By Gretchen Schuldt

​The State Public Defender Board is asking for 40 new employees and a budget increase of $7.6 million just to handle the additional demands caused by the "exponential increase in the number and length of video evidence" agency staff must plow through.

The jump in video volume comes from several sources, such as police officers' body-worn cameras, the agency said in its 2021-23 budget request. The requested budget boost would help pay for the new positions and 6,000 additional gigabytes of server space in which to store the video.

The video-related funding is part of the agency's overall two-year budget request of $233.6 million, up $14.8 million, or 6.8%, from its previous budget of $218.8 million, according to budget documents.

Attorneys must review evidence, including video, under Supreme Court rules, the agency said.

"Not only must the attorney review the evidence, but they must review it with their client as well," SPD said. "As the number of body worn cameras and other video sources has increased, so has the workload it requires for an attorney to review the video. Even a brief interaction with law enforcement usually requires viewing hours of video as multiple officers and squad car cameras create multiple views of the law enforcement contact, each of which could provide different information."

A recent survey of 100 SPD staff lawyers showed that about half spends six to 10 hours per week reviewing video, while about 18% spends more than 10 hours on that task. The remaining 33% spend one to five hours per week on videos.

Staff members also said they spend time organizing the videos and taking notes; working through software and video compatibility issues; getting all the relevant video; and comparing video to written police reports.  

One issue complicating matters is the adoption in the April of the Marsy's Law "victims' rights" amendment to the state constitution.

Wrote one lawyer: "Since Marsy's Law went into effect in May 2020, orders are being put in place which requires that my clients have to watch videos in my presence. This is doubling or tripling time it will end up taking."

The SPD estimated how much time spend SPD staff and SPD-appointed lawyers spend in a year reviewing video. The estimate is based on the actual number of cases where an SPD lawyer provided defense counsel, and assumed 50% of the cases involved body camera footage. It does not reflect video from any other source, such as private or squad car cameras.

​The results:

"Based on these data and a 2080 hour work year, just to download and review video would take the equivalent of 90.8 FTE positions," the agency said. "The impact of the video workload is significant and unsustainable."

The 40 staff members the agency requested include seven lawyers, 10 legal secretaries, nine paralegals, five investigators, and nine client service specialists.

By Gretchen Schuldt

The federal Children and Families Administration is proposing to make it easier for states to keep full child support obligations in place while some debtor parents are incarcerated, likely leading to increased debt when they are released.

The change would apply to those incarcerated as a result of not paying child support or those who committed a crime in which the victim was a dependent child of the offender or receiving child support from that person.

The proposal would allow states to levy the larger obligations even if doing so risks increasing the risk of debt or even recidivism for affected incarcerated people, according to CFA.

Under current rules, child support payment amounts can be adjusted if a parent experiences a major change in circumstances. For example, a parent who is severely injured and is unable to work likely would qualify for reduced child support payments, while a person who wins a $1 million lottery might have to pay more in child support.

Voluntarily leaving a job is not considered a major change, meaning that a parent who simply quits a job likely would not qualify for lower child support obligations. 

Federal regulations now flatly prohibit states from considering incarceration to be voluntary unemployment.  The rule is designed to reflect an incarcerated person's actual ability to pay and to prevent accumulation of child support arrears. 

The proposed rule would allow states the option of imposing full child support obligations on incarcerated who meet the either of the two child-related criteria.

"Some states, based on moral and societal values of justice and fairness, may reasonably determine that persons found guilty of intentional nonsupport, or who show a disregard for the well-being of the custodial parent or child by abusing them, should not benefit from those acts by having their child support obligation suspended or reduced while incarcerated for those crimes – even if that policy risks accumulation of arrears, child support debt, and recidivism," CFA said in its public notice of the proposed change.

CFA is accepting comments on the proposed rule through Nov. 16, 2020. You can make a comment here. ​

By Gretchen Schuldt

Updated 9/20/2020 to include a response from the Department of Corrections.​ 

As the number of COVID-19 cases in state prisons soars past 1,000, the Department of Corrections has begun requiring incarcerated people to pay for the masks used to slow the spread of the disease, according to inmates and their loved ones.

"We here...have been informed that...we will be required to purchase our own face masks, that the DOC will no longer provide them and certainly not for free," one inmate wrote. "We will now be required to purchase a single mask for $2.50 (an allegedly one size fits all)."

DOC confirmed the purchase plan for those wanting or needing more than three masks.

The agency has provided at least three washable masks to each incarcerated person since April, a DOC spokesperson said in an email.

