By Margo Kirchner
The automatic aftereffects of a criminal conviction – exclusive of the sentence – can hit someone like “a ton of bricks,” according to Gabriel “Jack” Chin, a law professor at the University of California-Davis.
Chin delivered the Marquette University Law School’s annual Barrock Lecture on Criminal Law last week.
Chin noted that about 60% of felons are sentenced to probation instead of prison, not warranting severe punishment as part of the sentence. But the collateral consequences of a felony conviction hit hard across the board. Collateral consequences differ from state to state but, according to Chin, can include:
Significantly, such collateral consequences last a lifetime, except for the rare pardon or expungement.
And the number of consequences a person faces can grow, as new ones can be imposed on old convictions. A felon’s move to another state can mean additional restrictions.
Modern courts generally view collateral consequences as civil regulatory measures rather than as punishment. As a result, except as to deportation, neither defense counsel nor a judge accepting a plea deal is required to inform a defendant of any of the myriad collateral consequences the conviction will bring.
The scattering of collateral consequences throughout federal and state statutes and regulations adds to a defendant’s or attorney’s difficulty in grasping their full scope, in Chin’s view, and efforts are underway in many states to compile them. (In Wisconsin, the State Public Defender, in partnership with the Collateral Consequences Resource Center, maintains a compilation at http://wisconsin.ccresourcecenter.org/.)
Chin estimated that about 75 million adults in America have criminal records, so these consequences affect a substantial portion of the country’s population. He noted the cost to society when a person who could make a living and contribute cannot due to collateral consequences. He noted as well the cost to society in denying forgiveness and redemption to felons, citing President George W. Bush’s 2004 speech stating that America is the land of the second chance.
Chin said that he is not a “prison abolitionist”; he prosecutes sex offenders in addition to his job in academia. But he believes that at some point people should be allowed to move on. He noted some of the common reforms suggested in recent projects and studies: that attorneys and judges during criminal cases advise defendants about collateral consequences; that each state maintain a compilation of all collateral consequences; that a judge consider collateral consequences at sentencing and have the power to waive some of those consequences; and that after a number of years felons be allowed to request and obtain an end to those consequences.
Chin also suggests that courts reform ex post facto clause legal doctrine to stop the addition of new consequences years after a sentence was imposed and served. The U.S. Constitution’s ex post facto clause prohibits prosecution for action that was legal when taken, but later made illegal. It also prohibits laws that increase the punishment for crimes already committed.
According to Chin, the modern U.S. Supreme Court has misinterpreted long-standing precedent to view collateral consequences as civil forfeitures rather than as punishment. As a result, under current U.S. Supreme Court case law, Chin said, new consequences can be added at any time (until the death of the offender). He advocates instead for a return to principles discussed by the Supreme Court in the late 18th and early 19th centuries, which allowed for application of the ex post facto clause to any law that adds a collateral consequence to an offense after the offense is committed.
In his 2004 State of the Union address, President George W. Bush stated:
Tonight I ask you to consider another group of Americans in need of help. This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work or a home or help, they are much more likely to commit crime and return to prison.
So tonight, I propose a four-year, $300 million Prisoner Re-Entry Initiative to expand job training and placement services, to provide transitional housing and to help newly released prisoners get mentoring, including from faith-based groups.
America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.
By Gretchen Schuldt
The State Department of Corrections was unsure it could find enough contract beds in jails to house prison overflows even before State Sen. Leah Vukmir introduced a bill that could increase the prison population by an estimated 1,800 inmates per year, records show.
Vukmir (R-Brookfield), who is running for the U.S. Senate, is co-author of a bill that would require the Department of Corrections to recommend revocation of probation or extended supervision for anyone charged with a new violent misdemeanor or any felony.
The State Senate approved the bill this week. Recidivism is down sharply in Wisconsin.
DOC already was expecting that new, tougher drunk driving laws would mean that an additional 1,205 inmates would be sentenced to prison by the end of the law's second year, DOC said in its 2017-19 budget request.
The department's adult division already is contracting for beds in county jails to house prison inmates, the budget request said. "It is believed there are not enough contract beds available around the state to house the projected populations,” DOC said in its budget request.
The department, projected a need for 695 contract inmate beds in fiscal 2018 and 1,902 contract beds in fiscal 2019.
DOC estimates Vukmir’s revocation bill would send an additional 1,800 people to prison per year and cost the state $57 million per year, according to the Milwaukee Journal Sentinel.
There has not yet been any official fiscal estimates made of the overall cost of the bill, according to public documents available on the Legislature's website. The Journal Sentinel reported that Assembly Speaker Robin Vos has hired the Council of State Governments to estimate the cost, something generally done by state agencies.
In public hearing testimony, Vukmir said that "Wisconsin's approach to criminal justice should be a two-pronged philosophy. Ensuring violent repeat offenders are no longer terrorizing our communities is as equally important as implementing alternatives to incarceration, if not more so."
Her bill, however, would ensnare far more than violent offenders -- it would force a revocation recommendation if a person picked up any felony - even second offense marijuana possession - while on probation or parole.
The Senate bill also provides no relief for individuals cleared of a crime or found not guilty in court. The Assembly version of the bill allows the department to change its recommendation if either of those things occur.
Vukmir's proposal, according to the State Public Defender's office, "will have several impacts which are more severe than perhaps anticipated by the author."
The Senate bill provides no relief for individuals cleared of a crime or found not guilty in court.
One issue is a "potentially unconstitutional burden shift for extended periods of incarceration," the public defender's office said in March testimony.
There are times that new charges are not pursued in cases involving people on supervision; their status is simply revoked and they go to prison. Revocation does not require proof beyond a reasonable doubt, as convicting someone does; it requires only the same probable cause standard a prosecutor needs to issue charges, the agency said.
In addition, a violation during a term of supervision can result in re-incarceration for the full term, it said. A person serving 10 years of extended supervision who commits a crime in the ninth year can be incarcerated for the full 10 years, the agency said.
"This bill may result in a significant number of new prison terms, which will neither be cost effective nor have a substantially beneficial impact on future criminal behavior," the public defenders office said.
And the League of Women Voters was short and sweet: "With the Wisconsin prison population on the rise, removal of DOC discretion here is similar to increasing mandatory sentencing, the continued expansion of a bloated Corrections budget.
An appeals court judge on Tuesday tossed out a fourth offense drunk driving conviction after finding a police officer was not acting in a "community caretaker" role when he seized a man in his garage without a warrant or evidence of wrongdoing, questioned him, and then arrested him.
