Tag Archives: law

UW Press announces new book series: Women and Gender in Africa

The University of Wisconsin Press is pleased to announce the launch of a new book series, Women and Gender in Africa, edited by Jacqueline-Bethel Mougoué and Aili Mari Tripp. The series seeks to publish innovative book-length works, based on original research, primarily in the areas of history, politics, and cultural studies.

Jacqueline-Bethel Mougoué, associate professor of African cultural studies and history at UW–Madison, says, “I am thrilled to highlight the works of innovative scholars who bring fresh perspectives on issues of gender and women in Africa. We are especially excited to focus on scholarship that transcends traditional scholarly frameworks by defying disciplinary boundaries and geographical constraints, exploring diverse methods, and spanning the vast expanse of the African continent.”

The series welcomes submissions that address questions and debates of broad theoretical, empirical, and methodological significance of interest to a wide readership, including manuscripts that demonstrate the comparative implications of women’s experiences across and beyond the African continent. The editors are especially interested in such topics as women and religion, sexuality, LGBTQI+ concerns, human rights, migration, health, the family, the environment, law, conflict resolution, race and ethnicity, women’s movements and feminism, and globalization. Projects addressing agency are particularly welcome, including authority, political and spiritual leadership, economic activity, and forms of knowledge and healing. The series welcomes manuscripts that incorporate discussions of literature and popular culture, representation and identity construction, and testimony and life writing.

For Aili Mari Tripp, Vilas Research Professor of Political Science at UW–Madison, the series is an opportunity “to give visibility to the growing body of first-rate research in Africa and beyond that focuses on women’s agency and challenges in a wide variety of social science and humanities fields.”

The series advisory board includes Ousseina Alidou (Rutgers University, USA), Nwando Achebe (Michigan State University, USA), Naminata Diabate (Cornell University, USA), Ainehi Edoro (University of Wisconsin–Madison, USA), Marc Epprecht (Queens University, Canada), Shireen Hassim (Carleton University, Canada), Dorothy Hodgson (Brandeis University, USA), Stanlie James (Arizona State University, USA), Alice Kang (University of Nebraska–Lincoln, USA), Siphokazi Magadla (Rhodes University, South Africa), Fatima Sadiqi (Sidi Mohamed Ben Abdellah University, Morocco), Laura Ann Twagira (Wesleyan University, USA), and Olajumoke Yacob-Haliso (Brandeis University, USA).

Editor in chief Nathan MacBrien adds, “The University of Wisconsin Press has long had a commitment to publishing scholarship on Africa, and in particular writing on women’s lived experience in Africa. This new series provides inspiration for us, and the disciplines, to both broaden and deepen our commitments by giving space to imaginative work from new generations of scholars in Africa and across the world.”

Manuscripts will be selected based on significance of the topic, quality of scholarship, clarity and style of presentation, list balance, and marketability. For more information about submission, please contact Nathan MacBrien, editor in chief, at macbrien@wisc.edu. For other inquiries, please contact the series editors, Jacqueline-Bethel Mougoué (jmougou@wisc.edu) and Aili Mari Tripp (atripp@wisc.edu).

About the University of Wisconsin Press

The University of Wisconsin Press is a not-for-profit publisher of books and journals. With more than 1,500 titles and 8,000 peer-reviewed articles in print, its mission embodies the Wisconsin Idea by publishing work of distinction that serves the people of Wisconsin and the world.

Vanishing Independence

Today’s guest blogger is Charles Benjamin Schudson, author of the book Independence Corrupted: How America’s Judges Make Their Decisions.

They all agreed. Bret Kavanaugh and every senator on the Judiciary Committee agreed that independence is essential to judicial fairness, and that, to maintain independence, judges and judicial nominees must not forecast their positions on issues that could come before them.

So like all supreme court nominees, Judge Kavanaugh “answered” many questions by explaining that, to preserve at least the appearance of independence, he must promise only an open mind. The senators agreed.

How surprising that neither Kavanaugh nor any senator mentioned that independence is no longer the fulcrum on which decision-making rests. How disturbing that pundits and policy-makers don’t seem to know that, since 2002, America’s judges have been free to forecast their decisions on every issue – abortion, guns, executive privilege – even if they do so pandering for political support.

What happened in 2002? The US Supreme Court decided Republican Party of Minnesota v. White, invalidating the “announce clause” of Minnesota’s Code of Judicial Conduct. Like the judicial ethics codes of almost all states, it prohibited judges and judicial candidates from “announcing” their positions during their campaigns. Thus, the Court upended America’s law and tradition of judicial independence.

Before 2002, when I ran in Wisconsin for both the trial and appellate bench, I campaigned – door-to-door, in bowling alleys and churches, and even at labor, corporate, and partisan gatherings. But I could not offer opinions about abortion, guns, or other subjects I might be judging. Even when vying for endorsements and financial support, silence was golden. And if I violated that standard, I could be suspended or removed from office.

