A story in charts: New report shows continuing bias in Milwaukee police stops, frisks, and interviews
By Gretchen Schuldt
Milwaukee police are still stopping Black and Hispanic people at a far higher rate than they stop White people, a new report shows.
The same is true of police conducting field interviews and frisks.
The disparities are getting worse, according to the ACLU of Wisconsin.
The new report was prepared by the Crime and Justice Institute as a result of the 2018 settlement of a lawsuit by nine Black and Hispanic/Latino Milwaukee residents alleging that Milwaukee police unlawfully engaged in racially biased stop-and-frisk practices. The nine were represented by the ACLU of Wisconsin, national ACLU, and the law firm of Covington & Burling.
As part of the settlement, the Police Department, the Fire and Police Commission, and the city agreed to undertake a number of reforms, including an end to race-based pedestrian and traffic stops.
“We’re at a critical moment where the Milwaukee Police Department, three years into the settlement, has failed to achieve compliance for even a single year and continues to over police Black and Latinx people at an alarming, unacceptable, and worsening rate,” Karyn Rotker, senior staff attorney with the ACLU of Wisconsin, said in a prepared statement. “We are also deeply concerned by the lack of adequate supervision and discipline to impose the accountability that this agreement requires.”
The Fire and Police Commission also issued a statement that said the city and police department have more work to do to comply with the settlement.
"The FPC is fully committed to this essential work, as well as to exercising its critical oversight function to support MPD and hold the Department accountable to meet its settlement obligations," the commission said.
The charts below are from the CJI's report. The full report is here.
By Gretchen Schuldt
Five judges from around the state are asking the Wisconsin Supreme Court to adopt a new rule restricting the use of shackles on juveniles in court.
"Every weekday, children ages 10 to 17 are brought into Wisconsin juvenile courtrooms in shackles," a supporting memo filed with the petition says. "A few are shackled because a judge or court commissioner has found them likely to flee, or likely to be disruptive in the courtroom. But most are shackled simply because it is routine – sometimes based on a sheriff's policy, sometimes because it is the way it has always been done."
Under the proposed new Supreme Court rule, children could not be restrained during a court proceeding unless a judge found one of the following:
Restraints use also would be limited to situations where there were no less restrictive alternatives "that will prevent flight or physical harm to the child or another person, including the presence of court personnel, law enforcement officers, or bailiffs," according to the petition.
The rule would prohibit use of restraints "that are fixed to a wall, floor, or furniture," the petition says.
Submitting the petition 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. Attorneys Diane R. Rondini and Eileen A. Hirsch also signed.
"Some Wisconsin counties, including La Crosse, Eau Claire, Marathon, Milwaukee and Dane, have successfully implemented county-level juvenile court shackling rules that, like the proposed rule, establish a presumption against shackling, which can be overridden by a court finding, on the record, that the child is likely to flee, or to cause harm to self or others," Hirsch wrote in the supporting memo. "Approximately 20 additional counties rarely shackle children in court. However, at least 25 counties practice indiscriminate shackling of children in juvenile court."
Thirty-three states and Washington, D.C. have implemented statewide presumptions against shackling children in court, though judges can order shackles when necessary, Hirsch wrote.
The shame and humiliation that results from shackling "is especially damaging to adolescents, who are in the developmental process of forming their own identities and who are intensely concerned with how others perceive them," she said.
Those emotions can lead to defensiveness, avoidance, and aggression, she said.
Shackling can also hurt a child's ability to communicate with counsel.
One assistant state public defender "described her shackled clients as being 'distracted and embarrassed...They crouch down. Sometimes they have to sign papers, but it's hard for them to sign with cuffs chained to their waists,' " Hirsch wrote.
Another assistant public defender said "she has had 'numerous clients who are physically harmed by the use of shackles. I have seen red marks and indentations on my client's wrists and legs.' "
Children with mental illness or a history of trauma suffer more harm from shackling, Hirsch said. Shackling can lead to worsening of symptoms and make daily functioning more difficult.