District 3 Appeals Judge Lisa K. Stark overturned the conviction of Bryan Landwehr, ruling that the ever-expanding "community caretaker" exception "is inapplicable in this case. ... Landwehr's constitutional right to be free from unreasonable searches and seizure while in his garage was violated."
The "community caretaker" exception to the U.S. Constitution's Fourth Amendment allows police to search without a warrant if they believe a person or people may be in distress. Wisconsin courts have expanded the exception's applicability in recent years.
In this case, the state did not even argue until the appeal that the officer was acting under the community caretaker exception.
Landwehr's problems didn't even start with him - Police Officer Mitchell Klieforth, while on patrol, came upon a woman "staggering down the shoulder with her back to traffic." Stark wrote.
The officer talked to the woman and saw that "she appeared to be crying, upset and intoxicated," Stark wrote in her decision.
Klieforth gave the woman a ride home. On the way, they saw a car that the woman said was driven by her boyfriend and that he would meet them at her house.
The woman made several comments that made Klieforth "suspect the two might have had an altercation or were involved in a domestic dispute," Stark wrote. He called for backup and followed the vehicle home.
There was no indication the driver of the car - Landwehr - was drunk or impaired, nor was there any evidence of a crime.
"...the State may raise any argument in defending this appeal, including those inconsistent with positions it took in the circuit court." - Appeals Judge Lisa K. Stark
Landwehr pulled his car into the garage at the woman's house. He got out of the car, but stayed in the garage. Klieforth approached and directed him to " 'step outside for a second. I wanna talk to ya,'" according to the decision.
Klieforth did not tell Landwehr that he was free to ignore the directive or that speaking with the officer would be voluntary, Stark said.
After they talked, the officer concluded Landwehr was intoxicated and arrested him.
Marathon County Circuit Judge Lamont K. Jacobson refused Landwehr's request to suppress the evidence Klieforth gathered.
On appeal, the state contended Klieforth detained Landwehr under the community caretaker exception. The state "abandoned" the argument that the officer's actions were based on his suspicion of wrongdoing, Stark said.
"As the respondent, however, the State may raise any argument in defending this appeal, including those inconsistent with positions it took in the circuit court," she wrote in a footnote.
The state also did not argue that the lower court erred when it found that the officer made contact with Landwehr inside the garage.
"Contrary to the State’s suggestion, we cannot so casually set aside an individual’s right 'to retreat into his [or her] own home and there be free from unreasonable governmental intrusion.' ”
"The State reasons that because Klieforth initially assisted (the woman) with getting home, it was necessary to question Landwehr in order to ensure (the woman) remained safe once there," Stark wrote.
Landwehr, on the other hand, "replies that while Klieforth’s initial contact with (the woman) may have involved a community caretaking function, his contact with Landwehr was purely from the standpoint of a criminal investigation," Stark said. "Landwehr is correct."
The state did not meet its burden to show that any community caretaker function was reasonable under the circumstances, Stark said.
"Contrary to the State’s suggestion, we cannot so casually set aside an individual’s right 'to retreat into his [or her] own home and there be free from unreasonable governmental intrusion,' ” she wrote.
"Walker's judges" is our effort to present information about Gov. Scott Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
James R. Troupis, on his Circuit Court application, indicated that he had been "held in contempt or otherwise formally reprimanded or sanctioned by a tribunal," but did not explain his answer, though the application required him to do so.
That didn't bother Walker, who appointed Troupis to the bench in May 2015. Less than five months later, Troupis, angling for a quick promotion, submitted an application seeking to succeed Supreme Court Justice N. Patrick Crooks, who died in September, 2015. In that application, Troupis explained his discipline this way:
During the 1990's I was asked by District Court Judge Barbara Crabb to undertake the representation of a juvenile inmate at Lincoln Hills Correctional Center. That juvenile had been held in solitary confinement for 21 days, restrained the entire time with waste (sic) chains, leg irons and handcuffs, forced to eat while sitting on the floor from a tray slipped-in (sic) thru a door slit, allowed 1 hour per day for exercise and otherwise confined to an 8' x 10' cell. Magistrate Judge Stephen Crocker, then an associate with my firm, and I investigated and then brought a substantial civil rights action against the State of Wisconsin and others on behalf of that juvenile. ... As we approached trial, it was apparent to me that our initial pleadings needed to be amended. The date for amendment had passed, but I none-the-less (sic) filed a request to amend. As I best recall it, the State opposed the Motion to Amend, and demanded I withdraw the Motion. I refused to withdraw the Motion. The Court denied my Motion to Amend. The State was not satisfied with the denial alone - they demanded that we be sanctioned for bringing a frivolous Motion. Judge Crabb held that the Motion had no chance of success and so she "sanctioned" us. The sanction was that we were admonished by the Court not to do it again.
The answer also seems to show that things don't really change at the Lincoln Hills juvenile prison.
Troupis, by the way, did not get the Supreme Court seat, and he quit his Circuit Court gig less than a year after he got it, having stirred up some controversy in the meantime.
Name: James R. Troupis
Appointed to: Dane County Circuit Court
Appointment date: May 22, 2015 (resigned May 2, 2016)
Law School – Northwestern University
Undergrad – Northwestern University (earlier attended Bradley University)
High School – Mendota Twp
2010 - present – Principal, Troupis Law Office, Middleton/Cross Plains, WI
1987 - 2010 – Partner, Michael Best & Friedrich, Madison, WI
1979 - 1987 – Partner, Troupis & Troupis, Mendota, IL
American Bar Association; State Bar of Wisconsin
State Bar of Illinois; Federal Circuit Bar Association
Seventh Circuit Bar Association
Western District of Wisconsin Bar Association
Dane County Bar Association
Hellenic Bar Association of Illinois
National Health Lawyers Association
Association of Trial Lawyers of America
American Intellectual Property Law Association.
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Began as judicial law clerk for Justice Howard C. Ryan of the Illinois Supreme Court. Worked with father in a small-town general practice; represented criminal defendants, civil litigants and practiced general civil and probate law that included real estate, contract, corporate and tax matters. At Michael Best & Friedrich, worked to create the firm's litigation group, chaired the litigation and worked to expand firm from 12 to nearly 70 lawyers. Practice there generally focused on complex litigation on behalf of individuals and mid-size corporations leading to trials and appeals at all court levels and throughout the country. Pro bono activities included representing criminal defendants in state and federal court.
Number of cases tried to verdict or judgment: Jury, numerous; non-jury, numerous; administrative bodies, numerous; arbitration, 2.
