By Gretchen Schuldt

Gov. Tony Evers is proposing to spend $45.8 million on a new juvenile facility in Milwaukee, budget documents show.

"The facility in this request will assist DOC (Department of Corrections) with working towards meeting the requirements of Act 185 and Act 8, which were created with the intent of eventually converting Lincoln Hills and Copper Lake Schools buildings into adult facilities," the proposed budget says.

Lincoln Hills and Copper Lake are the state's secure juvenile prisons.

The proposal is part of the proposed 2021-23 state capital budget. The governor recommended a total of $119.1 million in DOC capital spending.

Milwaukee County last year held off on accepting $15.2 million in state funding to develop a secure residential center for juvenile offenders because the funding was inadequate.

The county earlier sought $41.8 million from the state to increase the number of juvenile beds available. It later reduced the proposal to $26 million, and then $17.9 million. Even then, the county would have to kick in $2.7 million of its own funding.

At the time he rejected the $15.2 million, County Executive David Crowley said that the funding gap and continuing operational costs "creates significant sustainability concerns,”  according to the BizTimes.

Crowley said Friday  he was encouraged by the governor's general and capital budget proposals.

The proposed youth facility would be about 59,000 square feet with "housing, food services, health services, education, counseling, vocational training, visitation, recreation, administrative services, and other supporting spaces for a population up to 32 juveniles," according to the budget proposal.

It would employ about 70 people and cost $7.7 million per year to operate. 

Evers also rejected a $45.4 million funding request for a juvenile facility in Outagamie County.

By Gretchen Schuldt

​The State Legislature has authorized pay raises for lawyers in the State Public Defender's Office that will allow them to regain parity with their counterparts in prosecutors' offices.

The bill will allow SPD to give merit pay increases of more than 10% for fiscal 2021-22. It now awaits Gov. Tony Evers' signature.

The public defender raises will be funded with money already in the SPD budget – partly with money saved because so many people are quitting the agency and partly with money saved due to the drop in caseload during the coronavirus pandemic.

"While these cases are likely to come back at some point, that does not seem likely in the next few months," State Public Defender Kelli Thompson told the Senate Judiciary and Public Safety Committee. "In using these savings now, we have the opportunity to fix this disparity without appropriating new funds."

Some 78 staff members have left the office since March 2020,  she said.

"Continuing to visit clients and their families in person, going to jails, and in-person court proceedings and the added workload that has been associated with the pandemic has added significant pressure that has increased turnover," Thompson said.

The pay of assistant state public defenders and assistant district attorneys are usually linked, but that link got broken during 2019-2021 budget deliberations – assistant district attorneys got raises, but assistant state public defenders did not. A bill to restore pay period was introduced in the last legislative session, but died when the session ended.

​"Throughout the pandemic, SPD attorneys have been working; their offices have remained open and staffed," said State Rep. Amy Loudenbeck (R-Clinton) and State. Sen. Jerry Petrowski (R-Marathon), authors of the bill, which received bipartisan support. "The global pandemic has not paused the Constitutional rights of poor and indigent clients, which means that SPD attorneys have continued to appear in court, visit clients in custody, and provide professional representation."

When staff members leave, their cases must be reassigned, Thompson said. It takes time to get a new attorney up to speed, she said.

"This impact can have ­significant ripple effects but in smaller more rural counties it can be that much more pronounced," she said.

Thompson said there also here has also been a drop during the pandemic in the number of private bar attorneys willing to accept SPD appointments to represent indigent clients. Private lawyers are appointed to cases that SPD can't take due to issues such as workloads or conflicts of interest.

The state last year increased the amount it pays private lawyers to $70 per hour, up from the previous rate of $40, which was the lowest in the nation.

​The new $70 amount, however, judging from SPD emails seeking private lawyers to take cases, has not been altogether successful in ensuring that defendants get timely representation.

One defendant with three cases pending in Langlade and Forest counties has been waiting for a lawyer for five months, according to an SPD email this week; Langlade County was seeking private lawyers for eight other defendants as well. SPD also recently was looking for lawyers for nine Sheboygan County Circuit Court defendants, 10 Fond du Lac County defendants, and defendants in several other counties as well.

"The need to retain staff at this time is even more critical to ensuring that the rights of defendants, particularly those being held in custody during a pandemic, are protected and that the criminal justice system is not brought to a standstill by lack of counsel," Thompson said.

The State Bar, Americans for Prosperity, the Association of State Prosecutors, and the Wisconsin District Attorneys Association also supported the bill.

By Gretchen Schuldt

​Gov. Tony Evers wants to expand expungement eligibility, do away with the plea-coercing charge of felony bail jumping, and legalize recreational marijuana.

