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By Alexandria Staubach Last week the Wisconsin Court of Appels ruled in favor of a severely diminished and long-suffering man who fought an order for forced medication to restore his competency for trial. The appeals court vacated the trial court’s involuntary medication order, finding that the trial judge failed to ensure that the plan for the man’s forced medication was sufficiently individualized to him. The appeals court held that trial courts must consider whether “under the particular circumstances of each individual case, the State has an important interest in bringing that defendant to trial.” In the case before it, the state did not. Further, said the appeals court, until an order for involuntary treatment issues, an accused remains eligible for bail; the mere raising of the issue of competency does not end bail eligibility.  Geenen District 1 Judge Sara Geenen wrote for the three-judge panel, which included Presiding Judge M. Joseph Donald and Judge Pedro Colón. The appeals court reversed the order of Milwaukee County Circuit Court Judge Milton L. Childs.
In its decision, the appeals court relied heavily on Sell v. United States. In Sell, the U.S. Supreme Court identified a four-factor test to determine whether an accused person’s constitutionally protected liberty interest can be outweighed by the state’s interest in forcibly medicating the person to regain competency to stand trial. The Sell factors are 1) the state’s “important” interest in proceeding to trial; 2) whether forcibly medicating the individual will significantly further that important interest; 3) whether forced medication is necessary to further that interest; and 4) the medical appropriateness of the medication. The appeals court found that Childs failed to consider the “special circumstances [that] undermine the importance of the State’s interest” in bringing J.D.B., referred to by the court as "Jared," to trial for battery to a law enforcement officer. Jared was 19 when he experienced an episode of psychosis that resulted in his alleged assault of an officer. The court described Jared’s multitude of underlying conditions, which include “partial left-side paralysis, a lumbering gait, compromised speech and cognitive abilities all stemming from a traumatic brain injury sustained from a self-inflicted gunshot wound when he was eleven years old.” Jared was diagnosed with schizophrenia and major neurocognitive disorder. Geenen described a one-paragraph criminal complaint stating that police responded to a call at Jared’s homein Milwaukee on Aug. 22, 2022, after his mother reported he was threatening to get a gun and kill everyone in the residence. Jared allegedly made threatening remarks to the responding officers and, while officers were arresting him, punched one officer in the face and threatened to kill that officer. Officers took Jared to a health care facility, which did not admit him. According to Geenen, where Jared was for the next four days was unclear. On Aug. 27, 2022, Jared was booked into the Milwaukee County Jail. At Jared’s first court appearance, on Aug. 31, 2022, his competency was raised as an issue, and the trial court ordered a competency examination. The competency exam occurred more than a month later, on Oct. 11, 2022. On that same day, the trial court found Jared incompetent to stand trial and ordered him into Department of Health Services custody. However, DHS did not take Jared into custody for another 106 days, during which time he remained in jail. According to Geenen, a 90-day commitment review was conducted while Jared remained at the jail. In January 2023, Jared was taken to the state psychiatric hospital in Mendota. Although he was then voluntarily taking medication, Jared allegedly swore and “spit at staff, urinated and defecated in his room, and continued to exhibit symptoms of schizophrenia,” Geenen wrote. By early April 2023, Jared was refusing medication. On April 11, 2023, Dr. Mitchell Illichmann initiated a request for involuntary medication with the trial court. The appeals court found that the forced medication plan Illichmann proposed failed to address many of Jared’s underlying conditions, omitting that he suffered from diabetes and was on a seizure medication. Without specifying duration or sequence, Illichmann’s proposed plan simply identified seven different oral antipsychotics the hospital would try. The plan recommended that if the oral medications did not work, another antipsychotic should be administered by injection. The plan also suggested another injected medication for agitation. The appeals court noted that at the hearing where Illichmann testified about the necessity of involuntary medication, there was no mention, question, or detail provided about “how often a dose of any particular mediation would be administered,” and no evidence or indication regarding the maximum amount of a particular medication to be administered in a given period of time. Illichmann testified at the hearing that he tried to discuss each of the seven oral medications in the plan with Jared, but Jared responded only that he did not feel he needed the medication. Childs found sufficient cause and ordered involuntary medication. Jared appealed, and the court of appeals stayed Childs’ order pending appeal. Geenen wrote in the appeals court’s subsequent decision that the “circuit court concluded that the first Sell factor, a requirement that the State have an important interest in prosecution, was satisfied because Jared was charged with a serious crime—assault of a law enforcement officer. However, Childs’ inquiry should not have stopped there, Geenen wrote. The trial judge was obligated, but failed, to consider whether any “special circumstances lessen the State’s interest in prosecution.” Both the potential for future civil commitment and length and duration of Jared’s pretrial detention should have mitigated and ultimately undermined the state’s interest in prosecution, Geenen wrote. She said “the facts highlighted in the complaint, considered in the context of Jared’s mental health diagnoses and the fact that he was seen at Aurora Health Center for ‘homicidal thoughts’ on the date of the alleged offense, generally support an NGI [not guilty by reason of insanity] defense and suggest that the alleged offense resulted from a mental health crisis that is currently being addressed through civil commitment proceedings.” “In this case there are distinct, non-speculative possibilities for Jared’s future commitment” that lessen the state’s interest in bringing Jared to trial, wrote Geenen. “Jared’s pretrial detention is also a relevant special circumstance,” Geenen wrote. Jared was not considered for bail but should have been, she said. The state argued that defendants become “ineligible for bail the moment competency is raised.” The court of appeals disagreed, finding that “the plain language of the statues makes clear that it is only after the circuit court orders the defendant committed for treatment and suspends the proceedings that a defendant loses his or her eligibility for bail.” Jared was detained almost two months without due process protections regarding bail, wrote Geenen, noting that “this statutory violation is significant, and it lessens the importance of the State’s interest in prosecution.” The appeals court also considered the timing of Jared’s relocation from jail to Mendota for restoration of competency. Jared was ordered to commitment in October 2022 but not transferred for treatment until more than three months later. “This, in our view, is a significant period of time that is incongruous with constitutional demands," Geenen wrote. Finally, regarding Jared’s medical plan the court expressed “serious doubts as to the