Cases on appeal: A recent search of all of the cases on which I appeared for which there is a published opinion showed approximately 100 published rulings.
List and describe the two most significant cases in which you were involved:
Hoffinan-La Roche, Inc. v. Promega Corp., 323 F. 3d 1354 (Fed. Cir. 2003); 243 F.3d 564 (Fed. Cir. 2000); 1999 WL 1797330 (N.D. Cal. 1999); 33 U.S.P.Q. 2d 1641 (N.D. Calif. 1994); 319 F. Supp. 2d lOll (N.D. Cal. 2004) (Related case United State ex rei. Promega Corp. v. Hoffmann-La Roche, Inc., No. 03cv1447 (E.D. Va)). This matter was brought initially against Promega for violation of a licensing agreement to TaqDNA Polymerase, an essential component in virtually all DNA replication. Over time, the case spawned trials on three continents (Europe, Australia and North America) in which I participated and there were no fewer than eight pending cases worldwide when the matter was ultimately concluded. At stake were the multi-billion dollar international rights to the polymerase chain reaction, a technique for replicating DNA used in forensics, genetics, diagnostic medicine and a host of research applications. … Ultimately, we were successful in demonstrating that fraud had been committed on the United States Patent Office in obtaining the critical patents. Qui Tam and class action lawsuits followed the holding. I represented Promega Corporation as lead litigation counsel worldwide, and after winning verdicts in the United States and overturning the European Patents, the matter was settled, with government approval, in a complex series of agreements. The disputes continued for Promega from 1992 to 2006, with the primary case before Judge Vaughn Walker in the United States District Court for the Northern District of California. Virtually every major scientific publication in the world covered the matter, as did the Wall Street Journal, New York Times and others. Following the verdict, the matter was named by a major scientific publication as one of the five most important legal decisions in the world of science as it enabled the broad use of foundational technology that has revolutioned (sic) biotechnology. …
State v. Bobby G., 2007 Wl 77, 734 N.W. 2d 81. This important case came to me by request of the Wisconsin Supreme Court following a handwritten petition from Bobby G. to that Court expressing concerns about his parental rights. The case, brought in 2006 and concluded in 2007, focused on the rights of a natural father to his child when the natural father has no knowledge of his child's existence until after his parental rights have been terminated. The differences between how one might view the rights of natural parents to their children (which are nearly absolute) as opposed to the rights of that same parent once the parental rights have been terminated (the best interests of the child then control) made the issues posed critical to all concerned. When, as in this instance, the father was in prison or otherwise did not know of the child, it would seem fundamentally unfair to terminate that father's rights for his lack of "participation" in the child's life; yet that is what had occurred prior to the Wisconsin Supreme Court proceedings. Both the circuit and appellate court had ruled that Bobby G.'s failure to participate in his son's life immediately after birth constituted irrevocable grounds to terminate his parental rights without regard to his even knowing he had a son. Arrayed against the natural father, Bobby G., were a host of amicus, as well as state agencies charged with supervising adoptions. The Wisconsin Supreme Court, in a very hotly contested 4-3 decision, ruled in favor of the natural father and the matter was remanded for further proceedings to address his future participation in his child's life. As the many amicus recognized, this pro bono matter had far reaching implications in adoption, father's rights and ultimately constitutional rights of parents nationwide.
Please list all instances in which you ran for elective office. For each instance, list the date of the election (include both primary and general election), the office that you sought, and the outcome of the election. Include your percentage of the vote.
Mayor, City of Mendota 1985-1987 (Contested General, non-partisan. 51% appx total)
Involvement in judicial, non-partisan or partisan political campaigns:
Yes. I have generally acted as counsel to various candidates, campaign committees and individuals or groups supporting those candidates. I have also acted as counsel to the Republican Party of Wisconsin and various Presidential Campaigns, primarily as lead litigation counsel. In addition, I have been extensively involved in voter integrity programs, legislative and judicial recounts and served by appointment as a Public Member on the Special Joint Legislative Committee on Election Law Review (2004-05)
Please list all judicial or non-partisan candidates that you have publically endorsed in the last six years: Candidates endorsed in the last six years: I do not know if I publicly endorsed any particular candidate. I have publicly supported Justice David Prosser, Justice Michael Gableman, Justice Patience Roggensack, Justice Patrick Crooks and Justice Annette Ziegler, among others.
I have publicly supported Justice David Prosser, Justice Michael Gableman, Justice Patience Roggensack, Justice Patrick Crooks and Justice Annette Ziegler, among others. – Dane County Circuit Judge James R. Troupis
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application:
Legal Action of Wisconsin, Board of Directors (Providing Access to Justice for Low Income
Individuals and the Elderly) (2014-Present)
Agrace Hospice, Ethics Committee (Non-profit Hospice Care, Dane County and Southern
Office of Lawyer Regulation, Wisconsin Supreme Court, District 9 Committee) (2011-Present)
The MacIver Institute for Public Policy Board of Directors (Founding Board Member) (2009-
Board of Governors, State Bar of Wisconsin (2007-2009)
Wisconsin Higher Education Business Roundtable Board of Directors (2006- 20 I0)
Chairman, Judicial Selection Committee, Dane County Bar Association (2005)
Public Member, Special Joint Legislative Committee on Election Law Review (2004-05)
Chairman, Governor's Advisory Council for Judicial Selection (2001-02)
Board of Governors, President (2004-05), Vice President (2003-04) and Executive Committee
Western District Bar Association
Alternative Dispute Resolution Committee, United States Federal District Court for the Western District of Wisconsin
Committee Chairman and Board of Directors, Dane County Bar Association
Board of Editors, Matthew Bender Health Law Monthly
Advisor, Vice President, Executive Committee and Board of Directors, Madison Symphony
Vice President and Board of Directors, Black Earth Creek Watershed Association
Firm Representative and Adjunct Admissions Interviewer, Northwestern University Law School
St. Thomas Aquinas Worship Commission and Fundraising Chairman
Secretary, Executive Committee and Board of Directors, Madison Literary Club
Mayor, City of Mendota
Board of Directors, Illinois Development Finance Authority
President and Board of Directors, Mendota Area Chamber of Committee
Chairman, National Sweet Com Festival
Board of Directors and Officer, Mendota Area Senior Services
Secretary and Board of Directors, Mendota Lions Club
Supreme Court Historical Society
15th Congressional District Advisory Committee
Secretary, LaSalle County Bar Association
Advisory Board and Pro Bono Panel, Prairie State Legal Services
Describe any pro bono legal work in the last five years:
Why I want to be a judge – After practicing law for more than 35 years, it would be an honor to serve as a judge. It is an opportunity to apply the knowledge I have gained in a way that, I hope, would advance the rule-of-law (sic) and enhance and renew public faith in the judiciary.