Many of his justice-related proposals are almost certainly doomed in the Republican-controlled state Legislature. But they are alive and well right now, and some, such as establishing a council or commission to review the state's sentencing structure, may not even need legislative approval.

Here's a very quick look at some of his proposals. Most of the language is taken directly from the governor's budget narratives.

Evers proposes:

• Eliminating automatic original adult court jurisdiction for youth under the age of 18 and modifying the conditions under which a youth under the age of 18 may be waived into adult court.
• Raising the age that a circuit court or municipal court exercises adult court jurisdiction on individuals from 17 years of age to 18 years of age.
• Removing statutory daily rates for placements at juvenile correctional facilities and allowing the Department of Corrections to establish rates that reflect the number of supervised youth and the costs for providing care.
• Eliminating Type 1 juvenile correctional facilities (Lincoln Hills and Copper Lake youth prisons) and authorizing DOC to operate secured residential care centers for children and youth. 
• Eliminating the Serious Juvenile Offender Program to reflect evidenced-based decision-making practices that recognize the risk and needs of youth. The Serious Juvenile Offender Program would continue for youth under that disposition prior to the effective date of the elimination. 
• Prohibiting the use of restraints on anyone under the age of 18 when appearing before a juvenile or criminal court unless the court orders restraints after finding that their use is necessary.
• Eliminating the use of detention for youth who have violated a court order for having committed a status offense.
• Limiting the use of detention sanctions or holds to situations where there is a public safety risk.
• Increasing the minimum age of delinquency from 10 years old to 12 years old to enable more age-appropriate, evidence-based youth justice programs.
• Creating a sentence adjustment procedure for individuals who commit criminal offenses prior to the age of 18.
• Creating certain mitigating factors that a court must consider when sentencing an individual who committed a criminal offense prior the age of 18.
• Spending $3.1 million to create four circuit court branches in 2021 and four in 2022.
• Expanding the earned release program to include educational, vocational, treatment or other qualifying training programs that are evidence-based to reduce recidivism.
• Allowing a sentencing court to reduce the term of a person's extended supervision if certain conditions apply. 
• Expanding the conditions under which an individual may have his or her criminal record expunged of a conviction.
• Creating an extreme risk protection injunction procedure where a court, after a hearing, may order an individual to refrain from possessing a firearm if it finds by clear and convincing evidence that he or she is substantially likely to injure himself or herself or another by possessing a firearm. As recommended, a court must hold an extreme risk protection injunction hearing after a petition is filed by a law enforcement officer, family member or household member.
• Creating a civil cause of action against a person who, with certain intent, unnecessarily summons a law enforcement officer and causes the officer to arrive at a location to contact another person.
• Modifying the process by which DOC may revoke the extended supervision, probation or parole of a person in the department's care and modifying the sanctions procedure for certain rule violations. 
• Creating an earned compliance credit for certain eligible persons in the department's care. The earned compliance credit would equal the amount of time served on extended supervision or parole without violating any conditions or rules of extended supervision or parole. 
• Requiring the DOC to identify, via an annual report to the Governor and Legislature, the cost savings incurred by the modifications to the earned release and extended supervision processes included in this bill. The savings would be used for r training programs for persons in the department's care, recidivism reduction services and community supervision. 

Updated Feb. 16.

By Gretchen Schuldt

A bill that would block incarcerated people from being prioritized for the coronavirus vaccine was approved by the State Senate Tuesday.

Van Wanggaard (R-Racine), a sponsor of the bill, said in earlier testimony that the bill it "aims to prevent a coming mistake by the Evers' administration to prioritize Wisconsin's prison inmates over law abiding essential workers and others in receiving a COVID-19 vaccine."

The proposal from a state advisory committee to prioritize inmates would mean a "healthy 30-year-old three-time murderer would be entitled to receive a vaccine before other at-risk individuals," Wanggaard said. "A 25-year-old who raped a 60-year-old asthmatic cancer survivor would be entitled to receive the vaccine before his victim. This is not only unwise, it is unconscionable." 

Prisons are recognized as breeding grounds for pandemics due to the poor health of many inmates and the crowded conditions. Incarcerated people face increased risk of contracting the disease, as do corrections workers and those they come in contact with both inside and outside the prison walls.

Registering against the bill were the ACLU of Wisconsin, Kids Forward, the Wisconsin Catholic Conference, the Wisconsin Council of Churches, and the Wisconsin Democracy Campaign. No organization registered in favor of the bill.