Hirsch cited court decisions from around the country that limit juvenile shackling.
"In each of these cases, the court concluded that a presumption against shackling during juvenile court proceedings is consistent with the rehabilitative purposes of the juvenile justice system," she said.
The state Supreme Court has not yet set a public hearing date on the petition.
By Gretchen Schuldt
Fewer than 30 years had passed since the end of the Civil War when Canadian-born William T. Green graduated from the University of Wisconsin Law School in 1892, one of the first Black people to do so.
He was by then 31 or 32 years old.
Law degree in hand, he settled in Milwaukee, where he became the city's first and only Black attorney. By that time, he already had authored the state's first civil rights bill.
Green's enrollment in law school was fortuitous, according to a September 1893 Milwaukee Journal newspaper story. The short, one paragraph account announced a benefit for Green, "a colored lawyer of the city, who was stricken with paralysis some time ago."
"Years ago he was an errand boy in Milwaukee, but later obtained a position about the state university building," the newspaper reported. "He was without money and although eager to learn was unable to provide himself with an education. One of the professors one day found him with his ear to the keyhole listening to a law lecture. Attracted by the lad's earnestness to learn the professor helped him through college and he graduated a year or two ago with high honors."
Green, as a young man, watched as the country moved away from its commitment to civil rights. In 1883, the U.S. Supreme Court struck down a federal law prohibiting discrimination in public accommodations.
The move had ramifications in Wisconsin. Black people were turned away from taverns and other public places; some attending a teachers' convention in Madison were not allowed to register at hotels, according to the summer 1966 issue of the Wisconsin Magazine of History.
The small Black population (304 people in 1880) began pushing for a state law that would do what federal law no longer did.
Then in 1889, Owen Howell, a Black man, bought a ticket to a play. When he went to the Bijou Opera House in Milwaukee, he was denied his seat and an usher instead directed him to the gallery. Howell sued in Milwaukee County Circuit Court.
Black leaders in the city, including Green, held a convention to show off their increasing political strength – the city's Black population was by then about 449 – and to push for a new civil rights league, which was indeed established. Green also helped organize a meeting to censure the Bijou's owner. The meeting drew about 75 people – about 17% of the city's Black population.
Howell won his case and was awarded $100 and costs.
Law student Green, meanwhile, was busy with his civil rights bill. It was drafted in late 1889, and introduced in January 1891 by a one-term legislator, Orren T. Williams. Republicans at the time were the advocates for civil rights.
They also were in the legislative minority that term.
The bill would have provided equal access to a variety of public accommodations, including restaurants, saloons, barber shops, theaters, and transportation conveyances. Violations would be punishable by fines of $25 to $500 and incarceration for up to one year.
The debate in the Judiciary Committee was overtly racist.
"Where is the man on this floor who will say the colored man is the equal of the white man?" Assemblyman John Winans asked. "God did not create them equal."
First the bill was watered down. Then it was defeated.
"Mr. Williams, who introduced it, wanted it killed because it had been limited to hotels and common carriers," The Milwaukee Journal reported.
y Gretchen Schuldt
A federal appeals court hammered the Wisconsin court system last week in a ruling that may finally provide a hearing to a man who has waited in vain for more than four years to get his appeal considered by a state court.
Marvin Carter, the federal court said, can pursue his habeas corpus petition in federal court.
"Though we recognize that state court remedies exist in theory in Wisconsin and should be available, the last four years have demonstrated that those remedies are, at least for Carter, inaccessible," U.S. Circuit Judge Michael Y. Scudder Jr. wrote.
Carter "has weathered a ten-month transcript delay, three different public defenders, and 14 extension requests by counsel and the trial court itself," Scudder wrote. "At no point during these four years has a single court in Wisconsin ruled on the merits of Carter’s colorable challenge to his sentence. None of this is Carter’s fault."
"Carter contends that state court remedies in Wisconsin are ineffective to protect his rights. We agree, for the facts in this case afford no other reasonable conclusion....The length of the delay should have sounded an alarm bell within the Wisconsin courts, the public defender’s office, and even the Attorney General’s office," Scudder said.