For my entire career I emphasized to those I worked with, including every newly hired associate, that God has given us each a great gift and we are obligated to give back. (Hopefully, the matters I have handled and the various positions I have held reflect that commitment. ) Becoming a judge would again meet that obligation. It is the essence of public service both for my fellow attorneys and the public. ...
It has been a lifelong hope for me and my family that I would one-day (sic) be able to use a life-time of experiences to help others. This is that opportunity, and I will do my very best to insure that every party appearing before me is given a full and fair hearing and that I decide matters on the law.
It is not the judges (sic) role to devine (sic) the purpose behind a law, but rather to enforce the law as written. – Troupis
Best Wisconsin or U.S. Supreme Court decision in the last 30 years – Citizens United v. Federal Election Commission (2010)
Three factors make Citizens United one of the best U.S. Supreme Court cases in recent
years--reaffirmation of first principles, powerful historical precedent and judicial independence.
First, the Court, in holding that independent expenditures by nonprofit corporations
may not be restricted, reaffirmed free speech as a key component in our constitutional system.
As the Court noted, "Speech is an essential mechanism of democracy, for it is the means to hold
officials accountable to the people....Premised on mistrust of governmental power, the First
Amendment stands against attempts to disfavor certain subjects or viewpoints....Prohibited,
too, [by the First Amendment] are restrictions distinguishing among different speakers,
allowing speech by some but not others." … Such reaffirmation of first principles, i.e. those principles on which the country relies for its very existence, is a key component of our Constitutional system, and there are very few opportunities for the Court to address those issues as directly as in Citizens United. That the opinion did, in fact, strongly endorse a vibrant First Amendment's makes the holding one of the most important matters to come before the Court in recent years.
Second, it is critical that Courts not write the law, but instead, appropriately interpret
laws enacted by the Legislative branch consistent with Constitutional guarantees and past
precedent. As a reaffirmation of First Amendment protections, Citizens United reinforced the
Constitutional guarantees. But, even as it overturned recent precedent, the Court
acknowledged the proper role of stare decisis in citing a long-line of cases protecting free
speech and a line of precedent nearly as long providing free speech rights to corporate entities.
That component of the case, reliance on historical precedent while simultaneously overturning
ill-conceived holdings, is often overlooked. Here, in citing and relying on seminal precedent, the
Court's opinion is likely to form a basis for other Courts to continue to expand First Amendment
Finally, it is important from time-to-time that the Court's actions be perceived as contrary to public opinion. Ironically, by acting against public opinion, the Court's reputation and role as an independent arbiter of disputes is enhanced. The comments of the President in the State-of-the-Union address following Citizens United reflect, in graphic terms, how important the case was for the public's perception of the Court. The Court was not cowed by a powerful partisan Executive or swayed by public opinion. It is by just such acts, courage in the face of public opinion, that the Court renews the public's faith in the Court's critical role as an independent branch of the Government charged with enforcing the laws in accordance with the Constitution.
Taken together, I believe Citizens United represents the best of what the U.S. Supreme
Court has done in recent decades.
Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – Thomas v. Mallett (2005 WI)
The Lead Paint case stands-out as a one of the worst decisions in recent memory. That decision was clearly "results oriented" as opposed to "precedent-based" and the Court majority fundamentally misunderstood its proper role by attempting to enact a legislative solution by judicial fiat. The Court's holding, that liability may be assessed on the basis of "risk contribution," eliminated individual causation and thus disregarded a critical bedrock of tort law. …
The Wisconsin Supreme Court's holding that all lead pigment manufacturers were liable based on their mere participation in the marketplace was, in effect, creation of a tax, retroactively, on those companies to solve a perceived problem. It was a legislative solution, not a judicial decision. As dissenting Justice Wilcox summarized at the time, "[m]anufacturers can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred 100 years ago when some of the defendants were not even part of the relevant market." …
The decision was unquestionably results oriented. That is, the great sympathy one has for those injured by lead paint controlled the outcome. This was, as trial lawyers often say, an injury in search of a legal claim. (In point of fact, the plaintiffs had already successfully sought and obtained financial settlements with the apartment owners.) One of the most difficult tasks a judge faces is to learn not to use the power he/she may have. The temptation is enormous to 'do something', but that is not the proper role of the Courts. The Lead Paint case stands as one of the best examples of what not to do. Indeed, failing to properly apply the law in order to achieve a predetermined result is ultimately a fools-errand (sic) that results in loss of faith in the rule-of-law (sic) and as such undoes the real benefits a Court can bring to dispute resolution.
Judicial philosophy – There are a number of guiding principles applicable to a greater or lesser degree based on the matter and the Court's jurisdictional mandate. A Circuit Court judge, for example, must enforce the law, without regard to the status or stature of the party. Each party must be given a full and fair hearing and the Court's ruling must be impartial.
More generally, all judges are given enormous power as a consequence of our constitutional structure. That power depends, however, on each judge properly understanding the role of the judiciary. A judge applies the law, a judge does not make the laws. Consistent with that view, the judiciary must interpret the laws, when necessary, consistent with the founding principles expressed in the words of the United States Constitution and Bill of Rights and the Wisconsin Constitution. Put differently, the role of the Court can not be to make the laws, and a Judge must be careful to avoid such tendencies.
It is not the judges (sic) role to devine (sic) the purpose behind a law, but rather to enforce the law as written.
By Margo Kirchner
An attorney’s angry gesture with a pen resulted in two more months of delay for a woman’s claim that neglect by Milwaukee County jailers led to the death of her newborn child.
Attorney James J. Gende II, who represents plaintiff Shadé Swayzer, lunged toward a correctional officer during a deposition and slammed the end of a pen into a flow chart just inches from the county’s lawyer’s hand. (See video below.)
The county’s lawyer, Douglas S. Knott, accused Gende of “assault” and ended the deposition.
Swayzer’s suit against the county and its medical contractor, Armor Correctional Health Services Inc., alleges, among other things, they were negligent in providing medical care and violated the constitutional rights of both Swayzer and her deceased infant daughter, Laliah.
Knott and attorneys for Armor later filed motions for protective orders to prohibit Gende from conducting future depositions in the case. If granted, Swayzer’s representation in those depositions would shift to other lawyers on the team.
