By Gretchen Schuldt

​State Sen. Andre Jacque (R-De Pere) wants to ask voters whether the Department of Corrections should be required to recommend revocation of community supervision for anyone charged with a crime while on probation, parole, or extended supervision.

Jacque and Sen. Stephen Nass (R-Whitewater) also would like to ask voters whether they think school districts should be prohibited from providing curriculum or instruction to students that one race or sex is inherently superior to another race or sex or that an individual, because of the individual's race or sex, bears responsibility for acts committed in the past by others of the same race or sex. 

The referendums would be advisory only, meaning they would have no legal impact. Both questions, introduced last week for consideration by the Legislature, if passed would be submitted to voters in an upcoming election. 

There already are two referendum questions on the April 4 ballot. One would amend the state constitution regarding bail if voters approve. The other, advisory only, asks whether able-bodied childless adults should be required to look for jobs in order to receive taxpayer-funded welfare benefits. 

The advisory referendums are widely seen as efforts to draw conservatives to the polls to vote in the hotly contested state Supreme Court race.

Update on 2/1/23: The two referendum questions slated for the April 4 ballot are being challenged as submitted too late under state law. 

A statement by Wisconsin Justice Initiative President Craig Johnson:​

The Legislature this spring has the opportunity to do something rare – pass bipartisan legislation that will help address mental health issues that too often result in vulnerable people ending up in prison. The legislation is 2021 Senate Bill 791. It has the potential to increase the use of treatment and “problem-solving” courts throughout the state by expanding the eligibility criteria for Treatment Alternative and Diversion (TAD) grants. Under current law, TAD grants are limited to programs that offer alcohol and other drug abuse services. SB 791 will expand the grants to include deferral and diversion programs that address mental health. 

It has long been clear to criminal justice practitioners that mental health issues can result in defendants being caught in the net of the criminal justice system with no way out. As Rep. Evan Goyke, one of the bill’s sponsors, noted in his remarks to the Senate Judiciary Committee about the bill, roughly 40% of men and 80% of women in the prison system have mental health issues. Prisons and jails are the wrong places to treat people suffering from mental health problems. Expanding eligibility for TAD grants will allow counties to set up diversion programs to help people accused of crimes get access to much-needed mental health services and hopefully be able to avoid jail or prison. 
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Sen. Andre Jacque, Republican lead sponsor of the bill, noted in his remarks that 97% of TAD graduates stay out of prison after completing services through TAD programs. Jacque also called TAD courts a “critical intervention point of the type that we are always pursuing as policymakers.” 

In the most recent state budget, an additional $2.5 million was added for the TAD programming. This legislation will allow counties to apply to use some of this additional money for new, innovative mental health treatment courts to address an important community need, help make our state safer, and help those afflicted with mental health issues avoid jail and prison. The need is there – while there are 86 TAD-funded programs around the state in 53 counties and three tribes, there are only six mental health courts in the state, according to the Wisconsin Association of Treatment Court Professionals statement to the Judiciary Committee.
 
In remarks to the media following the Waukesha Christmas parade tragedy, the mother of the man who has been charged in the incident noted that he suffered from mental health issues as a juvenile but was cut off from further assistance when he turned 18. While we don’t know what role, if any, mental health issues played in that tragedy, addressing mental health, alcohol and drug abuse and other challenges before they result in damaging criminal behavior will make Wisconsin safer.

​SB 791 passed the Wisconsin Senate on February 15. It now heads to the Assembly, where it should be put on the calendar immediately. The sooner it gets to Governor Evers’ desk, the sooner these programs can start working in communities across the state. 

By Gretchen Schuldt

Darrell Brooks allegedly plowed into a crowd at a Christmas parade in Waukesha, killing six. He was out on $1,000 bail at the time, an amount set too low because of mistakes made by the Milwaukee County District Attorney's Office and court officials.

That incident has prompted the introduction of a proposed amendment to the state constitution that toughens bail requirements and that likely would result in the pretrial incarceration of many, many more people. And since pretrial incarceration is mostly a local cost, the cost of keeping those people locked up would fall mainly on county taxpayers, not the state.

The amendment is vague, leaving the details up to legislative action after the amendment is ratified.  

The state constitution now says "Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted."