Starting in the 1960s, all fifty states enacted such codes. But while almost all judges complied, some candidates rebelled. Propelled by personal beliefs and political ambitions, they campaigned on controversial issues; they soon found themselves in court fighting the disciplinary prosecutions of their conduct.

One of them, a candidate for the Minnesota Supreme Court, sought an injunction to stop the ethics board from disciplining him. Minnesota’s Republican Party joined his cause. They argued that the code violated his First Amendment rights and denied voters what they needed for informed voting. The US Supreme Court, 5-4, agreed.

The result: judges and judicial candidates now are free to forecast their positions on any issue. Thus, since 2002, judicial elections have morphed from low-financed yawners to high-financed screamers about abortion, capital punishment, gun control, same-sex marriage, and “tort reform.”

America’s judges now are more vulnerable to litmus testing and political pressuring than ever before. Voters and interest groups may demand, “What would you decide?” And now, like never before, judges and judicial candidates calculate their answers according to endorsements and dollars.

Without taking sides on the First Amendment merits of the Supreme Court’s decision, all can acknowledge its enormous consequences. After all, approximately 99% of America’s court cases – from child custody to medical malpractice, from multi-million dollar disputes to murder – are decided by state judges. And thirty-nine states, accounting for almost 90% of America’s judiciary, elect their judges.

Thus, except for Marbury v. Madison, the 2002 case may mark the Supreme Court’s most significant decision on judicial authority and conduct in American history. The fairness (or at least the appearance of fairness) of all state judges may never recover.

Two hundred years ago, Chief Justice Marshall declared that “the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was … a dependent judiciary.” And in a 2015 decision, Chief Justice Roberts implored, “Judges are not politicians.” Perhaps. But now we must ask whether America’s judicial independence can continue and, without it, whether our democratic republic will survive.

Charles Benjamin Schudson, a Wisconsin Reserve Judge Emeritus, served as a state and federal prosecutor, a trial and appellate judge, and an Adjunct Professor of Law at Marquette University and the University of Wisconsin. From 2009 to 2014, he was a Fulbright Fellow teaching at law schools abroad.

A grim anniversary: the Sedition Act of 1918

Our guest blogger today is Eric B. Easton, whose book, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech, has just been published.

The year 2018 marks the centenary of many important events in American history, including the horrific flu epidemic that killed millions and the armistice that ended World War I. Free speech advocates will note with sadness that 2018 is also the 100^th anniversary of the passage of the Sedition Act—draconian amendments to the Espionage Act that Congress had passed the previous year. As summarized in Geoffrey Stone’s Perilous Times, the new amendments enacted on May 16, 1918, forbade anyone, during wartime, to:

willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the government, military, or flag of the United States; or
use any language intended to bring the government, military or flag of the United States into contempt, scorn, contumely, or disrepute; or
willfully display the flag of any foreign enemy, advocate the curtailment of war production, or advocate, teach, defend, or suggest doing any of these; or by word or act support the enemy or oppose the United States.

The Sedition Act was repealed in 1920, but it should be remembered today for the arguably honorable, if misguided, reasons why some in Congress supported enactment. Stone quotes Senator William Borah, a progressive Republican from Idaho: “I know this is a drastic law, and I would not support it . . . unless I believed it necessary to prevent things far worse.” While most legislators supported the act to put down dissent, Borah and others thought the law was needed to preempt mob violence against dissenters.

Today, the First Amendment is under stress from numerous challenges that require society to weigh conflicting interests.

Today, the First Amendment is under stress from numerous challenges that require society to weigh conflicting interests. College administrators try to balance the cherished tradition of free speech on campus against the possibilities that some kinds of speech may lead to harassment or violence, or cause members of the campus community to feel unwelcome or less safe. Social media platforms struggle to balance open access for all against the risks of cyberbullying and “fake news.” And the U.S. Supreme Court is, even now, seeking to balance the right of a gay couple to purchase a custom-designed wedding cake against the baker’s purported free-speech right to refuse to express his art in support of same-sex marriage, an institution he opposes on religious grounds.

Protection of privacy, reputation, and cultural sensitivity continue to trouble free-speech advocates today.

While these problems do not raise the existential issues that dissent and reaction in wartime present, they do test the resiliency of the First Amendment in the face of conflicting values. Historically, laws against blasphemy, sedition, and obscenity have repeatedly challenged free-speech values, just as protection of privacy, reputation, and cultural sensitivity continue to trouble free-speech advocates today.

Eric Easton

Resolving these conflicts has been a tortuous process, with more than a few missteps along the way. First Amendment doctrine has largely evolved to overcome bad legislative decisions, almost always in the direction of providing more protection for speech. As we work through these contemporary problems, we would be wise to keep the Sedition Act in mind and the harm that even well-meaning advocates can do to by suppressing free speech to advance other values.

Eric Easton is a professor of law at the University of Baltimore and the director of the LL.M. program in the law of the United States. He is the editor of the Journal of Media Law & Ethics and the author of Mobilizing the Press: Defending the First Amendment in the Supreme Court.

