Law is not mathematical equation.  That’s because justice is an abstract ideal, much like infinity, that can be talked about, but never fully understood.  As the great Bertrand Russell said in Chap.7 of Unpopular Essays entitled, "An Outline of Intellectual Rubbish" (1950), https://www.academia.edu/38060105/Bertrand_Russell_Unpopular_essays:

“The most savage controversies are those about matters as to which there is no good evidence either way.”

Russell uses this short piece to go on a rant about how stupid people can be especially when they get together in groups and tempers run high.

Currently, there is a savage controversy raging that the use of mathematical equations can be used to attain justice in cases.  From how much time someone should receive after a criminal conviction to whether a child should remain with the child’s parents, people are trying make decisions based on secret mathematical equations or algorithms.

To paraphase Mark Twain, there are three types of lies: there are lies, damn lies and algorithms.

COMPAS: sentencing by magic square
In State v. Loomis, 881 N.W.2d 749, 767 (2016) the Supreme Court of Wisconsin held that the use of a proprietary risk assessment tool—called COMPAS, the algorithm was originally developed to help parole boards assess recidivism risk—at sentencing, did not violate the defendant’s due process rights to be sentenced (a) individually and (b) using accurate information.  COMPAS’s author, Northpointe, Inc., refused to disclose its methodology to the defendant or even the court.  Northpointe, Inc. indicated that the algorithm is proprietary and to disclose it would leave the company vulnerable to competitors.

COMPAS’s output—a risk assessment score—was referenced by both the State and the trial court during sentencing in Loomis. Because the algorithm deemed the defendant to be at high risk of recidivism, the sentencing court denied him the possibility of parole and handed down a six year sentence.

Despite upholding COMPAS’s constitutionality, the Court placed numerous restrictions on its use. COMPAS cannot be used to determine whether an offender should be incarcerated, or to calculate the length of his or her sentence.  Its use had to be accompanied with an independent rationale for the sentence, and any Presentence Investigation Reports containing the score had to contain an elaborate, five-part warning about the algorithm’s limited utility.  The defendant appealed to the Supreme Court, which declined to hear the case.

COMPAS is biased against black defendants.
An algorithm that accurately reflects our world also necessarily reflects our biases.  In other words, an algorithm is only as good as the data upon which it is based:

Simply put, decision-making algorithms work by taking the characteristics of an individual, like the age, income and zip code of a loan applicant, and reporting back a prediction of that person’s outcome—for example, the likelihood they will default on the loan—according to a set of rules. That prediction is then used to make a decision—in this case, to approve or deny the loan.

Algorithms often learn the rules for making predictions by first analyzing what’s known as “training data” to discover useful patterns and relationships between variables. The patterns or algorithmic insights gleaned from the training data become the basis for rules governing future decisions and predictions.

However, if the training data is biased then the algorithm can pick up on that pattern of discrimination and replicate it in future decisions. For example, a bank’s historical lending data may show that it routinely and unfairly gave higher interest rates to residents in a majority Black ZIP code. A banking algorithm trained on that biased data could pick up on that pattern of discrimination and learn to charge residents in that ZIP code more for their loans, even if they don’t know the race of the applicant.  ALGORITHMIC BIAS EXPLAINED: HOW AUTOMATED DECISION-MAKING BECOMES AUTOMATED DISCRIMINATION (The Greenlining Institute FEBRUARY 18, 2021), https://greenlining.org/wp-content/uploads/2021/04/Greenlining-Institute-Algorithmic-Bias-Explained-Report-Feb-2021.pdf

COMPAS has been found to have an algorithmic bias.  Bias is defined as outcomes which are systematically less favorable to individuals within a particular group and where there is no relevant difference between groups that justifies such harms.  Nicol Turner Lee, Paul Resnick, and Genie Barton, Algorithmic bias detection and mitigation: Best practices and policies to reduce consumer harms, (Brookings Institution May 22, 2019) https://www.brookings.edu/research/algorithmic-bias-detection-and-mitigation-best-practices-and-policies-to-reduce-consumer-harms/

COMPAS is skewed towards labeling black defendants as high risk and white defendants as low risk in violation of the equal protection clause.  Julia Angwin et al., Machine Bias: There’s Software Used across the Country to Predict Future Criminals. And It’s Biased against Blacks, PROPUBLICA (May 23, 2016), https://www.propublica.org/article/machine-biasrisk-assessments-in-criminal-sentencing  This is a flaw which cannot go unnoticed by this Court.  See, Farhan Rahman, COMPAS Case Study: Fairness of a Machine Learning Model COMPAS Case Study (Towards Data Science Sept. 7, 2020), https://towardsdatascience.com/compas-case-study-fairness-of-a-machine-learning-model-f0f804108751
 
Specifically, the COMPAS recidivism algorithm was biased in that:

• Black defendants were often predicted to be at a higher risk of recidivism than they actually were. Our analysis found that black defendants who did not recidivate over a two-year period were nearly twice as likely to be misclassified as higher risk compared to their white counterparts (45 percent vs. 23 percent).
• White defendants were often predicted to be less risky than they were. Our analysis found that white defendants who re-offended within the next two years were mistakenly labeled low risk almost twice as often as black re-offenders (48 percent vs. 28 percent).
• The analysis also showed that even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 45 percent more likely to be assigned higher risk scores than white defendants.
• Black defendants were also twice as likely as white defendants to be misclassified as being a higher risk of violent recidivism. And white violent recidivists were 63 percent more likely to have been misclassified as a low risk of violent recidivism, compared with black violent recidivists.
• The violent recidivism analysis also showed that even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 77 percent more likely to be assigned higher risk scores than white defendants.  Jeff Larson, Surya Mattu, Lauren Kirchner and Julia Angwin,  How We Analyzed the COMPAS Recidivism Algorithm (Propublica May 23, 2016), https://www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm

Likewise, there is now a push to have child neglect investigations to be based on algorithms.  These algorithm in its first years of operation showed a pattern of flagging a disproportionate number of Black children for a “mandatory” neglect investigation, when compared with white children. SALLY HO and GARANCE BURKE, An algorithm that screens for child neglect raises concerns (AP News April 29, 2022), https://apnews.com/article/child-welfare-algorithm-investigation-9497ee937e0053ad4144a86c68241ef1. Independent researchers, who received data from the county, also found that social workers disagreed with the risk scores the algorithm produced about one-third of the time.  The algorithm is powered by data mostly collected about poor people an outsized role in deciding families’ fates.  Like COMPAS, the child neglect algorithm reinforces existing racial disparities in the child welfare system.