adequacy of the explanations given to Jared of the advantages, disadvantages, and alternative to the medications proposed in the plan.” Geenen highlighted a lack of evidence that Illichmann ever told Jared about maximum dosages, the interaction of the drugs with his diabetes and seizure medication, or the cumulative effect of any combination of drugs. As a result, the trial court’s findings as to the sufficiency, warning, appropriateness, and necessity of forced medication were “clearly erroneous," Geenen said. “Because the circuit court determines whether the plan is sufficiently individualized and medically appropriate, the court must be provided a ‘complete and reliable medically informed record’ from which to make those findings,” and “because the record in this case is wanting in many critical respects” Jared’s proposed treatment plan was not adequately individualized, the appeals court held. A state appellate procedure rule that should alleviate some of the circumstances Jared faced took effect recently. The rule adopted by the Wisconsin Supreme Court and effective July 1, 2024, governs prejudgment orders in criminal defendant competency cases, which include treatment to restoration and involuntary medication. Key provisions of the new rule include expedited time for parties to request transcripts and file briefs and for the court of appeals to render a decision, short but automatic stays of involuntary medication orders, expedited procedures for defendants to move the court of appeals for a continued stay, and anonymity in court filings. More about the new rule can be found here.
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By Alexandria Staubach
In honor of National Voter Registration Day and Constitution Day, WJI is highlighting two new complaints filed by Law Forward. WJI believes that fair and equitable access to the ballot box is a fundamental right of every citizen of Wisconsin. If you still need to register to vote we encourage you to do so here. The Law Forward impact litigation law firm has filed two complaints with the Wisconsin Election Commission (WEC) alleging that the Town of Thornapple and its town clerk violated state and federal law when conducting the April and August elections. The complaints seek orders forcompliance with the law for future elections. Both complaints request expedited review in time for November’s election. State and federal law require access to voting systems that permit those with disabilities to cast their ballots independently and securely. The new complaints to the Wisconsin Election Commission say Thornapple, in Rusk County, is breaking these laws after abandoning electronic voting. According to the complaints, the April election was conducted in Thornapple by paper ballot and then hand counted, with no alternative or accommodation for the visually impaired or those who otherwise cannot privately and independently vote on paper. After the April election, a July 8, 2024 letter from the U.S Department of Justice warned that Rusk County needed “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities available at each polling place.” Nevertheless, Thornapple's August election took place on paper as well. Wisconsin law provides for compliance reviews for any elector of a jurisdiction or district served by an election official who seeks to contest perceived abuses of election administration. One complaint requests a compliance review on behalf of Erin Webster, a Thornapple voter, who ran for Rusk County Board of Supervisors in the spring election and was provided a paper ballot on which her name did not appear, according to the complaint. Webster cast her ballot electronically in every prior election since 2009, and the town had otherwise used electronic voting machines. Under Wisconsin law, municipalities may elect to administer elections by paper ballot if they have populations below 7,500. Webster’s complaint alleges that the same law that permits paper ballots for municipalities under 7,500 people also prohibits reversion back to hand counting of paper ballots without the WEC’s permission, which Thornapple did not receive. The second compliance review complaint was brought on behalf of Disability Rights Wisconsin. The complaint alleges that federal and state law require a municipality to make voting accessible to voters with disabilities. Further, the complaint alleges, federal law requires any voting system to have a means to notify voters if they have selected more than one candidate for a single office, plus the opportunity to redress the error. “By ceasing to use electronic voting equipment and instead exclusively using paper ballots completed and tabulated by hand, Respondents are no longer using voting systems that are accessible for individuals with disabilities in a manner that provides the same opportunity for access and participation (including privacy and independence) as for others,” the Disability Rights Wisconsin complaint asserts. It mentions visually impaired voters and those who may struggle to fill out a ballot by hand being disenfranchised by the paper system. The Ladysmith News, a local paper in Ladysmith, Wisconsin, this summer covered the Rusk County Board’s decision to count ballots by hand. The article described a July presentation given by Mark Cook of Hand Count Road Show, supposedly a one man “subject matter expert on election vulnerabilities who had traveled the county in his camper trailer, educating folks about election systems and how they can go wrong.” According to the reporter, “a number of local governmental officials were in the audience and saw how Cook showed exactly how voting machines can be easily manipulated.” The Webster complaint is available here. The Disability Rights Complaint is available here. By Alexandria Staubach An old convent is getting new life as a “House of Studies” for men who were formerly incarcerated and are now working to obtain their college degrees. Thrive for Life has arrived in Milwaukee, hoping to achieve the same success they’ve experienced with two similar homes in New York City. The first of its kind, according to Thrive for Life, Ignacio House opened in New York City in 2019 with a novel concept: a transitional supportive learning community, exclusively for the formerly incarcerated. A dorm, with a mission. Founded by Father Zachariah Presutti, a Jesuit priest and former chaplain at Rikers Island, Ignacio House currently serves 15 formerly incarcerated men who have scholarships to one of eight partnering universities, which include Columbia and NYU. The second house of studies, Abraham House, began in 1993 as an alternative-to-incarceration program under a different provider and since 2023 has been merging into Thrive. As at Ignacio House, residents receive comprehensive continuity of care, including therapeutic and wellness resources, personal and spiritual mentorship, and individualized learning plans, while adhering to stricter house rules. According to Thrive’s website, the two houses have served more than 3,000 formerly or currently incarcerated individuals, and 100% of their resident scholars have avoided recidivism and are on track to complete a trade school program or university degree. WJI recently visited Thrive’s Milwaukee House of Studies and spoke with Christa Pipitone, soon to be the senior regional coordinator for the Milwaukee Thrive for Life program. Located in Halyard Park, the house can accommodate a house manager and up to 11 scholars, whose stays will typically range from six months to two years. To get a room, individuals who were formerly incarcerated will need to apply and be accepted. Once they’re in, Thrive for Life provides a community of people committed to its men’s success, said Pipitone. “We are continuity of care,” said Pipitone.