New Books & New Paperbacks, January 2018

We’re pleased to announce the following books to be published this month.

January 9, 2018
Defending the Masses: A Progressive Lawyer’s Battles for Free Speech
Eric B. Easton

“An early twentieth-century champion of the cause of free speech for the American people, Gilbert Roe has found an ideal interpreter in Eric B. Easton, whose own legal background serves him well in analyzing Roe’s brilliantly argued wartime freedom of speech cases.”—Richard Drake,author of The Education of an Anti-Imperialist

“Gilbert Roe was a remarkable person who associated with and defended the rights of many of the most fascinating people of the Progressive Era. Easton brings all these stories to life in his wonderfully accessible biography.”—Mark Graber,author of Transforming Free Speech

January 9, 2018
In Plain Sight: Impunity and Human Rights in Thailand
Tyrell Haberkorn

New Perspectives in Southeast Asian Studies

“Powerfully uncovers and documents many episodes of state intimidation and violence in postwar Thailand. Haberkorn deftly probes the nature and domestic actions of the Thai state and holds it accountable for its own history.”—Ben Kiernan, author of The Pol Pot Regime and Viet Nam

“This stunning new book goes far beyond Thailand’s heartrending experience of serial dictatorship without accountability and state formation grounded on impunity for crime. Haberkorn also compellingly engages Thailand’s place in the rise of human rights movements. Her documentation of an ‘injustice cascade’ reorients the study of global history and politics.”—Samuel Moyn, author of Human Rights and the Uses of History

“Required reading for anyone who wants to understand modern Thailand. Haberkorn reveals a state where political violence is normalized as it has established and maintained a narrow royalist and elitist regime.”—Kevin Hewison, editor of Political Change in Thailand

January 9, 2018
Now in paperback
Winner of the Kulczycki Book Prize in Polish Studies
Primed for Violence: Murder, Antisemitism, and Democratic Politics in Interwar Poland
Paul Brykczynski

“An outstanding and welcome contribution to scholarship on Polish nationalism, the history of antisemitism, political violence, fascism, and democratic politics [that] will resonate with the public at large as we grapple with contemporary challenges to democracy across the globe.”—Slavic Review

“This assiduously researched, impeccably argued, and well-illustrated book should be required reading for anyone interested in modern Polish history and/or the evolution of the Polish nation more broadly.”—Polish Review

January 16, 2018
Tragic Rites: Narrative and Ritual in Sophoclean Drama
Adriana E. Brook

Wisconsin Studies in Classics

Presenting an innovative new reading of Sophocles’ plays, Tragic Rites analyzes the poetic and narrative function of ritual in the seven extant plays of Sophocles. Adriana Brook closely examines four of them—Ajax, Electra, Philoctetes, and Oedipus at Colonus—in the context of her wide-ranging consideration of the entire Sophoclean corpus.

“Brook throws new light on the representation of rituals in Sophoclean tragedy, especially of incomplete, incorrectly performed, or corrupted rituals that shape audiences’ and readers’ emotional, ethical, and intellectual responses to each play’s dramatic action and characterization, concern with identity and community, and ambiguous narrative and moral closure.”—Seth L. Schein, author of Sophocles’ Philoctetes

January 23, 2018
Conflicted Memory: Military Cultural Interventions and the Human Rights Era in Peru
Cynthia E. Milton

Critical Human Rights Series

“Brings to light how military ‘entrepreneurs of memory’ strategically place memory products in a memory marketplace. A major intervention in debates about Peru’s internal armed conflict of the 1980s and ’90s and its aftermath, which will interest scholars in many disciplines and regions.”—Paulo Drinot, coeditor of Peculiar Revolution

“This incisive analysis of Peruvian countermemories explores the military’s seemingly failed cultural memory production, its lack of artistry and inability to suppress evidence. Though the military is unable to fully reclaim heroic and self-sacrificing patriotism, Milton nonetheless recognizes its success in shaping memory politics and current political debates.”—Leigh Payne, author of Unsettling Accounts

“Impressively documents the military’s diverse interventions in Peru’s culture—memoirs, ‘truth’ reports, films, novels, and memorials—and its numerous attempts to censor cultural productions that challenge its preferred narrative.”—Jo-Marie Burt, author of Political Violence and the Authoritarian State in Peru

New books and new paperbacks, July 2017

We’re pleased to announce these new books, and titles new in paperback, debuting this month.

July 18, 2017
WISCONSIN AND THE SHAPING OF AMERICAN LAW
Joseph A. Ranney

“Not simply about Wisconsin’s legal history, for Ranney covers the sweep of state laws in American history from the Northwest Ordinance of 1787 to recent legal questions of the twenty-first century. Impressively researched and invitingly written, this is a unique introduction to our states as laboratories of democracy.”—Lloyd C. Gardner,Rutgers University

State laws affect nearly every aspect of our daily lives—our safety, personal relationships, and business dealings—but receive less scholarly attention than federal laws and courts. Joseph A. Ranney looks at how state laws have evolved and shaped American history, through the lens of the historically influential state of Wisconsin.