While men still outnumber women in prison, female numbers are growing.  The Sentencing Project, Fact Sheet: Incarcerated Women and Girls (Nov. 2020), available at https://www.sentencingproject.org/wp-content/uploads/2016/02/Incarcerated-Women-and-Girls.pdf  (“Though many more men are in prison than women, the rate of growth for female imprisonment has been twice as high as that of men since 1980.”); Aleks Kajstura, Women’s Mass Incarceration: The Whole Pie 2019, Prison Policy Initiative (29 Oct. 2019), available at https://www.prisonpolicy.org/reports/pie2019women.html (“Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades[.]”).

This rising female inmate population creates medical issues that do not have to be addressed by the male inmate population.  There is clearer example than the issue of pregnancy.

The Fourteenth Amendment requires prisoners receive proper medical care.  "[A] refusal to furnish medical care when it is clearly necessary could well result in the deprivation of life itself. Since these rights are protected by the Fourteenth Amendment to the Federal Constitution, the complainant sufficiently alleges the deprivation of a right, privilege or immunity secured by the Constitution and laws of the United States" McCollum v. Mayfield, 130 F. Supp. 112, 115 (N.D. Cal. 1955).  Likewise, Wisconsin statutes require jails to provide medical attention for detainees or inmates who need it.  Wis. Stat. § 302.38 (1) (If a prisoner needs medical or hospital care … the sheriff, superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment.) 

Further, the Americans with Disabilities Act (ADA) applies to state prisons.  42 U.S.C. § 12132; see also 28 C.F.R. §§ 35.130(a);35.152(b)(1); Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998); Crawford v. Indiana Dept. of Corrections, 115 F.3d 481 (7th Cir. 1997.)  There is no doubt the ADA applies to jails as well.  Bell v. Wolfish, 441 U.S. 520, 533-39 (1979) (there is little practical difference between pretrial detention and post-conviction incarceration insofar as rights to reasonable treatment are concerned).  See also Title II Regulations, 2010 Guidance and Section-by-Section Analysis.  The ADA’s Title II implementing regulations expressly cover “jails, detention and correctional facilities” run by state and local governments. 28 C.F.R. § 35.152.

The Department of Justice (DOJ) has emphasized the importance of correctional facilities complying with the ADA:

The Department wishes to emphasize that detention and correctional facilities are unique facilities under title II. Inmates cannot leave the facilities and must have their needs met by the corrections system, including needs relating to a disability. If the detention and correctional facilities fail to accommodate prisoners with disabilities, these individuals have little recourse, particularly when the need is great (e.g., an accessible toilet; adequate catheters; or a shower chair). It is essential that corrections systems fulfill their nondiscrimination and program access obligations by adequately addressing the needs of prisoners with disabilities, which include, but are not limited to, proper medication and medical treatment, accessible toilet and shower facilities, devices such as a bed transfer or a shower chair, and assistance with hygiene methods for prisoners with physical disabilities.  Section-by-Section Guidance and Analysis of the ADA Regulations.  Emphasis added.

Importantly, DOJ’s ADA regulatory materials are entitled to deference. Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (“As the agency directed by Congress to issue implementing regulations, . . . to render technical assistance explaining the responsibilities of covered individuals and institutions, . . . and to enforce Title III in court, . . . the Department [of Justice]’s views are entitled to deference”); see also Olmstead v. L.C., 527 U.S. 581, 597-98 (1999).  Further, Congress formally found that "discrimination against individuals with disabilities persists in such critical areas as . . . health services." 42 U.S.C. § 12101(a)(3). 

This federal law prohibits “public entities” from discriminating against “a qualified individual with a disability” on account of that person’s disability. Such persons may not be excluded from or denied the benefits of participation in services, programs or activities of a public entity by reason of their disability.  42 USC. § 12131 et seq.  This includes medical services while incarcerated. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998) (Title II of the Americans with Disabilities Act, which prohibits a “public entity” from discriminating against an individual on account of disability, applies to state prisons); Bragdon v. Abbott, 524 U.S. 624 (1998) (reproduction does qualify as a major life activity under the Americans with Disabilities Act).

Pursuant to the ADA, correctional facilities have an affirmative duty to take appropriate steps regarding inmates with disabilities:

[B]ased on its reading of federal law, this Court holds that prison officials have an affirmative duty to assess the potential accommodation needs of inmates with known disabilities who are taken into custody and to provide the accommodations that are necessary for those inmates to access the prison’s programs and services, without regard to whether or not the disabled individual has made a specific request for accommodation and without relying solely on the assumptions of prison officials regarding that individual’s needs.  Pierce v. District of Columbia, Pierce, 128 F.Supp.3d 250, 272 (D.D.C. 2015)

Critically, the ADA protects against intentional AND unintentional discrimination: As one court recently noted: “[t]he ADA seeks to prevent not only intentional discrimination against people with disabilities but also – indeed primarily – discrimination that results from ‘thoughtlessness and indifference,’ that is, from ‘benign neglect.’” Brooklyn Cntr for Independence of the Disabled v. Bloomberg, 980 F. Supp.2d 588, 640 (S.D.N.Y. 2013) (quoting, H.R.Rep. No. 101–485(II), at 29 (1990)).

