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.

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.
​
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

​The Wisconsin Supreme Court is accepting comments until Jan. 3 on a petition to prohibit routine shackling of juveniles in court.

A public hearing on the matter is scheduled for Feb. 15.

Currently, many counties in the state routinely shackle children during their court appearances. Read WJI's previous petition coverage here. Watch the WJI Virtual Salon with Eileen Hirsch and Diane Rondini, the two lawyers who filed the petition with five circuit judges, here.

The judges who joined in the request were Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. 
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The petition pending before the court would require that restraints or shackles be removed from children before they are brought into a courtroom unless a judge makes all of the findings listed below.

1. The use of restraints is necessary due to any of the following factors:
   a. Restraints are necessary to prevent physical harm to the child or another person.
   b. The child has a history of disruptive courtroom behavior that has placed others in                           potentially harmful situations, or the child presents a substantial risk of inflicting physical             harm on himself or herself or others as evidenced by recent behavior.
   c. There is a founded belief that the child presents a substantial risk of flight from the
       courtroom.

2. There are no less restrictive alternatives to restraints that will prevent flight or physical harm
to the child or another person, including the presence of court personnel, law enforcement
officers, or bailiffs.

The petition also would require a judge to allow the child’s lawyer to be heard before the court
orders the use of restraints. 

The full petition and a supporting memo is posted on the State Supreme Court website here.

Send any comments on the petition to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688.

If possible, email a Microsoft Word version of your response to clerk@wicourts.gov. See comment guidelines at the court's website here.

By Gretchen Schuldt

A judge who orally gave one disposition for a juvenile offender but issued a different disposition in writing must adhere to his oral order, the state Court of Appeals ruled Tuesday.

The ruling means that Brandon, if still on court-ordered supervision, does not have to wear an ankle bracelet unless the state specifically requests it and the judge agrees. 

District III Appellate Judge Gregory B. Gill Jr. did not rule on a key issue raised in the case: Is electronic monitoring something the court must order or can it be implemented by a juvenile justice worker as a "case management tool"?

Brandon is a pseudonym to protect the juvenile's identity, Gill said in his opinion.

Electronic monitoring of juveniles is widespread and controversial. Academics and advocates have expressed numerous concerns about the practice. As the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and the East Bay Community Law Center put it:

Although generally perceived as a less punitive alternative to incarceration, electronic monitoring can be overly burdensome: it often entails home confinement, invasive surveillance, and high fees. As the report demonstrates, programs can impose dozens of strict and inflexible rules on participants. Financial burdens imposed by electronic monitoring programs disproportionately hurt low-income families. Personal privacy violations are also a concern.

Brandon was on electronic monitoring because of a broken toilet tank cover and toilet paper dispenser.

He was arrested in August 2020 after Antigo police received a complaint about damage at a local laundromat. The toilet tank cover was smashed and a toilet paper dispenser was ripped of the wall, resulting in total damages of $150 to $400.

Surveillance footage showed Brandon walking into the restroom and leaving a short time later. The footage also showed the broken items on the floor a short time later.

Brandon, when questioned by police, said the he punched the toilet paper dispenser because it was not working, Gill wrote. He said the toilet was not flushing properly, so he lifted the tank lid, and it slipped.

He eventually admitted to one count of disorderly conduct; both his lawyer and the state recommended formal supervision. 

Langlade County Circuit Judge John B. Rhode explained during the disposition hearing that he could order electronic monitoring, among other things. Brandon was already on an ankle bracelet ordered during an earlier hearing, asked when he could have it removed. A juvenile justice worker said Brandon would have to show good behavior and then his treatment team would decide when to remove the monitoring. 

(Most of the records in the case are sealed because a juvenile was involved, so it cannot be determined how long Brandon was on electronic monitoring or when or if the monitoring ended before Tuesday's decision.)

Brandon's lawyer requested the ankle bracelet be removed.

"During argument, the State noted significant concerns about Brandon, including several hospitalizations for self-harming activities," Gill wrote. "The State further argued that Brandon was able to transition back to his home while being accountable to his supervision...through the use of electronic monitoring. With respect to the electronic monitoring, the State noted that it was not a punishment but, rather, a case management tool."

Gill did not address how electronic monitoring would prevent Brandon from hurting himself. 

Brandon's mother expressed concerns about his behavior and the juvenile justice worker said  Brandon did not come right home after school as his mother had instruction the week earlier and on another occasion, had left home without permission.

The worker "stated that Brandon was not confined by the electronic monitoring because he was able to go to school, appointments, and places with his mother."

The worker also said he "considered electronic monitoring a great management tool," Gill wrote.

"Conversely, Brandon’s counsel argued that electronic monitoring was not a case management tool but instead a 'sanction to be given by the Court,' ” Gill wrote.