Carter's experience in the state court system has been "extreme and tragic," Scudder wrote for the Seventh Circuit Court of Appeals panel. Circuit Judge Michael B. Brennan joined the opinion and Circuit Judge Frank H. Easterbrook concurred, saying the decision did not go far enough in some areas of analysis.
Carter's odyssey began in 2016, when he was charged in Milwaukee County Circuit Court with possessing heroin, cocaine, and other drugs with intent to deliver and with felon in possession of a firearm.
He reached a plea agreement in the middle of trial, agreeing to plead guilty to the heroin and gun charges. The district attorney's office agreed to recommend a six-year sentence.
When sentencing time rolled around, though, Assistant District Attorney Laura Crivello (now a Milwaukee County circuit judge) retreated from the deal.
She told the court: “In hindsight, I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.”
Circuit Judge Janet Protasiewicz, instead of honoring the plea agreement, sentenced Carter to nine years, three more than agreed upon.
It was 2017 by then. Carter tried to appeal, arguing that Crivello breached the plea agreement and that Protasaiewicz sentenced him based on inaccurate information, both violations of his 14th Amendment due process rights.
Things went wrong almost from the beginning.
Carter filed a notice of his intent to seek postconviction relief with the trial court well within the 20-day time limit. The state public defender's office assigned him a lawyer.
"But stagnation soon followed," Scudder said. "The clerk and court reporter took 10 months to locate and share the trial transcripts that Carter’s counsel requested – a step that should have been completed within 60 days."
Carter's lawyer, on the day the postconviction motion was due, asked for more time.
"He explained that his heavy caseload prevented him from meeting with Carter or reviewing the case materials," Scudder said. The lawyer, Leon Todd, also asked for a retroactive extension of time to request certain transcripts. The state Court of Appeals granted both. (Full disclosure: Todd is a WJI Board member.)
"With the benefit of hindsight, we now know that the delay for Carter was just beginning. Carter’s counsel followed his first request to extend the deadline to file the postconviction motion with a second. And a third. And a fourth," Scudder wrote. "This pattern continued for months, with Carter’s counsel filing a new extension request on each day the prior request was due to expire. By late 2019 – more than two years after Carter’s July 2017 conviction and sentence – counsel had filed seven requests to extend the motion deadline. The Wisconsin Court of Appeals granted each motion in rote fashion."
"Wisconsin’s courts need to fix the systemic deficiency that has resulted in how Carter’s case has been treated, and become more transparent about how discretion is exercised, for the benefit of the parties, their counsel, other courts, and the public," – Seventh Circuit Court of Appeals
Carter turned to federal court and filed a habeas corpus motion, a type of motion alleging that a person's incarceration violates the Constitution.
Another year passed before U.S. District Judge James D. Peterson issued a decision denying Carter's request. In it, Peterson recognized Carter's difficult position.
"The delay in Carter’s postconviction or appellate process is inordinate. It has been more than three years after his judgment of conviction, and his case has gone nowhere," Peterson wrote.
Peterson told Carter to give the state courts one more chance, questioning whether the courts knew Carter "disapproves" of Todd's repeated requests for more time.
"By our tally, then," Scudder wrote, "Carter’s counsel filed twelve consecutive extension requests, collectively pushing the deadline to file the motion to Nov. 24, 2020. And, as best we can tell, not once has the Wisconsin Court of Appeals – or any other Wisconsin court for that matter—recognized that Carter’s case has been stalled for over four years."
By Gretchen Schuldt
Gov. Tony Evers has signed into law tougher new penalties for crimes committed against anyone at least 60 years old.
The bill also allows older people seeking domestic violence, individual-at-risk, or harassment restraining order to appear in a court hearing by telephone or through audiovisual means. Currently, people seeking restraining orders appear in court in person.