Gende apologized for losing his patience and said it had nothing to do with the witness, Correctional Officer Terina Cunningham, but did have something to do with Knott.
“I believe counsel has made it as difficult as possible over the last several examinations for me to complete my deposition of his clients,” he said.
Depositions of two Armor employees were scheduled for Oct. 20 and Nov. 2, but their lawyers, citing Gende’s conduct, refused to proceed with those depositions.
Michael Russart, an attorney for Armor, told Gende in a letter he was canceling his clients’ depositions to “protect [them] from harassment, embarrassment and potential injury.”
Russart said he would call the police if Gende appeared at Russart’s office for any depositions.
In a quickly scheduled Oct. 17 hearing, U.S. District Judge Pamela Pepper agreed that full briefing of the motions for protective orders and a further hearing were warranted. She prohibited the taking of any depositions in the meantime, noting her concern over Gende’s loss of composure at the Cunningham deposition.
Now all depositions are stayed until the Nov. 29 hearing.
Other discovery disputes also appear to be delaying progress in the case. Swayzer’s attorneys are seeking orders compelling Armor and former Sheriff David Clarke to provide responses to written questions and to produce requested documents.
Armor says it answered many of the requests and is working to supplement its responses. It said its responses were delayed by Hurricane Irma in Florida and the need for additional time to produce electronic discovery and suggested that the motion to compel its responses was actually meant to divert the court’s attention from Gende’s conduct.
Clarke says he responded to several of the discovery requests on Oct. 27, but refuses to provide additional information regarding his personal calendar and whereabouts from July 6 to 14, 2016. Clarke contends that such information is confidential and irrelevant to the case.
Pepper referred the disputes about Armor’s and Clarke’s responses to U.S. Magistrate Judge William E. Duffin for resolution. But she retained the motions about Gende’s conduct at the deposition.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations in the future.
Pepper found that Armor’s professional obligations and economic interest in keeping its contract with the county provide incentive enough and that the need for truth about the defendants’ policies and practices at the jail outweighs confidentiality concerns.
Swayzer alleges in her suit that she was eight months pregnant when she was taken into custody in July 2016 for an alleged probation violation and placed into a maximum-security cell at the County Jail run by the Milwaukee County Sheriff’s Department and then-Sheriff Clarke.
Swayzer was more than eight months pregnant at the time, and a hospital exam just prior to her arrival at the jail showed the pregnancy to be healthy and on track. Days later, alone in her cell, Swayzer gave birth to daughter Laliah. Laliah survived just a few hours, dying in the cell in which she was born.
Swayzer and Laliah’s estate sued Clarke, Milwaukee County, several jail employees, Armor, and some of Armor’s doctors and nurses. Swayzer asserts that when she arrived at the jail on July 6, 2016, a doctor and nurse documented her mental and physical health needs and directed that Swayzer be housed in the special needs unit.
Nevertheless, though Swayzer initially resided in the special needs unit for two days, a lieutenant at the jail moved her to maximum security because she had been involved in various incidents while incarcerated on previous occasions, according to the suit. No jail or medical personnel took action to keep Swayzer in the special needs unit, the suit alleges.
Swayzer claims that from July 8 through July 13 she remained in maximum security and received no medical care. A doctor was scheduled to see Swayzer on July 13, but failed to do so.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations at the jail in the future.
According to the suit, a guard doing rounds the evening of July 13 saw Swayzer in an unusual position, but failed to investigate. The next morning Swayzer informed that guard that she was in labor, her water had broken, and she was experiencing contractions. The guard did nothing about Swayzer’s reports. Another inmate heard Swayzer crying for help in the early morning hours of July 14, the suit says.
Swayzer delivered Laliah at about 5 a.m. without medical assistance. Swayzer wrapped Laliah in a blanket with her face exposed. The two remained in the cell alone without medical help for over an hour.
Just before 6 a.m., the same guard saw Swayzer lying in an odd manner, blood on the mattress, and bunched-up blankets, according to the suit. Despite those observations, the guard continued her rounds and then conferred with another guard about Swayzer. Neither guard called in a medical emergency until one of them returned to the control room, the suit says.
When medical staff responded to the emergency call, a guard initially denied them access to Swayzer’s cell because he was waiting for backup. When medical staff finally got to Laliah and removed her from the cell she did not appear to be breathing. Resuscitation attempts began around 6:20 a.m., but failed, and Laliah was declared dead at 6:55 a.m.
Meanwhile, guards awaited the arrival of additional jail staff before allowing Swayzer to be transported to the hospital, according to the suit.
Swayzer and Laliah’s estate allege that all defendants were deliberately indifferent to Swayzer’s and Laliah’s serious medical needs in violation of the U.S. Constitution. They claim that Milwaukee County, Clarke, and other supervisory personnel at the jail failed to train and adequately supervise staff and maintained policies that resulted in the injuries to Swayzer and Laliah. And they claim that Clarke and the jail defendants are liable under Wisconsin law for negligence and Laliah’s wrongful death.
In response to Swayzer’s discovery requests, the County admits that Clarke issued no corrective action or discipline regarding the circumstances of Swayzer’s delivery and Laliah’s death.
By Gretchen Schuldt
Updated Nov. 1
Police officers and firefighters accused of gross wrongdoing would stay on the job while they await their hearings before the Fire and Police Commission, under a bill introduced in the State Legislature.
It would also lift the city residency requirement for members of the commission.
The Common Council's Judiciary and Legislation Committee this week recommended the city oppose the measure.
The bill, introduced by State Rep. Janel Brandtjen (R-Menomonee Falls), and State Sen. Van H. Wanggaard (R-Racine) says that "no member of the police force or fire department may be disciplined by the chief of either of the departments except for cause and after trial ...."
Brandtjen is best known for advocating for aid cuts to Milwaukee unless the city took steps to cut crime.
"It's just breathtaking how much influence the MPA (Milwaukee Police Association) has with certain legislators," said Patrick Curley, chief of staff to Mayor Tom Barrett.
The bill, according to a city Intergovernmental Relations Division memo, "would decimate FPC’s independence, create a local financial crisis, and severely erode community trust in the oversight of law enforcement" and "would add millions of dollars to the municipal budget and would create a dramatic financial burden that would reduce other critical city-funded services."
The law now allows the fire and police chiefs to suspend employees for up to 30 days before a hearing.
The new bill would keep the officer or firefighter on the job for at least 10 days after a disciplinary recommendation. If the employee does not appeal before those 10 days are up, the discipline would take full effect.