So do pregnant inmates have a critical need for medical care?  Courts disagree whether a healthy pregnancy is a “serious medical need.” One court said that pregnancy is not a serious medical need if a doctor has not identified any special need for care and when it would not be obvious to an average person that there is a problem. Coleman v. Rahija, 114 F.3d 778 (8th Cir.1997). In a case about a prisoner’s right to an abortion, however, another court stated that pregnancy is different from other medical issues and is a “serious medical need” even when there are no complications or abnormalities. Monmouth County Correctional Institution Inmates v.Lanzaro, 834 F.2d 326 (3d Cir. 1987)
​
National Standards for Pregnancy-Related Health Care in Correctional Settings
Well-known sets of standards for correctional health care come from the National Commission on Correctional Health Care (NCCHC), the American Congress of Obstetricians and Gynecologists (ACOG), and the American Public Health Association (APHA). The standards specifically address the care and treatment of pregnant inmates. Along with other sources, these standards provide some guidance on minimum policies and practices correctional facilities should implement in order to meet the needs of pregnant inmates. In addition, the American Medical Association (AMA), the Association of Women’s Health, Obstetrics and Neonatal Nurses (AWHONN), and the American Correctional Association (ACA) have released statements with guidance on the use of restraints on pregnant inmates.
 
A. NCCHC
 
The NCCHC publishes Standards for Health Services as a set of best practices for the provision of health services in correctional settings and to govern its accreditation program for prisons and jails. The NCCHC standard titled "P-G-O7: Care of the Pregnant Inmate" directs that "[p]regnant inmates receive timely and appropriate prenatal care, specialized obstetrical services when indicated, and postpartum care." This standard also discusses the need for facilities to be prepared to handle the prevalence of high-risk pregnancies among incarcerated women, and sets forth specific compliance indicators for pregnancy care generally, including:
 

• Prenatal medical examinations
• Prenatal laboratory and diagnostic tests, including HIV testing and prophylaxis when indicated
• Advising inmates on levels of activity and safety precautions during pregnancy
• Prenatal nutritional guidance and counseling
• Maintaining a list of specialized obstetrical services
• Written agreement with a community facility for delivery
• Documented, appropriate postnatal care
• Keeping a list of all pregnancies and their outcomes
• Having a written policy and defined procedures addressing compliance with this standard

The NCCHC standard titled "P-G-09: Pregnancy Counseling," additionally recommends that a pregnant inmate receive counseling and assistance appropriate to her intentions, whether she wants to continue to term and then keep her child, place the baby for adoption, or have an abortion. Finally, in October 2010, the NCCHC published a position statement on the use of restraints, acknowledging the serious health risks involved in using restraints on pregnant inmates, and recommending that their use be avoided, if possible, and used in the least restrictive way if avoidance is not possible.
 
B. ACOG
 
ACOG is professional organization of medical doctors who specialize in Obstetrics and Gynecology, with a membership that includes over 90% of U.S. board-certified obstetrician-gynecologists. In November 2011, ACOG published its Committee on Health Care for Underserved Women Committee Opinion, Health Care for Pregnant and Postpartum Incarcerated Women. The Opinion is targeted to OBGYN providers specifically, and focuses on the special needs of incarcerated women. Unlike the NCCHC, the ACOG standards specifically state “The use of restraints on pregnant incarcerated women and adolescents may not only compromise health care but is demeaning and rarely necessary,” and explain the specific health risks associated with using restraints. The ACOG standards include:

• Assessments for pregnancy risk at intake
• Pregnancy counseling and abortion services
• Perinatal care that meets ACOG’s general standards
• Assessments and treatment for substance abuse
• Testing and treatment for HIV, and care to prevent perinatal HIV  transmission
• Mental Health screenings
• Dietary supplements for pregnant and breastfeeding inmates
• Delivery of services in a licensed hospital
• Provision of postpartum contraceptive methods while incarcerated
• Written policies on compliance, training for providers, and mechanisms       for accountability

 
 
C. APHA
 
The APHA is the oldest national organization of public health professionals, which has long worked to strengthen prisoners' access to adequate and humane medical care. The APHA publishes its own comprehensive Standards for Health Services in Correctional Institutions (2003), available for purchase on their website. The standards for the care of pregnant women overlap in some respects with those set forth by NCCHC and the ACOG, but also address important issues not mentioned in those standards. The APHA standards include:

•  A "sensitive and dignified" reproductive system examination as part of initial health screening
• Prenatal screening tests
• Prenatal health education
• Special housing and diet when necessary
• Identification and proper referral of high-risk pregnancies
• Treatment to prevent perinatal transmission of HIV for HIV-positive women
• Prohibition of shackling during labor and delivery
• Training of health care staff in jails and prisons for labor and delivery in case of emergency
• Standing arrangement for deliveries that allow mother and infant to spend time together after birth
• Ongoing access to newborns after delivery
• Access to family planning services, including abortion counseling and services