"There is a plan to offer extra cotton face coverings available for purchase, if those in our care want more than the three," said the spokesperson, who did not identify himself or herself.
"But there will be a limit of seven. These could be purchased by those in our care, or family members could purchase for them."

Some 1,053 prison inmates and 81 staff members had tested positive for the coronavirus as of Friday.

While $2.50 may not sound like much, some inmates simply have no money, others have financial obligations such as victim restitution or court surcharges, and others have extremely low-paying prison jobs.

"Nothing in this policy makes any provision, that I am aware of, for the many prisoners who are indigent and unable to purchase these masks (of whom their are many),"the inmate wrote.

"The mask must be purchased from the 'approved vendors'...all of which are notorious for hugely marking up the prices of all of its products...." the inmate said. 

Another inmate said, as have others, that his institution is not removing from the general population incarcerated people who test positive for coronavirus.

The inmate said a nurse told him not to worry about getting tested because "staff was not moving anyone that tests positive. I'm like, 'WHAT!' I said 'Well then, if you're not going to keep inmates that have tested positive separated from the inmates that aren't sick, what is the purpose for all the testing?!' She said, 'I don't know!'" 

Gov. Tony Evers can free incarcerated men and women without the assistance of the State Legislature. He has simply chosen not to do it.

The Legislative Reference Bureau made that perfectly clear in March, when it released a report entitled, "Emergency Release of Prisoners Due to COVID-19."

Here is what is said about Evers' powers. The added emphasis is ours.

The governor’s authority to release inmates from state correctional facilities derives from both the Wisconsin Constitution and the Wisconsin Statutes.

Constitutional powers of clemency. Article V, section 6, of the Wisconsin Consti­tution provides the governor with the power to grant clemency to individuals who have been convicted of a crime except in cases of treason or impeachment, subject to certain statutory limitations. This clemency can take one of three forms: a reprieve, a commuta­tion, or a pardon. A reprieve is a temporary delay of punishment, in which case a prisoner could be released and punishment delayed for some period before being reinstated. A commutation is a reduction in punishment and could take the form of shortening a prison term and releasing an offender early. Finally, a pardon is an official act of forgive­ness for a crime after the sentence has been completed that restores certain civil rights, but does not erase the record of the crime.

The governor’s use of this authority is wholly discretionary. For example, Governor Scott Walker did not grant clemency in any form during his two terms as governor. Governor Evers has reinstated a pardons board to handle clemency applications. The governor has set criteria for obtaining clemency such that only pardons are available; reprieves and commutations are not currently included in the administration’s applica­tion criteria. Rather, a person must have completed his or her sentence at least five years before applying. Under the current policy of the Evers administration, any clemency ap­plication by a person who has not completed his or her sentence will be denied. Thus, while the Wisconsin Constitution provides that the governor may use his or her clemen­cy power to shorten prison terms and release inmates, the current administration’s policy suggests that this is unlikely....

​The entire LRB document is here.

By Gretchen Schuldt

​The cost to counties to incarcerate juveniles at the Lincoln Hills / Copper Lakes youth prison would soar almost 50% by June 2023 and hit an annual cost of $299,300, according to the Department of Corrections budget request submitted this week.

In a document largely of meaningful explanatory text, DOC justifies the requested increase in a single sentence: "Rates reflecting the cost of care in juvenile correctional institutions are set in statute and updated each biennium."

The request comes as an agreement to close the scandal-plagued Lincoln Hills/Copper Lake facilities is teetering. 

Lincoln Hills is for boys; Copper Lake is for girls. As of Friday, there were 68 boys held at Lincoln Hills and four girls at Copper Lake, according to DOC population figures.

The state now charges counties $550 per day to house juvenile offenders at the secure facilities, the state's only juvenile prisons of their type. That amount is scheduled to increase to $615 per day on Jan. 1. The DOC's 2021-23 budget request seeks to increase that to $803 per day on July 1, 2021 and $820 per day on July 1, 2022.

That would increase the annual cost of holding a single juvenile at the facility from $200,750 at the current daily rate to $299,300, an increase of $98,500. 

Overall, the department is seeking a budget hike of 4.5%, or $126.5 million over the biennium, from $2.8 billion to $2.92 billion, according to the budget request. The budget assumes an average daily incarcerated population of about 23,205 adults and 102 juveniles, according to budget documents.

