We're just getting some things set and making sure everything looks good here.
And the cut?
You just say your name a couple times.
Zoe Engberg.
OK.
Is that about how loud you'll talk?
Probably.
OK.
Maybe a little.
Yeah.
That sounds like that.
If you get really animated.
OK, great.
So here's my opener, Zoe's.
How many languages can you count to 10?
At least two.
I think just two.
Is that Spanish being the second one?
No, that's French.
French.
OK.
No.
So what is one through 10 in French?
I don't know if I've ever heard of it.
Is this going to make it on to the interview?
Because my accent is appalling.
A d'etois, c'est saixis, c'est n'et n'ofteiss.
And did you get to go to France as part of that?
I studied abroad in France.
Oh, you did.
So this wasn't just high school.
Yeah.
And then I lived in Montreal.
I went to college in Montreal.
Oh.
That's cool.
That's great.
Yes.
That's the Paris you can afford to visit.
Exactly.
Yes.
Do they have that same anti?
Well, I guess it's changing now.
This Canadian-American relations is shifting again.
It always had been like Montreal was a little more.
Toronto was more welcoming.
That was like the New York, Canada.
So I'm wondering what the attitude is now
for American tourists there.
I don't know.
I was a university student there.
And so I lived there and really loved it.
But I think that certainly there's a long history
between Anglo and Francophone people in Canada
that is not always amicable.
All right.
I don't mind the stupid thing.
I'm just going to set it here.
And then we're ready to go, Zach, whenever you're ready.
Once I get that set up.
Yeah.
I'll just put it like the back of the chair.
They'll just help fill in the side of your face
just a little bit.
Cool.
All right.
All set.
All right.
So we see a lot of television ads these days
for the state Supreme Court race when they are all focused
on sentencing issues.
You know, someone let a pedophile go early with a slap
on the wrist or a wife, beat her.
They didn't handle the appeal, right?
What goes through your mind when you see those ads
come across the screen?
Well, the shorter answer is that there is a lot
of evidence that shows that when judges are making decisions
in individual cases, part of their motivation
behind their decisions is their own electability,
their own prospects and future election campaigns,
and particularly the impact that negative ads
could play on those campaigns.
And in particular, the evidence shows that judicial candidates,
regardless of political affiliation,
regardless of what their constituencies want,
they become uniformly more punitive and more
pro prosecution when an election approaches.
So, for example, there is a lot of evidence that when judges
are approaching an election, they sentence people more
harshly than they do at other points in their term.
And there's also a lot of evidence that shows that negative
campaign ads in particular have a large impact
on how judges make decisions in cases.
So, for example, in jurisdictions where a lot of money
is being poured into judicial elections,
where there is a high level of TV ads and negative attack ads
in judicial races, judges in those jurisdictions
are more hostile towards defendants in criminal cases,
more punitive than judges in other jurisdictions.
And I think that this is a real problem because it indicates
that judges, when they are making decisions
in individual cases, they are making those decisions
while thinking about their own careers
and out of a self-preservation interest,
not because they think that that is the decision
that is the most fair or just outcome in a particular case.
So, we have these two particular candidates
in this election and there's only so many spots.
The vast majority of judges around the state know
that they're likely not going to be
Supreme Court candidates, but does this still affect them?
You know, I can't comment on any particular judge
or on the candidates in this race or in this race in particular,
but in general, judges run for re-election in this state.
And there is a lot of evidence that shows that when judges
know that they will have to run for re-election
or run for election for a new position,
that that prospect of whether they will be electable
in their upcoming campaign impacts
what decisions they're making in individual cases
while they're sitting on the bench.
Well, I guess let me rephrase that.
In most of those local elections,
the county elections for a judge,
there aren't television ads.
Most of those go fly beneath the radar.
Many of them are on our pose,
but there's still that prospect of having to stand for election.
Most of the races are appearing in these Supreme Court elections
and not commenting on the individual candidates running,
those ads still affect the mindset of potential judges
or judges everywhere across the state,
even though they're unlikely to face a million-dollar barrage
of ads against them, right?
I think that's certainly true,
that all judges are concerned about re-election
regardless of what sort of race they'll be running in.
And also, election ads and campaign ads and negative attack ads
influence voters in all races,
even if it's not necessarily the race of that ad is being run in.
Why do the negative ads work so well?
What is it about the ads that talk about a light sentence
or a slap on the wrist or all these things?
Why does that strike fear in voters
and make them fear putting this person on the bench?
I think that's a great question.
I think there's a couple of reasons
why these negative attack ads are so effective
in these judicial races.
One thing I think that is really important to consider
is just the nature and format of an ad.
Ads are typically 30 to 60 seconds long.
They are almost uniformly pro-prosecution painting
an opposing candidate as being soft on crime.