Finally, most courts that consider the practice of shackling women during labor has found it unconstitutional.  In 2009, the 8th Circuit Court of Appeals ruled that there is a clearly established right not to be shackled during labor. Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th Cir. 2009) (en banc).  This decision confirmed the consensus expressed in earlier district court opinions. Women Prisoners of D.C. Dep’t of Corr. v. Dist. of Columbia, 877 F. Supp. 634 (D.D.C. 1994), modified in part on other grounds, 899 F. Supp. 659 (D.D.C.1995); Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D. Wash. 2010) In 2011, the Middle District of Tennessee relied on Nelson to hold that women should not be shackled during labor or post-partum recovery and that correctional facilities must provide women with medically necessary devices, such as breast pumps, when prescribed by their doctors.  Villegas v. Metro. Gov’t of Davidson Cnty., 789 F. Supp. 2d 895 (M.D. Tenn.2011).  Contra, Shade Swayzer vs. David Clarke Jr. et al Milwaukee County Case Number 2016CV008964 (denied).  See also, Peter Eisler, Linda So, Jason Szep, Grant Smith, Special Report-As more women fill America’s jails, medical tragedies mount (Reuters 2020), https://www.reuters.com/article/us-usa-jails-women-specialreport/special-report-as-more-women-fill-americas-jails-medical-tragedies-mount-idUSKBN28Q1PE;Terry v. County of Milwaukee, Case No. 17-CV-1112-JPS (2019)
 
A collection of stories on pregnant prisoners may be found at The Marshall Plan “Pregnant Prisoners” https://www.themarshallproject.org/records/319-pregnant-prisoners

Through this method of questioning, answering... questioning, answering... we seek to develop in you the ability to analyze... that vast complex of facts that constitute... the relationships of members within a given society.  You come in here with a skull full of mush... and you leave thinking like a lawyer.  Prof. Kingsfield, The Paper Chase (1973)

Law students are taught the meaning of law in law school by analyzing words in court opinions.  As law school students read the words of court opinions, they are asked verbal questions when called upon in class to learn the meaning of a court opinion.  By the give and take of questioning, law students are taught early on that words are power. 

The words of a court opinion express the thinking of a court.  The words of a opinion define the parameters of what the court is deciding.  Supreme Court Justice Amy Coney Barrett has said Americans should She urged Americans to “read the opinion” of the court and consider the court’s reasoning before making judgments about the outcome.  That way Justice Barrett said, people will know the court is not imposing a “policy result” in deciding a case.  With divisive Supreme Court rulings coming, Barrett says: ‘Read the opinion’  (Associated Press 4.5.22), https://www.politico.com/news/2022/04/05/amy-coney-barrett-speech-justice-00022964  The flip side of that is that if the court were to render an opinion with no words, there would be no thinking by the court.  Americans could not read the opinion of the court.

Recently, the Supreme Court issued a 5–4 decision reviving a Trump-era ruling that radically limited the ability of states and tribes to restrict projects, like pipelines, that will damage the environment. With their decision, the majority upended decades of settled law recognizing states’ authority to protect their own waters without bothering to issue a single sentence of reasoning.

The catch?  The Court issued no opinion in making this decision.  Supreme Court Allows Clean Water Act Rule to Stay in Effect (Council of State Governments, April 7, 2022), https://www.csg.org/2022/04/07/supreme-court-allows-clean-water-act-rule-to-stay-in-effect/

This opinionless five-justice majority left Justice Elena Kagan to issue a bewildered dissent, joined by the chief justice along with Justices Stephen Breyer and Sonia Sotomayor.  https://www.supremecourt.gov/opinions/21pdf/21a539_6jgm.pdf

Justice Kagan pointed out that, by law, the Supreme Court can issue this kind of stay “ in extraordinary circumstances,” when there is “an exceptional need for immediate relief,” including evidence of “irreparable harm.” Here, the Trump rule’s defenders insisted that states were obstructing vital energy projects. But, Justice Kagan wrote, they “have not identified a single project that a state has obstructed” under the district court’s decision or “cited a single project that the court’s ruling threatens.” Put simply, they failed to explain how returning to the pre-Trump regime—“which existed for 50 years”—would hurt them at all.

Then JusticeKagan spelled out what the majority is really doing here: making policy to restore the Trump administration’s stranglehold on the Clean Water Act. “That renders the Court’s emergency docket not for emergencies at all,” she concluded. “The docket becomes only another place for merits determinations—except made without full briefing and argument.”
​
Someone needs to tell Justice Amy Coney Barrett how the court is not thinking when it issues opinions without words.

Dear Senator Cruz and company,
​
Your refusal to acknowledge that race CONFLICT is an important part of US Supreme Court jurisprudence proves the depth of your ignorance and bias.  You would benefit from reading Justice Deferred: Race and the Supreme Court by Orville Vernon Burton which is the first comprehensive accounting of the U.S. Supreme Court’s race-related jurisprudence; a legacy too often blighted by racial injustice.  A short list of US Supreme Court cases dealing with race and ethnicity are as follows:

Dred Scott v. Sandford, 60 U.S. 393 (1857) People of African descent that are slaves or were slaves and subsequently freed, along with their descendants, cannot be United States citizens. Consequently, they cannot sue in federal court. Slavery cannot be prohibited in U.S. territories before they are admitted to the Union as doing so would violate the Due Process Clause of the Fifth Amendment. After the Civil War, this decision was voided by the Thirteenth and Fourteenth Amendments to the Constitution.
Strauder v. West Virginia, 100 U.S. 303 (1880) The exclusion of individuals from juries solely because of their race is a violation of the Equal Protection Clause. This was the first time that the Supreme Court reversed a state criminal conviction due to a violation of a constitutional provision concerning criminal procedure.
Yick Wo v. Hopkins, 118 U.S. 356 (1886) Racially discriminatory application of a racially neutral statute violates the Equal Protection Clause of the Fourteenth Amendment.
Plessy v. Ferguson, 163 U.S. 537 (1896) Segregated facilities for blacks and whites are constitutional under the doctrine of separate but equal. As long as the separate facilities are equal in quality, then such separation is not unconstitutional. (de facto overruled by Brown v. Board of Education (1954))
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) States with racially segregated educational systems cannot satisfy the "separate but equal" provision of Plessy merely by offering to pay for black students to be educated at an out-of-state institution; they must offer those opportunities in-state.
Smith v. Allwright, 321 U.S. 649 (1944) Primary elections must be open to voters of all races.
Steele v. Louisville & Nashville Railway Co., 323 U.S. 192 (1944) Imposed duty of fair representation on labor unions, requiring that they represent all members of their bargaining unit equally, without regard to race or union membership (later understood to include other protected categories).
Korematsu v. United States, 323 U.S. 214 (1944) President Franklin D. Roosevelt's Executive Order 9066 is constitutional; therefore, American citizens of Japanese descent can be interned and deprived of their basic constitutional rights. This case featured the first application of strict scrutiny to racial discrimination by the government. (Potentially overruled by Trump v. Hawaii (2018))
Morgan v. Virginia, 328 U.S. 373 (1946) A Virginia law that enforces segregation on interstate buses is unconstitutional.
Shelley v. Kraemer, 334 U.S. 1 (1948) Courts may not enforce racial covenants on real estate.
Henderson v. United States, 339 U.S. 816 (1950) The Interstate Commerce Act of 1887 makes it unlawful for a railroad that engages in interstate commerce to subject any particular person to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
Hernandez v. Texas, 347 U.S. 475 (1954) The equal protection of the laws guaranteed by the Fourteenth Amendment covers any racial, national, and ethnic groups of the United States against whom discrimination can be proved.
Brown v. Board of Education, 347 U.S. 483 (1954) Segregated schools in the states are unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment. The Court found that the separate but equal doctrine adopted in Plessy "has no place in the field of public education".
Bolling v. Sharpe, 347 U.S. 497 (1954) Segregated schools in the District of Columbia violate the Equal Protection Clause as incorporated against the federal government by the Due Process Clause of the Fifth Amendment.
Sarah Keys v. Carolina Coach Company, 64 MCC 769 (1955) According to the Interstate Commerce Commission, the non-discrimination language of the Interstate Commerce Act of 1887 bans racial segregation on buses traveling across state lines. The Supreme Court later adopted and expanded this decision in Boynton v. Virginia (1960).
Browder v. Gayle, 142 F.Supp. 707 (M.D. Ala. 1956) Bus segregation is unconstitutional under the Equal Protection Clause.
Gomillion v. Lightfoot, 364 U.S. 339 (1960) Electoral district boundaries drawn only to disenfranchise blacks violate the Fifteenth Amendment.
Boynton v. Virginia, 364 U.S. 454 (1960) Racial segregation in all forms of public transportation is illegal under the Interstate Commerce Act of 1887.
Garner v. Louisiana, 368 U.S. 157 (1961) Peaceful sit-in demonstrators protesting segregationist policies cannot be arrested under a state's "disturbing the peace" laws.
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) The Commerce Clause gives Congress power to force private businesses to abide by Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations.
Loving v. Virginia, 388 U.S. 1 (1967) Laws that prohibit interracial marriage (anti-miscegenation laws) are unconstitutional.
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) The busing of students to promote racial integration in public schools is constitutional.
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) This decision brought an end to the trusty system and flagrant inmate abuse at the Mississippi State Penitentiary in Parchman, Mississippi. It was the first body of law developed in the Fifth Circuit that abolished racial segregation in prisons and held that a variety of forms of corporal punishment against prisoners is considered cruel and unusual punishment in violation of the Eighth Amendment.
Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Racial quotas in educational institutions violate the Equal Protection Clause, but a more narrowly tailored use of race in admission decisions may be permissible.
Batson v. Kentucky, 476 U.S. 79 (1986) Prosecutors may not use peremptory challenges to dismiss jurors based on their race.
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) Race-based discrimination, including discrimination in favor of minorities (affirmative action), must pass strict scrutiny.
Grutter v. Bollinger, 539 U.S. 306 (2003) A narrowly tailored use of race in student admission decisions may be permissible under the Equal Protection Clause because a diverse student body is beneficial to all students. This was hinted at in Regents v. Bakke (1978).
Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014) A Michigan state constitutional amendment that bans affirmative action does not violate the Equal Protection Clause.
Please in the future senator educate yourself before opening your mouth.

Francis Scott Key is the author of the famous words “the land of the free and the home of the brave.” He wrote those words in 1814 and, ever since 1931, they have been sung as the national anthem of the United States.

​Unfortunately, “the land of the free and the home of the brave” likes to keep people presumed innocent in jail before being found guilty of any crime.  Sadly, it is true that most people in jail are legally innocent.  There are 445,000 people in jail, or 80% of the people, who have not been convicted of any crime.

SOURCE: https://www.prisonpolicy.org/reports/pie2022.html#myths
​
In fact, the reason why taxpayers have had to pay for the building of more jails is that over the last 25 years, more innocent people have been held in jail.

​The real crime is that the thickness of someone’s wallet can buy justice in America: people remain on jail awaiting trial because they are not wealthy enough to get out of jail on bail.

​The right to effective assistance of counsel is protected by the sixth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment, and by art. 1, sec. 7, of the Wisconsin Constitution. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); State v. Franklin, 111 Wis.2d 681, 686, 331 N.W.2d 633, 636 (Ct.App. 1983). Counsel for a criminal defendant is per se ineffective if counsel faced a conflict of interest and continues to represent a defendant. Franklin, 111 Wis.2d at 686-87, 331 N.W.2d at 636-37. 
 
There simply is “an intolerable risk that the attorney might sacrifice the goals of his client to serve selfish ends or the interests of another." State v. Franklin, 111 Wis.2d 681, 687, 331 N.W.2d 633, 637 (Ct. App. 1983) (footnote omitted).  An actual conflict or serious potential for conflict of interest imperils the accused's right to adequate representation and jeopardizes the integrity of the adversarial trial process and the prospect of a fair trial with a just, reliable result.  State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991).
 