“Aging and older Wisconsinites are particularly vulnerable to financial and physical abuse and exploitation, and unfortunately, we are seeing a devastating and concerning rise in these crimes,” Evers said. "This bill is an important bipartisan action to help put an end to elder abuse and protect some of our most vulnerable loved ones and neighbors.”
Evers ran for office promising to reduce the prison population.
Under the new law:
In the abuse category, there were 2,148 cases or calls about financial abuse, 717 about emotional abuse, 650 about physical abuse, 41 about sexual abuse, 14 about unreasonable confinement or restraint, and four about treatment without consent.
Of all the reports, including those for neglect and self-neglect, more than half – 52.5% – were either unsubstantiated or unable to be substantiated.
In another signing, Evers signed a bill that regulates police use of force. It creates standards for when police can use force, creates a duty to report improper use of force, and creates a duty to intervene or prevent improper use of force.
vers vetoed a bill that would have reduced shared revenue payments to counties and municipalities that reduce police, firefighter, or emergency responder funding or personnel.
By Gretchen Schuldt
A bipartisan group of lawmakers is asking its colleagues to co-sponsor legislation to fully fund a new $42 million juvenile prison in Milwaukee County to replace the scandal-plagued Lincoln Hills and Copper Lake facilities in Irma.
The Legislature voted in 2018 to close Lincoln Hills and Copper Lake by July 1 of this year and transfer its residents either to a new Type 1 facility to house serious juvenile offenders, or to secure residential care centers that would be built in different areas of the state.
"That date has come and gone, and we have yet to break ground on the first state Type 1 building," the legislators said in the co-sponsorship memo they are circulating to their colleagues. It was authored by State Reps. Michael Schraa (R-Oshkosh), Calvin Callahan (R-Tomahawk), and Evan Goyke (D-Milwaukee), and Senators Van Wanggaard (R-Racine), Mary Felzkowski (R-Irma), and Lena Taylor (D-Milwaukee).
A court-appointed monitor reported last month that youth at the facilities were growing more frustrated and the staff seemed defeated.
The new state budget includes $4 million for planning, design, and site selection for a new Type 1 facility, but does not include money to build it.
"In the four years since the passage of 2017 Act 185, the environment at Lincoln Hills and Copper Lake has remained unstable," the legislators wrote. "The pandemic only exacerbated the difficulties there, with programming pauses and staff turnover contributing to an explosion of violent activity in 2020."
A petition of no confidence against facility administrators by union employees showed that staff injuries were up 4,700% in the first six months of the year from the last six months of 2020. In addition, youth/staff battery was up 117%, sexual misconduct was up 75%, and use-of-force incidences were up 58%, the memo said.
"It is far past time for this facility to close," the memo said. "The Legislature must do its part and approve the funding for the new Type 1 correctional facility, for the sake of the employees who work there, and the youth that have been placed in the care of the state. It is our duty."
By Gretchen Schuldt
An appeals court judge on Tuesday ordered a new hearing on whether a juvenile accused of shooting eight people at Mayfair mall in November should be waived into adult court.
The ruling by District I Court of Appeals Judge Timothy G. Dugan reversed Milwaukee County Circuit Judge Brittany Grayson's finding that the case should remain in juvenile court.
The court record Grayson established "does not reflect that the court set forth a reasonable basis for its conclusions," Dugan wrote.
The juvenile, identified as Xander in Dugan's decision, was charged in a November delinquency petition with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of possession of a dangerous weapon by a person under 18.
The state Division of Division of Youth and Family Services recommended the boy, then 15, remain in juvenile court and Xander's psychologist also testified on his behalf.
Grayson found that the state did not show that services available through the juvenile system would not adequately protect Xander and the public, according to the Milwaukee Journal Sentinel.
The Mayfair shooting occurred while Xander was serving a sentence from an earlier incident, where he ran from a car pulled over by police. Officers later found cannabis in a backpack the boy threw away while fleeing. Xander had several violations of his community supervision, Dugan said.
Xander allegedly shot the Mayfair victims after he and a friend, Eric Garcia, got in an argument there with some people they knew. Xander allegedly shot three people from the group, four bystanders, and Garcia.
