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Mastantuono & Coffee SC
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Thoughts From DNC Philadelphia: Criminal Justice Reform & the Presidential Election

Craig Mastantuono published an op-ed piece in Urban Milwaukee this week, which also appears below.

I’m a Milwaukee criminal defense lawyer and, this week, a delegate to the Democratic National Convention (DNC) in Philadelphia. The day before I left for the convention, I was in court defending a non-violent drug offender in Waukesha County who a prosecutor was trying to send to prison. Given what I do, I’m obviously interested in the debate around criminal justice reform at this convention and in this presidential election, so I’ve come here seeking to learn anything I can.

“I will be the Law & Order president” said Donald Trump at his Republican National Convention (RNC) speech.

What does that mean? What does a law and order President do to get more lawful and more orderly in a country that is already really good at incarcerating people? The U.S. has 5 percent of the world’s population, but 25 percent of its prisoners; our prisons alone cost over $800 billion a year. In politics, if you don’t tout law and order does it mean you’re the candidate who wants lawlessness and disorder? On the other side, Hillary Clinton wants to reform criminal justice and end mass incarceration. What does that mean? Do we let people out of prison? Send less people to prison? If so, who gets out, or who doesn’t go? How do we actually end mass incarceration?

These are just some of the questions I have as I move about as a delegate this week. As a defense attorney, I’m happy that reform in criminal justice is being debated; I’ve been practicing since the early 1990’s, when getting tough on crime was generally seen as the only politically smart move. But now that the pendulum seems to be shifting the other way, as a daily practitioner in criminal courts I’m eager to scratch the surface behind the terminology being thrown around in the debate.

On Tuesday, I attended an art exhibit and panel discussion led by CNN contributor Van Jones, formerly of the Obama White House. Jones led Sen. Cory Booker, Rep. Keith Ellison and others through a discussion of criminal justice reform. My takeaway? The art dug just as deep as the speakers in trying to get beneath the rhetoric to actual solutions. The reality is that local criminal justice jurisdictions – not the federal system – still control the bulk of police citizen encounters, and who goes to jail or prison.

If you look comparatively at the DNC/RNC party platforms, they certainly are different: one looks backward, and one looks forward. Examples: the RNC platform supports the death penalty, criticizes the Justice Department for its hand-off approach to states that have legalized marijuana, and supports certain mandatory minimum sentences. The DNC platform opposes the death penalty, supports removing marijuana from the list of schedule-one controlled substances, and generally opposes mandatory minimum sentences in favor of prevention and rehabilitation over incarceration. When combined with Trump’s invocation of a law and order presidency, my take on the GOP approach is that it’s just another page out of the old political playbook on crime: “be afraid, very afraid.” On the Dem side, the platform and Clinton’s public statements on criminal justice reform and ending mass incarceration are more progressive on these issues than any previous platform or candidate I can recall. Clinton is hoping the more current “let’s get smart on crime” approach wins with voters.

Locally, what happens in criminal justice affects us all as taxpayers. We are spending huge amounts of money in Wisconsin incarcerating people. Overuse of felony convictions and incarceration are taking up untold human resources, producing people who want to work but can’t find jobs, and splitting up families. The Wisconsin Department of Corrections budget is out of control, largely driven by 1990’s era truth-in-sentencing legislation pushed by then-State Rep. Scott Walker (among many others), and by an unwillingness to address any criminal justice reforms in Madison. The pipeline to jail and prison is also fed by the thousands of decisions prosecutors and judges make each day in criminal cases. Who gets arrested, who gets charged, who gets a plea deal or a felony conviction, and who goes to jail or goes home are all driven to a high degree by law enforcement and prosecutors, with a subjective element, meaning people decide these things, and they bring all of their human emotions and biases with them in the process.

So the rubber really meats the road locally, and at the micro level in each case. In Milwaukee County, District Attorney John Chisholm has put in place policies to divert and defer non-violent criminal offenders from traditional prosecution, instead requiring treatment for the underlying problems that lead to the unlawful behavior while holding them accountable, and saving thousands from incarceration or a permanent felony conviction. Our leaders either affect change locally within their own jurisdictions, or they don’t. And that non-violent drug offender who stood next to me last week in Waukesha? He avoided the prison sentence pushed by the prosecutor, with the judge instead opting for our recommendation of probation and local jail. That decision avoided approximately $64,000 in taxpayer costs had the young man been sent to prison (at $32,000 per year in Wisconsin), and it will keep him connected to his community while he pays his debt to society.

