Bill limiting prosecutor discretion heads to governor for signature

By: Alexandria Staubach

Last week the Senate passed SB 86/AB 57 erasing prosecutorial discretion to dismiss or amend certain criminal charges without prior authorization from the court and prohibiting deferred prosecution sentences for certain crimes.

The new law would bar a prosecutor from dismissing or amending any of the included offenses without approval of the court. The bill does not define the criteria for a request for court approval.

A judge granting such an application would be required to submit an annual report to a standing committee of the legislature detailing each application approved, and how each application was consistent with the public’s interest and the legislature’s intent “to encourage the vigorous prosecution of persons who commit offenses that are covered crimes.”

Covered crimes are

• domestic abuse or a violation of a domestic violence temporary restraining order or injunction
• automobile theft
• abuse of an individual at risk or violation of an individual-at-risk TRO or injunction
• first-degree, second-degree, or third-degree sexual assault
• crime against a child
• illegal possession of a firearm if the person has been convicted of, adjudicated delinquent for, or found not guilty by reason of mental disease or defect of, committing, soliciting, conspiring, or attempting to commit a violent felony, as defined under current law
• reckless driving that results in great bodily harm.

An identical version of the bill passed the assembly in March, with Republicans voting in favor and Democrats voting against.

The Milwaukee Police Association, Wisconsin Chiefs of Police Association, Wisconsin State Lodge Fraternal Order of Police, and National Insurance Crime Bureau registered in support. Neither the Wisconsin District Attorneys Association nor the Wisconsin State Public Defender registered for or against either bill.

Republicans call the legislation “commonsense,” but some disagree.

At a hearing before the Senate Committee on Judiciary and Public Safety on August 22nd, Rep. Lena Taylor (D-Milwaukee) expressed concern over increased costs for the entire criminal justice system and a lack of funding in the legislation to address those costs, especially in the face of current court backlogs. The legislation was “piling on” without giving the courts and criminal-justice system the added resources necessary to implement the legislation, she said.

The ACLU strongly urged committee members to reject the bill, citing several reasons why a charge may be dismissed or amended, including “the innocence of an individual charged with a crime, insufficient evidence for a charge to stand, or constitutional concerns with police action.” “(P)rocedural justice, fairness, and upholding the constitutional rights of the accused are foundational principals of the criminal legal system,” the ACLU said.

The bill quietly passed in the Senate on Sept. 14, without comment from Republicans or Democrats. It heads to Gov. Tony Evers’ desk for signature.

Sponsors of the bill are shown in the following chart.