Roggensack touts Wisconsin judges for their lack of racial bias

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Daniel Bice
Milwaukee Journal Sentinel

This may be news to the Black residents living in the 53206 ZIP code and other parts of Milwaukee with high incarceration rates. But state Supreme Court Justice Pat Roggensack is praising Wisconsin judges for their lack of racial bias.

In an email to all circuit judges on “racial concerns,” Roggensack said she has long been interested in whether judges were responsible for the large number of Black people who are behind bars. She then pointed the judges to a 2016 paper she wrote on “race and sentencing” and the work of the Supreme Court statistician, Michael Thompson, on “race and Wisconsin courts.”

Roggensack ended the note by patting the judges on the back for their fairness:

“I have the utmost confidence in the Wisconsin judiciary. My research and that of Dr. Thompson have shown that my confidence in Wisconsin’s judiciary is well placed. Wisconsin has judges who show repeated concerns for the challenges that those who come before Wisconsin courts face.”

The email comes less than two weeks after liberals on the state Supreme Court and more than half of Wisconsin’s appeals judges called for making the bench more diverse while acknowledging how implicit bias affects the legal system.

The 28 judges and justices — some on the bench and some retired — issued their letter amid a nationwide reckoning with racism and police brutality after George Floyd, an unarmed Black man, died when a white police officer in Minneapolis kneeled on his neck for nearly nine minutes.

One of the authors of that letter, Supreme Court Justice Rebecca Dallet, was critical of Roggensack’s email to Wisconsin’s circuit judges.

“I’m disappointed that rather than suggesting we open our minds and hearts to the realities of Black Americans, and accepting the challenge in front of us, the chief seems to be suggesting the status quo is acceptable,” Dallet said via email on Tuesday. “This moment demands a different vision of our call to duty.”

Craig Mastantuono, a Milwaukee attorney who serves on Democratic Gov. Tony Evers’ judicial selection committee, agreed.

Mastantuono, head of the Milwaukee chapter of the American Constitution Society, pointed to a University of Wisconsin-Milwaukee study in 2014 that showed Wisconsin led the nation by far in the percentage of working-age African American men that it put behind bars.

“At the moment when communities across our country are confronting racial inequities in our police and criminal justice systems, Wisconsin’s chief justice looks like she’s telling every judge in the state that there’s nothing wrong here.,” Mastantuono said.

This demonstrates, he said, “a stunning lack of insight.”

Last month, Roggensack came under criticism nationally for saying last month that the COVID-19 outbreak in Brown County was among meatpacking workers, not “the regular folks” — a statement that was seen by some as racially insensitive.

In her paper published by the Marquette Lawyer, an alumni magazine for the Marquette Law School, Roggensack said she found that defendants convicted after jury trials received longer sentences than those convicted of the same crime as a result of plea deals. That, she argued, may prove a bigger influence than race.

But Roggensack was unable to show if African American males are disproportionately represented in Wisconsin’s prisons chiefly because of drug-offense convictions.

“I am disappointed by our inability to make a definitive statement about what role, if any, race plays in sentencing in Wisconsin,” Roggensack wrote in her 12-page paper. The Marquette Lawyer is not a peer-reviewed journal.

In her email, however, Roggensack said she had made “considerable headway” in determining whether Wisconsin courts demonstrate any bias during sentencing.

She also cited the work of Thompson, the statistician who heads the Office of Research and Justice Statistics for Wisconsin courts. But she provided no data from Thompson in her email to circuit judges, stating only that he is studying the issue of race.

Appeals Court Judge Joe Donald, who is Black, commended the chief justice for her interest in the subject.

But he suggested the problem is much broader than what she looked at in her paper. He said it is crucial to understand who enters the criminal justice system and why.

Donald said the country’s 400-year history of systemic racism has affected every aspect of American society, leading Black residents to experience “disproportionate levels of trauma and adverse childhood experiences.”

“These are some of the many underlying reasons that have led to the racial disparity in Wisconsin prisons — and throughout our country,” Donald said. “If we are to reduce mass incarceration of African Americans, we must focus our attention on resolving these underlying injustices.”

Milwaukee County District Attorney John Chisholm said the state should not throw up its hands at trying to tackle such a huge problem.

Chisholm noted that since 2006, his agency has opened itself to detailed analysis by scholars to conduct the kind of research that Roggensack attempted. The project has been underwritten by the John D. and Catherine T. MacArthur Foundation.

Although this analysis has been about the role of prosecutors’ performance and decision-making and their impact on racial disparities, Chisholm said there is no reason similar work couldn’t be done focusing on the work of judges.

“This is not an issue that only affects Milwaukee,” Chisholm said. “I think if the state is seriously committed to the same goal they would find the means to do similar work statewide and make the data reflect current numbers.”

Perhaps even the deeply divided Supreme Court could agree on that.

Contact Daniel Bice at (414) 224-2135 or [email protected]. Follow him on Twitter @DanielBice or on Facebook at fb.me/daniel.bice.