The budget request also includes increases of:

• $6.2 million and 43 positions for GPS tracking of sex offenders. The department anticipates tracking 2,681 clients in 2022 and 2,920 clients in 2023. 
•  $3.8 million for the serious juvenile offender program. Again, there is no real explanation  for the requested increase. DOC says only that the money is need to "provide juvenile institution care, alternate care, and community supervision for Serious Juvenile Offenders."

By Gretchen Schuldt

​The number of positive coronavirus cases continues to surge in Wisconsin state prisons and on Friday was up 70% since Aug. 21, when case numbers started their steep climb.

There were 907 positive coronavirus cases in the prison system as of Friday, Sept. 11, up 373 since Aug. 21, when there were 534 cases. 

The number Friday was up 75, or 9%, from a week earlier, when there were 832 recorded cases, according to Department of Corrections figures. The biggest one-week increases were at Dodge Correctional Institution (up 39, to 119) and Racine Correctional Institution (up 25, to 109).

There also have been 244 positive coronavirus cases of DOC staff members.

David Liners, state director of WISDOM, a state social justice organization, urged members of the public Monday to contact their legislators about the crisis.

"Help us get the governor's attention," he said in an email.

WISDOM in July recommended that Gov. Tony Evers take several actions to reduce prison populations including:

• Releasing people who present a low risk to society, and who have a high risk of suffering from complications of COVID-19 – the elderly, the chronically ill, and those with compromised immune systems;
• Releasing people approved for work release, as they have already been determined to be of no danger to society;
• Releasing people who have been in prison since before they turned 25, and have already served more than 15 years, and have no history of serious trouble in the prisons;
• Releasing the 5,000 people currently in prison for "crimeless revocations", i.e. for technical violations of the rules of supervision.
  
  

The governor promised to move quickly to establish a team to propose a process and procedure for recommendations to be given to him about potential commutations.

"As of Sept. 14, he has not done anything," Liners wrote. "He has not even made a single public statement of his concern."

Meanwhile, a  person incarcerated in a facility with an outbreak attributed it, at least in part, to a coronavirus-infected person who was transferred there.

"He was not tested prior to being moved here..." the inmate wrote. "He has been on this unit infecting people. This young man was asymptomatic. Last night they moved the young man back to...quarantine. However, the man the kid was in with was not placed on quarantine. He was left on the unit to possibly infect more people here...."

He continued: "There is no further testing going to be done. The HSU (Health Services Unit) is doing temperature checks and asking if the person is experiencing symptoms. So if the inmate does not-self report because he doesn't want to go to quarantine, there is no way for them to know in a timely manner and in the case of the young man, who was asymptomatic, the temperature checks would not have revealed anything. So the long and short of it is that there is no way they can stop the spread with the current level of 'health' care the prison is providing." 

WJI is not naming the institution to protect the identities of the writer.

The State Department of Corrections is seeking comment on a proposed administrative rule that would govern new secure residential care centers for children and youth.

Comments will be accepted through Oct. 9.

Under the rule, DOC would consider waivers for the vast majority of the requirements unless they are required by law. The only provision in the 25-page document the department would not consider waiving, according to the proposal, is one governing the size of two-person rooms.

The 25-page proposed rule would regulate "approval, design, construction, repair, maintenance, and operation of a Secure Residential Care Center for Children and Youth."

Whether such facilities, which were intended to replace scandal-plagued Lincoln Hills and Copper Lakes Youth prisons, will ever get built is open to question. Counties, which were to run such facilities, started pulling out when it became clear that the state was not offering funding that would cover the cost of building and running the facilities.

The proposed rule, according to a DOC summary:

a. Creates provisions to protect and provide security to youth and staff.

b. Incorporates trauma-informed principles and best youth correctional practices.

c. Establishes structured programs and services that incorporate community partnerships,
vocational opportunities, independent living, life skills, leisure, and recreation activities.

d. Provides youth access to family and social supporters and involves them in programming and activities.

e. Establishes opportunities for family and social supporters to provide recommendations to the facility concerning programs, services, and operations.

f. Establishes complaint and grievance procedures for youth and family members.

g. Includes various definitions and provisions relating to the operation and design of a facility.

h. Establishes procedures for entities to request a variance of a standard under the chapter.

i. Incorporates minimum construction and physical environment requirements.

j. Establishes case planning and treatment that incorporates evidence-based practices which engages youth, family, and social supporters in an overall treatment approach.

k. Ensures facilities coordinate with local school districts to ensure youth have access to education.

l. Provides standards for documenting education of youth.

m. Establishes uniform data reporting requirements as required by the Department of Corrections.

