Sign In
    Wisconsin Lawyer
    September 01, 1999

    Wisconsin Lawyer September 1999: Book Reviews 2

     

    <---Previous Page

    Book Reviews


    This Month's Featured Selections


    Politics of Law The Politics of Law

    Edited by David Kairys
    (Boulder, CO: Westview Press, 1998).
    Paper. 725 pgs. $16.

    Reviewed by Edward S. Marion

    The title says it all. Any "the politics of" book is an attempt to expose some nominally pure endeavor as a less-wholesome political one. To brand something as political is to debase it.

    Get ready for this bombshell: The political process does not end with the enactment of legislation; lawyers intentionally appeal to the political and other perceived value systems of judges, and judges intentionally decide cases based upon those values. How shocking!

    Every intellectually honest lawyer and judge knows that the law provides: "a wide and conflicting variety of stylized rationalizations from which courts can choose. Social and political judgments about the substance, parties, and context of a case, as well as about a range of institutional concerns, guide such choices, even when they are not the explicit or conscious basis of decision."

    Of course, the public face of the legal profession is that the law is above politics; judges are fungible, applying consecrated objective principles to the facts. You know, "Judges don't make the law, they just apply it." Therefore, all the public is supposed to care about when considering whom to vote for as judge is identifying the intelligent, honest, and hardworking person. A judge's personal views on the issues are irrelevant.

    In fact, any good lawyer tries to appeal to a judge's personal beliefs. The skill comes in finding the rule that fits the intended result and pushing the right buttons without being obvious. And, our "best" judges know how to make their personal judgments sound inevitable by citing the "correct" authorities.

    Having accepted the reality of the legal process, this book's contributors might have been expected to bemoan the sorry reality of the legal world and call for a return to the days - were there such days? - of honest and pure adjudication. But they don't. They applaud the way of the world and advocate using the revealed legal system to further their hysterically anachronistic left-wing agenda.

    According to the authors, the only things wrong with the legal system are Republicans and conservatives. The law exists "to take up the cause of the rich." Law schools train "for willing service in the hierarchies of the corporate welfare state." The struggle is to "develop new entitlements that redistribute income and power, and to break down the false dichotomies between wage work and welfare" and to develop an "international system of government."

    If you want a nostalgic trip down Marxist memory lane - assuming you're not a recent law school graduate and, therefore, already mired in the nonsensical rhetoric of the Left - this beast of a book is for you. If you want to learn something useful about the law, read A Civil Action.

    Edward S. Marion, U.W. 1974, is general counsel at the Wisconsin Public Service Commission. He is a former Dane County circuit court judge and chief of staff to Gov. Thompson.

    Sentencing Digest

    (Williamsburg, VA: National Center
    for State Courts, 1998).
    38 pgs. $5. To order, (888) 228-6272.

    Reviewed by Thomas G. Wilmouth

    Presumably, a criminal defense practitioner would be excited to read this report developed by the National Association of Sentencing Commissions (NASC), the Conference of State Court Administrators (COSCA), and the National Center for State Courts (NCSC), to gain insight into this most important phase of the criminal justice system. The report is highly technical such that it is difficult to comprehend and merely raises issues rather than provides answers. The reader must strain through the brief report to gain any meaningful information.

    Some value, however, is found in the history of sentencing included in the report. Sentencing in the 1960s was based upon basic judicial discretion, in which courts imposed "indeterminate" sentences, and the rationale was to impose a sentence that was just for the individual defendant. The 1960s coincided with a period of optimism about rehabilitation; treatment displaced punishment as the official role of penal institutions. Sentencing reforms since the 1970s, organized around the principle of "just desserts," have sought to reduce judicial discretion. Many state parole boards have been eliminated or have had their discretionary release authority substantially reduced and the politically popular mandatory minimum sentences have been enacted, together with habitual offender and "three-strikes" provisions.

    Minnesota enacted the first state sentencing guidelines system in 1980 and several states have since followed. No state, however, has gone the route of the U.S. Sentencing Commission and developed a highly detailed and mechanical set of guidelines without a clear rationale for use by the federal courts. The report asserts, without any support for this view, that observers today are stressing more the need for maintaining judicial discretion. The report reminds the reader that sentencing reform has not curtailed and has likely increased the prosecutor's general discretion.

    The report contains a brief section on truth-in-sentencing, which will be effective in Wisconsin on Dec. 31, 1999. Labeled "the 1990s reform," it completely turns away from rehabilitation and treatment, as the defendant actually serves an amount of time that is closely aligned with the court's original sentence. The report contends that this law will allow judges to creatively circumvent statutory provisions in order to consider adequately the full array of offender characteristics. The report also notes that the enactment allows a state to be eligible for a share of $8 billion in federal funding through the year 2000. The norm of the law for most states seems to be 85 percent service of the imposed sentence.

    The report fails to discuss adequately the costs involved in this law, other than to note that intermediate sanctions for nonviolent offenders, which also can be built into a sentencing guideline scheme, will make prison beds more available. The report also fails to mention the difficulties this law will cause jail administrators.

    On the issue of sentencing disparity, the report notes that despite the traditional goals and considerations of sentencing, sentencing still comes down to the court's moral judgment. Evidence of racial disparity in sentencing may reflect a failure to rigorously consider the full range of variables, legal and nonlegal, or the disproportionate participation in crime among various races. Ongoing adjustment of sentencing guidelines is suggested to decrease perceived disparity.

    Prison populations have increased in all of the states studied, but the rate of new prison commitments has been reduced in some states and maintained in others. The report inadequately concludes that it is unknown if sentencing guidelines have affected those trends.

    For a relatively experienced criminal law practitioner, this report was very hard to follow and it is not recommended reading.

    Thomas G. Wilmouth, Notre Dame 1987, is a partner in Brennan, Ramirez, Wilmouth & Sesini L.L.P., Milwaukee. He practices criminal defense in the state and federal courts of Wisconsin.


Join the conversation! Log in to comment.

News & Pubs Search

-
Format: MM/DD/YYYY