A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives. Nejelski & Lerman. 1971 WLR 1085.
Of Shadows and Substance: Freedom of Speech, Expression, and Action. Himes. 1971 WLR 1209.
Constitutional Law—Free Speech on Premises of Privately Owned Shopping Center. Felsenthal. 1973 WLR 612.
Constitutional Protection of Critical Speech and the Public Figure Doctrine: Retreat by Reaffirmation. Backer. 1980 WLR 568.
Corporate “Persons” and Freedom of Speech: The Political Impact of Legal Mythology. Patton & Bartlett. 1981 WLR 494.
Lamb’s Chapel v. Center Moriches Union Free School District: Creating Greater Protection for Religious Speech Through the Illusion of Public Forum Analysis. Ehrmann. 1994 WLR 965.
Behind the Curtain of Privacy: How Obscenity Law Inhibits the Expression of Ideas About Sex and Gender. Peterson. 1998 WLR 625.
The Journalist’s Privilege. Kassel. Wis. Law. Feb. 1996.
The Price of Free Speech: Regents v. Southworth. Furlow. Wis. Law. June 2000.
Regulating the Limits of Speech. Hoffer. Wis. Law. July/Aug. 2018.
Social Media, the First Amendment, and Government Actors. Westerberg & Dumas. Wis. Law. Jan. 2020.
libel
In a libel action involving a public figure or a matter of public concern, the defendant is entitled to the “clear and convincing” burden of proof and also to a finding of the type of malice involved. Polzin v. Helmbrecht, 54 Wis. 2d 578, 196 N.W.2d 685 (1972). In determining punitive damages in libel cases, it is relevant to consider the maximum fine for a similar offense under the criminal code. Wozniak v. Local 1111 of United Electrical Works of America, 57 Wis. 2d 725, 205 N.W.2d 369 (1973). The executive committee of the medical staff of a private hospital is not a quasi-judicial body so as to render a letter to it privileged. DiMiceli v. Klieger, 58 Wis. 2d 359, 206 N.W.2d 184 (1973). The following criteria are applicable to whether a defamation plaintiff may be considered a public figure for a limited range of issues: 1) there must be a public controversy; and 2) the court must look at the nature of the plaintiff’s involvement in the public controversy to see whether the plaintiff has voluntarily injected himself or herself into the controversy so as to influence the resolution of the issues involved. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141 (1982). But see Wiegel v. Capital Times Co., 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. 1988). A private individual need only prove that a news media defendant was negligent in broadcasting or publishing a defamatory statement. A negligence standard complies with the guarantee of freedom of the press contained in the Wisconsin Constitution. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141 (1982). A private citizen may become a public figure regarding a particular issue that is of substantial public interest and must prove actual malice to prevail in a libel action. Wiegel v. Capital Times Co., 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. 1988). Judicial or quasi-judicial proceedings are protected by absolute privilege, subject to two restrictions: 1) the statement must be in a procedural context recognized as privileged; and 2) it must be relevant to the matter under consideration. Rady v. Lutz, 150 Wis. 2d 643, 444 N.W.2d 58 (Ct. App. 1989). A fire department captain with considerable power and discretion is a public official who must meet the malice requirement. Defendant firefighters had a common law privilege to comment in writing on the captain’s fitness for office. Miller v. Minority Brotherhood of Fire Protection, 158 Wis. 2d 589, 463 N.W.2d 690 (Ct. App. 1990). If a defamation plaintiff is a public figure, there must be proof of actual malice. The deliberate choice of one interpretation of a number of possible interpretations does not create a jury issue of actual malice. The selective destruction by a defendant of materials likely to be relevant to defamation litigation allows an inference that the materials would have provided evidence of actual malice. Torgerson v. Journal/Sentinel Inc., 210 Wis. 2d 524, 563 N.W.2d 472 (1997), 95-1098. For purposes of libel law, a “public figure” who must prove malice includes a person who by being drawn into or interjecting himself or herself into a public controversy becomes a public figure for a limited purpose because of involvement in the particular controversy, which status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Bay, Inc., 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999), 98-2660. See also Sidoff v. Merry, 2023 WI App 49, 409 Wis. 2d 186, 996 N.W.2d 88, 22-1871. A “public dispute” is not simply a matter of interest to the public. It must be a real dispute, the outcome of which affects the general public in an appreciable way. Essentially private concerns do not become public controversies because they attract attention; their ramifications must be felt by persons who are not direct participants. Maguire v. Journal Sentinel, Inc., 2000 WI App 4, 232 Wis. 2d 236, 605 N.W.2d 881, 97-3675. In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, 04-0377. Actual malice requires that the allegedly defamatory statement be made with knowledge that it was false or with