Like the houses in New York, in addition to providing a roof over residents’ heads, the program will help residents with every aspect of making themselves “whole” and “healed,” Pipitone said. From health services to employment, the team at Thrive is “invested in the whole person, in demonstrating to these men that people care,” Pipitone said. “We’re likely giving many of these of guys a first chance,” she said. “We want to be that for them.” Thrive’s program is faith-based but nondenominational. “It’s important to us that the scholars have some higher power,” said Pipitone, but applicants need not be Catholic or even Christian. She highlighted that the houses in New York have welcomed both Muslin and Jewish scholars and that there are no rules around faith if applicants are grounded in a “higher power.” Community service in the Halyard Park neighborhood will also be part of the experience. Scholars will be expected to engage in service projects that serve the community they’re in. Abraham House in New York, runs a local food pantry, for example. The scholars will also be expected to participate in creating community among themselves. A sit-down Sunday dinner will be expected, a Catholic mass will be held in the house’s chapel (though attendance is not mandatory), and household chores will be allocated. It is communal living with purpose, said Pipitone. Residents will be expected to maintain employment. They will sign a “covenant agreement,” the terms of which include affordable rent, charged on a sliding scale based on take home pay. Like other aspects of the program, rent is not about the money. It’s about “giving the men a track record,” a rental history they can take with them to a new landlord, Pipitone said. Pipitone hopes it won’t feel like “all work and no play.” While alcohol and drugs are off limits, “the scholars will set the tone.” She hopes it will be a place where the men want to be—where they will enjoy Bucks and Packers games and study or play games in the common areas, investing in themselves and their shared experiences as students. Pipitone told WJI that Thrive hopes to strike a balance between structure and independence. The Milwaukee House is nearly complete. Pipitone anticipates it will host its first cohort beginning in October. She is actively searching for a house manager, who will hopefully live on site and help usher in the first class, and a social worker. Thrive has a strong preference for formerly incarcerated individuals to fill these roles. She encourages those interested to reach out to her directly at [email protected].
By Alexandria Staubach
Now banned in California courtrooms and potentially on its way out in Colorado, Hawaii, Minnesota, and New York, excited delirium syndrome would seem to be questionable and out of vogue, but in at least one Wisconsin courtroom recently, police showed continued reliance on it to defend their actions. Excited delirium syndrome has been described as a mental state of agitation, combativeness, aggression, and apparent immunity to pain. The term or syndrome has been used for decades to justify violence against criminal suspects, who often end up brutalized by law enforcement, but it has largely been discredited in the medical community. At an August excessive-use-of-force trial in the Eastern District of Wisconsin federal court before Judge Pamela Pepper, counsel for five Green Bay police officers raised excited delirium as part of their defense. Attorney Jasmyne Baynard told the jury that plaintiff Terrell Wendricks displayed “superhuman strength” when the officers attempted to detain him inside an apartment in August 2018. Defendant Aaron Walker redoubled Baynard’s claim in his trial testimony when he described anomalous behavior by Wendricks. Walker said Wendricks seemed to “gather strength” as officers deployed tasers, pepper spray, batons, and the “c-lock” restraint technique. Wendricks displayed “excited delirium,” said Walker, who offered no medical credentials and relied on his training and experience to bolster the theory. Although a 2009 position paper by the American College of Emergency Physicians (ACEP) concluded that excited delirium was a “real syndrome,” the paper was withdrawn in October 2023. The ACEP reversed its earlier conclusion, saying “The term excited delirium should not be used among the wider medical and public health community, law enforcement organizations, and ACEP members acting as expert witnesses testifying in relevant civil or criminal litigation.” In January, California became the first state to ban the use of excited delirium. The legislation was supported by the California Medical Association, which said the controversial diagnosis received “fresh scrutiny” in the wake of George Floyd’s 2020 death, and followed the American Medical Association’s 2021 decision to oppose the use of excited delirium as a medical diagnosis. Colorado followed, passing a law in August that proscribes training law enforcement office in use of the term, other than to educate about its history. The new law also prohibits law enforcement from using the term in any incident report and bans a coroner from using excited delirium as a cause of death on a death certificate. The Colorado bill took effect on Aug. 7. Minnesota introduced a bill in February (HF 4118) that specifically prohibits use of excited delirium as a defense for officers' use of force and prohibits law enforcement agencies from training officers on the detection or use of excited delirium. It further prohibits law enforcement officers from receiving credit for any continuing education course that includes training on the detection of excited delirium or use of the term. The bill is still pending in the Minnesota Legislature. Asked for Milwaukee County's position on the questionable syndrome, Dr. Wieslawa Tlomak, chief medical examiner, directed WJI to the National Association of Medical Examiners (NAME), which accredits her office. NAME’s public position on excited delirium is that “although the terms ‘Excited Delirium’ or ‘Excited Delirium Syndrome’ have been used by forensic pathologists as a cause of death in the past, these terms are not endorsed by NAME or recognized in renewed classifications . . . . Instead, NAME endorses that the underlying cause, natural or unnatural (to include trauma), for the delirious state be determined (if possible) and used for death certification.” The use of excited delirium to justify use of force isn’t problematic just in a civil suit. The implications on the street are worse. A 2024 investigative report by the Associated Press in collaboration with the Howard Center for Investigative Journalism and FRONTLINE found that at least 94 people died between 2012 and 2021 as a result of being given sedatives and restrained by police—practices allegedly justified by excited delirium syndrome, according to the AP’s findings. The situation is further exacerbated by excited delirium’s biased application to Black and brown people. In a May PBS Wisconsin interview, Dr. Julie Owen, a psychiatrist and Medical College of Wisconsin professor who has researched the subject, said, “usually, there’s a skewing of the use of this term with young men, young men of color, and young men of color who probably, at a later phase of examination, are found to be utilizing some sort of what we call sympathomimetic or a stimulant-like substance.” The AP investigation included a Black Eau Claire man, Demetrio Jackson, who died in police custody after being given a sedative as a form of restraint. Meanwhile, Wisconsin’s instances of police encounters that turn fatal are on the rise. By Alexandria Staubach The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution.  White Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón.
