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July 14, 2010

Wisconsin Supreme Court upholds sentence despite judge's reference to defendant's "baby mama"

As noted in this post from January 2009, an intermediate Wisconsin court had ordered a new sentencing hearing for a drug defendant because the sentencing judge referred to the man's "baby mama" and asked him where "you guys" find women to support them while they stay home. Now, as reported in this AP story, the Wisconsin Supreme Court has reversed this reversal.  Here is how the main opinion in Wisconsin v. Harris, 2010 WI 79 (July 14, 2010) (available here), gets started:

Following his conviction and sentencing for drug-related crimes, Landray M. Harris moved for relief from his sentence on the grounds that the court made inappropriate comments reflecting racial and gender stereotypes during the sentencing hearing.  The circuit court denied the motion, and in an unpublished opinion, the court of appeals reversed and held that the defendant was entitled to resentencing.

This case concerns the proper legal principles that govern review of a sentence when a defendant claims the circuit court imposed its sentence on the basis of race or gender.  The court of appeals adopted, and Harris endorses, a new "reasonable observer" test which queries whether the circuit court's comments suggest to a reasonable observer that the court improperly relied on race or gender when imposing its sentence. The State maintains that a reasonable observer's perception of the court's comments is not indicative of whether the court improperly relied on race or gender.

We agree with the State and reject the reasonable observer test created by the court of appeals. Sentencing decisions are afforded a presumption of reasonability consistent with Wisconsin's strong public policy against interference with a circuit court's discretion.  Our review of sentencing decisions is therefore limited to determining whether the circuit court erroneously exercised its discretion. Discretion is erroneously exercised when a sentencing court actually relies on clearly irrelevant or improper factors, and the defendant bears the burden of proving such reliance by clear and convincing evidence. It is beyond dispute that race and gender are improper factors; they may not be relied upon — at all — in the imposition of a sentence.

After reviewing the sentencing transcript in context and as a whole, we conclude that Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on race or gender.  The circuit court considered the proper factors — it evaluated the gravity of the offense, Harris's character, and the public's need for protection.  The circuit court thoroughly explained its reasons for the sentence it imposed, and all of the potentially offensive comments flagged by both Harris and the court of appeals bear a reasonable nexus to proper sentencing factors.  Because Harris has not shown that the circuit court erroneously exercised its discretion, we reverse the decision of the court of appeals.

In not-quite-releated news via the always hard-hitting US Magazine, Levi Johnson is now engaged again to his baby's mama (or perhaps Briston Palin should be called a baby mama grizzly, or the baby mama baby of a mama grizzly).

July 14, 2010 at 03:00 PM | Permalink


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What does the evidence in the case say? Has something been unfairly suppressed? What does the past behavior of the judge indicate? Has he shown biased racist decisions? Was this the first time the defendants have been arrested? Too many unanswered questioned that should be looked at before declaring someone racist and unfair.

Posted by: Paul Wall | Jul 15, 2010 2:23:28 AM

To say that there wasn't a racial tinge to the words of the judges is ludicrous. The fact that he used the term "you guys" is indictment enough! I am saying the court should have remanded the case due to that RACIST statement, but the court should have at least admonished the judge for such language.

Posted by: anon | Jul 15, 2010 10:10:49 AM

Add to the list of things that might cause citizens to lose respect for the courts the following:

--the "amorphous task" (Justice Gableman's characterization) defendants face of producing "clear and convincing evidence" of racial bias as a factor in their sentence. If a judge's words spoken in open court don't count, what, one can only wonder, would a defendant have to come up with to meet such an elusive standard -- the judges' membership card in a white-supremacist group or his un-hooded face in a group picture at a Klan rally?

--a rich white judge ridiculing an uneducated young black guy for failing to find a lucrative job with benefits in the worst economy since the Great Depression. In fact, don't "those people" sell drugs at least in part because there are no jobs of the sort the trial judge apparently believes are so plentiful?

--the fact Justice Gableman himself was the subject of an investigation alleging racial bias in his 2008 campaign... an allegation that was dropped only after the ethics panel investigating the matter deadlocked 3-3. Was he the best choice to write the opinion in Harris' appeal?

Beyond that, I've never really understood the compulsion some judges feel to taunt and ridicule defendants (or their "baby mamas") in the process of sending them off to prison.

Beyond that, and I hope Bill Otis sees this, the sentence the trial judge imposed seemed relatively lenient, given it was crack Harris was selling. And the judge did make Harris eligible for a boot-camp early release, possibly as an indication the judge was interested in helping Harris turn things around as well as in punishing him.

Posted by: John K | Jul 15, 2010 10:39:10 AM

There was definitely a racial tinge to the words of the judge. I agree, the term "you guys" is derogatory and does taunt the defendant.

Posted by: MyFloridaDefenseLawyer | Jul 15, 2010 11:36:24 AM

Couldn't the term "you guys" simply mean people who have been found guilty of committing crimes and not all black men (or presumably uneducated black men)?

As someone who representing low income clients I can tell you from experience that using the term "baby mama" does not carry a racial connotation. It is simply a term in common usage (especially among younger people) for an increasingly frequent social phenomenon. Would it have been better for the judge to say the "poor unwed woman who bore your bastard child"?

I agree that you need to look to the record of the case and the record of the judge, as a whole to determine if this is something to get worked up about.

Posted by: Anonymous | Jul 15, 2010 3:15:08 PM

The judge's USUAL behavior in drug court and in other courts was one of compassion and understanding. He was often interested in defendants, grateful for family members that were supportive,and sympathetic to impoverished conditions that led to drug dealing, as well as hardship issues. He often asked questions about what was holding defendants back from realizing success. Most defense attorneys and defendants liked him.

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