The bill also would ensure that officers and firefighters stayed on the payroll if, for some reason, they were suspended before their commission hearings.
It would cost about $1 million annually to fund police officer pay and fringe benefits while they are undergoing disciplinary processes, the Intergovernmental Relations Division memo said.
The bill would require that three-member panels that hear complaints against officers include one member with professional firefighter experience if the complaint is against a firefighter, and one with professional law enforcement experience, if the complaint is against a police officer.
A new appeal path would be available for police and firefighters disciplined by the commission. Currently, appeals go to circuit court; under the bill, the appeal could first go to an arbitrator agreed to by both sides, then to circuit court. Arbitration and court costs would be at city expense.
The appeals process could take years, Curley said. "Meantime, the taxpayers are paying these folks," he said.
The bill also would impose a tougher evidence standard for disciplinary cases involving police officers or firefighters. The standard would change from "substantial evidence" that a rule or order was violated to "clear and convincing evidence."
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," according to lectlaw.com; "clear and convincing evidence"
means "the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true."
The bill also would allow political parties to have more influence on the commission and the unions representing police and firefighters would each essentially have an appointment to the commission.
The bill would require Milwaukee to have at least one commission member with professional law enforcement experience and at least one member with professional firefighting experience. Those appointees would be selected from lists submitted by the firefighters and police unions.
Current law prohibits more than three commission members from being in the same political party. The bill would require the mayor to select any members affiliated with a party from lists submitted by the "chief officer" of the Republican and Democratic parties.
The bill also would require the commission to meet in closed session with representatives of the affected union when the commission appoints either a new police or fire chief.
The bill even goes so far as to remove the executive director of the commission from the mayor's cabinet.
Under current law, the mayor nominates the members of the Fire and Police Commission and the Common Council confirms the nominations. In addition, no more than three members of Milwaukee's seven-member Fire and Police Commission may be from the same political party, according to a Legislative Reference Bureau summary of the bill..
An official office of independent monitor also would be created under the bill.
"This person acts as the principal staff of a first class city board, reviews certain situations or investigations involving the police or fire department, evaluates police and fire department policies and practices, and issues periodic reports to the public relating to the status and outcome of complaints that have been filed," according to the Reference Bureau summary of the bill.
The independent monitor would serve at the pleasure of the commission and could not be removed by the mayor or the Common Council.
Under the bill, "a court or arbitrator must review the evidence independently and without deference to the board's findings; must reverse the board's decision if it finds that fairness or correctness of the action has been impaired by material or procedural errors; and must set aside or modify the board's decision if it finds that the board erroneously interpreted a provision of law, or may remand the case to the board for further action that is consistent with current law," according to the Reference Bureau report.
The court or arbitrator also would be required to reverse the commission's decision if the board's actions were outside of its delegated powers or were inconsistent with a board rule, policy, or practice," unless the deviations were adequately explained.
The bill also allows a court or arbitrator to take additional testimony and depositions and to grant requests for additional discovery.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
There are just not that many judicial applicants who point out in their application cover letters that they donated to the governor from whom they are seeking appointment. Brian Wright is one of the rare ones. Here is the Wisconsin Democracy Campaign's report on the donations. The $1,000 donation to Walker referenced in the report was made exactly one week after Wright wrote his application letter.
Name: Brian H. Wright
Appointed to: Eau Claire County Circuit Court
Appointment date: July 27, 2015 (lost bid for full term in April 2016)
Law School – Marquette Law School
Master's Degree – University of Denver
Undergrad – LaGrange College
High School – None listed on application
2013 - present – Attorney, Herrick & Hart, Eau Claire, WI
2013 - Attorney, Steiner &Wright, Eau Claire, WI
March 2012 – January 2013 – District attorney, Eau Claire County (appointed by Governor Walker; lost in November 2012 election)
2000-2012 – Partner, Steiner & Wright
Wisconsin State Bar
Colorado State Bar
Minnesota State Bar
U.S. District Court, Eastern District of Wisconsin
Eau Claire County Bar Association
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Besides work as Eau Claire district attorney, prosecuted traffic and ordinance cases for the Village of Lake Hallie since 2000, and the Village of Cadott since about 2008; resumed both functions after DA job ended. Prior to DA appointment, represented criminal defendants privately and by county and public defender appointments. After DA job, represented criminal defendants in a handful of county-appointed cases and privately represented two high school students in a juvenile matter. Focus on civil work with Herrick & Hart, S.C., and has represented clients in administrative proceedings in the areas of employment discrimination, wage-and-hour disputes, grievance arbitration, worker’s compensation, and unemployment issues.
Number of cases tried to verdict or judgment: Jury, 30; non-jury, 100; arbitration, 6; administrative bodies, 6.
Cases on appeal: No answer on application.
List and describe the two most significant cases in which you were involved:
The first case involved my representation of a teacher in Racine, WI who the school district terminated alleging a pattern of misconduct in her teaching and communication with students. The teacher had high standards and pushed students to reach their full potential, but, in doing so, was periodically at odds with the administration. The hearing was before an arbitrator and lasted ten days. The arbitrator decided in the teacher’s favor.
The second case involved my representation of a registered nurse … A couple of months into her employment, nurses discovered what they believed was missing oxycontin. The State charged the registered nurse I represented with obstructing a police officer because when the police officer interviewed her, she initially told the police officer that another nurse watched her destroy the oxycontin … In the same interview, the registered nurse I represented voluntarily told the police officer that she has not been truthful when she said the other nurse was present because she was concerned about losing her job if her employer found out she hadn’t followed procedure by having a second nurse present. … The jury agreed with my argument that the registered nurse had not obstructed the officer because she voluntarily corrected her earlier statement to the police officer during the same interview.
Have you ever held judicial or quasi-judicial office?
Summer 2011 – Acting Family Court Commissioner
Approx. 2007 - present – Reserve Court Commissioner
Number and nature of judicial or quasi-judicial cases: 100.
Two most significant cases: In the first case, I presided as acting court commissioner over a small claims contested case … the plaintiff acknowledged the backdated signature. … In the second case, I was presiding over a different small claims action as reserve court commissioner when one of the witnesses … began to express racial opinions about one of the parties. I took the appropriate action of instructing this individual to discontinue his remarks. … We finished the hearing without further incident. The minority party expressed her appreciation for my unwillingness to allow the racial remarks to continue.
Please list all instances in which you ran for elective office. For each instance, list the date of the election (include both primary and general election), the office that you sought, and the outcome of the election. Include your percentage of the vote. Eau Claire County District Attorney, Nov. 2012 (47%).