The proposed amendment would add the following: "In fixing an amount of bail, the court may take into consideration the seriousness of the offense charged, the previous criminal record of the accused, the probability that the accused will appear in court, and the need to protect members of the community from serious harm, as defined by the legislature by law, or prevent the intimidation of witnesses." (Emphasis added.)

The phrase "serious harm" is deliberately undefined, although the measure makes clear that it goes beyond "bodily harm," a term included in the existing constitution: "All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses." (Emphasis added.)

The proposed amendment would simply strike the word "bodily" and the Legislative Reference Bureau makes clear that the word "harm" would apply to "not just serious bodily harm."

The proposed amendment also would do away with the existing requirement that monetary bail be set only when it is required to help ensure that a defendant shows up in court. Instead, the proposal would allow a court to demand cash bail in any criminal case, no matter how minor.

The constitution now reads "Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court."
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The proposed amendment would change that to "Monetary conditions of release may be imposed at or after the initial appearance.

Last week the Wisconsin Justice Initiative submitted written comments opposing two bills requiring minimum bail for persons with certain prior convictions.

Assembly Bill 838 would set a minimum bail amount of $10,000 for a defendant previously convicted of a felony or violent misdemeanor. Assembly Bill 840 would require bail of at least $5,000 for anyone previously convicted of bail jumping.

The State Assembly’s Committee on Judiciary held a hearing on the bills on Jan. 12. The Committee is chaired by Rep. Ron Tusler (R-Harrison).

Writing on behalf of WJI, Board President Craig Johnson noted how the recent tragic and heartbreaking events in Waukesha County have prompted an examination of bail laws. He then asked the committee members to keep certain principles in mind as the debate on bail policies moves forward. 

“First and foremost, it’s important to understand that good bail decisions are made by relying on evidence. The problem that led to the tragedy in Waukesha was NOT that the evidence supported the decision to recommend a risky and dangerous person for release. The problem was that the evidence that was available – evidence that flagged the risk for violence and the risk for flight – was ignored,” he wrote.

The process of setting bail in Milwaukee County (and other jurisdictions) is assisted by a risk tool called the Public Safety Assessment (PSA). Each defendant arrested on new charges receives a risk score, and the results are available for prosecutors and defense attorneys who make bail recommendations and for court commissioners and judges who make the ultimate bail decisions. Among the factors that the PSA “scores” are a person’s prior record of convictions, the type of offense they are currently facing, any history of missing court, their history of violence, their age, and their record of prior incarceration.

“Unfortunately, while both bills sound reasonable, they ignore the principle that good bail decisions are not ‘one size fits all,’ but instead are based on individual evidence in specific cases,” Johnson wrote. Individual risk assessments would likely result in cash recommendations for many of the same defendants that would be covered by these bills, but not all, he said.

For example, a person might have a bail jumping conviction for drinking alcohol while out on bail for a misdemeanor case from a dozen years earlier – absolute sobriety is often a condition of release. If they are now charged with another minor offense and are not otherwise a public safety or flight risk, should they be required to post $5,000? The PSA and other risk instruments instead balance the various risk factors in a validated process that is based on examining data from hundreds of thousands of cases across the country. 

Johnson noted that the individual in the Waukesha Christmas parade case should have had high bail because of his elevated score on the PSA. The score resulted from a number of factors, including his history of non-appearance and the fact that he was out on bail already when he was arrested on new charges. “In short, the risk tool worked, but it wasn’t followed. This person should have had high cash bail, but that doesn’t mean that another person charged with (and presumed innocent of) a serious offense can’t be safely released if other risk factors are not present,” he wrote. 

Reliance on evidence rather than emotion in making decisions in the criminal justice system should be encouraged because it results in rational decisions driven rather than decisions based on prejudice and fear, Johnson wrote. 

Well-informed bail decisions are made by experienced prosecutors, defense counsel and judges relying on the evidence in each case, Johnson said. “The key is following the evidence,” he said. That means setting appropriate high cash recommendations when a person’s history warrants it. But it also means releasing someone on recognizance, even in some serious cases, if the evidence shows that the person is not high-risk, Johnson said.

“We must make sure that future bail decisions are the result of an evidence-based, validated risk assessment that provides information to justice system professionals to make smart decisions in each case. The evidence points the way, but it gets the right result only if it’s not ignored,” he wrote. 