Given that basic law it was amazing to read the dissent in a criminal case by U.S. Supreme Court Justice Sonia Sotomayor.  Holcombe v. Florida, 595 U. S. ____ (2022), https://www.courthousenews.com/wp-content/uploads/2022/02/holcombe-fla.pdf.  Justice Sotomayor was the only justice on Feb. 28, 2022 to publicly reject the court’s decision not to accept for review a Florida case in which one attorney represented all four co-defendants in a racketeering case.  The trial court refused defense counsel’s offer to withdraw from representing the cooperating codefendants and neglected to conduct a detailed inquiry into the nature and extent of the conflict. The case went to trial, and defendant Holcombe’s attorney cross-examined his two cooperating clients, whose sentences depended on the quality of the testimony they provided against Holcombe.  Holcombe was convicted. 
 
The Florida Court of Appeal affirmed the conviction. It concluded that an attorney’s simultaneous representation of both a criminal defendant and two prosecution witnesses, and his cross-examination of those witnesses, does not, without more, create an actual conflict for the purpose of the Sixth Amendment.  The Florida Fifth District Court of Appeal affirmed Holcombes' convictions and sentences in September 2020 and James' motion for rehearing was denied the following month. The Florida Supreme Court declined to hear the case in February 2021.
 
Justice Sotomayor concluded the Florida courts “failed to protect that core constitutional guarantee” of effective assistance of counsel.  She gave a practical explanation of the nature of the conflict: “The codefendants’ pleas put defense counsel in an impossible dilemma:  If the attorney successfully undermined the codefendants’ testimony, he would aid Holcombe’s defense, but potentially jeopardize the codefendants’ ability to obtain lenient sentences. Holding back against the codefendants, on the other hand, would improve their chances at sentencing,  but  allow the State’s key witnesses to provide damning evidence against Holcombe.”
 
Justice Sotomayor wrote it is the court’s responsibility “to assure that criminal defendants are not deprived of their right to the effective assistance of counsel by joint representation of conflicting interests.” Under these circumstances the attorney’s representation, Justice Sotomayor concluded, constituted an “unwaivable” conflict of interest, especially when two of the defendants subsequently accepted plea deals and provided testimony on behalf of prosecutors that incriminated their fellow defendants.

George Washington possessed enormous power and popularity as the head of the American army during the Revolutionary War. However, he understood that the rule of law needed to be respected and demonstrated immense responsibility while president.  “Passion influences those who are in power…Law is reason without desire.”

This principle is known as the rule of law, and America’s Founders knew it was essential to our republic.
John Adams, quoting James Harrington, believed in “a government of laws, not of men.” “Empire of laws, not of men,” Harrington wrote, is “according to ancient prudence.” In contrast, “modern prudence” counsels that “some man, or some few men, subject a city or a nation, and rule it according to his or their private interest: which, because the laws in such cases are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws.” The empire of laws is concerned with right; the empire of men, with power.

The Supreme Court has made this a national principle when it declared, “No man in this country is so high that he is above the law. . . . [The law] is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy.” United States v. Lee, 106 U.S. 196, 220 (1882); accord Butz v. Economou, 438 U.S. 478, 506 (1978).

The rule of law even applies to presidents. 

A president enjoys absolute immunity “from damages liability for acts within the ‘outer perimeter’ of his official responsibility,” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982), the Court has made clear that absolute immunity does not extend to any “unofficial conduct” that falls beyond that outer perimeter, Clinton v. Jones, 520 U.S. 681, 693 (1997); see also id. at 694 (explaining that the Court’s reasoning in Fitzgerald “provides no support for an immunity for unofficial conduct”). In allegedly inciting a riot at the U.S. Capitol to forcibly interfere with Congress’s certification of the 2020 presidential election results, former President Trump acted well beyond the scope of his official responsibilities as president. In fact, the Constitution and federal law expressly require Congress to certify the Electoral College’s votes, see U.S. Const. art. II, § 1, cl. 3, and this constitutionally mandated process was ongoing when Trump allegedly prompted his supporters to “engage in tumultuous and violent conduct,” to interfere with it.

Consistent with this maxim, the Supreme Court has acknowledged that a president is absolutely immune from private suits for damages challenging his “official acts,” Fitzgerald, 457 U.S. at 754 (emphasis added)—or “acts within the ‘outer perimeter’ of his official responsibility,” id. at 756—but it has “never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity,” Jones, 520 U.S. at 694. In fact, the Court has flatly rejected claims for absolute presidential immunity for conduct beyond the “outer perimeter” of the president’s official responsibility, holding that a president remains “subject to the laws for his purely private acts.” Id. at 696.

In Thompson v. Trump, the U.S. District Court for the District of Columbia considered whether former President Donald Trump is entitled to absolute presidential immunity from damages liability for allegedly inciting a riot at the U.S. Capitol.  On February 18, 2022, the District Court for the District of Columbia issued its decision.  Judge Amit Mehta rejected former President Donald Trump’s bid to dismiss three consolidated lawsuits brought by 11 congressional representatives and two Capitol police officers to hold Trump to account for his role in the Jan. 6, 2021, insurrection.
 
Trump’s nonimmunity, the district court reasoned, were actions leading up to and on Jan. 6 did not relate to his official duties but rather to “his efforts to remain in office.”  Thus, “[o]rganizing the January 6 Rally,” the opinion states, “involved no presidential function.”  Moreover, the court found that one could plausibly read his words on Jan. 6 as “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” The quotation states the Supreme Court’s test in Brandenburg v. Ohio, for words unprotected by the First Amendment.  Even more far reaching was the court’s determination that Trump’s role in an alleged conspiracy intended to interfere with congressional duty was so unprecedented that ordinarily close legal questions bend in favor of an answer that allows a suit against him to proceed.
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Washington and Adams are resting peacefully since the rule of law, not the rule of passion, has been upheld.

