criminal-justice-system-good. Emphasis added.

If the sentencing court believes prison is necessary, the court needs to understand Wisconsin’s prison population. In September 2012, the Wisconsin Department of Corrections reported that 21,713 people were in Wisconsin state prisons; that is, the Wisconsin Prison System is operating at 129% or 4,600 more than the facilities’ permitted capacity. Healthier Lives, Stronger Families, Safer Communities: how increasing funding for alternatives to prison will save lives and money in Wisconsin (Human Impact Partners and WISDOM November 2012) p. 6, http://prayforjusticeinwi.org/wp-content/uploads/2011/12/11x15_Health_Impact_Assessment_Full_Report.pdf; Christina D. Carmichael, Adult Corrections Program (Wisconsin Legislative Fiscal Bureau Jan. 2013) p.4. Additional inmates were housed by: (a) exceeding the defined number of double occupancy cells; (b) housing more than two inmates in some cells; and (c) utilizing some non-housing space for housing purposes. Adult Corrections Program, id. Out of this general prison population, 12.6% are males in prison for robbery. Id., at 40. The cost of this prison population to a Wisconsin taxpayer was staggering. In 2011-12, daily per capita cost at all correctional facilities was approximately $33,400 annually. Adult Corrections Program, p.3.

For inmates with drug addiction issues, Wisconsin operates two facilities. One is The Drug Abuse Correctional Center which is located north of Oshkosh in Winnebago, Wisconsin. The current population capacity is 300 male inmates with 220 beds designated for treatment. The Drug Abuse Correctional Center, http://doc.wi.gov/families-visitors/find-facility/drug-abuse-correctional-center. The second is Chippewa Valley Correctional Treatment Facility which reserves 300 beds for treatment and of the 300 treatment beds, 10 provide an ATR resource. http://doc.wi.gov/families-visitors/find-facility/chippewa-valley-correctional-treatment-facility

So Wisconsin has set aside approximately 600 beds in a prison system of 21,713 inmates. While the Wisconsin Department of Corrections offers a variety of health, substance abuse treatment, and life skills programs to incarcerated offenders in other facilities, merely offering programs does not guarantee that prisoners can get in. Healthier Lives, Stronger Families, Safer Communities: how increasing funding for alternatives to prison will save lives and money in Wisconsin, p.7. Former Wisconsin prisoners mentioned long waiting lists and restrictive criteria that kept them out of the programs they wanted to enroll in. Said one former prisoner: “The waiting list is so long – hundreds and hundreds of people – so many people don’t get in.” Id. In fact, “[u]p to 85% of prisoners who could benefit from substance abuse treatment in prisons do not receive it.” Id. at 10. The defense would suggest that untreated or inadequately treated inmates are more likely to resume using drugs when released from prison, and commit crimes at a higher rate than non-abusers.

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In Scott v. Harris, 127 S. Ct. 1769 (2007) the United States Supreme Court was of the opinion that “no reasonable juror” could find that a fleeing driver did not pose a deadly risk to the public.  Due to this belief, the Court held that a police officer did not violate the Fourth Amendment when the officer deliberately rammed his car into that of the fleeing motorist and flipped it over an embankment.  The fleeing driver had refused to be pulled over for speeding and instead sought to evade the police in a high-speed chase.  “He created the scariest chase I ever saw since ‘The French Connection,’” said Justice Scalia.  The crash rendered the fleeing motorist a quadriplegic.  To support the Court’s opinion, the Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it.

Justice Scalia, writing for an eight-Justice majority, stated, “[t]here is . . . an added wrinkle in this case: existence in the record of a videotape capturing the events in question.”  “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment,” Justice Scalia reasoned.  “Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.” 

No reasonable jury could disagree with him, wrote Justice Scalia; but unfortunately, Justice Stevens did.  Justice Stevens watched the video and found “the tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue.”

It was not unusual for Scalia and Stevens to disagree.  However, what made this disagreement unusual was the method Scalia used to support his position.  Rather than using words to support his  position of “no reasonable juror,” Scalia created a multimedia cyber-opinion, by giving a URL for a digital rendering of the tape that had been uploaded to the Court’s website.  “We are happy,” Scalia wrote, “to allow the videotape to speak for itself.”

This same video was shown to a sample of 1350 Americans.  Overall, a majority agreed with the Court’s resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. 

A fairly substantial majority did interpret the facts the way the Court did.  But members of various subcommunities did not.  African Americans, low-income workers, and residents of the Northeast, for example, tended to form more pro-plaintiff views of the facts than did the Court.  So did individuals who characterized themselves as liberals and Democrats. Individuals with these characteristics tend to share a cultural orientation that prizes egalitarianism and social solidarity.  Various highly salient, “symbolic” political issues — from gun control to affirmative action, from the death penalty to environmental protection — feature conflict between persons who share this recognizable cultural profile and those who hold an opposing one that features hierarchical and individualistic values.  Persons who subscribed to the former style tended to perceive less danger in driver’s flight, to attribute more responsibility to the police for creating the risk for the public, and to find less justification in the use of deadly force to end the chase.  Indeed, these individuals were much more likely to see the police, rather than driver, as the source of the danger posed by the flight and to find the deliberate ramming of the driver’s vehicle unnecessary to avert risk to the public.

The question, therefore, posed by the data is not, as Justice Breyer asked, whether to believe one’s eyes, but rather whose eyes the law should believe when identifiable groups of citizens form competing factual perceptions.  So what see becomes a question of what you believe is the correct way of doing something.

So Justice Scalia’s insistence that there was only one “reasonable” view of the facts itself reflected a form of bias — cognitive illiberalism — that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society.  When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law’s legitimacy.
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SOURCE: Dan M. Kahan, David A. Hoffman, & Donald Braman, “WHOSE EYES ARE YOU GOING TO BELIEVE? SCOTT V. HARRIS AND THE PERILS OF COGNITIVE ILLIBERALISM” 122 Harv. L. Rev. 1 (2009