He was arrested a few days later with the gun in his possession, Dugan wrote.
During a later investigation, "police discovered text messages between Xander, his parents, and his sister, in which they devised a plan to help Xander flee to Florida via airplane and stay with his adult sister," he wrote.
Grayson, during the waiver hearing, "admitted and then relied on hearsay statements from Xander contained in the psychologist’s testimony and, in effect, allowed Xander to present an alternative version of events that contradicted the facts set forth in the delinquency petition," he said.
The psychologist testified that Xander “came across as anxious” based on the information that Xander gave to the psychologist. The psychologist also said that Xander was suffering from post-traumatic stress disorder on the day of the shooting, a diagnosis based on Xander's statement that the people in the group had shot at him and a friend a month earlier.
"The psychologist testified that Xander told him that he 'felt threatened' that day at the mall and that Xander said that 'when he shot – his eyes – he closed his eyes and shot,'" Dugan wrote. "He then testified that 'what it tells me is that he – he was simply reacting…. [H]e wasn’t trying to – trying to hit someone…. [H]e was just reacting.'”
That testimony directly contradicted eyewitness accounts submitted by the state. Those witnesses said Xander appeared to target the group and fired at one person in particular as she tried to flee.
Xander did not challenge the description of the alleged crimes as outlined in the delinquency petition, Dugan said.
"Allowing a contradictory version of events through the testimony of the psychologist would be absurd," he said.
Grayson also erred, Dugan said, when she "described the unique and dangerous nature of this shooting of eight people, including innocent bystanders, in a crowded mall but then merely stated that the juvenile court handles serious cases like this 'all the time' and stated that the public interest is best served by allowing this case to proceed in juvenile court without further explanation."
"As the juvenile court recognized, it is a miracle that no one died and that there were not more people injured when Xander opened fire (or, as the State described, 'empt[ied] the entire clip') in a crowded public place..." he wrote.
Grayson did not adequately explain why keeping the case in juvenile court was not contrary to the public's best interest, Dugan said. She also failed to state on the record how the juvenile code would protect the public, given the seriousness of the crime and Xander's record of failing to comply with the rules of his previous supervision.
By Gretchen Schuldt
When Kathleen Rose Harney married Joseph Michael Kruzel in 1971, she kept using her own name. And there the trouble began.
Her employer, Milwaukee Public Schools – Harney was a first-year art teacher – told her that she either had to use her husband's name or go to court and legally change her name to "Harney" if she wanted to add Joseph Kruzel to her health insurance policy.
The marriage, after all, meant that her name was no longer hers, according to her employer. MPS was not alone in that belief. Harney's wedding announcement in The Milwaukee Journal referred to her as "Mrs. Joseph Michael Kruzel" and the "former Miss Kathleen Rose Harney."
Even Harney herself believed she gave up her name.
"I didn't really want to," she said in an interview. "I thought you had to."
Harney went to court. She appeared before Milwaukee County Circuit Judge Ralph J. Podell in December 1972 and asked the judge for permission to use the name that was hers since birth and that she had used on her marriage certificate. Technically, she asked to "change" her name from one she had never even used.
"That's when things snowballed," said Harney, who now lives in Wauwatosa.
She was called to the stand during the hearing she thought would be routine.
"All they asked is, 'What's your name and are you pregnant?'" she said. Then the judge told her to sit down, she said, and the men in the room discussed what her name should be.
The judge denied her request for the good of any future children she might have. Having parents with different names would be bad for the young ones, he said.
If two people getting married can't agree on a single name, he said, "it would be better for them, any children they may have, and society in general that they do not enter into the marriage relationship."
Podell also said that he "feels very strongly that family unity also requires that all members thereof bear the same legal name" and "this court feels she should carry her husband's name."
Harney said her lawyer told the judge he rather agreed with him.
The February 1973 ruling made the newspapers. "Maiden Name Plea Rejected By Court," the Journal reported.
"My in-laws saw it in the paper," Harney said. "It didn't go over well."
