Letters

Delay Truth in Sentencing Enactment for Six Months

The Milwaukee Bar Association (MBA) Board of Directors unanimously voted in October to support a six-month delay of the effective date of the Truth in Sentencing Law (1997 Wis. Act 283) and delay its implementation pending under AB 465.

At the time AB 465, and its companion bill SB 237, were scheduled for hearing before the Senate Judiciary and Consumer Affairs Committee. The bills are the result of the recommendations made by the Criminal Penalties Study Committee regarding the implementation of Wisconsin's Truth in Sentencing Law. In October, amendments were being "floated" proposing a six-month delay (from the Jan. 1, 2000, effective date) of the implementation of Truth in Sentencing, AB 465. The MBA Board of Directors, unanimously voted, rather, to support a six-month delay of the effective date of the Truth in Sentencing Law, altogether.

The MBA board received input from its Courts Committee and Criminal Law Section. The legislation raised particular concerns for Milwaukee County and for its circuit court system, for example, Wisconsin's prison population statistically is highly Milwaukee-based as are probation/parole resources and needs.

Given the delay in the issuance of Criminal Penalties Study Committee recommendations and now in their legislative adoption, questions were raised whether prosecutors, criminal defense attorneys, judges, and others involved in the criminal justice system would be adequately prepared to fairly learn and implement Truth in Sentencing before Jan. 1, 2000. Court forms and procedures were not expected to be in place. Some concerns were raised regarding the potential for criminal court system administration issues, capacities, and inefficiencies, created by likely increases in post-conviction motions and appeals.

The concerns of the MBA board, however, were beyond these particular issues: the board opined that the implementation of these systemic changes - affecting the administration of justice, public safety, and public policy - would only be as successful as the system that implements them. That system should be driven by reasonable timelines by which justice can be confidently carried forth. The legislative initiative of Truth in Sentencing is enacted; a six-month delay would have served to benefit the principles on which it was based.

Hannah C. Dugan,
Milwaukee

Electronic Reporting Improves Civility

The cover story in the December Wisconsin Lawyer was once again on lawyer civility. Because I have a professional interest in this topic, I note that in the four years since your last cover article on civility, not much progress seems to have been made, except in one area: audio or video reporting of court proceedings and depositions. When circuit court proceedings and depositions are reported electronically, incivility disappears.

I have run a video court reporting business for the last 20 years. Our computer records go back to 1985, and in that time we have officiated at more than 5,000 depositions and 2,000 Wisconsin state administrative hearings. We also have transcribed about 500 proceedings audiotaped by the Western District federal court in Judge Shabaz's court. In all those years, I have observed and recorded only two instances of demonstrable incivility.

In seminar presentations to lawyers' groups on the advantages of electronic reporting, I include the two instances where a lawyer acted uncivilly on tape. I also provide a copy of the judge's order sanctioning the attorney in one of the two cases, noting the attorney's raised voice and condescending tone of voice, things that would not have been demonstrable with stenographic reporting.

Electronic reporting is not permitted as yet in the Wisconsin circuit courts. Still, I would be interested in hearing from any attorney who has participated in any proceeding electronically recorded by videotape, as to whether you remember any other instance in which attorneys raised their voices or were otherwise uncivil. I suspect that a majority of the attorneys who have attended video depositions know how effective electronic reporting can be in recording, and hence eliminating, incivility.

I firmly believe that the simple technology of recording has contributed and will contribute more to "civil procedure" than have all the admonitions and articles appearing in professional publications. The profession should seriously consider opening up circuit court proceedings to electronic reporting.

Frank J. Wiener,
Madison

Immigrants Fleeing Human Rights Violations Deserve Better Treatment

The U.S. Immigration and Naturalization Service (INS) jailed Bi Meng Zheng after he missed his first immigration court hearing. He was ordered deported, but China refused to repatriate him. Zheng, who never committed a crime, spent four years in jail. The INS released him only after human rights advocates campaigned zealously for his freedom.

INS policy regarding "lifers" (indefinite detainees) came into the public spotlight when detained Cubans took hostages and threatened to kill their Louisiana jailers. After nearly a week, they released their unharmed hostages and surrendered, but only because the U.S. had negotiated an unusual agreement with Cuba to accept their return.

Nationally the INS warehouses about 4,000 "lifers" - immigrants who have been ordered deported but cannot be removed for various reasons. Some have completed their criminal sentences, but remain jailed because their native countries have no diplomatic relations with the U.S. Some, with no criminal history, languish in jail because their countries refuse to accept their return. Others are stateless.

How did the U.S. become a country that indefinitely locks up people who have committed no crime, or if they did have already served their sentence?

The answer lies partially in the tough 1996 Illegal Immigration Reform and Immigration Responsibility Act, which awarded the INS unprecedented powers to detain and deport individuals. The answer also lies partially with the INS, which consistently chooses to detain people who could be released.

The INS continues to hold "lifers" despite a mandate requiring a review of anyone with a final order of deportation who has not been removed within 90 days. INS figures show that 34.6 percent of lifers whose cases have been reviewed have warranted supervised release. Still, many local INS district directors operate independently and often do not convene review panels. Reviews, when they do occur, often are only rubber-stamped denials that cannot be appealed. Thirteen courts now have ruled that the INS review process is inadequate.

The INS must establish rules for reviews in legally enforceable regulations, which will ensure uniform application nationwide. The decisions must come from an impartial fact finder, with an independent review of negative decisions.

We should never be a nation that indefinitely jails those seeking freedom.

William G. Paul, President,
American Bar Association

Wisconsin Lawyer