July 18, 2017 NEW IN PAPERBACK
AMENDING THE PAST
Europe’s Holocaust Commissions and the Right to History
Alexander Karn

“Historical commissions, Karn argues, have brought expert historical practice to bear on complex questions, adding new meaning to facts that have either been debated or glossed over. These commissions matter because they serve to amend history in cases in which social memory has impeded understanding of historical injustices and begin the amelioration of past human rights violations.”—Choice

“A very important contribution to the interdisciplinary scholarship on the broad theme of reckoning with histories of atrocity.”—Bronwyn Leebaw, University of California, Riverside

Critical Human Rights
Steve J. Stern and Scott Straus, Series Editors

July 18, 2017 NEW IN PAPERBACK
SHAPING THE NEW MAN
Youth Training Regimes in Fascist Italy and Nazi Germany
Alessio Ponzio

“Ponzio tells a nuanced story of the delicate and volatile relationship between interwar Europe’s two fascist regimes. . . . He highlights power struggles between leaders, curricula designed not to educate youth but to transform them into ideal representatives of their regimes, and strict gender policing within each of the organizations. Recommended.”—Choice

“Ponzio provides, above all, valuable new perspectives on the tremendous influence of Italian Fascism on fledgling Nazi youth organizations, and the cooperative and reciprocal relationships that flourished between the two regimes.”—Michael Ebner, author of Ordinary Violence in Mussolini’s Italy

George L. Mosse Series in Modern European Cultural and Intellectual History
Steven E. Aschheim, Stanley G. Payne, Mary Louise Roberts, and David J. Sorkin, Series Editors

July 27, 2017
BEYOND THE MONASTERY WALLS
The Ascetic Revolution in Russian Orthodox Thought, 1814–1914
Patrick Lally Michelson

“Impressive in its analytical breadth and astute in its interpretive depth, this is an engaging, lucid, and original contribution to the history of modern Russian thought and modern Orthodoxy.”—Vera Shevzov, Smith College

“Reading this extraordinary book is like having missing pieces of a puzzle click together at last. Actors normally examined separately—radical socialists, theological academies, hermits, great writers, bureaucrats, lay intellectuals—emerge as part of the same religious culture that placed asceticism at the center of discourse and practice in imperial Russia’s defining century.” —Nadieszda Kizenko, University at Albany, SUNY

July 27, 2017
IF YOU DON’T LAUGH YOU’LL CRY
The Occupational Humor of White Wisconsin Prison Workers
Claire Schmidt

“A lucid, compelling study of some very funny, compassionate corrections officers. Their intelligence and comic delight shine through on every page.”—Jackie McGrath, College of DuPage

America is fascinated by prisons and prison culture, but few Americans understand what it is like to work in corrections. Claire Schmidt, whose extended family includes three generations of Wisconsin prison workers, introduces readers to penitentiary officers and staff as they share stories, debate the role of corrections in American racial politics and social justice, and talk about the important function of humor in their jobs.

Folklore Studies in a Multicultural World

DEAD MEN (& WOMEN) DO TELL TALES: BRINGING WISCONSIN LEGAL HISTORY TO LIFE

In July, University of Wisconsin Press will release WISCONSIN AND THE SHAPING OF AMERICAN LAW. Author Joseph A. Ranney takes a unique look at legal history through several key individuals who worked to better Wisconsin, especially with regard to equal rights.

When I sat down to write Wisconsin and the Shaping of American Law, I faced an ambitious challenge: describe one state’s law as it evolved over more than 200 years and how it became part of the larger fabric of American history. But, a bigger challenge soon emerged. Many general readers view legal matters as intimidating, boring, or both—how to engage them?

Here enters the power of storytelling. Many of the book’s chapters begin with portraits of people whose lives and views collided in ways that changed the direction of Wisconsin and American law. As the book progressed, other diverse characters appeared on the legal stage who astonished and humbled me. Here are a few of my favorites.

James Doty

Some history buffs know James Doty as an early Wisconsin pioneer and politician, but few are aware that he was one of the nation’s great territorial judges who built the first system of courts and law in the wilderness west of Lake Michigan. Doty was also an early advocate of Native American rights, a stance that eventually cost him his judgeship. Edward Ryan’s life unfolded like a Greek drama. He rose and fell as an apostle of the Jacksonian legal vision in the 1840s, fought judicial corruption and state-rights sentiment in the 1850s, and then descended into obscurity, bitterness and old age until, in the 1870s, he was picked to be Wisconsin’s chief justice and spent the last years of his life forging a new law for the age of industry. Ryan changed American law in tandem with other great judges including Michigan’s Thomas Cooley, Illinois’ Sidney Breese, Iowa’s John Dillon, and Ryan’s Wisconsin colleague and sometime rival Luther Dixon.