"Around the country, COVID-19 has spread at unparalleled rates inside jails and prisons," the ACLU said in a statement. "Outbreaks inside prisons affect the communities these prisons are part of, and hospital capacity in rural areas that prisons are mostly in, is very limited."

"Senate Bill 8 fails to respect the dignity inherent in every incarcerated person and the mercy that must be afforded to all," Kim Vercauteren, executive director of the Wisconsin Catholic Conference, said in written testimony.

"Individuals in the DOC's care have already been processed by the criminal justice system and sentenced. Failure by corrections authorities to properly mitigate a threat of illness or death through communicable infection is not an allowable additional penalty under the law," she said.

Wanggaard said he did not want to push inmates to the end of the vaccination line, but did not want to give them special priority, either. 

Incarcerated people already are "quarantined," he said.

"They are not in, and are not exposed to, the general public," he said. "The only way they could be infected is if it is brought into the prison. Since prison guards and personnel are in line to be vaccinated now, the risk of infection will be greatly reduced in a short number of weeks."

In addition, he said, "over 10,000 inmates, more than half of our entire prison population, have caught COVID. That means that over half of our prison inmates already have the antibodies against COVID. Many others may have the antibodies because of their exposure, and did not become sick. In essence, people who already have immunity would be getting the vaccine, while others who do not have immunity will have to wait."  

By Gretchen Schuldt

​The Milwaukee County penalty for marijuana possession would drop from up to $500 to $1, under a proposal introduced by a group of county supervisors.

"In achieving racial equity, disparities in the criminal justice system, including marijuana and paraphernalia possession laws, must be eradicated," the resolution said.

County Supervisor Joseph Czarnezki, who also is a WJI Board member, said Thursday that marijuana possession prosecutions disproportionately affect low-income and minority communities.

The state should fully legalize cannabis, he said.

"This is a step in that direction," he said.

Other sponsors include Supervisors Sylvia Ortiz-Velez, Ryan Clancy, Steven Shea, Sequanna Taylor, Willie Johnson, Jr., Liz Sumner and Marcelia Nicholson.

The existing county ordinance calls for forfeitures of $250 to $500 and the county usually levies a $275 penalty, according to the proposal. When additional fees are added in, however, the total jumps to about $484.

A $1 penalty would really cost $142.26 once fees and surcharges are included, according to a court official. The new penalty also would apply to possession of drug paraphernalia ordinance violations.

There were 187 county marijuana tickets issued in 2019, according to the resolution.

Under the existing ordinance, "some individuals may not be able to afford the fine and fees associated with a marijuana possession citation, which may result in their case being sent to collections or an increased charge, which is less likely to be collected by Milwaukee County and can affect an individual's financial situation, including their credit scores," the resolution said.

State law also mandates that information, including photographs and fingerprints, of people arrested for offenses – including minor ordinance violations – involving controlled substances be submitted to the State Department of Justice. The arrest information is available to anyone performing a criminal background check through the department.

The county ordinance applies to cases involving 25 grams or less of marijuana. Law enforcement can still issue state tickets, if necessary, for amounts larger than that, the ordinance said.

The proposal cites a 2020 ACLU report that found that Black people are 3.64 times more likely that Whites to be arrested for marijuana possession, despite similar usage rates. ACLU-Wisconsin found that Black Wisconsinites were 4.2 time more likely than White Wisconsinites to be arrested for possession than Whites and that Wisconsin ranks 14th in the country for the largest racial disparities in marijuana possession arrests. 

Wisconsin also was one of 17 states that saw a jump in cannabis possession arrests from 2010 to 2018 "despite an increasing shift in attitudes toward decriminalization and legalization of marijuana," the resolution said. 

WJI reported that Black people were defendants in 77% of marijuana possession cases in Milwaukee Municipal Court in 2019, despite making up just 39% of the city's population.

By Gretchen Schuldt

Sitting in a car parked in a hotel parking lot in a high-crime area does not provide enough probably cause for police to seize and search a vehicle, the State Court of Appeals has ruled.

The 2-1 decision by the District IV Court of Appeals panel turned in large part on whether the vehicle and its driver, Shondrell R. Evans, were legally seized by Town of Madison officers or whether Evans should have realized, with two squads mostly boxing him in and in the glare of police spotlights, that he was free to drive away.

And while Evans' attorney, Assistant State Public Defender Thomas B. Aquino, argued that Evans' race – he is African-American – likely made him more hesitant to back his car out between the squads, neither Appeals Judge JoAnne F. Kloppenburg, author of the majority opinion, nor Appeals Judge Michael R. Fitzpatrick, who dissented from a key finding, addressed the issue in a meaningful way.