Rhode put Brandon on supervision for a year and declined to order electronic monitoring. (Online court records indicate that Brandon's supervision may have lapsed last month.)

"All I will say to both sides if the [S]tate wants me to order it they can schedule further proceedings and we’ll take that up," Rhode said from the bench. "If the defense wants me to order that it stop they can schedule further proceedings and order that it stop or if they think it’s being used inappropriately."

When Rhode's written decision came down, however, it adopted the county's juvenile "rules of supervision," which includes a rule that states: “The youth shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.” 

Brandon appealed, arguing first that the Rhode cannot delegate to the juvenile justice worker the authority for imposing electronic monitoring. He also argued that electronic monitoring was not an appropriate sanction because it was not included in the state statute establishing approved punishments.

"We need not address these issues because we conclude that the court's written order was inconsistent with its oral pronouncement," Gill wrote.

When oral and written pronouncements conflict, he said, the oral pronouncement rules.

By Gretchen Schuldt

​COVID cut an uneven path across state courts in five mid-size counties last year.

​Douglas County's criminal case backlog actually shrank by 17% from December 2019 to December 2020, while Shawano County's, highest among the five counties to begin with, grew by 46%, tops among the five. The number of pending criminal cases in Shawano County in December 2020 was more than three times the number in any of the other four – Douglas, Pierce, Marinette, and Oconto counties.

WJI examined the numbers of pending cases in the state's five largest counties here and the five smallest counties here. This post, using Wisconsin Court System statistics from December 2019 and 2020, looks at pending cases in mid-sized smallest counties, as measured by population. 

By Gretchen Schuldt

A Fond du Lac County judge did not err when he ordered a mentally ill man with $113 in monthly disposable income to pay $5,486 in restitution for repairs to a stolen truck worth less than half that amount, the State Court of Appeals has ruled.

The 2-1 decision by the three-judge District II Court of Appeals panel upheld a ruling by Circuit Judge Robert J. Wirtz. Appellate Judge Shelley A. Grogan wrote the decision and was joined by Appellate Judge Lisa S. Neubauer. Appellate Judge Paul F. Reilly dissented.

"The only issues are whether the circuit court erroneously exercised its discretion in setting the amount of restitution or in finding (Alex Scott) Stone had the ability to pay," Grogan wrote. State law, she said, allows a judge to order restitution for "reasonable repair cost." Wirch did that, she said.

​Reilly took issue with that analysis but outlined another basis of disagreement in a footnote. 

"It is my belief, however, that imposing a restitution order against a mentally disabled young man who could not work, who was under a...Ch. 51 (mental health) commitment order placing him in a group home with a third party handling his meager finances, who had a spinal infection, who was prone to hearing 'voices' and 'seeing things,' and who had a total of $3.75 of daily disposable income is not conducive to a defendant’s rehabilitative needs," he wrote.

He acknowledged that Stone did not produce evidence that he had to use some of his $113 per month for transportation, medical costs, or other human needs and so did not meet his burden of proof that he did not have the ability to pay the restitution. 

Stone, who died while the appeal was pending, took the 1997 Chevy truck, which had 220,000 miles on it, from his friend Matt, who had taken it from the victim, identified in court records only as M.S., according to a brief filed in the case.

Stone damaged the truck and was arrested after an officer saw sparks coming from the passenger side wheel. Stone, who at first was found incompetent to stand trial, eventually was convicted of operating a motor vehicle without the owner's consent.

At the restitution hearing, M.S. did not present information about the value of the truck, but did offer an estimate to repair it: $5,486.37. Stone's lawyer presented Kelley's Blue Book information indicating that showed the truck, in very good condition, would be worth $2,394 in a private-party sale.

The following exchange took place during the hearing, according to a defense brief.

The state: If your – do you intend to repair the vehicle?

M.S.: I’m probably just going to replace it.

The state: Why is that?

M.S.: Well, I can’t just go out and replace a pickup truck for twenty-three hundred, if that’s what they’re talking about, you know.

The state: Would your preference be to repair the vehicle so that you can use it again, all things being equal?

M.S.: I think there was way too much damage done to it to warrant sticking that in that vehicle. I would want to replace it. I have nothing to use on my farm.

The state: Okay. And the reason you would not want to repair that vehicle is you think there’s too much damage to it?

M.S.: Well, unless I stick the five thousand dollars in it to get it done correctly. 

Wirch, ordered Stone to make $5,486.37 in restitution for the repairs. He also ordered restitution for post-arrest towing costs, raising the total amount owed to $6,008.60.