And typically what they do is they pull an individual decision
or an individual case and present maybe the most inflammatory
facts about that case to the viewers
without providing any of the context that's really necessary
for understanding why the outcome of that case
may have actually been appropriate in that case
or why the judge made that individual decision
in that case.
And there's a lot of research that shows that voters
and members of the public, they actually
don't necessarily want incredibly punitive sentencing.
But it all depends on what information they have
when they're judging whether a sentence is too harsh
or too lenient.
So when somebody only has the headlines,
only has the crime that somebody was convicted of
and the sentence that was imposed,
they tend to think that judges were too lenient
and should have imposed a harsher sentence.
But when a voter or a member of the public has the full context,
all of the information that a judge considers
when imposing a particular sentence.
So the background of the person being sentenced,
what their life has been like, the circumstances of the crime,
any mitigation that may have been presented to the judge,
then people actually think that judges tend to impose
sentences that are too harsh and too punitive.
But in a 30 second ad or a 60 second ad,
it's really difficult to get that full context.
So all voters have are these headlines,
which tend to kind of inflame them
and make them want people to be sentenced more punitively.
But you never see an ad saying,
this judge imposed way too long of a sentence on this person.
Why doesn't that work the opposite direction?
I think that it's just a much more difficult story to tell
when we're talking about campaign ads.
You know, often when you're talking about judges
who are too punitive or too harsh,
which I do think that if a voter,
again, was fully informed, many voters might think
that some judges are too punitive or too harsh.
Voters tend to prioritize public safety.
They tend to prioritize crime prevention,
not necessarily the most punitive
or the most tough on crime approaches in individual cases.
But telling a story about a judge who is too punitive
or too harsh often requires a lot of information
about the history of mass incarceration and our society,
the impact that that has had in our communities and on families,
that is a very difficult story to tell in 30 seconds or 60 seconds.
But pulling details or information
out of one particular case and presenting it
without context to viewers,
that is a much easier story to tell
within the format of a campaign ad.
Do you think we could ever see a case
where someone who was sentenced comes back a year or two
down the road and says,
that judge sentenced me more harshly than they should have
because they were about to run for a high profile office
and they couldn't afford to look soft.
And my sentence is way out of line.
And it seems a clear straight line from them being about
to run for office and me getting this harsh sentence.
I think that certainly could happen.
You know, right now we are revisiting a lot
of the incredibly punitive sentences that were imposed
back in the 1990s during the tough on crime era.
You know, I run the criminal defense
in youth advocacy clinic here at UW Law School.
We represent a lot of people who were convicted
and sentenced as children, you know, 15, 16, 17 years old
back during this era where judges were imposing incredibly harsh
and punitive sentences.
And now as a society, we're really revisiting that type
of sentencing and questioning whether that was really appropriate
or just or necessary at the time.
And a lot of people, I think, have really changed their opinion
about really excessive sentences, particularly for children.
And I certainly think that because we are now more open
to that kind of review of sentencing as a society,
we've seen people who have these incredibly harsh sentences imposed
and we've been able to question whether that was really appropriate
or necessary in those cases.
I hope that we are now open to questioning incredibly harsh
sentences that judges impose.
And is it even more offensive in the sensibilities of justice
that these campaign ants for Supreme Court are being run on these issues
when Supreme Court doesn't sentence anyone?
Like the disconnect between what they're actually doing versus what
the campaign is being driven by could not be wider?
I think that's certainly true.
And I think that this is something that is just in such an easy way
and it's such a common way of attacking judicial candidates,
taking one individual case, one individual decision,
and attacking an opposition for that decision regardless of whether
that's going to be something, a decision that the candidate is expected
to make in their new position.
And there have been other states that have really tried to curb the influx
of these negative and misleading attack ads in their Supreme Court elections
in particular.
So, for example, in some states, candidates have all agreed to run clean campaigns
where they all agree to refrain from running misleading negative ads
against their opponents.
And I think that this is really a huge step forward to preserving judicial independence
and making sure that when judges are making decisions in individual cases,
they are making the decision that they think is fair and just
and appropriate for that case for our communities,
not something that is just the best decision for their own personal career.
So what's it like for you personally when you see some of these ads?
I mean, whether you know the details of a case or not,
is it like screaming at your TV or what's that like?
I think the difficult thing about watching these ads is that so much
of the context is missing and that viewers are not really being given the information
they need to understand the outcome of this particular case.
You know, a lot of attack ads of this nature about individual cases,
about individual decisions made by judges, often are attacking judges
for fairly typical decisions that almost any judge would have actually made,
given a similar case and similar circumstances.
But because many viewers of these ads don't spend a lot of time in criminal courtrooms,
they don't really understand what is a typical outcome of a case.
And the ad is not giving them that information.
It comes across very differently because they're lacking that context.
So there are fact checks that the newspaper will run
or TV stations occasionally will do,
trying to give some of that context.