The state, in its brief, did not even mention it.

The basics of the case are undisputed.

Town of Madison Police Officer Logan Brown, on patrol in March 2018, saw Evans and a woman leave a hotel about 2:30 a.m. Brown followed the two as they drove to the parking lot of a nearby apartment complex, park for about a minute, then return to the hotel parking lot.

Evans parked in a stall in the lot, next to a car parked on his passenger side. There was a concrete barrier in front of Evans' car. Evans and the women remained in Evans' car for several minutes.

Brown contacted Officer Andrew Hoffman, who was nearby. 

The two officers, in separate vehicles, approached Evans' car simultaneously. Brown parked a short distance away from Evans' vehicle, with the front of the squad facing the driver's side door of Evans' car. Hoffman also parked close to Evans' car. The squad was parked at about a 45-degree angle from the rear bumper of the passenger side of Evans' car. 

Both officers had their headlights and overhead spotlights trained on Evans' car. 

​Evans was not completely blocked in, according to the decision; he could have backed out and maneuvered around the squads to leave.

The officers got out of their cars and approached Evans' vehicle. They said they smelled marijuana.  The officers subsequently searched the car and found a gun. 

Evans was charged with felon in possession of a firearm. He argued in court that the seizure of the car was illegal and sought to suppress the gun, but Dane County Circuit Judge Susan Crawford denied the request. First, she said, Evans was not seized until the officers began questioning him. He could have, after all, backed out and left. She also said that even if Evans' car had been seized, it was reasonable for the officers to do that “based on the officer’s observations of the individuals coming and going at that hour from the hotel parking lot in a way that seemed unusual and not explainable in a high crime area.”

Evans eventually pleaded guilty and filed his appeal.

The appeals panel majority rejected both facets of Crawford's reasoning. The officers both seized Evans' vehicle and lacked the legal basis to do so, Kloppenburg said. She was joined in her opinion by Appeals Judge Brian W. Blanchard.

A seizure occurs when, in view of all the circumstances surrounding the incident, a reasonable person would conclude that he or she was not free to leave. Evans argued that the positioning of the squad cars, combined with the officers' use of squad lights, "constituted a sufficient show of authority that a reasonable person in his position would not have felt free to leave."

Aquino, in his brief, suggested that Evans might be especially hesitant to back out because of his race.

By Gretchen Schuldt

The criminal record expunction effort that came oh, so, close to approval in the State Legislature last session is back for another try and one of its chief backers, State Rep. Evan Goyke (D-Milwaukee), said there is reason for optimism.

"A lot of our effort during the last two years was education," Goyke said. When legislators first considered the idea of giving those convicted of crimes a second chance, "their initial position was cautious and negative," he said.

More people are more knowledgeable about and less opposed to the bill, he said. There also is new leadership and possible new rules in the Senate, which may help as well, he said.

The revived bill again has bipartisan support. Other key backers of the measure include State Rep. David Steffen (R-Green Bay), State Sen. Alberta Darling (R-River Hills) and State Sen. Kelda Roys (D-Madison). The four have signed on to a co-sponsorship memo being circulated among other legislators.

An expunction bill last year came within three senators of passage, but bill supporters could not corral those votes. 

Under current law, a person who wants to have a criminal conviction expunged from their record must ask the judge at the time of sentencing, before a judge has any idea how that person does in prison or on supervision. The law also limits the availability of expungement to those less than 25 years old at the time and to those who do not have a felony conviction record. The offense for which expungement is requested must not be a violent felony and must not carry a penalty greater than six years.

The bipartisan bill being proposed would change the law in several ways. It would remove the discriminatory age limit of 25 and would allow the people convicted of crimes to request expungement when they complete their sentences.

"The decision of whether or not to expunge a record should be based on merit and how an individual rehabilitated themselves, rather than an age," the four legislators said in the memo.  "Wisconsin is one of only four states to have an age limit. This bill removes the age limit in order to focus on individuals that have successfully completed their sentence and have not reoffended."

Other limits, including the types of crimes eligible for expunction, would remain in place.

Once an expunction petition is filed, a judge would review it and either grant or deny it. If denied, a new petition could not be filed for two years. 

The bill also would limit a person to one expunction.

The bill also makes clear what it means to successfully complete a sentence. That would include completing community services, paying all fines, fees, restitution, and completing any community supervision without revocation, according to the co-sponsorship memo.

The bill has strong support among some conservatives. Americans for Prosperity, for example, "have really made this one of their priorities," Goyke said.

"We are inching our coalition bigger," he said.

The bill started in the Assembly last year; this time around, it will go to the Senate first, he said.