It took a while for her in-laws to speak to her again, she said.
Attorney Priscilla Ruth MacDougall, who specialized in women's issues, found out about the ruling and contacted Harney. The naming precedent was bad and should not stand, MacDougall said. Would Harney consider an appeal?
"We just got married and we're buying furniture," Harney, then 22, told her. "We can't afford an attorney."
MacDougall said she and others would find the money. Harney appealed; the state Supreme Court accepted the case.
Harney's appellate lawyer was a rookie attorney named Joan Kessler, who took the case pro bono.
"I was just young and out of school and what did I know?" said Kessler, who would later serve as U.S. attorney for the Eastern District of Wisconsin and a state appeals court judge.
"Everyone was astounded" at Podell's decision," she said. It already was clear that a person's name was a matter of choice, she said. There simply was no law on the books requiring a woman to take her husband's name.
Kessler drafted a brief for the state Supreme Court. Since she was headed to New York for an American Bar Association meeting, she thought she would seek help from a more experienced lawyer – ACLU attorney Ruth Bader Ginsburg, who filed an amicus brief in Harney's support.*
Ginsburg invited Kessler to her apartment.
"I got to meet Ruth," Kessler said. Ginsburg read the younger lawyer's brief "while I was sitting there," Kessler said.
Kessler liked a William Shakespeare quote that Ginsburg used in her ACLU brief. With Ginsburg's permission, Kessler used it in her own as well:
"[H]e that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."
"Why, as a condition of marriage," Kessler asked in her brief, "should this state compel one party to the marriage to exact from the other party so dear a price as one's own name? No rational answer suggests itself."
Podell's lawyer, Bruce O'Neil, argued that Podell did not abuse his discretion in refusing to allow Harney to use her own name. He told the court that Podell's decision was "neither sexist nor chauvinist," the Journal reported.
"It is submitted that whatever doubt may have existed in the trial court's mind vanished, when the appellant and her husband informed the court that, if they had children, they would give them surnames composed of a hyphenation of their two surnames," he said in his brief. "The trial court may well have asked what surnames they anticipated their grandchildren would bear, if one of their hyphenated children married the hyphenated child of two other parents bearing different legal surnames. And if they lived to see their great-grandchildren, they might well encounter a child listing under the burden of a hyphenated surname made up of eight different surnames."
The court rejected O'Neil's arguments.
Podell's points "could well be valid under proper circumstances, but only if proof were adduced to support the conclusions," Justice Nathan Heffernan wrote for the majority. "The reasons given for the denial of the change of name are completely conclusory and without any evidence of their applicability to the situation before the court....Unsupported generalizations do not constitute a cause shown to deny a change of name."
The court also made a broader, more significant finding: "We conclude...that the common law in Wisconsin has never ossified to the point of a holding that a wife is required to take her husband's name. The implicit assumption is to the contrary."
*The National Organization for Women joined with the ACLU to submit the brief. Also submitting an amicus brief on Harney's behalf were the University of Wisconsin Women Law Students' Association and the Olympia Brown League.
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By Gretchen Schuldt
State court judges are slated to get 11% pay raises over the next two years, under the budget signed last week by Gov. Tony Evers.
The raises would boost the pay of state Supreme Court justices by almost $19,000. Circuit court judges will receive the smallest boosts – more than $16,000.
Judges would get pay hikes of 5% starting in January 2022 and another 6% in January 2023, for a two-year total increase of 11.3%. The money for the raises was approved in the budget, but the raises themselves must be approved by the Joint Committee on Employment Relations.
The budget also includes general wage hikes for other state employees of 2% each year, for a total wage increase of slightly more than 4%.
The generosity toward judges means that circuit court judges, who are paid $147,535, would get $154,912 in 2022 and $164,206 in 2023, for a total pay increase of $16,671.
Appeals court judges, who now make $156,388, would make $164,207 next year and $174,060 in 2023, a jump of $17,672 from the current salary.
Supreme Court justices, now paid $165,772, would get $174,061 in 2022 and $184,504 in 2023, an increase of $18,732.