When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process. The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists. Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000. On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf. The State then issued a criminal complaint against Robinson for robbery of a financial institution. Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached. The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution. “The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.” The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities. The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote. “An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote. The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel. While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’” Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law. Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding. When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009. Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts. The Robinson court concluded that the law is now settled on the matter. By Alexandria Staubach
On Wednesday a group of lawmakers and public sector employees met to discuss possible changes to the framework surrounding emergency detention and civil commitment of youth experiencing mental health crises. What was the Legislature's Study Committee on Emergency Detention and Civil Commitment of Minors looking to know? First, whether entities and individuals other than law enforcement should have authority to take minors into custody for emergency detention. Second, whether special emergency procedures should be developed to lower the bar for detention and commitment. The overwhelming advice from service providers was that expanding the scenarios under which children can be detained would do nothing to alleviate the underlying mental health crises that the state’s children face. Dr. Steven Dykstra of Milwaukee County’s Behavioral Health Division said expanding detention “would be a complicated journey and I don’t know that much would come out of it.” Dykstra instead encouraged the committee to recommit to expanding early intervention resources and tactics. Dystra discussed a teenage boy in Wauwatosa who was assaulting his mother. The boy’s father drove him to the police station; police in turn called Dykstra. Dykstra was able to get the youth to agree to commitment, avoiding detention and handcuffs. The boy was diagnosed with schizophrenia and responded well to medication. He went on to a modified school schedule and graduated high school. When he started at UW-Milwaukee, he met with administrators to develop a plan for his education and asked whether the school had police officers. Because of his previous crisis and because, according to Dykstra, he was not detained, he felt like he could go to the police if he had another episode. These types of interventions will result in the outcomes the committee is looking to achieve, Dykstra said. “We have lots of power to lock that kid up but very little power to address the underlying distress that drove [them] to that point,” he said. Dykstra highlighted a lack of communication between police, service providers, and families. “Systems that collect the data that demonstrate a mental health crisis … don’t communicate with one another. He said the system as currently conceived cannot connect the dots to identify when a child is on the verge of a mental health crisis, but medical professionals know that years spent in undiagnosed psychosis results in much worse outcomes. He cautioned that parents and children “don’t want to tell us about their symptoms because they’re afraid they’re going to get locked up.” Dr. Tony Thrasher, president of the Wisconsin Psychiatric Association, encouraged the committee to consider a specific modification to the laws governing commitment when schizophrenia is involved. “One situation in which we need to make it easier to hospitalize a young person [is in that] last stretch of time they are sliding toward mental psychosis,” Thrasher said. Specifically in the instance of schizophrenia, “if he’s not dangerous to anyone, I can’t make him go to the hospital, however we know that his long-term prognosis is heavily tied to dramatically different results with early intervention,” he said. “We’re very good at the defibrillation,” meaning emergency situations, said Thrasher, but “we’re missing the other 98% of how to get people well.” Sarah Henery, administrator of the Division of Milwaukee Child Protective Servies (CPS), said that not just in Wisconsin, but nationally, she has observed chronic issues, which are not acute, going unaddressed, highlighting that the state is essentially powerless in situations where a youth is not expressing an immediate desire to cause or inflict self-harm. Under current Wisconsin law, certain individuals may initiate 72-hour holds on a person who is mentally ill, developmentally disabled, or drug dependent, based on observed behavior that is dangerous to themselves or others. Juveniles may be subject to emergency detention if they are unable or unwilling to cooperate with voluntary treatment. Sen. Jesse James (R-Altoona) chairs the Legislative Council Study Committee on Emergency Detention and Civil Commitment of Minors, which examines the effectiveness of emergency detention and civil commitment laws and recommends legislation that may create more child-appropriate civil commitment procedures. Rep. Patrick Snyder (R-Schofield) is vice-chair. Other committee members include Sheila Carlson, Green Bay Police Department behavioral health officer; Jill Chaffee, vice-president of community based services for Lutheran Social Services; Maryam Faterioun, an addiction and substance abuse counselor in Waukesha; Judge Cody Horlacher of Waukesha County Circuit Court; Dr. Kristen Iniguez, a Marshfield physician who cares for children subject to abuse and neglect; Sen. LaTonya Johnson (D-Milwaukee); Sharon McIlquham, assistant corporation counsel for Eau Claire County; Rep. Shelia Stubs (D-Madison); and Katie York, deputy State Public Defender. By Alexandria Staubach Milwaukee County Circuit Court has a new mental health docket, which its creators hope will streamline the civil and criminal aspects of cases where competency is at issue.  Sanders Judge Mark A. Sanders will preside over the new docket, which started accepting cases this month.