As the criminal justice reform debate moves forward this presidential campaign season, each side will tell you its position about public safety, punishment, retribution and redemption, about what lives matter, and about who should or shouldn’t be locked up. People have strong opinions about these things, but how they are reflected in local criminal justice policy varies, and even the national platforms and presidential candidate positions are largely general, lacking specifics on how to accomplish goals at the local level. In the end, the tone and tenor of the candidates and ultimately the next president will filter to the local level, providing resources and political incentives to put policies in place in one direction or the other. And with Trump now looking more like Nixon ’72 or Bush ’88 on crime, and Clinton looking for criminal justice reform, the public will have a clear choice on the issue in November.

Craig Mastantuono is a criminal defense attorney at Mastantuono & Coffee, SC, and a 2016 delegate to the Democratic National Committee convention in Philadelphia. His firm’s blog, Wisconsin Crime & Justice, can be found here: http://www.milwaukeecriminallawyers.com/blog.html

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The most recent Marquette University Law School poll results are out, with its regular mix of current election snapshots. However, the poll also ran a criminal justice question on legalizing marijuana, with what may be a surprising result to some: most people in America's Dairyland now think pot should be legal. This is the first time in our memory that a credible poll produced this result in Wisconsin (the MULS poll has a proven track record of accurate results and enjoys a solid reputation in WI).
From the JS Online story:
"On a policy issue, 59% agreed that marijuana should be legal and regulated like alcohol, while 39% disagreed. In September 2014, questioners were asked if the use of marijuana should be legal or illegal — 46% said it should be legal, while 51% said it should not be legal."
Has public opinion on this issue finally flipped? If so, we are currently arresting, prosecuting, and jailing people for something most Wisconsinites now think should be legal. The implications of this are serious.
Full MKE Journal Sentinel story here:
http://www.jsonline.com/news/statepolitics/poll-hillary-clinton-maintains-lead-over-trump-in-wisconsin-b99761143z1--386663411.html
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If a family member or friend is charged with a crime, you can help by writing a letter of support. Read our blog post about what to say. http://www.milwaukeecriminallawyers.com/letters-of-support-for-clients/
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SCOTUS expanded the Second Amendment yesterday to include stun guns. Read more about what it means in Wisconsin on our blog: http://www.milwaukeecriminallawyers.com/the-right-to-keep-and-bear-arms-includes-stun-guns/
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Friday afternoon brought an end to a jury trial that Rebecca and Craig conducted in Milwaukee County in a first degree sexual assault of a child case, in which our client was accused falsely of inappropriately touching his adoptive son, a special needs child with mental health isues and cognitive delays. The jury returned a not guilty verdict after 5 days of testimony, during which the defense challenged a biased and flawed investigation and manipulative interview tactics by state child forensic interviewers. Some memories from this very sad case:

Working long days and evenings preparing the case for trial.

Talking with the prospective jury panel about our client’s sexual orientation, homosexual, and our concerns that negative biases may affect his right to a fair jury. Then, during the selection process, watching the prosecutor strike panel members who spoke out against discrimination.

Cross-examining two state expert witnesses in the area of child forensic interviews and common dynamics among children who are sexually assaulted.

Challenging the forensic interviews in this case as not conforming to the generally accepted guidelines in the professional community of forensic child interviews, the so-called Step-Wise Guidelines, which use research-based best practices to avoid suggestibility when interviewing children.

Presenting expert witness testimony from a licensed clinical therapist on the issue of reactive attachment disorder, and its common symptoms and associated behaviors.

Cross examining the lead detective for the state on why he told our client that as a Christian he disapproved of homosexuals and believed that no one is born gay, that it’s a choice, and that our client made his own son gay. Presenting our client’s testimony as he took the witness stand for himself, and denied wrongdoing. Watching him cry with sadness and fear in the hallways of the Milwaukee County Safety Building as we awaited the jury’s verdict.

Receiving a not guilty verdict as our client sobbed with relief, and catching a nod and look of support from one of the jurors as she left the jury box.

Trials are always a challenge, and this one particularly so, but we believe justice was served, and that our client avoided being wrongfully convicted. We have deep faith in American juries, and are thankful for their service.
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There was a disruption in the MKE County Circuit Court this week in Judge Bill Pocan's courtroom when he ordered someone to be taken into custody following a plea hearing in an armed robbery case. This was not one of our cases, but CM was in there the next day to hear about it from the judge and deputies first-hand. Frankly, given the human dramas and the decisions to take people into custody that occur daily in our courts, we're surprised and thankful that this doesn't happen more often. And it really doesn't: the vast majority of people voluntarily submit to the authority of the courts, which is quite remarkable in its own way, and which underlies the concept of ordered liberty. The deputies - they are typically very professional in MKE - said it really wasn't a that big a deal, and no one was hurt.

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