Involvement in judicial, non-partisan or partisan political campaigns:
My wife, Haley, and I worked the telephone banks at the Eau Claire County republican headquarters for Governor Walker during the recall election. Since our daughter Corelia’s birth we haven’t been as actively involved devoting most of our time to her. I served as a legal volunteer for the republican party for voting irregularities in the November 2014 election.
As I did when I served as district attorney, I would like to play a greater and more prominent role in setting an example as to the correctness of conservative values and principles. - Former Eau Claire County Circuit Judge Brian H. Wright
Please list all judicial or non-partisan candidates that you have publically endorsed in the last six years:
Scott Walker; Warren Petryk; Kathy Bernier; Terry Moulton; J.B. Van Hollen; Julian Bradley.
Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application: Pro bono representation of local veteran’s chapter; parishioner, Saint Raymond’s Church.
Describe any pro bono legal work in the last five years: Free Legal Clinic.
Why I want to be a judge – I have a deep respect and reverence for our judicial system. I have upheld the highest standards of our profession in my work as a practicing attorney as a district attorney. I would like to play a greater role in upholding the rule of law and impart on those who appear in my courtroom, should Governor Walker appoint me, the conservative beliefs and values that I was taught and are the reason I was able to pay my way through college, become the first person in my family to graduate from college and to then go on and earn my M.B.A. and J.D. degrees. …
I have a genuine interest in the pursuit of justice from a perspective that my own unique experiences afford me. As I did when I served as district attorney, I would like to play a greater and more prominent role in setting an example as to the correctness of conservative values and principles.
Best Wisconsin or U.S. Supreme Court decision in the last 30 years – Citizens United v. Federal Election Commission (2010)
I have always felt the more public discourse on political issues the better. As citizens, we are fully capable of filtering out information that is unhelpful or misrepresents the qualifications of a candidate or issue. Structurally, I have always found it interesting how critics of Citizens United have no problem with the influence of unions and special advocacy groups on elections. There will always be individuals and organizations with a louder bull horn. The importance of Citizens United is that it expanded political discourse and left it to us as in individual citizens to make our own decision which is what our founding fathers envisioned.
Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – Virginia Wolf et al. v. Scott Walker et al.
I am going to take some liberty on this question and name a 7th Circuit Court of Appeals decision that is currently under review by the United States Supreme Court … I have named this case because, in the last 30 years, I don’t believe any issue has been more wrongly decided.
At the outset, let me say that, despite my religious beliefs opposing same-sex relationships, I believe the government does have a role to play in prohibiting state-sponsored discrimination against gays or lesbians. However, I believe the Seventh Circuit went to (sic) far when it invalidated the will of the people in the State of Wisconsin to define marriage as a union between a man and a woman. I believe this is a case of judicial activism in which the court turned to other constitutional provisions in defining marriage as a constitutional right. It is not. Marriage is a privilege not a right.
I am paraphrasing, but in an early supreme court decision, the court said the following: The constitutional rights of another end where my nose begins. In the case of redefining marriage to include same sex unions, I believe the Seventh Circuit should have made it clear that the decision of two men or two women to enter into a civil union is for those individuals to make with no interference from the government. However, the court’s decision has now taken the lifestyle choices of a minority of citizens and gone beyond the point where my nose begins and the noses of a majority of citizens in the State of Wisconsin begins. In other words, the court has forced upon the majority of Wisconsin citizens who voted in favor of the referendum … a change in one of the most important societal structures and institutions that we and our ancestors grew up with.
This is not a function of courts. Nor is this remotely comparable to the court’s decision in Brown v. Board of Education which I fully believe was correctly decided. The reason this is such a bad decision is that it weakens the structure and limitations of the constitution. This was a decision for the will of the people not a federal court.
Judicial philosophy – It is to apply the law fairly and impartially. In any decision, I would begin by looking at stare decisis (sic) to determine if there is precedence for deciding the case. However, in every jury trial I have ever had, there are numerous points in the trial when a judge must exercise discretion in making a decision. When it comes to the exercise of discretion, my philosophy is that a judge can’t lose his or her common sense. This is where my breadth of experience will be valuable.
I now realize after watching some of the decisions in the district attorney’s office that Governor Walker did select the right person when he appointed me. …
I believe we have over-systemized the criminal cases in Eau Claire County by relying on COMPASS evaluations and other components of evidenced based decision making to make charging decisions and sentencing recommendations. (Applicant describes a case involving a defendant who fatally shot his wife, with an early recommendation for no confinement and then a recommendation for three years initial confinement.) This is simply inexcusable. ... Fortunately, this case was assigned to Judge (Kristina) Bourget to ten years initial confinement stating that any lesser sentence would unduly depreciate the seriousness of the offense. In my appearances before Judge Bourget, I believe my judicial philosophy is closely akin to hers.
Any other information you feel would be helpful to your application: My wife, Haley and I, strongly support Governor Walker. I have voted for him in each of the elections he has run because of the good he is going for the State of Wisconsin. In the election for district attorney, I learned just how partisan things have gotten. … when I lost the election, it was a kick in the gut to realize that the quality of my work in the district attorney’s office took a back seat to politics. …
These experiences have hardened me, not in a mean or vindictive way, but in a way that I realize the important of fighting for the values I believe in. … My work at Herrick & Hart over the past one and one-half years has allowed me to regain my confidence. I now realize after watching some of the decisions in the district attorney’s office that Governor Walker did select the right person when he appointed me. …
Milwaukee County is seeking to have a $6.7 million jury verdict tossed out based on the word of a man who sought $40,000 in exchange for his testimony that the ex-Milwaukee County Jail inmate who won the verdict never was sexually assaulted by a corrections officer at the jail, as she alleged and the jury believed.
Ivan Boyd later withdrew his request for money, but wrote to a lawyer who represented the county that "it is very unfortunate that you were not able to meet my previous terms per (ethical rules) in addition to you not being interested. With all due respect ... one would think that you would be a little more appriciative of your newfound godsend (me) after your decision not to settle this matter with the plaintiff and crapping-out."
The lawyer, Andrew Jones, of the Husch Blackwell law firm, said in a court filing that Boyd's allegations provided "new evidence" that "raises a substantial question regarding the truth of plaintiff’s testimony, is material, is not merely cumulative or impeaching, and would likely lead to a different result at trial."