John Winslow

John Winslow, Wisconsin’s chief justice during the Progressive era, is my particular favorite, and I hope the book will help him gain the recognition he deserves. “Fighting Bob” La Follette was the leading face of Wisconsin progressivism, but a good case can be made that Winslow was the individual most responsible for the movement’s long-term success. Temperamentally conservative but sensitive to underdogs, Winslow undertook a national campaign to explain Progressives and conservatives to each other. In the process, he won both sides’ respect and turned the judicial tide in Wisconsin in favor of reform.
'Fighting Bob' La Follette was the face of Wisconsin progressivism, but a new book contends that John Winslow was most responsible for the movement’s long-term success. Click To Tweet
Even those lacking a legal voice fought to shape Wisconsin law. The book profiles several Wisconsin heroines of women’s rights: Lavinia Goodell, who overcame Ryan’s opposition to become Wisconsin’s first woman lawyer; suffragist Mabel Raef Putnam and author Zona Gale, who together induced the legislature to enact a pioneering women’s rights law in 1921; and their spiritual successor Mary Lou Munts, a state legislator who was the principal architect of Wisconsin’s modern divorce law (1977) and a pioneering marital property law (1986). Lavinia Goodell overcame Chief Justice Edward Ryan’s opposition to become Wisconsin’s first woman lawyer. Click To Tweet The book also discusses African-American lawyers who led Wisconsin’s civil rights

Lloyd Barbee

movement: William Green persuaded the legislature to enact Wisconsin’s first anti-segregation law (1895), and Lloyd Barbee won a long legal battle to end school segregation in Milwaukee eighty years later.

I am grateful to these legal actors for helping me from beyond the grave. They drive home the oft-forgotten truth that although law is based on reason it is also shaped by our collective hopes, fears, and the courage of those who stand by their beliefs. I hope that readers of the book will enjoy the actors’ stories and will absorb the lessons they teach us about legal history.

Joseph A. Ranney is the Adrian P. Schoone Fellow in Wisconsin Law and Legal Institutions at Marquette University Law School and a partner with the firm DeWitt Ross & Stevens in Madison, Wisconsin. He is the author of several books, including Trusting Nothing to Providence: A History of Wisconsin’s Legal System, honored by the American Library Association as a notable book on state and local government.

New books in June 2017

We are pleased to announce six new books to be published in late June.

June 20, 2017
WRITTEN IN BLOOD
Revolutionary Terrorism and Russian Literary Culture, 1861–1881
Lynn Ellen Patyk

In March 1881, Russia stunned the world when a small band of revolutionaries calling themselves “terrorists” assassinated Alexander II. Horrified Russians blamed the influence of European ideas, while shocked Europeans perceived something new and distinctly Russian in a strategy of political violence that became known as “the Russian method” or “terrorism”.

“A superb model of interdisciplinary scholarship: highly original, subtle, thought-provoking, and a pleasure to read. Analyzing both word and deed, Patyk rewrites the history of modern terrorism showing why the Russian case was pivotal. A gripping story.”—Susan Morrissey, author of Suicide and the Body Politic in Imperial Russia

June 27, 2017
THE POX LOVER
An Activist’s Decade in New York and Paris
Anne-christine d’Adesky

Memories of the turbulent 1990s in New York City and Paris told by a pioneering American AIDS journalist, lesbian activist, and daughter of French-Haitian elites.

“In a voice both powerful and cool, The Pox Lover takes on a sprawling personal history, deeply aware throughout that it is the politics of anyone’s day—and how we respond to it—that shapes a life. Never far from the mad joy of writing, loving, and being alive, even as it investigates our horribly mundane capacity for horror, this book is a masterpiece.”—Michelle Tea, author of Black Wave

June 27, 2017
YOOPER TALK
Dialect as Identity in Michigan’s Upper Peninsula
Kathryn A. Remlinger

Yooper Talk explains linguistic concepts with entertaining examples for general readers and also contributes to interdisciplinary discussions of dialect and identity in sociolinguistics, anthropology, dialectology, and folklore.

“Although humorous songs poke fun at Yoopers’ words and customs, Remlinger takes this place and its people very seriously. She explains how history, ethnicity, environment, economic changes, tourism, and especially language have created a colorful and distinctive regional dialect and identity.”—Larry Lankton, Hollowed Ground: Copper Mining and Community Building on Lake Superior

Languages and Folklore of the Upper Midwest
Series Editor(s) Joseph Salmons and James P. Leary

June 27, 2017
THE LIMA INQUISITION
The Plight of Crypto-Jews in Seventeenth-Century Peru
Ana E. Schaposchnik

“The Lima Inquisition reveals the details of the Americas’ most alarming Inquisitorial crackdown: the ‘Great Complicity’ and subsequent Auto de Fe of Lima in 1639. Schaposchnik convincingly shows that it was not an aberration or just another Baroque-era spectacle—it was the essence of what the Inquisition was and had been all about, from inception to abolition.”—Kris Lane, Tulane University

“An in-depth look at the trials of the Great Complicity in the 1630s, during which almost 100 people, overwhelmingly men and women of Portuguese origin, were accused of being crypto-Jews and detained and tried by the Inquisition. Recommended.”—Choice

June 27, 2017
9XM TALKING
WHA Radio and the Wisconsin Idea
Randall Davidson

This is the fascinating history of the innovative work of Wisconsin’s educational radio stations, from the first broadcast by experimental station 9XM at the University of Wisconsin to the network of stations known today as Wisconsin Public Radio. Randall Davidson provides the first comprehensive history of the University of Wisconsin radio station.