The increased judicial pay was put forward by the Republican-controlled Joint Finance Committee. The judges-only raises – the 3% in 2022 and 4% in 2023 that other state workers are not getting – would cost about $3 million over the biennium.
Supreme Court Justice Patience Roggensack, as chief justice in 2017, lobbied unsuccessfully for judicial raises that would boost her own salary by more than $20,000, to about $152,000. Her efforts had the backing of corporate interests who appear before the court, including Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association.
The Legislature that year approved two-year judicial raises totaling 4%.
By Gretchen Schuldt
Even the most inconsequential violation of a condition of community supervision makes a person ineligible for expungement of the crime from their record, the State Supreme Court decided.
"Once an individual completes his term of probation, if it is undisputed that the individual violated at least one of his conditions of probation – as in this very case – circuit courts must deny expungement," Justice Rebecca Grassl Bradley wrote for the five-member majority. She was joined by Justices Annette K. Ziegler, Patience D. Roggensack, Brian Hagedorn, and Jill J. Karofsky.
The requirement for strict adherence applies both to conditions set by the court and those set by the Department of Corrections, Grassl Bradley said. Any violation makes a person ineligible for expungement.
Justice Ann Walsh Bradley, joined by Justice Rebecca F. Dallet, dissented.
"The majority opinion places expungement further out of reach of those defendants who would benefit most," Walsh Bradley wrote. "Although I agree with the majority that expungement requires satisfaction of conditions imposed by both the sentencing court and DOC, I part ways with the majority when it determines that the circuit court has no discretion to order expungement in the face of any rule violation, no matter how small."
The court's decision stemmed from a case involving Jordan A. Lickes' request to expunge three of four convictions related to a sexual encounter he had with a 16-year-old girl in 2012, when he was 19.
Lickes was charged with fourth-degree sexual assault, sexual intercourse with a child age 16 or older, disorderly conduct, and exposing his genitals or pubic area. The first three charges were misdemeanors; the fourth was a felony.
He pleaded guilty to the sex with a child charge and no contest to the others and was sentenced to 90 days in jail with work-release privileges. He was also placed on probation, but violated some of the rules and was sanctioned. DOC, however, did not seek to revoke his supervision.
His probation ended in 2016 and Lickes applied for expungement. His probation agent eventually certified that Lickes had successfully completed his supervision.
The Supreme Court, agreeing with the state Department of Justice and Attorney General Josh Kaul, said he did not.
Walsh Bradley, in her dissent, noted that DOC's standard rules of supervision require "that a person meet regularly with the probation agent and obtain approval from the agent prior to moving; changing employment; leaving the state of Wisconsin; purchasing, trading, selling, or operating a motor vehicle; borrowing money; or buying anything on credit."
The rules also require those on supervision to adhere to conditions set by the court or their supervision agent, and that those conditions can change at any time.
"Does the majority's determination mean that if, without agent approval, probationers from the border community of Marinette, Wisconsin cross to Menominee, Michigan to do grocery shopping, that they must be denied expungement? The majority apparently responds, 'Yes. Under the standard rules of probation, it is a violation.' "
"How about the standard rule of buying nothing on credit?" Walsh Bradley said. "What happens if the probationer, without agent approval, pays for gas with a credit card? 'It's out of our hands,' responds the majority. The same apparently holds true if the probationer misses a single meeting with the probation agent."
The statutory requirement that expungement candidates "satisfy" the conditions of their supervision leaves room for discretion by the judge and DOC, Walsh Bradley said.
Yet "the majority proceeds to rigidly interpret 'satisfaction' in an all-or-nothing fashion," she wrote. "In the majority's view the circuit court has no discretion at all in deciding whether to grant or deny expungement.
"One would expect a determination of such reach to be supported with more than the majority's cursory analysis," which was three paragraphs long, she said. "And it is an analysis that runs counter to the statutory language, has no basis in the case law the majority cites, and thwarts the purpose of the expungement statute."
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