The docket is designed to address a significant backlog of cases that deal with competency and to incorporate and possibly expand the capacity of the current mental health treatment court. Legal competency is the ability of someone who has been charged with a crime to appreciate the charges and consequences and to participate in their defense. The new court got its start through the Milwaukee Community Justice Council (CJC), which comprises Milwaukee-area criminal justice agencies and local governments working collaboratively to “ensure a fair, efficient, and effective justice system that enhance(s) public safety and quality of life in our community,” according to its website. WJI recently discussed the new court with Chief Judge Carl Ashley, who chairs the CJC; Milwaukee County Chief Deputy District Attorney Kent Lovern, who co-chairs the CJC’s Mental Health Committee (and is running unopposed for district attorney in November’s election); and Tom Reed, vice-chair of the CJC and regional attorney manager of the Wisconsin State Public Defender’s Office. “It is not possible to overemphasize that the mental health docket is a reflection of deep concern at every level that individuals with mental health issues end up with the police and in jails, in situations that are not equipped to deal with these issues,” said Reed. “We envision phases,” said Ashley. He told WJI that he hoped the new docket will grow to further address the significant needs of those charged with criminal offenses and simultaneously dealing with mental disease. The COVID-19 pandemic resulted in a significant backlog of cases, said Ashley. He told WJI, he believed the court could improve outcomes and efficiencies, especially in competency cases. Ashley, Reed, and Lovern all told WJI that mental health is a significant issue in court efficiency. Each noted the desire for individuals with significant mental health issues to achieve just outcomes, while acknowledging that arriving at those outcomes requires significant time and resources from the court. Apart from improving efficiency for individuals that have been charged, the new docket will have a “corollary benefit,” said Lovern. He said the new docket will let other courts move at an improved pace. Ashley, who others indicate led the effort in engineering the new docket, said the court will initially deal only with cases in which competency, not guilty by reason of mental defect, or restoration to competency is an issue. Sexual assault and homicide cases will be excluded from the new docket; those cases will remain in other specific courts. The new docket is distinct from the mental health treatment court. The circuit court has had a mental health treatment court for more than 10 years, deemed “the longest pilot project ever” by Lovern. The current mental health treatment court program is small and voluntary. “It’s really not the fit for every case” Lovern told WJI. It is designed to connect participants with mental health treatment, community services, and “appropriate dispositions” to criminal charges relative to the seriousness of the participant’s mental illness and severity of the offense, Lovern said. Reed said the treatment court is designed to deal with individuals who display a significant mental illness and could benefit and improve with long-term intensive work and supervision. The new docket is also designed to help the whole court system run more efficiently, said Ashley. If an individual is found not competent, it may be that they can be restored through treatment either out of custody (conditional release) or in custody at Mendota, a state-run mental health facility. In cases where competency is an issue the court must first establish a lack of competency by hearing, which often requires the testimony of medical professionals, and then act upon that fact. One objective for the new court is to give the civil system, plus service providers and medical professionals, a dedicated court to deal with, Ashley said. “There are significant delays in just the competency path; some of those delays have to do with the state hospital not having enough beds,” Reed told WJI. However, “other problems arise,” too. “Every criminal court has to deal with competency, and the result is ‘yes,’ time tied up in hospitalization, but a lot of time is also tied up in the process,” he said. “If felony courts can move faster to other cases, it can free up other court time,” said Lovern. Reed highlighted that a single docket for competency cases may result in a single team of people—court providers, district attorneys and public defenders—who are better positioned to think upstream, “to understand the familiar faces, see who is cycling through and trapped in unproductive cycles.” “We have to get in there, then see what we can do,” said Ashley.  