“An engaging, even engrossing, narrative about the station’s pioneering work in broadcasting. … A reader witnesses … the struggles that small and educational broadcasters faced in the early years in what was nearly a constant battle to maintain a foothold in the frequency spectrum.” —Journalism History

June 27
FROM WAR TO GENOCIDE
Criminal Politics in Rwanda, 1990–1994
André Guichaoua, Translated by Don E. Webster, Foreword by Scott Straus

“A landmark in the historiography of the Rwandan genocide. No serious scholar writing about the genocide can afford to ignore this trailblazing contribution.”—René Lemarchand, author of The Dynamics of Violence in Central Africa

Critical Human Rights Steve J. Stern and Scott Straus, Series Editors

Wisconsin Sentencing in the Tough-on-Crime Era

Law professor Michael O’Hear has just published his new book with us this week: Wisconsin Sentencing in the Tough-on-Crime Era. We spoke with him about his findings on this timely subject.

A lot has been written in the popular and academic press about mass incarceration, as the number of Americans in prison has increased tremendously since the 1970s. What does your book add?

Most writing on mass incarceration deals with the subject as a generalized national phenomenon. However, the vast majority of American prisoners—about seven in eight—are held in state institutions after being sentenced in state courts under state laws. Really, it is state-level policies and practices that have driven the unprecedented imprisonment boom that we have seen in the U.S. over the past four decades. This helps to explain why mass incarceration has hit some states a lot harder than others. Yet, there are very few studies that explore the experience of particular states in depth. We will not have the full story of mass incarceration in America until state experiences are better understood.

My book covers the historical development of sentencing policy in Wisconsin over a period of more than forty years. Only a handful of other states have been studied in a comparable fashion. I hope to enrich the literature by putting another state that has had a distinctive experience under the microscope. Of course, I think my book will also hold a special appeal for Wisconsinites who are interested in better understanding and possibly reforming penal practices in their own state.

How hard did mass incarceration hit Wisconsin?

In some respects, the Wisconsin experience has been representative of the overall national experience. As with most other states, Wisconsin’s prison population rose sharply in the last quarter of the twentieth century and remains today near its all-time high. At present, the prison population amounts to about 377 out of every 100,000 state residents. This figure is not far off the national average of 402 state prisoners out of every 100,000 U.S. residents.

However, Wisconsin’s numbers do stand out in at least two ways. First, the state’s prison population grew remarkably quickly, even by national standards. In the early 1970’s, Wisconsin’s imprisonment rate was only about half the national average. In essence, Wisconsin went from being a low-imprisonment state forty years ago to a middle-of-the-pack state today. Second, mass incarceration hit Wisconsin’s African American community in an especially dramatic and disheartening way. By some measures, Wisconsin may have the nation’s very highest rate of black male incarceration. In some neighborhoods in Milwaukee, in particular, imprisonment has become a routine and expected part of the life experience of young men of color.

What caused Wisconsin’s prison population to grow so quickly?

Let me first address two common errors about mass incarceration. I’ve heard these stories often from commentators both locally and nationally, but the Wisconsin experience does a good job of highlighting the problems with these accounts. First, many people think that mass incarceration was caused by the “war on drugs.” It is true that the imprisonment boom, at both the state and national level, coincided with a toughening of drug laws and a sharp increase in drug arrests. However, the vast majority of arrests have been for low-level offenses, like simple possession of marijuana, and the offenders have tended to cycle in and out of the criminal-justice system relatively quickly. Thus, in Wisconsin, the portion of the prison population serving time for drug offenses topped out at about 15 percent, and has since dropped to below 10 percent. The national numbers are a little higher, but the fact remains that mass incarceration would still exist even if every drug offender were released from prison tomorrow.

Second, it is often said that mass incarceration resulted from the adoption of mandatory minimums and other laws that took away the discretion of sentencing judges. It is true that Wisconsin, like many other states, adopted a host of new statutory minimums in the 1980s and 1990s. However, upon closer inspection, the minimums are revealed for what they really were—largely symbolic enactments that vented public frustration over crime without actually doing much to pump up the prison population. Minimums were relatively short, or narrowly targeted, or included safety valves that permitted judges to avoid them. In some states, like California, discretion was much more dramatically curtailed. However, the Wisconsin story demonstrates that mass incarceration happened without aggressive changes in sentencing law.