n. Establishes admission criteria, screening, classification, assessment, release, and reentry standards.

o. Establishes minimum staffing and training requirements for facilities.

p. Incorporates health and mental health care requirements including screening, assessments, medical and dental care, mental health care, informed consent, suicide and self-harm prevention, and the administration of medication.

q. Provides records storage, reporting, and documentation requirements.

r. Requires entities to establish a youth conduct system that includes incentives for positive behavior and prohibits dispositions that are contrary to the rehabilitation of youth.

s. Establishes requirements concerning hygiene and sanitation.

t. Provides flexibility for facilities to be physically co-located with other facility types and identifies specified physical spaces that can be shared.

u. Disallows physical and visual contact between youth and adult inmates.

v. Requires an approved written operation plan and identifies required policy and procedures within the plan. ​

By Margo Kirchner

A person’s Fourth Amendment rights are not completely extinguished upon conviction of a crime, the Seventh Circuit Court of Appeals held recently in overruling two prior cases that suggested otherwise.

In particular, the court concluded that the Fourth Amendment protects a convicted person’s right to bodily privacy, though the right is significantly limited.

The case stems from a prison training exercise in which women were forced, among other things, to undergo strip searches and stand for several hours without water or bathroom breaks as part of a training session for prison guards.

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Circuit Judge Amy J. St. Eve wrote for the en banc (full) court in Henry v. Hulett. The decision reversed a lower district court’s dismissal of a class-action suit alleging Fourth Amendment violations and remanded the case for further proceedings. The lower court found that the women had no right to privacy after conviction.

In the lawsuit, Delores Henry and three other female plaintiffs alleged that strip searches conducted as cadet training violated their Fourth and Eighth Amendment rights. The women filed a class action lawsuit on behalf of more than 200 former and current female inmates at the medium-security Lincoln Correctional Center in Illinois. Wisconsin also is in the Seventh Circuit, so the appeals court’s ruling applies here as well as in Illinois.

The training exercise in 2011 simulated a “mass shakedown,” in which guards search prisoners’ living areas and perform strip searches to find contraband.

No emergency or safety concerns existed on the day the training took place, and the two prison housing units searched were randomly chosen.

A tactical team called “Orange Crush,” Lincoln correctional officers, and cadets from the Illinois Department of Corrections training academy conducted the mass shakedown. Orange Crush members were outfitted with full riot gear, including helmets, armored vests, military boots, shields, batons, and pepper spray.

In the early morning, Orange Crush members banged batons on walls and doors of prison cells, and correctional officers and cadets yelled at inmates to wake up and get in line. Officers and cadets lined up 200 women facing the wall, and cadets handcuffed them as practice. Some elderly women cried in pain after standing handcuffed for a long time.

Officers ordered the women to the prison gym while screaming obscenities at them and calling them sexually derogatory names. In the gym, correctional officers forced the women to stand facing the wall, shoulder to shoulder. Orange Crush members and correctional officers ordered cadets to perform strip searches on groups of four to 10 women at a time. The women in the gym remained standing, with no water or restroom breaks. Some stood for seven hours.

Although female cadets performed the strip searches in a bathroom and beauty shop adjacent to the gym, those spaces were open and visible, allowing male correctional officers and cadets to view the searches taking place.

During the searches, the incarcerated women were ordered to remove all clothing; lift their breasts and hair; turn around, bend over, and spread their buttocks and vaginas; and cough several times. Women stood naked for as long as 15 minutes.

By Gretchen Schuldt

The number of positive coronavirus cases in the state prison system jumped by 56%, in just two weeks, Department of Corrections figures show.

​There were 534 positive cases on Aug. 21 and 832 cases on Friday, Sept. 4,  an increase of 298, the figures show.

The largest increase was recorded at Green Bay Correctional Institution. There were 185 incarcerated men who tested positive as of Aug. 21 and 270 positives on Friday, up 85.

Other significant increases were recorded at the Racine Correctional Institution (up 66, from 18 to 84), Dodge Correctional Institution (up 55, from 25 to 80), New Lisbon Correctional Institution (up 41, from 8 to 49), Kettle Moraine Correctional Institution (up 30, from 7 to 37), and the Milwaukee Women's Center, up 17, from 3 to 20. 

"For a while I was at least able to say the staff here is at least keeping us fed but things have gotten so bad that today everything came to a head!!" one Green Bay inmate wrote. For the past week here they've trying to feed us old moldy food and the portions are literally the size of two spoons!!"