Can that in any way compare in like the scope or the reach
that the actual campaign ad in the first place?
I certainly think that that's important to make sure that campaign ads
don't include misinformation.
However, often I think what the problem is,
is it's not necessarily the facts in the ad are incorrect or wrong.
It's just that the context that's necessary for understanding this particular decision,
this particular outcome of a case is missing from that ad.
And so it's, you know, you can provide that context,
but again, that's a much more difficult, a longer story to tell
that doesn't fit within a 30 or 60 second ad in the same way.
I think you might have mentioned that you know you can give some examples
of some people that you think have been negatively impacted in this fashion.
Sure, I've certainly appeared in front of judges and worked with judges
who have been the recipients of negative attention, negative ads
because of individual decisions that they've made in particular cases.
You know, I think a fairly common one is a judge who let somebody out
who is charged with a fairly minor crime on bail, you know, before their trial.
And then that person very enforcively is then charged with a much more serious crime
while on bail.
And again, that's a decision that given the facts that were available to the judge
at the time, it's a decision that almost any other judge would have made too,
just given the nature of the original charges.
But because, you know, there's very unfortunate and unforeseeable thing happened
in this particular case, that judge is really raked across the coals by the media,
by their opponents because of that and really blamed for what happened again pretty unforeseeably.
And you know, the impact of this is that I think it motivates judges to always err
on the side of being more punitive and make decisions kind of because in the back
of their mind they're thinking, what will this case look like in an election ad
in my next re-election?
And the study that you sent me looked like it was from the 90s,
principally in Pennsylvania.
But it cumulatively said there were thousands of years added on according to the estimate.
Can you walk me through how they can make that conclusion?
Sure, so that was a study that looked at a decade's worth of sentences imposed
in Pennsylvania by judges in criminal cases.
And they found that when judges were approaching re-election on average,
their sentences became much more punitive and much longer than at other points in their term.
And that was true regardless of what jurisdiction they were running in,
that was true regardless of their own political affiliation across the board,
judges became more punitive as their election approached.
And, you know, they were able to look because they had such a large data set,
they looked at such a wide array of cases over such a long period of time,
they were able to really see how these trends developed and point to, I think,
it was about 2,000 years of incarceration over the space of a decade
that was directly attributable to re-election and not just typical sentencing.
And that was a few decades ago.
Do you think the problem's gotten any better or gotten worse?
You know, I think that that's hard to say.
I do think that we still see massive amounts of money being poured into judicial elections
and that leads to a lot of television ads,
which reinforces a lot of these problems and these fears that judges have
when they're making decisions in cases.
Again, I think that having judges all while running in a race against each other
agree to refrain from running misleading ads,
that would go a long way towards solving this problem.
All right.
Walk me through a little bit of what you do as part of the project.
Is the project, is that the correct title?
So, I run a clinic here at the law school.
So, as part of the clinic, it's the Criminal Defense and Youth Advocacy Clinic.
We represent people in Wisconsin prisons who were convicted and sentenced
to extreme sentences as children and young adults.
And the students who are students here at the law school,
the law students work on these cases with me.
They represent clients and they work to try to mitigate the sentences,
try to advocate for our clients, especially in consideration of the fact
that they were children and young people when they were originally convicted and sentenced.
And what kind of success have you seen?
We've seen some success.
We certainly have seen that sentencing has changed here in Wisconsin
since the 1990s and early 2000s and many of our clients were convicted and sentenced.
The sorts of incredibly excessive sentences that were being handed down at that time
are not really being imposed today in the same way.
Today we now understand a lot more about how children's brains work,
that children are more impulsive and more reckless because of their age,
because of their undeveloped brains than adults and therefore much less culpable
and much more capable of rehabilitation.
And one of the problems though is that there's really a lack of access
to resentencing here in Wisconsin.
You know, in many other states, people who were children
and sentenced to extreme sentences back in the 90s,
they have since been given new resentencing hearings
where they can come back in front of a judge and challenge the sentence
that was originally imposed based on kind of this new understanding
that we have about children and about how children should be treated
when they are charged with crimes.
And here in Wisconsin, we haven't had that wave of resentencies
and there's really no mechanism that our clients can use
to challenge these original sentences.
Okay. Can I get you to say,
and spell your name and give your title?
Yes. My name is Zoe Engber, Z-O-E-E-N-G-B-E-R-G
and I'm an Assistant Clinical Professor here at UW Law School
and the Director of the Criminal Defense and Youth Advocacy Clinic.
All right. Anything else you want to add that you might have missed?
No.
Great. Thank you so much.
Thank you so much.
If you want to hold still for just a bit, you want to get some room total?
Yeah, just maybe like 10 seconds or so.
Okay. We'll just be quiet and listen to the room.
That's probably enough. Great.