In Wisconsin, the prison population initially exploded because crime exploded, and because judges and prosecutors lacked confidence in the ability of the Department of Corrections to manage the rising tide of offenders effectively in the community. But then, even when crime stabilized in the 1990s, the prison population continued to grow, as indicated in the figure below. Sentences were becoming more severe, reflecting the entrenchment of tough-on-crime attitudes among criminal-justice officials. (In Wisconsin, as in most states, judges and district attorneys are elected, which makes it perilous for these key local officials to appear overly lenient.) For a few years, generous parole practices partly counterbalanced tougher sentences, but parole grew politicized in the mid-1990s and was effectively phased out. The formal elimination of parole through “truth in sentencing” helped to ensure that Wisconsin’s prison population would remain near its all-time high on a sustained basis.

Figure: Wisconsin Prisoners and Arrests for Violent Crime

Why should we care about the state or national imprisonment rate?

Commentators have been calling for large-scale decarceration in the United States for years. The numbers-crunchers tell us that that this could likely be accomplished with little or no adverse impact on public safety. The historical experiences of Wisconsin and Minnesota offer a telling comparison. The two states had similar crime and imprisonment rates in the early 1970s. Since then, Wisconsin’s imprisonment rate has grown far more quickly than Minnesota’s, but the crime rates have remained closely in sync.

In recent years, the opponents of mass incarceration have particularly emphasized the fiscal burdens of imprisonment. It is true that corrections expenses are stressing state budgets in Wisconsin and elsewhere. Local taxpayers are now paying more for corrections than they are for the University of Wisconsin, which hardly seems an ideal way to prioritize public expenditures. Still, I am skeptical that appeals to fiscal restraint alone will inspire much decarceration. Fear of crime remains widespread, and people resist thinking about crime policy in terms of dollars and cents; the stakes just seem too high. barbed wire

Reformers need to make the case that new sentencing policies would not only save money, but actually make us safer. Accumulating bodies of evidence show that imprisonment can make some offenders more likely to reoffend, while some types of community-based rehabilitative programming can significantly reduce risks of recidivism. However, I argue in my book that real reform likely requires more than just a good public education campaign.

Ultimately, as a society, we must move beyond the reflexive vilification of offenders and recognize their shared humanity. They are not just criminals, but also parents, children, spouses, neighbors, friends, and employees, and many desperately want to do something positive with their lives. Moreover, most come from disadvantaged backgrounds and have faced extraordinary adversity growing up, which ought to inspire at least a little compassion. If we care about the well-being of prisoners, and the well-being of those on the outside who are connected to them, then we should care very deeply about the excessive use of imprisonment that is reflected in the mass-incarceration numbers. This is not to say that we should empty out the prisons tomorrow. Saint Augustine taught us to hate the sin, but love the sinner. If we were really to take that teaching to heart, we would find ways to protect public safety and hold offenders accountable, but without doing so much unnecessary damage to so many human lives along the way.

Michael O‘Hear is a professor of law at Marquette University. He is an editor of the journal Federal Sentencing Reporter and has published many articles on sentencing law, criminal procedure, and public opinion about the criminal justice system.

Michael O’Hear

New books, December & January

We are pleased to announce these new and soon-to-be-published books.

Published December 6
Inside Rwanda’s Gacaca Courts: Seeking Justice after Genocide
Bert Ingelaere
“This masterful study provides a balanced, nuanced assessment of Rwanda’s local courts, showing how diverse social dynamics influenced both the operations of gacaca and its outcomes in different local communities. Essential reading for anyone interested in transitional justice and conflict resolution, in Rwanda and beyond.”—Catharine Newbury, Smith College
Critical Human Rights Steve J. Stern and Scott Straus, Series Editors

To be published January 10
Reading African American Autobiography: Twenty-First-Century Contexts and Criticism
Edited by Eric D. Lamore
“These provocative essays reveal the exciting state of African American autobiographical studies. The critical approaches explored here—from new-media studies and eco-criticism to reading the interplay between visual and verbal autobiographical acts—not only frame and interpret the life narratives proliferating within today’s digital and popular cultures, they enliven classic literary texts for a contemporary age.”—Angela Ards, author of Words of Witness
Wisconsin Studies in Autobiography William L. Andrews, Series Editor

To be published January 10
American Autobiography after 9/11
Megan Brown
“Demonstrates how several American life-writing subgenres have reflected and responded to national and personal anxieties after 9/11. This accessible and well-argued book is an essential resource for understanding contemporary memoir.”—G. Thomas Couser, Hofstra University
Wisconsin Studies in Autobiography William L. Andrews, Series Editor

To be published January 17
Understanding and Teaching the Cold War
Edited by Matthew Masur
“A superb collection of authoritative, imaginative, and even provocative essays on teaching the history of the Cold War, effectively merging historiography, methodology, and innovative use of primary documents.”—Jeremi Suri, author of Henry Kissinger and the American Century
The Harvey Goldberg Series for Understanding and Teaching History
John Day Tully, Matthew Masur, and Brad Austin, Series Editors

To be published January 17
Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway
Michael O’Hear
“Serious students of modern sentencing reforms—as well as everyone eager to understand the roots of, and potential responses to, modern mass incarceration—must have this book on their reading list. O’Hear thoroughly canvasses the dynamic story of Wisconsin’s uniquely important sentencing reform history.”—Douglas Berman, author of the Sentencing Law and Policy Blog

Politics and american surveillance

Today is the publication date of American Surveillance: Intelligence, Privacy, and the Fourth Amendment. Its author, Anthony Gregory, offers a history of surveillance efforts that transcend party divides, urging us to look deeper into foreign policy. He is our guest blogger for this post.