By Alexandria Staubach For someone convicted of a criminal offense, even under the best circumstances—good financial resources, a job, decent credit—it can be very difficult to find housing. The basic need of housing is a primary condition of supervision for many, but access to housing can be hard to come by. In part 1 of this series, WJI reported on the professional licensing problems of Stuart Parker Arthur, a Wisconsin resident who was twice incarcerated for convictions in Missouri. Arthur told WJI that after his release from custody in Missouri, he came back to Wisconsin and began to look for a place to live. It was a condition of his supervision. Everywhere he applied inquired about his criminal history, he said. If he wasn’t denied outright, he was subsequently informed there was nothing available for him, he said. Not checking the boxes on applications asking about convictions was “not really an option,” Arthur told WJI. “You’re on probation and there’s this whole piece where you’re supposed to be doing the right thing, to be honest.” Arthur said he also knew Missouri gave free access to court records and a simple search for him would show his criminal history. Arthur moved in with his mother and began thinking about buying his own home. He “didn’t see another way,” he said. Mortgage lender Sue Foley (the lender who eventually became his boss) told WJI that she worked with Arthur for more than a year to get him to circumstances that would allow him to qualify for a mortgage. Arthur told WJI he ultimately purchased a home with help from his mother. Purchasing a home is not a viable option, though, for most people returning to Wisconsin communities after conviction and incarceration. Many reentering individuals do not even have family to provide a place to stay or otherwise help. According to “Who’s Coming Home?” a study conducted during 2019 and 2020 by Project Return in collaboration with Data You Can Use, about 2,475 people return annually to the Milwaukee area following incarceration. More than half are under age 35. Roughly 42% will have some need related to finding or maintaining a place to live. Those with shorter terms of incarceration show the greatest need for housing assistance: in 2019, 60% of people returning home had been incarcerated for two years or less, and half of that number had stable-housing needs. According to the report, “the importance of finding a stable residence cannot be overestimated," and evidence suggests that the ability find secure housing during the first year of release reduces the probability of return to prison. Conversely, those who enter a homeless shelter in the first year after release face a higher risk of re-incarceration. WJI spoke with Conor Williams, an economic policy analyst for Community Advocates who is familiar with the report and the issue. Williams facilitates the Milwaukee Reentry Council, a subcommittee of the Milwaukee Community Justice Council, which works to improve reentry outcomes and to reduce incarceration. Williams told WJI, “if we provide decent and affordable housing, (reintegration) becomes more manageable.” And, while Milwaukee has “reduced chronic homelessness over the last seven to eight years, we haven’t extended that to the reentry community.” Williams and the Milwaukee Reentry Council are trying to bridge this gap by introducing a third party to the tenant/landlord relationship. Williams pointed to nonprofit organizations such as Project Return or the Alma Center mediating with a landlord on behalf of a tenant who has been previously incarcerated. Williams said that practice “needs to be built out in a more systematic way.” Williams is a strong proponent of applying the “housing first” model to reentry. "Housing first" is a homeless assistance approach that prioritizes permanent residence without preconditions for the unhoused. Milwaukee County adopted a housing first model in 2015. According to the county’s website, the approach has saved taxpayers $30 million since. In it first five years the program reduced overall homelessness by 46% and “unsheltered street homelessness” by 92%. Williams said that it costs roughly $45,000 a year to incarcerate someone, but resources are not made “available in a wise way to make people successful in reentry.” He highlighted the “reactive system” we have instead, addressing housing issues only after something has gone wrong. A Minnesota study by nonprofits working in reentry between 2010 and 2017 concluded that 11 of 15 categories of criminal offenses (including marijuana possession, alcohol-related offenses, minor drug-related offenses, minor public-order offenses, and reckless driving) had no significant effect on housing outcomes. The study found that four categories (fraud, assault, property offenses, and major drug-related offenses) “may have a statistically significant effect” but that even in those cases the risk to landlords of a negative outcome was increased by only three to nine percentage points. According to the study, data supports “a nuanced approached to screening based on criminal history” rather than a blanket ban by landlords on persons with prior convictions. A blanket ban “unnecessarily limits access to housing,” the report said. Williams suggests the book Homeward: Life in the Year After Prison by Bruce Western for those wishing to explore the topic further. Conor Williams will be the speaker at WJI's upcoming August Salon. Save the date and time: Aug. 28 at noon. Location in Milwaukee TBD. By Alexandria Staubach Earlier this month, Dane County Circuit Judge Jacob Frost declared part of Act 10—the 2011 statute that gutted collective bargaining rights—unconstitutional, finding that the law’s application to some public safety groups but not others had no rational explanation and therefore violates equal protection rights.  Frost found the provisions of the act related to collective bargaining modification void. (The full order is here.)