(The county has alleged that Husch Blackwell had a conflict in the case because it was hired by the Wisconsin County Mutual Insurance Corporation, which has declined pay the verdict on behalf of the county, leaving county taxpayers on the hook.)
The jury's verdict, Jones wrote, "should not be allowed to stand without a jury having the opportunity both to hear this important evidence regarding plaintiff's claims of sexual assault and to decide which version of events to believe."
The woman was pregnant at the time of the assaults. The man now saying the assaults did not occur says he is the father of the child. He also was the woman's co-defendant in a 2013 armed robbery case. He was found guilty and sentenced to 15 years in prison and 10 years of extended supervision. He is appealing.
The woman also was found guilty and was sentenced to three years and six months in prison and four years of extended supervision.
Boyd, in a July letter to Jones, said he and the woman "both 'planned' together that we would find the perfect 'Target' in the jail to 'Set-up' for rape in order to file and win a lawsuit against the County Jail."
In a sworn statement given later, Boyd said the woman told him after they were both jailed that "she was going to 'make them pay.' By 'them,' I understood that Martin meant Milwaukee County. Martin went on to state that she intended to 'make them pay' by falsely accusing one of the guards at the Milwaukee County Jail of rape and then bringing a lawsuit against the County."
Boyd said in a letter to Jones that he met and befriended Corrections Officer Xavier Thicklen at the jail. The two agreed that Thicklen would bring the woman food and snacks while she was in jail and that Boyd would pay him when Boyd was released.
"But in reality this was only a ploy to get Martin and Thicklen together alone on several different occasions so that later, when (the woman) and I decided that it was time for her to make the assault allegations there would possibly be some documented proof of Thicklen engaging in misconduct by calling her out of her cell for 'fake' attorney visits," Boyd wrote.
The jury found that Thicklen assaulted the woman several times. Thicklen, who denied the allegations, did not attend the civil trial
Shortly after the woman accused him of the assaults, Thicklen resigned from his job. He later pleaded guilty to one count of felony misconduct in office. He was sentenced by Milwaukee County Circuit Judge Daniel Konkol to three days in the House of Correction. Konkol also ordered him to pay a $200 fine.
After attorney Jones expressed interest in Boyd's story, Boyd wrote to him:
"I trust that in recognizing the equities here, in addition to yourself, your respectable colleagues, as well as your employer; do acknowledge and agree that some form of monetary compensation is rightfull in order and naturally expected in light of what all I potentially stand to loose as a direct result of my decision to cooperate with you - keep in mind I do share a child with ... and she did provide us good statements for my appeal."
He continued: "When considering the substantial windfall that is currently injeopardy of being wrongfully lost to a 'CAREER SCAM ARTIST' (the the woman); I do believe $40,0000 paid me as compensation in exchange for my complete and effective cooperation in this matter is in fact a reasonable figure."
Boyd sought $20,000 immediately and $20,000 upon a favorable conclusion to the county's case.
He changed his mind when Jones said neither Husch Blackwell nor the county would give him any money.
"I am not motivated by greed only my desire to do what is right for a change," Boyd wrote.
The trend is pretty clear -- African-Americans are far, far more likely than whites or Hispanics to get charged with second offense possession of marijuana felonies in Milwaukee County.
Of the 50 cases filed in 2016 that we could find, 42 of the defendants were African-American, and 38 of the arrests occurred in the city of Milwaukee north of I-94. (These all were cases where the only charge filed was the marijuana charge).
The arrests occurred frequently after a traffic-related stop, such as when an officer noticed a car parked at a gas station, or approached a car that was parked too far from the curb, or stopped a car that had windows that were too dark or because the driver wasn't wearing a seat belt. Many of the original offenses were petty and similar stops resulting in arrest were not made on the city's south side or in the suburbs.
Black folks and white folks partake of pot at basically the same rate. Yet, it is unmistakably clear that African-Americans on the north side are bearing a grossly disproportionate share of the burden of this second offense felony law.
Below are the final stats for 2016 and a map depicting the locations of the arrest locations. The red line is I-94. Details related to the arrests are on The Pot Page.
By Gretchen Schuldt
The State Building Commission chaired by Gov. Scott Walker rejected Department of Corrections' recommendations that would help two prisons comply with Prison Rape Elimination Act guidelines, records show.
And the Republican Legislature went along.
DOC requested $9.4 million to replace Adams and Harris Halls at Taycheedah Correctional Institution. Both have numerous problems stemming in part from their age – they were opened in the early 1900s – and are at their population capacity or over.
In addition, according to DOC's budget request, "Adams Hall also has a lack of cameras making it non-compliant with Prison Rape Elimination Act (PREA) guidelines."
The State Building Commission recommended no money be spent to replace or renovate the building, but called for Walker's Department of Administration to "conduct a comprehensive long range master plan of DOC facilities."
The commission also recommended the state entirely reject a $20 million request for the first phase of a housing unit replacement project at Fox Lake Correction Institution.
Citing a litany of problems with the existing units, DOC said in its budget request, "The layout of the older buildings has been problematic and each building requires two sergeants, where the newer buildings in the DOC system with this security level contain more beds and can be staffed with a single sergeant. Building layouts are not fully compliant with federal Prison Rape Elimination Act (PREA) guidelines."
That request, too, was rejected. Again, the commission recommended a long-range facilities study.
The Legislature earmarked $600,000 for the study.
Walker Administration officials, in at least a public relations nod to the prison rape problem, said they disbanded the DOC internal investigative team that uncovered abuses at the state's juvenile prisons so DOC could put more effort into preventing and investigating sexual assaults behind bars. Leaders of the internal team said their jobs were changed because they had done their jobs too well, according to the Milwaukee Journal Sentinel.
Updated Oct. 27 - Department of Corrections spokesman Tristan Cook contends the posted below is misleading because, he said, it misinterprets a statement in the department’s 2017-19 capital budget request.
WJI stands by the post.
The statement was a direct quote from the budget request: "Adams Hall also has a lack of cameras making it non-compliant with Prison Rape Elimination Act (PREA) guidelines."
Cook said an audit based on a November 2015 site visit found the prison PREA-compliant.
No mention of the audit was included in the Taycheedah budget request.
The department’s budget request was not meant to bring the prison into compliance, "but rather to build on our current compliance by examining ways that we can exceed standards and create an even safer environment for staff and inmates," he wrote.
DOC takes a conservative approach when doing self-assessments of PREA compliance, he said. The disputed quote “reflects DOC’s opinion of its compliance, not the results of the audit, which is the only opinion which affects our statutory compliance,” Cook said in another email. (Emphasis added)
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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