Whatever else it might be, November’s election won’t be a referendum on surveillance and privacy. Hillary Rodham Clinton voted as Senator for the Patriot Act in 2001 and 2006, and Donald Trump has approved its renewal, saying he tends to “err on the side of security.” In the Democratic debates, Clinton harshly criticized NSA whistleblower Edward Snowden, insisting, probably wrongly, that he “could have gotten all of the protections of being a whistleblower” and “raised all the issues” without breaking the law. Trump has called Snowden a traitor, promised to get Russian president Vladimir Putin to hand him over, and in the past even suggested him worthy of execution. Both candidates want to expand foreign intelligence. Clinton recently told Fox television host Bill O’Reilly that among her “priorities is to launch an intelligence surge” and more information-sharing to combat terror. Trump told CBS journalist Leslie Stahl that, to defeat ISIS, “we’re going to have unbelievable intelligence, which we need [and] right now, we don’t have.”

Both major political parties have nominated surveillance hawks for the highest office in 2016, but we could excuse the public for discerning partisan differences. In recent years, both sides have postured as disagreeing fundamentally. Barack Obama ran for president echoing fellow Democrats’ condemnation of President George W. Bush’s attempts to immunize telecoms implicated in NSA warrantless wiretapping. Under Obama’s presidency, the Republican National Committee denounced the NSA’s “dragnet program” as likely “the largest surveillance effort ever launched by a democratic government against its own citizens” and its mass data collection as “contrary to the right of privacy protected by the Fourth Amendment.” Inconsistent politicians have mirrored a shift among constituents. The Pew Research Center in 2006 found that 37% of Democrats and 75% of Republicans considered Bush’s surveillance program acceptable. In 2013, 64% of Democrats and 52% of Republicans approved NSA surveillance under Obama.

As far back as we can trace the American surveillance state, its defenders and detractors have transcended any consistent partisan divide. Republican president Theodore Roosevelt created what became the Federal Bureau of Investigation, against warnings from both parties. Democrat Woodrow Wilson oversaw a massive expansion of foreign and domestic intelligence during World War I. For forty-eight years, J. Edgar Hoover’s FBI conducted spying on behalf of both parties’ presidents, who were often eager for his assistance targeting political enemies. Both Republicans and Democrats targeted foreigners, allies, the far right, and the radical left.

Those seeking to understand surveillance must look beyond politics and into policy. Foreign policy in particular has a profound if fraught relationship to surveillance abroad and at home. A bipartisan foreign intelligence posture has tended to bleed into the domestic sphere. From the Progressive Era through the Cold War, fears of a fifth column under foreign influence, and tactics first used in foreign occupations, inspired application of surveillance techniques within the United States. More pedestrian policy goals, such as wars on crime, drugs, and poverty, have also fueled violations of privacy.

Even as policy dynamics transcend partisanship, the legal principles at stake are frustratingly complex. Both principled and partisan critics accuse their opponents in power of unambiguously violating the Constitution, whereas both Bush and Obama claimed their surveillance program passed the Fourth Amendment test. Civil libertarians find such defenses absurd, but the Fourth Amendment is no privacy panacea. It always accommodated vast search powers. Wiretapping wasn’t even covered until 1967, when the Court found a Constitutional “right to privacy” beyond a physical property right. Conservatives long skeptical of such a “right to privacy” lack an originalist argument for why NSA surveillance violates the Fourth Amendment. Generally speaking, modern technology and the terror war’s global battleground have revealed the limits of simple legal arguments.

If there is no consistent Fourth Amendment principle against the surveillance state, how could we expect a consistently pro–Fourth Amendment political party? Granted, third parties, like the Libertarians and Greens, have more relentlessly criticized surveillance powers and are much more favorable toward Snowden. It is also outside mainstream electoral politics that we find any fundamental rethinking of the policy priorities that drive the surveillance state at home. This might discourage those who want Fourth Amendment restoration in the next election. But to understand the deeper issues requires more than partisan grandstanding. Politics cannot begin to touch a surveillance power so entrenched and a privacy right so elusive. Privacy advocates must look to policy prescriptions, foreign policy history, and broader cultural values.

Anthony Gregory is the author of The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror, winner of the PROSE Book Award for legal studies. He is a fellow of the Independent Institute in Oakland, California.