Equal protection arguments arise under federal and state constitutions when similar people are treated differently. Act 10 significantly diminished collective bargaining rights for everyone but select government employees deemed “protective occupation participants.” This classification included government workers like police but excluded some similar groups like the Capitol police. Whether the statute violates equal protection hinges on whether the state had a “rational basis” for determining who fell into the protective occupation classification, Frost said. Act 10 did not provide a definition for “protective occupation participants.” Instead, it relied on another Wisconsin statute that defined “protective occupation participants” who receive state benefits. Under that statute, there are 22 groups in the protective occupation classification. The groups “cover a variety of categories of work—law enforcement, fire fighters, and, oddly, motor vehicle inspectors,” Frost noted. The Legislature chose only seven of those 22 groups for protection in Act 10. Frost found that the Legislature failed to explain why just those seven groups of workers would essentially be exempt from the restrictions on collective bargaining implemented under Act 10. “No explanation presented to or thought of by the Court can explain why those 7 groups are in but the other public safety type groups are put in the general employee category,” Frost said. “(T)his is the purpose of rational basis review—to ensure there is an explanation that makes rational sense as to why a group is treated differently and who is in the group,” he wrote. “(T)he Legislature did not define the bounds of who is in the public safety group with words or explanation. It only did so by naming the specific employees put into the public safety group. Because the Court cannot come up with any policy that explains why these 7 groups of employees are included but other similar employees are excluded, the classification lacks a rational basis,” Frost said. Frost said the Legislature “absolutely has authority to define the public safety group and set the bounds of who is included as long as there is a rationale for it and the bounds apply fairly to all who fall within them.” A group of labor organizations filed the equal protection lawsuit in Dane County in November 2023. The defendants—state agencies and officials who oversee Act 10 enforcement—and the intervening Legislature asked Frost to dismiss the case on the grounds that the issues raised were decided in two prior cases, which deemed the law constitutional; implications for the state’s budget and the amount of time elapsed since Act 10’s enactment prejudice the state; and the law does not violate equal protection. Federal courts and the Wisconsin Supreme Court have previously found the law constitutional, but Frost said those cases and arguments were different. A case filed in federal court in 2013 by a (mostly) different group of labor organizations sought to invalidate Act 10 for violating the equal protection clause of the U.S. Constitution. Frost found that the plaintiffs before him challenged Act 10 under the Wisconsin Constitution. “(T)hough the state and federal arguments surely have similarities they are not the same,” he said. Frost concluded that the prior federal case was not binding on Wisconsin courts because “Wisconsin’s Supreme Court has developed a 5 factor test to apply to certain equal protection challenges,” which the federal appeals court “never discussed or applied.” In 2014, labor organizations again unsuccessfully challenged Act 10, but in state court. They argued that Act 10 violated equal protection under the Wisconsin Constitution because it treats employees who chose union representation differently from those who chose not to be represented by a union. Frost wrote that “this is entirely different” from the question of whether Act 10’s protective occupation classification violates equal protection. Frost disposed of the prejudice argument by saying that the Legislature had failed to demonstrate any prejudice other than the ordinary inconvenience and disruption of litigation. “Those costs also would exist no matter when the law[suit] was brought,” he wrote. “(S)imilarly, if Act 10 were overturned, the effect on budgets would have occurred right after the law’s passing the same as it does now.” The defendants are likely to appeal Frost’s decision once it has been fully litigated, and it is likely to be another case that ends up before the Wisconsin Supreme Court. Recently, a host of cases in the Supreme Court have sought to overturn Wisconsin law on controversial topics—from the 2023 case that led to redistricting, to this month’s decision by the Wisconsin Supreme Court that absentee ballot boxes are allowed, to a case on whether the state constitution protects a right to abortion. By Alexandria Staubach An employer wants him, he has the skills to do the job, and he passed the required courses and test required for a mortgage-lending-originator license. Yet he is barred from obtaining that license—and related employment and career—because of felony convictions for conduct unrelated to the financial industry or matters of trust. “Collateral consequences” are the various restrictions that affect people convicted of crime even after they have served their sentences. Such restrictions can impact access to employment, licensing, and housing, and myriad other things. They may not directly relate to the crime of conviction, and they can apply without consideration of the person’s rehabilitation or risk. The struggle to find employment after a felony conviction is well documented and studied. A September 2023 report conducted by the Internal Revenue Service states “that (criminal) records may be preventing about one third of working-age males from contributing to the formal economy.” The same study found negative effects on employment prospects “even in cases where charges did not lead to convictions.” WJI recently sat down with a formerly incarcerated person who is putting in serious work to obtain gainful employment, to discuss the roadblocks he has faced in a system that just won’t get out of his way.  Stuart Parker Arthur Stuart Parker Arthur, 26, grew up in south central Wisconsin. When he was in his late teens, he relocated to Missouri to work for his biological father in his business.
Shortly after Arthur arrived, he threw a large party. Arthur was young. The police came. The police found drugs. The police found a gun. According to Arthur, the drugs were trace quantities of cocaine and the gun was disassembled. Missouri court records indicate that on Jan. 26, 2019, Arthur was charged with possession of a controlled substance other than marijuana, a Class D felony, and unlawful use of a weapon, a Class E felony. Missouri felonies are graded on an A-E scale, with Class E felonies carrying the least significant penalties. Arthur told WJI he felt his best option was to take a plea deal that avoided a prison sentence because his then-fiancée was pregnant with their first child. Court records indicate that Arthur pleaded guilty to the two charges on July 25, 2019, and received a suspended sentence, meaning the charges would ultimately be dismissed if he successfully completed five years of supervised probation. Arthur told WJI that his fiancée suffered from a drug addiction and in the winter of 2020, after the birth of their child, she overdosed in a hotel room on a combination of drugs including fentanyl and heroin. “It happens a lot more than people think,” said Arthur. Arthur said he went to the hotel room with his infant child and met with police. The overdose was fatal. Initially, Arthur