reckless disregard of whether it was false or not. Actual malice does not mean bad intent, ill-will, or animus. Repeated publication of a statement after being informed that the statement was false does not constitute actual malice so long as the speaker believes it to be true. Actual malice cannot be inferred from the choice of one rational interpretation of a speech over another. Donohoo v. Action Wisconsin, Inc., 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739, 06-0396. The plaintiff was a public figure for all purposes when the plaintiff was involved in highly controversial and newsworthy activities while in public office; the publicity and controversy surrounding these events continued well after the term of office ended; the plaintiff remained in the news after leaving office as a result of new developments in the various inquiries into his official conduct; and the plaintiff had a connection with another public official in the news. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314. In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice, but this rule is not absolute. Because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314. The elements of a defamatory communication are: 1) a false statement; 2) communicated by speech, conduct, or in writing to a person other than the person defamed; and 3) the communication is unprivileged and is defamatory, that is, tends to harm one’s reputation so as to lower the person in the estimation of the community or to deter third persons from associating or dealing with the person. The statement that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682. In a defamation action brought by a private figure against a media defendant, the plaintiff has the burden of proving that the speech at issue is false; this requirement is imposed in order to avoid the chilling effect that would be antithetical to the 1st amendment’s protection of true speech on matters of public concern. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682. State libel laws are preempted by federal labor laws to the extent statements made without knowledge of falsity or reckless disregard for truth are at issue. Old Dominion Branch No. 496, National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974). A public figure who sues media companies for libel may inquire into the editorial processes of those responsible when proof of “actual malice” is required for recovery. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979). Defamation Law of Wisconsin. Brody. 65 MLR 505 (1982).
Constitutional Law—Limitations on Damages Awarded to Public Officials in Defamation Suits. Kampen. 1972 WLR 574.
A Misplaced Focus: Libel Law and Wisconsin’s Distinction Between Media and Nonmedia Defendants. Maguire. 2004 WLR 191.
I,4Right to assemble and petition. Section 4. The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged. A narrowly drawn anti-cruising ordinance did not violate the right to assemble or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (Ct. App. 1993). The right to intrastate travel, including the right to move about one’s neighborhood in an automobile, is fundamental, but infringements on the right are not subject to strict scrutiny. Cruising ordinances, reasonable in time, place, and manner, do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 894 (1996), 93-2842. The legislature cannot prohibit an individual from entering the capitol or its grounds. 59 Atty. Gen. 8.
The national democratic party has a protected right of political association and may not be compelled to seat delegates chosen in an open primary in violation of the party’s rules. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981). As with the speech clause, to show that an employer interfered with rights under the petition clause, an employee, as a general rule, must show that the employee’s speech was on a matter of public concern. The right of a public employee under the petition clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts. Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). See also Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012). 2011 Wis. Act 10’s various restrictions, in their cumulative effect, do not violate union members’ associational rights. The 1st amendment does not require the state to maintain policies that allow certain associations to thrive. For the most part, the Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. Laborers Local 236 v. Walker, 749 F.3d 628 (2014). Section 947.06, 1969 stats., which prohibits unlawful assemblies, is constitutional. Cassidy v. Ceci, 320 F. Supp. 223 (1970). Wisconsin, A Constitutional Right to Intrastate Travel, and Anti-Cruising Ordinances. Mode. 78 MLR 735 (1995).
“LOL No One Likes You”: Protecting Critical Comments on Government Officials’ Social Media Posts Under the Right to Petition. Sweeny. 2018 WLR 73.
I,5Trial by jury; verdict in civil cases. Section 5. [As amended Nov. 1922] The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof. [1919 J.R. 58, 1921 J.R. 17 A, 1921 c. 504, vote Nov. 1922] NOTE: See also the notes to article I, section 7 — Jury Trial and Juror Qualifications for notes relating to jury trials in criminal cases.
