By Joe Forward, Legal Writer, State Bar of Wisconsin

July 15, 2010 – A circuit court did not erroneously exercise its discretion in sentencing a criminal defendant despite remarking on the African-American defendant’s lifestyle and using slang terms like ‘baby mama’ to describe his child’s mother, the Wisconsin Supreme Court recently held.

In State v. Harris, 2010 WI 79 (July 14, 2010), the supreme court reversed an appeals court ruling that vacated Landray Harris’s sentence based on remarks made by the Caucasion circuit court judge at sentencing. The appeals court held that the remarks “suggest to a reasonable observer … that the trial court was improperly considering Harris’s race when it imposed sentence.”

The supreme court disagreed, rejecting a “reasonable observer test” and concluding that Harris did not meet his burden to prove the circuit court relied on race or gender in sentencing him.

Remarks

In 2007, Harris pled guilty to possession of cocaine with intent to deliver. Milwaukee County Circuit Court Judge Joseph R. Wall sentenced him to two years imprisonment and three years extended supervision.

At sentencing, the judge learned that Harris was unemployed and stayed home with his daughter while the child’s mother worked and attended college.

The judge commented that while service men and women put their lives at stake, “Mr. Harris sits at home, gets high while his baby mama works and goes to school.” He also remarked that Harris’s “baby mama” provides for his daughter because Harris won’t look for a job.

Referencing the daughter’s mother, the judge asked “Where you guys find these women” who will work full time and go to school while the man remains unemployed and uneducated.

Harris filed a motion for resentencing on the grounds that the circuit court improperly considered race and gender in deciding the sentence.

Reasonable observer test improper

The appeals court vacated the sentence, concluding that the circuit court’s comments “suggest to a reasonable observer, or a reasonable person in the position of the defendant, that the trial court was improperly considering Harris’s race when it imposed sentence.”

But the supreme court – in an opinion written by Justice Michael J. Gableman – concluded that a “reasonable observer test” is “not supported by Wisconsin case law, contradicts existing law by lowering the defendant’s burden of proof, and lacks basic clarity and workability.”

A circuit court must consider three factors in determining an appropriate sentence – gravity of the offense, character of the defendant, and the need to protect the public, but imposing a sentence based on race or gender is unconstitutional, the supreme court explained.

In reviewing the circuit court’s sentencing decision, the reviewing court determines “if discretion was erroneously exercised,” the court wrote.

An erroneous exercise of discretion occurs if a sentencing court “imposes its sentence based on or in actual reliance upon clearly irrelevant or improper factors.” Thus, Harris has the burden of proving that the circuit court “actually relied on race or gender in imposing its sentence.”

The supreme court held that the circuit court considered the proper factors – gravity of the offense, Harris’s character, and the public’s need for protection – but also examined whether the sentence was based on race or gender.

Sentence based on race?

The court noted that as the defendant, Harris had the burden to prove by clear and convincing evidence that the court relied on race or gender in imposing a sentence, but failed to do so.

Harris argued that such references as “baby mama” and “you guys” and “these women” provide evidence that Harris’s sentence was based on race.

In the context of the court’s comments, “the phrases ‘you guys’ and ‘these women’ clearly have no racial connotations,” the court concluded, because the circuit court explained exactly what was meant by the comments immediately following their usage.

That is, the court used those phrases “referring to the frequency with which the court sees unemployed and uneducated fathers come into court with mothers working full time and going to school,” the court explained.

Harris also argued that the term “baby mama” evoked a racial stereotype that evidences a sentence based on race. The state argued that “baby mama” does not necessarily have racial connotations and has been popularized in American culture.

The supreme court concluded that the term “baby mama,” at best, “reflects popular slang, referring to a mother who is not married to and may or may not have a continuing relationship with the father of the child or children.”

Thus, the court held that use of the phrase “baby mama” did not make it “highly probable or reasonably certain that the circuit court actually relied on race when imposing its sentence.”

The circuit court “appears to have used this phrase to chide Harris for his bad choices,” the court wrote, and “these observations bear a reasonable nexus to relevant factors.”

Sentence based on gender?

Harris argued that the circuit court aggravated the sentence based on gender stereotypes, pointing to the court’s criticisms that Harris stayed home while the daughter’s mother worked.

In other words, Harris argued the court aggravated the sentence because Harris did not work, but such a child-care arrangement is acceptable.

The supreme court rejected this argument, concluding that Harris brought forth no evidence that the arrangement was the result of responsible behavior. That is, Harris never attempted to obtain other employment, did not maintain a mutually agreed-upon child care arrangement, smoked marijuana and dealt drugs.

As the supreme court noted, the circuit court “gave Harris ample opportunity to clarify and demonstrate responsible behavior, but the court did not find it.”

Thus, the court concluded that Harris did not meet his burden to prove that the circuit court actually relied on gender as a factor in imposing its sentence.

The supreme court reversed the appeals court decision that vacated Harris’s sentence.

Concurrence

Justice Ann Walsh Bradley concurred in the decision, but on different grounds. Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks joined Bradley’s concurrence.

Justice Bradley framed the question presented in terms of a court’s “appearance of bias,” arguing that it is impossible to determine what a judge is “actually thinking.”

Bradley wrote that while “a court’s sentence which explicitly relied upon racial or gender stereotypes would be impermissible … it is an impossible task to see in a judge’s mind.”

Therefore, “courts have determined that when apparent bias reveals a great risk of actual bias, due process is violated,” Justice Bradley explained.

Nevertheless, Justice Bradley concluded that Harris did not prove the circuit court sentenced him by adversely considering or appearing to consider improper or irrelevant factors.

With regard to the “baby mama” comment, Bradley wrote: “Generally, 'baby mama' is a slang term referring to the unmarried mother of a man’s child, and the court was considering Harris’s relationship with a woman who fit that definition.”

Related articles

Justices seek standard to judge offensive racial remarks during oral arguments in ‘baby mama’ case– Oct. 22, 2009

Debate over judge’s ‘baby mama’ remarks headed to Wisconsin Supreme Court– Aug. 21, 2009

Court’s “baby mama” remark leads to resentencing– Feb. 13, 2009