was not charged with any crime. Court records do not reflect any probation violations, either. Six months later, on June 27, 2020, Arthur was charged with endangering the welfare of a child involving drugs, as a result of bringing his child to the scene of his fiancée’s drug overdose. “I had completed drug rehabilitation” pursuant to his supervised probation, said Arthur. “I voluntarily went to inpatient treatment to deal with potential relapse from the grief,” he told WJI. Consistent with the new charges, court records of July 15, 2020, reflect the first violation of probation filed in his original case. Nearly two years later, on May 2, 2022, Arthur pleaded guilty to the child endangerment charge, again feeling the pressure of having a child on the way and hoping to avoid a lengthy prison sentence. On the new charges, Arthur was sentenced to 120 days of inpatient treatment while incarcerated and two years of supervised probation that included random blood, breath, and urine testing, despite any indication that ongoing drug use was an issue. Court records reflect no subsequent probation violations, and he was discharged from probation on the child endangerment charge as of May 28, 2024. However, as a result of the second offense, his earlier drug and gun possession suspended sentence was revoked and a new sentence was imposed. He served 120 days of additional incarceration and was sentenced to another five years of supervised probation. Supervision on the drug and firearm case will terminate in August 2027, though they could terminate as early as winter of 2025 with time credits for good behavior, said Arthur. Arthur told WJI he has otherwise met the obligations of his sentence. Following release, Arthur relocated to Wisconsin, where his mother lives. Among other stipulations, Arthur was required to obtain housing and employment. He initially found work as a car salesman. But he was unable to find housing (look for part 2 on the housing issue). Because he could not find housing, Arthur reached out to a mortgage lender with the hope of eventually purchasing a home. In the process, he discovered he was good at deciphering what he needed to qualify and what rates and programs would be available to him. “I had done my homework,” Arthur said. Sue Foley, Arthur’s mortgage lender, also thought he had a knack for the work. She remains “impressed by his efforts to turn his life around.” “His credit score is in the 700’s, he owns a home” Foley told WJI. Foley encouraged Arthur to come work for her at Nations Lending, even though they had never hired anyone with a felony conviction. She believed he could be licensed in Wisconsin if they could get him through her company and its attorneys. In Wisconsin, the license for a mortgage loan originator is obtained through the Department of Financial Institutions (DFI). According to the Nationwide Multistate Licensing System (NMLS), the license is required of anyone who takes or negotiates the terms of a residential mortgage loan. According to NMLS, the license requires completion of 20 hours of precertification training and passage of a test. Wisconsin law further requires that "(a)n applicant shall not have been convicted of, or pled guilty or no contest to, a felony in a domestic, foreign, or military court during the 7-year period preceding the date of the application or, for a felony involving an act of fraud, dishonesty, breach of trust, or money laundering, at any time preceding the date of the application. This paragraph does not apply with respect to any conviction for which the applicant has received a pardon." However, the Wisconsin Fair Employment Act (WFEA) prohibits discrimination against individuals and “certain licensed activities” on 14 protected traits, including records of arrest or conviction. Storm Larson, a Madison based employment attorney, wrote in an article in Wisconsin Lawyer that employers and licensors have “leeway to consider an employee’s record of conviction” and “the general rule is that conviction records cannot be considered in making an employment decision unless ‘the circumstances of the [the conviction] substantially relate to the circumstances of the particular job or licensed activity’” (emphasis in original). The Wisconsin Supreme Court in a 2022 decision muddied the waters and caused employer and licensors to deploy a “fact-intensive inquiry into the circumstances of the job and conviction itself,” wrote Larson. Now, “the supreme court specifically notes that the length of time between the conviction and the application for employment can be relevant to determining the likelihood of recidivism,” he wrote. Previously that was not a factor. Despite the law and the costs, Arthur completed the necessary course work and testing to obtain his license. He applied at Nations Lending and was hired by the firm. When Arthur submitted his license application to DFI, Nations Landing backed him. Arthur supplied additional letters of support from his employers at two car dealerships. Foley told WJI that Arthur even obtained a letter of support from the warden of the Missouri prison where he had been incarcerated. Nevertheless, DFI rejected Arthur’s license application because of his felony convictions. DFI wrote that its legal staff had reviewed case law about the WFEA and that the law governing licensure for mortgage loan originators “does not give the Division discretion to consider those facts and circumstances, unless the crimes have been expunged or pardoned or are older than seven years.” “(E)ven if the Division could consider those facts and circumstances for these offenses, it would not find licensure appropriate at this point given the recency of the offenses. Your subsequent life changes are more consistent with holding a position of financial trust, but establishing a longer post-offense track record is required to provide adequate assurance that the applicant meets the requirements for licensure,” DFI wrote. Arthur attempted to dispute DFI’s decision, but there is no formal appeal process under Wisconsin law. Ultimately, on May 29, 2024, Arthur withdrew his application so it would not later show up as a denial. “They’re making me give up a job that that I am good at, a job that could give me a better life,” Arthur told WJI. “There are people who want something better when they get out of prison,” said Foley. “We shouldn’t throw away the baby with the bath water.” WJI reached out to DFI and spoke with the agency’s Chief Legal Counsel, Matthew Lynch. Lynch said DFI has no official position and that the agency cannot comment on specific cases. Lynch acknowledged the tension between state licensing requirements and WFEA. Lynch told WJI that in his analysis, federal law drove Wisconsin’s adoption of the statue governing mortgage lending and sets minimum requirements, including the provision requiring seven years between conviction and licensure. According to Lynch, states that run afoul of the federal standards would be subject to federal intervention and control over licensing in the area. Lynch said the “agency would be happy to take another direction but it would likely run afoul of federal law.” Lynch further told WJI that his analysis of the legislative intent behind the mortgage lender licensing statue also drives their decision making. In 2013 the Legislature added language to the mortgage licensing statue that permits them to use the discretion described in WFEA for convictions that have been expunged or pardoned, Lynch said. The 2013 addition “can’t make sense” if the agency had the ability to use the mitigation factors under WFEA in every case, he said. |
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