Do you want someone who is allowed to wear a gun in public, use force to stop someone and shoot the person, perhaps killing them, for failing to comply with any order to stop to have a questionable background?
Little known by the public they are supposed to protect, there is a group of police officers who have been fired by one police agency, sometimes for serious misconduct, who then find work at another agency.  Surprisingly, it is a common practice.

A study of Florida police officers study found that from 1988 to 2016, an average of roughly 1,100 full-time law-enforcement officers who had previously been fired, and just under 800 officers who had been fired for misconduct, were employed by new agencies in any given year.  The Wandering Police Officer, 129 Yale Law Journal, 1676, 1716 (2020).  “Although we cannot determine the precise reasons for the firings, these results suggest that wandering officers may pose serious risks, particularly given how difficult it is to fire a police officer,” the study concluded.

In Wisconsin, nearly 200 law enforcement officers currently employed in the state were fired or forced out from previous jobs in law enforcement, resigned in lieu of termination or quit before completion of an internal investigation, according to data from the Wisconsin Department of Justice obtained through an open records request.  Nearly 200 Wisconsin officers back on the job after being fired or forced out (The Badger Project Aug. 21, 2021), https://thebadgerproject.org/2021/08/21/nearly-200-wisconsin-officers-back-on-the-job-after-being-fired-or-forced-out/  One officer was accused by a supervisor of snoozing in his squad car while on duty. Another had multiple drunken run-ins with police, including after bar fights. A third repeatedly sent lewd photos to a female officer.  All of them were fired or forced out.

And all of them are back working in law enforcement in Wisconsin.

Patrick Solar, an associate professor of criminal justice at the University of Wisconsin-Platteville and a former police chief, takes a hardline stance on the idea of hiring an officer who had been fired for cause.  “I do not feel an officer who has violated their oath should get a second chance,” he wrote in an email. “I don’t care how shorthanded an agency is or any other potential justification. Law enforcement is not a job just anyone can do.”  At least 12 current officers in western Wisconsin were fired or forced out from previous jobs in law enforcement (La Crosse Tribune (Feb. 21, 2022), https://lacrossetribune.com/news/local/at-least-12-current-officers-in-western-wisconsin-were-fired-or-forced-out-from-previous/article_5701ee1a-f1e5-586d-9ac1-ed9e60caa1d8.html
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The Wisconsin legislature sees the wandering police officer as a problem.  That is why the legislature now requires law enforcement agencies to maintain a work history file for each employee and creates a procedure for law enforcement agencies, jails, and juvenile detention facilities to receive and review an officer candidate’s file from previous employers.  2021 WISCONSIN ACT 82, https://docs.legis.wisconsin.gov/2021/related/acts/82, Employment Records for Law Enforcement Officers 2021 Wisconsin Act 82, 2021 Assembly Bill 190, https://docs.legis.wisconsin.gov/2021/related/lcactmemo/act082.pdf  It “provides a much-needed mechanism to keep bad actors in policing from moving to new agencies after being terminated for unlawful or unethical behavior,” said Meghan Stroshine, an associate professor of criminology and law studies at Marquette University who studies law enforcement.  Legislature quietly and unanimously enact legislation intended to improve policing hiring transparency, reduce bad apples. Legislature quietly and unanimously enact legislation intended to improve policing hiring transparency, reduce bad apples, Badger Project Feb. 16, 2022, https://thebadgerproject.org/2022/02/16/legislature-quietly-and-unanimously-enact-legislation-intended-to-improve-policing-hiring-transparency-reduce-bad-apples/

Breonna Taylor, a 26-year-old Black medical worker in Louisville, Kentucky, was shot to death by police shortly after midnight on March 13, 2020, in the apartment she shared with her boyfriend, Kenneth Walker. The police had a no-knock warrant and entered with a battering ram to search for evidence of drug dealing; none was found.  Or what of the shooting death of Amir Locke by a Minneapolis SWAT officer serving a no-knock warrant?

Where was Ms. Taylor’s or Mr. Locke’sconstitutional protection? 

The Fourth Amendment was adopted by Congress in 1789 and ratified by the states in 1791 as one of the provisions of the Bill of Rights. It reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In just 54 words, the Fourth Amendment packs a lot of significance.

The language of the Fourth Amendment, due to an oversight when it was redrafted, has been a source of confusion.  Abrams, Constitutional Limitations on Detention for Investigation, 52 Iowa L. Rev. 1093, 1101 (1967); Comment, 28 U. Chi. L. Rev.664,678-92 (1961).  The amendment has been said to have “both the virtue of brevity and vice of ambiguity.”  Landynski, J., Search and Seizure and the Supreme Court:  A Study in Constitutional Interpretation, (1966) p.42.  It has been described as “Delphic.”  Uviller, Reasonability and the Fourth Amendment: A (Belated) Farewell to Justice Potter Stewart , 25 Crim. L. Bull., January-February 1989 p.29.  There has been a widespread consensus during the twentieth century about the basic meaning to be attributed to each of the two clauses of the text. The first clause has been understood to state a comprehensive principle - that the government shall not violate the "right to be secure "by conducting "unreasonable searches and seizutes."  1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT 5-7 (3d ed. 1996); Denying a Rightby Disregarding Doctrine: How Illinois v. Rodriquez Contorts Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 TENN. L.REV. 1, 45-59 (1991).