Johnson asked committee members to also consider the societal costs of unnecessary pretrial detention and creation of a two-tiered justice system – one for the rich and one for the poor. The $5,000 minimum bail in AB 840 would have a very different impact on a poor person working part-time at minimum wage than a rich person with the money easily available, he said. 

By Gretchen Schuldt

​A bill to allow courts to strip away the parental rights from incarcerated people was ripped in public testimony by people who said it could well be unconstitutional and could cause more harm than good.

The bill, AB627, could create new pressures on the court system and delay getting permanent homes for children, according to the Department of Children and Families.

The bill was introduced by State Rep. Barbara Dittrich and State Sen. Duey Stroebel as part of a package of bills that Dittrich claimed was designed to seek "both the best welfare of the child while ensuring parents’ rights are upheld." 

Many who testified at a public hearing on the measure earlier this month did not think it would do either of those things.

The bill would allow courts to take parental rights from anyone sentenced to at least four years in prison.
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DCF, which in a fiscal estimate warned of the potential delays in finding permanent homes, also submitted testimony opposing the bill.

"First, parental incarceration is already a factor that may be considered in a TPR, and adding a ground making parental incarceration on its own a sufficient basis to terminate parental rights could raise constitutional concerns," the agency said. 

Elements of the bill may be "unconstitutionally vague, leading to significant litigation.," the agency said. The testimony was submitted by Deputy DCF Secretary Jeff Pertl; Division of Safety and Permanence Administrator Wendy Henderson; Legislative Advisor Amanda Merkwae; and attorney Rachel Nili of the DCF Office of Legal Counsel 

The bill would allow a judge to determine whether a parent is likely to be incarcerated for "a substantial period of the child's minority," the officials said.

"This language essentially asks the fact-finder to speculate as to whether the parent is going to re-offend and be incarcerated again in the future once they are released without outlining how one would predict whether it's likely a parent will be incarcerated for a substantial period," they said.

The bill also would disproportionately affect children of color, who are overrepresented in the child welfare system, they said.

"Finally," they said, a "significant bond and relationship may exist or can be formed between an incarcerated parent and their child.

Incarcerated parents continue to exercise responsibility by "maintaining contact through letters, phone calls, and visitation, and being emotionally available for their child, and the parent may reunify with their child and continue parenting them upon release."

The Ho-Chunk Nation Legislature said the bill would "result in a disproportionate impact on Indian families. American Indians represent a disproportionate rate of those incarcerated in Wisconsin. In 2013, Wisconsin had the highest rate of American Indians incarcerated in the country. And those rates do not seem to be going down."

"The Indian Child Welfare Act (ICWA) requires that active efforts be provided to prevent the breakup of an Indian family..." the Ho-Chunk testimony said. "Yet, over and over conditions recommended from county social workers for incarcerated parents are essentially nothing.... Instead of making it easier to terminate parental rights, the system should be enhanced on the prevention side. When a parent is incarcerated, they are the easiest to locate and work with. This is an optimal time to work with them on parental safety."

The State Public Defender's Office noted that a four-year-or-greater sentence could change or be reversed on appeal.

"There is no mechanism to allow for a termination to be undone if a person successfully appeals the criminal case," said the testimony submitted by Adam Plotkin, SPD's legislative liaison. "And even if there were, this will have unnecessarily created trauma for the child." 

The bill also would allow the termination of parents incarcerated now even though they had no way of knowing that their imprisonment could lead to the loss of their children.

"This raises constitutional due process issues in terms of not having provided notice in the prior case that is now leading to termination based on this new ground," SPD said.

"AB 627 would do nothing to help parents or families," Legal Action of Wisconsin said in prepared testimony. "Rather, it would break families apart, create additional punishments on parents already incarcerated, and violate parents' constitutional substantive due process rights while removing judicial discretion and adding additional stress to already overburdened systems."

"While we respect and understand the concern for the safety and well-being of vulnerable children, we do not believe that TPR based on incarceration supports survivors of violence and their children," End Domestic Abuse Wisconsin said. "In fact, we are concerned that this legislation would do more harm than good. 