When a juror is struck after the trial has commenced, a litigant cannot be required to proceed with 11 jurors in a civil case. The trial court must declare a mistrial or grant a nonsuit with the right to plead over. It was error to grant a nonsuit and then direct a verdict for the defendant because a plaintiff refused to continue with 11 jurors. State ex rel. Polk v. Johnson, 47 Wis. 2d 207, 177 N.W.2d 122 (1970). Neither the constitution, statutes, or common law affords the right to trial by jury in a will contest. Bermke v. Security First National Bank of Sheboygan, 48 Wis. 2d 17, 179 N.W.2d 881 (1970). The requirement that a defendant prepay jury fees in a civil traffic forfeiture action is constitutional. State v. Graf, 72 Wis. 2d 179, 240 N.W.2d 387 (1976). Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis, 104 Wis. 2d 466, 312 N.W.2d 731 (1981). The right to a jury trial does not extend to equitable actions. However, defendants who are required to plead legal counterclaims in equitable actions or lose those claims are entitled to a jury trial of their claims. Green Spring Farms v. Spring Green Farms Associates, 172 Wis. 2d 28, 492 N.W.2d 392 (Ct. App. 1992). Use of collateral estoppel to prevent a civil defendant from testifying that the defendant did not commit an act when in an earlier criminal trial the defendant was convicted by a jury of committing the act did not deny the defendant’s right to a jury. Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993). When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank Wisconsin Eau Claire, N.A. v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (Ct. App. 1994). There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc., 200 Wis. 2d 512, 546 N.W.2d 870 (1996), 93-3182. A party has a constitutional right to have a statutory claim tried to a jury when: 1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and 2) the action was regarded as at law in 1848. Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00-2493. While a defendant has a right to a jury trial in a civil case, there is no vested right under this section to the manner or time in which that right may be exercised or waived. Those are merely procedural matters to be determined by law. Phelps v. Physicians Insurance Co. of Wisconsin, Inc., 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580. In order to deem the Village Food, 2002 WI 92, test satisfied, there need not be specific identity between the violation at bar and an 1848 cause of action, so long as there was an 1848 action that only differs slightly and is essentially a counterpart to the current cause. To the extent that the 1849 statutes recognize broad causes of action for civil forfeitures, they are insufficient to support a demand for a 12 person jury in every forfeiture action. Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890, 03-1794. See also State v. Schweda, 2007 WI 100, 303 Wis. 2d 353, 736 N.W.2d 49, 05-1507. A party’s waiver of the right of trial by jury need not be a waiver in the strictest sense of that word, that is, an intentional relinquishment of a known right. Instead, a party may waive the right of trial by jury by failing to assert the right timely or by violating a law setting conditions on the party’s exercise of the jury trial right. Rao v. WMA Securities, Inc., 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813. It lies within the circuit court’s discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant’s right of trial by jury under this section when it denied the defendant’s motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court’s discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc., 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813. Comparing the purpose underlying the modern statute to the purpose underlying its alleged common law counterpart will be helpful in applying the first prong of the Village Food, 2002 WI 92, test. Harvot v. Solo Cup Co., 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396. An implied statutory right to trial by jury in situations in which the legislature has not prescribed such a right and in which the constitution does not afford such a right would open a can of worms. Statutes vary widely. Ad hoc judicial discovery of implied statutory rights to trial by jury would not yield a meaningful legal test that could carry over from case to case, but would instead invite ad hoc argument whenever the statutes are silent. Harvot v. Solo Cup Co., 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396. A statute that creates a cause of action with an essential counterpart at common law becomes no less an essential counterpart simply because it addresses a narrower range of practices. If the legislature focuses and directs the principles of common law fraud to a specific realm, it does not strip a litigant of the litigant’s right to a jury trial when it would otherwise exist. Otherwise, a legislative enactment clearly modeled on a common law cause of action but applied to a specific context would carry no right to a jury trial. State v. Abbott Laboratories, 2012 WI 62, 341 Wis. 2d 510, 816 N.W.2d 145, 10-0232. “Prescribed by law” as used in this section is not restricted to statutory law. Interpreting “prescribed by law” to mean “prescribed by the legislature” assigns to the legislature the task of defining all the possible ways a person might waive the person’s right to a jury trial. The text of this section does not limit the manner of jury trial waiver to those set forth by statute, and a court may look to other sources of law to determine whether a putative waiver of the right to a jury trial was valid. Parsons v. Associated Banc-Corp, 2017 WI 37, 374 Wis. 2d 513, 893 N.W.2d 212, 14-2581. I,6Excessive bail; cruel punishments. Section 6. Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted. Imposition of a three-year sentence as a repeater was not cruel and unusual even though the present offense only involved the stealing of two boxes of candy, which carried a maximum sentence of six months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909 (1970). It was not cruel and unusual punishment to sentence a defendant to 25 years for armed robbery when the maximum was 30 years, when by stipulation the court took into consideration five other uncharged armed robberies. Mallon v. State, 49 Wis. 2d 185, 181 N.W.2d 364 (1970). Current standards of what constitutes cruel and unusual punishment should not be applied in reviewing old sentences of long standing. State ex rel. Warren v. County Court, 54 Wis. 2d 613, 197 N.W.2d 1 (1972). A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler, 61 Wis. 2d 537, 213 N.W.2d 24 (1973). Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), 95-2669. A prison inmate does not possess a reasonable expectation of privacy in the inmate’s body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashiyah v. McCaughtry, 230 Wis. 2d 587, 602 N.W.2d 307 (Ct. App. 1999), 98-3020. Cruel and unusual punishment extends to the denial of medical care if a serious medical need was ignored and prison officials were deliberately indifferent to the inmate’s condition. A serious medical need means that the illness or injury is sufficiently serious to make the refusal uncivilized. Deliberate indifference implies an act so dangerous that the defendant’s knowledge of the risk of harm from the resulting act can be inferred. Cody v. Dane County, 2001 WI App 60, 242 Wis. 2d 173, 625 N.W.2d 630, 00-0549. The defendant’s life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of the defendant’s life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant’s life expectancy, it must explain, on the record, how the defendant’s life expectancy fits into the sentencing objectives. State v. Stenzel, 2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20, 03-2974. In addressing whether a sentence constitutes cruel and unusual punishment and is excessive, a court looks to whether the sentence is so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Davis, 2005 WI App 98, 281 Wis. 2d 118, 698 N.W.2d 823, 04-1163. A prisoner has a liberty interest in avoiding forced nutrition and hydration, but the Department of Corrections may infringe on the prisoner’s liberty interest by forcing the prisoner to ingest food and fluids against the prisoner’s will. A court may enter a temporary ex parte order for involuntarily feeding and hydration if exigent circumstances require immediate involuntary treatment in order to avoid serious harm to or the death of an inmate. Continuation of the order requires the right to an evidentiary hearing when the department’s allegations are disputed, the opportunity to meaningfully participate in the evidentiary hearing, and that the order cannot be of indefinite or permanent duration without periodic review. DOC v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, 05-2750. Sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional and is not unduly harsh and excessive. Fourteen-year-olds who commit homicide do not have the same diminished moral culpability as those juvenile offenders who do not commit homicide. Sentencing a 14-year-old to life imprisonment without parole for committing intentional homicide serves the legitimate penological goals of retribution, deterrence, and incapacitation. That the defendant was 14 years old at the time of the offense and suffered an indisputably difficult childhood does not automatically remove the punishment out of the realm of proportionate. State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451, 08-1139. See also State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. While Saenz, 2007 WI App 25, addressed initial authorization for forced feeding, it is consistent with Saenz to require that, when the Department of Corrections seeks a continuation of that authorization, the focus is on what will likely occur if the authorization to force feed is terminated. In those circumstances the department must show that: 1) if forced feeding is withdrawn, it is likely the inmate would continue the inmate’s hunger strike; and 2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. Because of the presumptive validity of the medical opinions that support the necessity for continued forced feeding of a prisoner, the circuit court must accept them unless there is evidence that they are a substantial departure from accepted medical judgment, practice, or standards. A medical opinion is presumptively a “reliable medical opinion” within the meaning of the showing the Department of Corrections must make when the opinion is that of a licensed physician who is qualified by training or experience to render the opinion and the opinion is based on a proper evidentiary foundation. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. A prisoner’s objections to the manner of forced feeding that may implicate the 8th amendment protection against cruel and unusual punishment are properly before the circuit court when the Department of Corrections seeks a continuation of authorization to force feed the prisoner. When the allegation is one of excessive force, the 8th amendment protects against force that is not applied in a good faith effort to maintain order but is maliciously and sadistically applied to cause harm. DOC v. Lilly, 2011 WI App 123, 337 Wis. 2d 185, 804 N.W.2d 489, 09-1420. A proportionality test is utilized for determining whether a forfeiture is unconstitutionally excessive, considering the nature of the offense, the purpose of the statute, the maximum potential fine for the offense, and the harm that actually resulted from the defendant’s conduct. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226. Forfeiture of a convicted drug seller’s financial interest in a vehicle did not violate the excessive fines clause, but forfeiture of a co-titleholder’s full financial interest in the vehicle was a different matter when undisputed testimony was that the co-titleholder had no knowledge of illegal activity and did not consent to it. The co-titleholder was entitled to any remaining proceeds beyond the drug seller’s financial interest in the vehicle after its sale. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226. The basic precept underlying the prohibition against cruel and unusual punishment is one of proportionality that punishment for the crime should be graduated and proportional to both the offender and the offense. A punishment violates that prohibition if it is inconsistent with evolving standards of decency that mark the progress of a maturing society. In deciding a categorical challenge such as this, a court will first consider objective indicia of society’s standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Second, notwithstanding such objective evidence, a court will exercise its own independent judgment to determine whether the punishment violates the constitutional prohibition. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. The U.S. Supreme Court in Miller, 567 U.S. 460 (2012), did not foreclose a sentencer’s ability to sentence a juvenile to life without the possibility of parole in homicide cases, but required sentencing courts to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Thus, it is not unconstitutional to sentence a juvenile to life imprisonment without the possibility of supervised release for intentional homicide under s. 973.014 (1g) (a) 3. if the circumstances warrant it. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876. The mandatory minimum of 20 years’ imprisonment provided by s. 973.014 (1g) (a) 1. as applied to children does not violate the prohibitions against cruel and unusual punishment contained in the U.S. and Wisconsin Constitutions. State v. Barbeau, 2016 WI App 51, 370 Wis. 2d 736, 883 N.W.2d 520, 14-2876.