Unlike its language, the historical origins of the Fourth Amendment are clear.  They are traceable to the political events in England and the Colonies which ignited the American Revolution.  Landynski, at 19.  These events involved the unrestrained and indiscriminate searches and seizures pursuant to general warrants and Writs of Assistance.  Landynski, at 20.  the basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government.  Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)).  See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973).  It was the Fourth Amendment which was meant to allow, to paraphrase William Pitt, the poorest man to defy all the power of the State.  Lasson, at 49.
 
The Fourth Amendment requirement that no warrants shall issue except those “particularly describing the ... things to be seized” protects individuals against general searches and prevents the government from seizing one thing under a warrant while describing another.  Marron v. United States, 275 U.S. 192 ( 1927).  Marron further explains that nothing should be left to the discretion of a police officer when it comes to the execution of a warrant and the seizure of any property pursuant to that warrant.  Thus, the particularity requirement  prevents the issuance of warrants on loose, vague, or doubtful bases of fact.  Go- Bart Importing Co. v. United States, 282 U.S. 344 (1931).

In total violation of this history of the Fourth Amendment, courts have begun to discount the importance of a warrant in protection of American citizens rights.  Forgetting the importance of the warrant requirement to the Fourth Amendment, courts have created a general reasonableness construction to the Fourth , in which the value of the warrant is discounted and the constitutionality of a search or seizure is determined simply by making a relativistic assessment of the appropriateness of police conduct in light of the totality of the circumstances.  Carroll v. United States, 267 U.S. 132 (1925) (employing "reasonableness" only to excuse the lack of a search warrant when there was probable cause to believe an automobile contained contraband BUT did not employ "reasonableness" as a substitute for the probable cause standard itself)  See, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 667-68 (1995) (O'Connor, J., dissenting).  See also, Wilson v. Arkansas, 514 U.S. 927 (1995) (replacing the common-law knock-and-announce rule for executing warrants with a "reasonableness" standard); Cady v. Dombrowski, 413 U.S. 433, 448 (1973), United States v. Robinson, 414 U.S. 218 (1973).  In this way courts euthanize the Fourth Amendment and resuscitate it by only forbidding those police intrusions that were "unreasonable," he opened the way for replacing specific standards of police conduct with the open-ended notion of "reasonableness" itself.

With this history of the Fourth Amendment in mind, the police practice of “no knock” warrants requires some evaluation.

What is a “no knock” warrant?  The Framers of the Fourth Amendment incorporated the common law requirement of police officers to enter certain premises without first knocking and announcing their presence or purpose prior to entering the premises.  Wilson v. Arkansas, 514 U.S. 927, 934 (1995).  A no knock warrant allows the police enter certain premises without first knocking and announcing their presence if they have a reasonable suspicion that doing so is dangerous or futile.  Richards v. Wisconsin, 520 U.S. 385, 394-95 (1997).  No Knock warrants exist despite the police only having to wait 15-20 seconds after knocking.  U.S. v. Banks, 540 U.S. 31 (2003).  Even when a court finds that the police have violated the knock-and-announce rule, the Supreme Court has held that the prosecution can still use the evidence seized as a result of a subsequent search at trial, significantly diluting the knock-and-announce requirement’s value as a deterrent to police overreach.   Hudson v. Michigan, 547 U.S. 586, 591, 599 (2006).

The reality is that “no-knock” raids are a common tactic with little judicial scrutiny.  There are a staggering 20,000 or more estimated no-knock raids every year across America.  By the numbers, it's clear that no-knock SWAT raids are far more dangerous to civilians than they are to police.”  Cops do 20,000 no-knock raids a year. Civilians often pay the price when they go wrong. https://www.vox.com/2014/10/29/7083371/swat-no-knock-raids-police-killed-civilians-dangerous-work-drugs  77% of all searches by Milwaukee Police Department in 2019 were done with no knock warrants.  Most Home Drug Searches By Police Use No-Knock Warrants, https://urbanmilwaukee.com/2022/02/03/court-watch-most-home-drug-searches-by-police-use-no-knock-warrants/ Milwaukee County court commissioners and judges almost always granted those requests (92% approval rate).  Id.  No knock warrants are disproportionately carried out against people of color.  War Comes Home: The Excessive Militarization of American Policing, https://www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf; Most Home Drug Searches By Police Use No-Knock Warrants, id.

The citizen deaths caused by the execution of no knock warrants has led to calls for banning the use of no knock warrants.

Kevin Davis, chief of the Fairfax County Police Department in Virginia, said it's important to distinguish between forced entry during emergencies and warrants served during criminal investigations. He said that for the "furtherance of a criminal investigation -- the recovery of evidence, recovery of property," it's better to avoid no-knock warrants altogether. "I think there's large scale agreement in policing that has resulted in better ways to execute search warrants," Davis said.”  There's a growing consensus in law enforcement over no-knock warrants: The risks outweigh the rewards, https://www.cnn.com/2022/02/12/us/no-knock-warrants-policy-bans-states/index.html

At least four states -- Florida, Oregon, Connecticut and Virginia -- have banned the no-knock warrants, while other states have enacted laws that stop just short of doing so by only allowing them in certain circumstances. A host of others have enacted other changes, like requiring departments to keep data or officers serving warrants to use body-worn cameras.
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Likewise, the Task Force on Policing has, after reviewing situations involving no knock warrants, stated that “[j]urisdictions should prohibit or severely restrict the use of no-knock warrants and unannounced police raids. Even when well-planned and orchestrated through the collection and assessment of detailed intelligence, they can be dangerous to occupants and officers. Quick-knock warrants pose many of same risks as no-knock warrants, particularly when conducted in the middle of the night, and therefore should also be prohibited.”  No-Knock Warrants and Police Raids JANUARY 2021, https://assets.foleon.com/eu-west-2/uploads-7e3kk3/41697/pdf_-_no_knock_warrants.afc61934d317.pdf