"​We understand that perpetrators of violence present a danger to children and that custody and placement decisions should be made in such a way that incorporates the significant adverse effects that proximity to an abusive parent has on the child's health and well-being. However, we also know that survivors of violence often accrue criminal records due to victimization and experience incarceration. As a result, abuse victims may be 'likely to be incarcerated for a substantial period of time.' "

Registering against the bill were the ACLU of Wisconsin, Community Advocates, Disability Rights Wisconsin, End Domestic Abuse Wisconsin, the League of Women Voters of Wisconsin, Wisconsin Association of Family and Children's Agencies, the Wisconsin Coalition Against Sexual Assault, and the Wisconsin Council of Churches.

​No organization or individual registered in favor of the bill.

By Gretchen Schuldt

​Penalties for second-offense marijuana possession, already a felony, would increase substantially if butane extraction was used in the production process, under a bill making its way through the Legislature.

Industry officials say that occasional users may have no clue how their product was processed, although frequent imbibers may be able to tell the difference by the taste.

The maximum penalty for second-offense (or greater) possession now is 3½ years in prison and a $10,000 fine. Under the bill, the penalties for second-offense (or greater) marijuana would increase depending on the amount of butane-extracted cannabis involved. The amounts and maximum penalties would be:

• Three grams or less, a maximum of six years in prison and a $10,000 fine;
• More than three and up to 10 grams, 10 years in prison and a $25,000 fine;
• More than 10 and up to 50 grams, 12½ years in prison and a $25,000 fine; and
• More than 50 grams, 15 years in prison and a $50,000 fine.

The bill also would significantly increase the penalty for manufacturing, delivering, or selling any amount of butane-extracted cannabis. Currently, marijuana manufacturing and dealing carries different sentences depending on the amount involved. Under the bill, those crimes, regardless of amount, would be punishable by up to 15 years in prison and a $50,000 fine. That means a person could go potentially to prison for a very long stretch for sharing a gummy bear with a friend.

Butane extraction is a common method of concentrating cannabis resin. Butane extraction can produce a THC concentration of up to 90%. The concentrate is used in a variety of products, including edibles and vaping juices. 

Commercial entities generally use a closed system of butane extraction, which is not considered an explosion hazard. Closed systems keep the butane from escaping into the atmosphere.

Some processors, including those running clandestine labs, use an "open blasting" system that allows the butane to escape into the atmosphere, creating a danger of explosions.

The pending bill does not differentiate between open and closed production methods used or whether any hazards are actually present.

"This is a very misguided effort," said Bryce Brisbin, director of technical sales at Luna Technologies, a cannabis extraction company. Closed-system butane cannabis extraction is safe and provides a high-quality product, he said.

"Open blasting should be banned, totally illegal," he said. "It's incredibly stupid." 

State Rep. Jesse James (R-Altoona), a sponsor of the legislation in the Assembly, said in prepared testimony last week that "The criminal elements and punishments of possessing, manufacturing, and delivery of BHO (butane honey oil) is the same as marijuana. I understand marijuana is needed to make BHO, but the process is making a totally different product, with a higher potency, which sells at a higher rate, putting the lives of those who manufacture it and others at risk."

He acknowledged that the closed-loop system was generally more "safer, controlled, and effective" than the open blasting system.

"The societal harms stemming from more prevalent and more potent cannabis is well-established in research exploring the effects on public safety and violent crime, traffic safety and the workforce," said State Sen. Duey Stroebel (R-Saukville), another sponsor. "The narrative surrounding the alleged medical benefits of cannabis tends to readily dismiss the aforementioned harms." 

By Gretchen Schuldt

Gov. Tony Evers has signed into law tougher new penalties for crimes committed against anyone at least 60 years old.

The bill also allows older people seeking domestic violence, individual-at-risk, or harassment restraining order to appear in a court hearing by telephone or through audiovisual means. Currently, people seeking restraining orders  appear in court in person.

“Aging and older Wisconsinites are particularly vulnerable to financial and physical abuse and exploitation, and unfortunately, we are seeing a devastating and concerning rise in these crimes,”  Evers said. "This bill is an important bipartisan action to help put an end to elder abuse and protect some of our most vulnerable loved ones and neighbors.” 

​Evers ran for office promising to reduce the prison population.