"The statute's plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost," Grogan wrote in confirming the restitution order. "Rather, the statute allows a circuit court to choose the 'reasonable repair' option in determining the restitution amount even if the repair cost exceeds the property's value."

Grogan also rejected Stone's argument that it was illogical to order repair costs because M.S. intended to replace the truck, not repair it.

"The victim’s testimony did not eliminate repairing the pick-up truck," Grogan wrote. "The victim still had the pick-up truck, and her last statement indicated that if she received the $5,000 in restitution, she could repair it."

Grogan and Neubauer also found that Stone had the ability to pay.

He testified that his monthly income was $773 and his monthly expenses were $600 for rent in a group home and food and $60 for his cell phone. That left $113 a month in extra income. Stone also testified that the only items he bought with his disposable income were soda and cigarettes, which he said were " 'not … really necessary,' " Grogan wrote.

Stone, who did not work due to his disability, also said he might pick up a part-time job at McDonald's or "something like that" in the future, she said.

"Although $113 may strike some as a small amount of disposable income, it was extra money for Stone after all his monthly bills were paid," Grogan wrote. "Accordingly, the circuit court’s decision on ability to pay was not an erroneous exercise of discretion."

Reilly, in his dissent, rejected the idea that a repair estimate is always a proper basis for restitution. 

M.S. testified, Reilly wrote, that she would replace the truck rather than repair it because the truck wasn't worth putting a repair investment of $5,486.37.
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"The victim correctly recognizes that given the evidence produced at the restitution hearing, she should simply go out and buy a similar truck in 'good condition' at a price of $2,394...." he wrote. "By taking a piece of property worth $2,394 and increasing its value to over $5,000, the victim is made more than whole. The victim receives a windfall.

"We do not use restitution to punish a defendant, and we do not use restitution to enrich a victim," he said. "We use restitution to return the victim to the position he or she was in before being victimized."

By Gretchen Schuldt

​Courts in the state's smallest counties generally saw their criminal case backlogs swell as COVID-19 swept across Wisconsin. While the numbers of cases heard in the state's five smallest counties are much, much smaller than those in the five largest counties, the backlogs in some  of the small counties grew at faster rates.

WJI examined the numbers of pending cases in the state's five largest counties here. This post, using Wisconsin Court System statistics from December 2019 and 2020, looks at pending cases in the five smallest counties, as measured by population. We'll finish up by looking at five counties with populations that fall in the middle of the populations of the state's 72 counties.

Forest County population: 9,179

​Biggest change: The number of pending felony cases shot up by 160, or 205%. Misdemeanor and criminal traffic cases, which started at lower baselines, rose 342% and 388%, respectively.

Of note: The total number of pending cases rose 254%, the largest increase in the 15 counties considered.

Median age of pending cases: 2019 – 112 days; 2020 – 150 days, up 34%.

By Gretchen Schuldt

Milwaukee County Chief Judge Mary Triggiano has said it will take up to two years to clear the case backlog in the criminal division of the county's circuit court system.

Outagamie County District Attorney Melinda Tempelis told officials there that the county's backlog has risen from 1,700 in 2019 to more than 3,000 this year.

In counties all over the state, COVID has slowed courts to a crawl. 

There were 58,678 pending criminal cases in circuit court in December 2019, according to state statistics. By December 2020, that number had risen 28%, to 75,153, an increase of 16,475.

State population: 5,822,434

Biggest change: The number of felony cases went up by 35%, or 9991 cases, from December 2019 to December 2020. according to state statistics.

Median age of pending cases: 2019 – 130 days; 2020 – 170 days, up 31%.

The increases have hit counties large and small and in between. WJI ecamined the differences in 15 counties – the five largest by population, the five smallest, and five smack in the middle. We'll look at the five largest cases today, and the rest next week.

Milwaukee County population: 939,489

Biggest change: The number of felony cases shot up by 33%, or 1,267 cases, from from December 2019 to December 2020. 

Of note: Pending criminal traffic cases fell by 437, or 43%, likely the result of less traffic and the reluctance of officers, due to COVID concerns, to come in direct contact with drivers. 

As measured as a percentage, Milwaukee County had the second smallest increase in pending cases among the five counties – 18%.

Median age of pending cases: 2019 – 124 days; 2020 – 269 days, up 117%.

​Waukesha County population: 406,978

Biggest changes: As measured by numbers, pending misdemeanors increased by 826, the most in any category. As measured as a percent, pending felonies rose 68%, also tops.

Of note: Waukesha County also saw big increases in all three categories. The smallest increase was in pending criminal traffic cases, which were up 365, or 56%. Pending misdemeanor cases rose by 826, or 63%. It's overall increase in all three types of cases was 64%.

Median age of pending cases: 2019 – 127 days; 2020 – 170 days, up 34%.