By Gretchen Schuldt

​Defendants in criminal cases cannot be held indefinitely in jail before a preliminary hearing simply because them State Public Defender's Office cannot find a lawyer willing to represent them, the State Court of Appeals ruled Wednesday.

"Although the SPD’s search for counsel can constitute good cause to delay the preliminary hearing, going forward there must be a more robust consideration of relevant factors than is demonstrated by this record—including the necessity and feasibility of appointing counsel at county expense, especially in instances of prolonged delay," District III Court of Appeals Judge Thomas M. Hruz wrote for the three-judge panel.

He was joined in his opinion by Appeals Judges Lisa K. Stark and Mark J. Seidl.

The panel reversed a ruling by Marathon County Circuit Judge LaMont K. Jacobson, who denied a motion to dismiss by defendant Nhia Lee, who said the frequent delays of his preliminary hearing were errors by the circuit court. While the appeals judges ordered the case is dismissed, Marathon County can re-issue the charges.

The appeals panel also found that the court had the authority to appoint a lawyer for Lee at county expense, but was not required to do so.

State law requires that a preliminary hearing be held within 10 days of an defendant's initial appearance in felony cases where bail is more than $500. The time limit can be extended for cause or if both parties agree.

Lee, who was eligible for public defender representation, was held for 101 days without a lawyer and 113 days before his preliminary hearing.

Lee was in jailed on $25,000 bond on two felony drug charges and one count of identity theft. He was represented by an SPD-appointed lawyer for his September 2018 initial appearance.

After that, SPD could not find a lawyer to represent Lee. At the time, the state paid $40 per hour to private attorneys appointed by the agency to represent indigent clients when SPD lawyers could not do so themselves. That pay rate, the lowest in the nation at the time, did not cover lawyers' costs and led many to refuse SPD cases. The rate has since been raised to $70 per hour.

Lee made clear to during "review hearings" held by a court commissioner that he wanted a lawyer. Because SPD couldn't find one, the commissioner several times on his own motion found good cause to extend the time limit for holding the preliminary hearing.

After Lee complained that he had been held for a month without counsel, Hruz wrote, "The court commissioner responded: 'I wish I could tell you what the hold up is, there doesn’t seem to be any…certain length. I’ve seen people who have been in shorter get attorneys, so I’m not sure what the hold up is on your particular case.' ” 

By Gretchen Schuldt

​Did the state misrepresent data it used to argue that convicted felons should never be allowed to own guns?

State Supreme Court Justice Brian Hagedorn said yes, and a WJI analysis suggests the state's presentation was misleading, at best. 

It is unclear, though, that having more accurate data would have changed the court's ruling in State v. Roundtree upholding the gun possession ban law that courts had also previously upheld.

Assistant State Attorney General Sarah Burgundy and Attorney General Josh Kaul contended in a brief that a Department of Corrections study showed that "Public-order offenders had a significant rate of recidivating with violent crimes. For example, based on data from prisoners released in 2011 for public order offenses, 21.4% recidivated with a violent offense..."

WJI, based on the data contained in the report, determined that 6% of public-order offenders recidivated with violent crimes. 

Reached by email for comment, Burgundy simply referred WJI to the DOC study.

Public-order offenses, the study said,  included non-property, non-violent crimes such as fifth- or sixth-offense drunk driving, felony failure to pay child support, possession of a firearm by a felon, and felony bail jumping.

The appellant in the gun case, Leevan Roundtree, was convicted in 2003 of felony failure to pay child support and was placed on probation, which he completed; in 2015, police found a gun under his mattress, and he was convicted of felon in possession of a gun and sentenced to 18 months in prison and 18 months of extended supervision. 

Roundtree argued unsuccessfully that the gun ban was unconstitutional when applied to non-violent offenders like him.

DOC defined recidivism in its report as "Following an episode of incarceration with the Wisconsin DOC, to commit a criminal offense that results in a new conviction and sentence to Wisconsin DOC custody or supervision."

Burgundy and Kaul, in their brief, also said the study's data showed that "the 21.4% of public-order offenders recidivating with a violent crime was higher than that of property offenders (16%) and drug offenders (17.9%)," they wrote. "And it was just seven percentage points lower than the rate of violent offenders (28.3%).

WJI determined that 6.6% of property offenders, 5.5% of drug offenders, and 7.7% of violent offenders recidivated with violent crimes.

The DOC study did not measure the released offenders who recidivated with violent crimes, as the brief suggested. It measured instead the share of recidivists who committed such crimes, as Hagedorn said in his dissent.

The state's brief did not make clear that the percentages it cited so prominently represented a percentages of percentages.