Under the new law:

• Any second-degree sexual assault against an "elder," as the law calls them, will become a first-degree sexual assault and the maximum penalty increases from 40 years in prison to 60 years in prison. It does not matter whether the person convicted of the crime knew the victim's age.
• There is a new crime of "physical abuse of an elder person," patterned after a law against physical abuse of a child. Penalties for violating the new law vary from up to 40 years in prison for intentionally causing great bodily harm, to 3½ years for recklessly causing great bodily harm.
• Prosecutors can seek to freeze the assets of defendants in financial exploitation crime cases where the victim is an elder and the property involved is worth more than $2,500. The prosecutor can seek to freeze assets up to the full value involved in the alleged crime to preserve them for potential restitution to the victim.
• Maximum sentences for crimes committed against an elder automatically increase, whether or not the convicted person was aware of the victim's age. The sentence for any crime punishable by up to one year of incarceration increases to a maximum of two years; the sentence for a crime punishable by one to 10 years of incarceration increases by an additional four years; and the sentence for a crime punishable by more than 10 years in prison increases by up to six years.
  
  

Counties last year reported 3,574 potential cases of elder abuse, according to the state's Annual Elder Abuse and Neglect Report. Counties also reported an additional 1,003 cases of neglect by others and 4,896 self-neglect cases.

In the abuse category, there were 2,148 cases or calls about financial abuse, 717 about emotional abuse, 650 about physical abuse, 41 about sexual abuse, 14 about unreasonable confinement or restraint, and four about treatment without consent.

Of all the reports, including those for neglect and self-neglect, more than half – 52.5% – were either unsubstantiated or unable to be substantiated.

In another signing, Evers signed a bill that regulates police use of force. It creates standards for when police can use force, creates a duty to report improper use of force, and creates a duty to intervene or prevent improper use of force.

vers vetoed a bill that would have reduced shared revenue payments to counties and municipalities that reduce police, firefighter, or emergency responder funding or personnel.

By Gretchen Schuldt

​A bipartisan group of lawmakers is asking its colleagues to co-sponsor legislation to fully fund a new $42 million juvenile prison in Milwaukee County to replace the scandal-plagued Lincoln Hills and Copper Lake facilities in Irma.

​The Legislature voted in 2018 to close Lincoln Hills and Copper Lake by July 1 of this year and transfer its residents either to a new Type 1 facility to house serious juvenile offenders, or to secure residential care centers that would be built in different areas of the state.

"That date has come and gone, and we have yet to break ground on the first state Type 1 building," the legislators said in the co-sponsorship memo they are circulating to their colleagues. It was authored by State Reps. ​Michael Schraa (R-Oshkosh), Calvin Callahan (R-Tomahawk), and Evan Goyke (D-Milwaukee), and Senators Van Wanggaard (R-Racine), Mary Felzkowski (R-Irma), and Lena Taylor (D-Milwaukee).

​A court-appointed monitor reported last month that youth at the facilities were growing more frustrated and the staff seemed defeated.

The new state budget includes $4 million for planning, design, and site selection for a new Type 1 facility, but does not include money to build it.

"In the four years since the passage of 2017 Act 185, the environment at Lincoln Hills and Copper Lake has remained unstable," the legislators wrote. "The pandemic only exacerbated the difficulties there, with programming pauses and staff turnover contributing to an explosion of violent activity in 2020."

A petition of no confidence against facility administrators by union employees showed that staff injuries were up 4,700% in the first six months of the year from the last six months of 2020. In addition, youth/staff battery was up 117%, sexual misconduct was up 75%, and use-of-force incidences were up 58%, the memo said.

"It is far past time for this facility to close," the memo said. "The Legislature must do its part and approve the funding for the new Type 1 correctional facility, for the sake of the employees who work there, and the youth that have been placed in the care of the state. It is our duty." 

By Gretchen Schuldt

​State court judges are slated to get 11% pay raises over the next two years, under the budget signed last week by Gov. Tony Evers.

The raises would boost the pay of state Supreme Court justices by almost $19,000. Circuit court judges will receive the smallest boosts – more than $16,000.

Judges would get pay hikes of 5% starting in January 2022 and another 6% in January 2023, for a two-year total increase of 11.3%. The money for the raises was approved in the budget, but the raises themselves must be approved by the Joint Committee on Employment Relations.

The budget also includes general wage hikes for other state employees of 2% each year, for a total wage increase of slightly more than 4%.