LBy Gretchen Schuldt Defendants facing bail-jumping charges are among the favorite targets of those pushing for tougher bail standards in the wake of the Waukesha parade tragedy. "If someone has proven through past behavior that they...cannot abide by the conditions of a bond imposed by the court, it only makes sense that they should be required to have a minimum vested interest in attending court dates and integrating into society," said Ryan Windorff, president of the Wisconsin State Lodge of the Fraternal Order of Police. Windorff was testifying in support of a bill that would establish a $5,000 minimum bail for criminal defendants previously convicted of bail jumping. Another proposal under consideration would amend the state constitution to allow judges setting bails to take into consideration factors including criminal histories and amorphous physical or non-physical "serious harm" to the public that would be defined by the Legislature and could be changed by legislative whim. Backers of both those proposals and others cite the case of Darrell Brooks, the man allegedly responsible for killing six and injuring others when he ran a vehicle into a crowd at the Waukesha parade. Brooks was out on bond at the time and faced domestic violence and bail-jumping charges. Milwaukee County District Attorney John Chisholm has acknowledged that Brooks should not have been released from the Milwaukee County Jail and that his office erred in seeking a bail of just $1,000. The stakes behind these bail-tightening proposals are huge, and not just for defendants. Any bill that would make it harder for people to win pretrial release will hit counties hard because counties, not the state, pay for the local jails where those awaiting trial are held. There were 45,454 felony cases and 56,870 misdemeanor cases opened in the state last year. The median number of days it took to close out a case was 161 for misdemeanors and 241 for felonies. None of the bills proposing tougher bail rules would provide assistance to counties to pay for the increased cost and there is a lot of room there for lengthy stays and jail overcrowding if onerous bail restrictions are adopted. As for bail jumping, there were a total of 29,791 misdemeanor and felony cases filed in the state last year. Bail jumping is one of the most common charges filed in the state. While the tough-on-crime crowd cites Brooks endlessly in their quest to keep the presumed innocent behind bars, not all people accused of bail jumping are Darrell Brooks – far from it. A bail-jumping charge can be (and is) issued for any violation of a condition of a bond, whether or not that violation is a crime itself. A person doesn't even have to be charged with a crime – a mere arrest is enough – to be guilty of bail jumping for violating a bond related to it. Case in point: Melodie Taylor was arrested by Platteville police for disorderly conduct and released on $150 bond issued with a condition that she not drink alcohol, according to a brief filed in the Court of Appeals. Some time later, she contacted the police about the bond and was told that if she didn't hear anything in a few days, she could assume that she would not be charged with a crime.
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'By Gretchen Schuldt A proposed Milwaukee ordinance that would label some repeated traffic offenses a public nuisance was sent back to committee by the Common Council Tuesday after the city attorney's office said it was too broad and unenforceable. "The ordinance would apply to a single violation of one of the listed traffic laws; and the listed traffic laws include both serious and relatively minor violations," Deputy City Attorney Todd Farris wrote in a memo. "For example, one violation for 'driving too slow' would, under the proposed ordinance, be a nuisance per se." "We believe that in an injunction proceeding brought by the City, a court would likely conclude that the proposed ordinance is unreasonably broad....In other words, we do not believe that the proposed ordinance would accomplish the goal of making it easier for the City to obtain injunctive relief against problem drivers," he wrote. Ald. Michael Murphy, the main sponsor of the measure, introduced it as a way to deal with the endemic reckless driving that is infuriating residents and threatening lives and limbs. Under the proposal, numerous driving offenses related to reckless driving, such as speeding, fleeing an officer, running stoplights, or driving on sidewalks, could be considered a public nuisance, allowing the city to file suit to seize the car involved. Murphy has said the ordinance was meant to target people stopped multiple times, Some statutes included, however, go beyond reckless driving. One offense covered by the ordinance, for example, would be leaving a leaflet on a car. In a memo provided by his office last week, the Milwaukee Police Department said the driving-related state laws included in the ordinance "were intended to broadly cover sections that refer to behavior that falls within the spirit of reckless driving, since not all reckless driving violations are cited under that specific statute. For example, driving on the wrong side of the road is perceived as "reckless' and could be cited under reckless driving... Not all subsections within those statutes may directly apply. They are broadly defined to buttress a nuisance litigation action under a nuisance per se theory." The city attorney's opinion, also signed by City Attorney Tearman Spencer, suggested that "an ordinance declaring habitual or repeated violations of the more serious traffic laws to be a nuisance per se would stand a much better chance of being upheld by a court in an injunction proceeding." By Gretchen Schuldt A County Board committee has recommended, 3-1, rejecting a proposal to support minimum bail for some people charged with crimes. Instead, the Intergovernmental Relations Committee unanimously recommended the state adopt a program similar to New Jersey's, which allows preventive detention of people who have been found by a validated risk-assessment tool to pose a significant danger to the community, and allows release of defendants charged with less serious and non-violent offenses. County Supervisor Patti Logsdon sought support for bills in the legislature that would require a minimum $5,000 bail for anyone accused of a crime who had previously been convicted of bail jumping and a $10,000 bail for anyone accused of a violent misdemeanor or any felony. "These people – they're not following the law," Logsdon told the Intergovernmental Relations Committee. "If you have a felony conviction in the past, you should have a bail set...They need to be put in our jail or House of Correction until we find the facts of it," Logsdon said. She said existence of the minimum bails could also be "a good consideration for them to think before they do the crime." If Darrell Brooks Jr. had not been released from the Milwaukee County Jail on $1,000 bail, she said, the six people he allegedly killed in the Waukesha parade tragedy "would still be with us." Committee members agreed, as has District Attorney John Chisholm, that Brooks should not have been released. Supervisor Anthony Staskunas said he believed the resolution supporting the New Jersey program would be a better way to deal with pre-trial defendants and any threat they may pose. That resolution was introduced by Supervisors Shawn Rolland, Ryan Clancy, and Willie Johnson Jr. "These people aren't convicted of anything yet," Staskunas said. "They're presumed innocent." The minimum-bail proposals, he said, are "unfunded mandates to stuff our House of Correction and stuff our jail when we don't have any room and not give us any money to do anything." Clancy, who is not a committee member, spoke against Logsdon's proposal at the meeting, noting the need to look at data and "what actually works, rather than what feels like justice." "I understand the desire for justice in this case (the Waukesha parade tragedy) in particular as well as in others, but this resolution does not get us closer to justice, but to vengeance," he said. The "people of Milwaukee County deserve safety, not punitive retribution." "Higher bails do not keep us safe," Mia Noel, founder and director of the Milwaukee Freedom Fund, told the committee. "They keep poor people in jail for months," she said. "Additionally, it costs Wisconsin taxpayers millions of dollars a year to keep poor people in jail." Johnson was the only committee member to support Logsdon's resolution. Supervisors Joseph Czarnezki, who is committee chair and a WJI Board member, Staskunas, and Sequanna Taylor opposed it. By Gretchen Schuldt A defense lawyer who failed to seek a child protective services report indicating that a child made a false accusation of sexual abuse was ineffective in representing a man later accused of assaulting the same girl, the state Court of Appeals has ruled. The lawyer, Gary Kryshak, was ineffective even though he testified that he was pursuing a different defense strategy, District IV Court of Appeals Judge Rachel A. Graham wrote for a three-judge appeals panel. "The CPS report contained information that was not only material but also could have significantly enhanced counsel’s chosen strategy," Graham wrote. She was joined in her opinion by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold. The panel reversed Shane A. Stroik's conviction and ordered a new trial. Kryshak also erred when he did not object to a prosecutor's inference that Stroik's strong sex drive made it more likely that he assaulted the five-year-old girl, referred to in the decision only as "Amy." Kryshak, however, adequately addressed the insinuation in his closing argument, Graham said. Amy's parents were separated and going through a contentious divorce at the time of the alleged assault by Stroik in 2016, according to the decision. Amy lived largely with her father and stayed with her mother and Stroik, who were in a relationship, every other weekend. Amy told her father that Stroik had touched here "meme," meaning vagina, and her father reported it to the family social worker. The girl was interviewed by a forensic interviewer and repeated her allegation. "At one point during the interview, when asked to describe Stroik, Amy indicated that he was bald," Graham wrote. "However, it is undisputed that Stroik was not bald." Amy also said that her paternal grandfather also had repeatedly assaulted her. The grandfather died earlier that year. When police interviewed Stroik and Amy's mother, both said Amy had made an earlier allegation of sexual assault against a cousin, but nothing came of the child protective services (CPS) investigation. Kryshak, Graham said, "was aware that there had been a CPS investigation into Amy’s statements about her cousin’s conduct. However, trial counsel did not look further into the matter related to the cousin and did not attempt to introduce evidence at trial about Amy’s prior allegation against her cousin." During his opening statement, the prosecutor "made several comments about Stroik’s 'sex drive,' ” Graham said. For example, "the prosecutor asserted that Stroik had a 'very high sex drive' and therefore, according to the prosecutor, 'the presumption of course is that [he touched Amy] for a sexual purpose.' ” The prosecutor also questioned Amy's mother about how frequently she and Stroik had sex. "Do you remember saying that it was more sex than you ever had before?" he asked at one point. He also asked her about Stroik's interest in pornography, although none of it involved child pornography. "Trial counsel did not object to any of this questioning," Graham said. When Amy testified, she was unclear about whether Stroik assaulted her. "When the prosecutor initially asked Amy if she knew 'why we’re here today,' she responded, 'No,' ” Graham wrote. "Amy went on to testify that she remembered 'going to talk to a lady [that is, the forensic investigator] about something that happened with Shane [Stroik],' but that she did not remember anything happening between her and Stroik." She offered other contradictory testimony as well, but was clear in testimony that her paternal grandfather assaulted her and she remembered those things. A jury found Stroik guilty of first-degree sexual assault, and Portage County Circuit Judge Robert Shannon sentenced him to five years and eight months in prison and six years of extended supervision, according to the state's online court records system. By Gretchen Schuldt
Waupaca County District Attorney Veronica Isherwood, in an extraordinary letter to defense lawyers, said Waupaca County Sheriff Tim Wilz acknowledged that his department regularly alters reports to remove information that could help defendants establish their innocence. "Additionally we have received information that reports to my office of these irregularities are discouraged," she wrote. Wilz admitted the practice of altering reports in testimony, Isherwood said, but she did not give specifics. "It was also disclosed that evidence of any changes were not preserved," she said in a letter addressed to county defense attorneys and dated Friday. "We have no idea if the reports in the case you are defending were changed or altered in any way." The state, Isherwood said, has evidence that in one case, "Waupaca County Sheriff Captain Julie Thobaben altered a report authored by a deputy which resulted in the removal of exculpatory information. Captain Thobaben testified to her actions this week." That is the only instance "where we are certain a report was changed, but the sworn testimony that this happens regularly is very concerning," Isherwood said. Under the legal doctrine called the "Brady rule," prosecutors must disclose evidence that is exculpatory or helpful to the defense. "Under normal circumstances you would receive notification of a Brady violation, only when an affected officer was subpoenaed to testify," Isherwood said. "The attorneys at the Waupaca County District Attorney('s) office believe under this circumstance, the spirit of Brady/Giglio makes it incumbent upon us to notify you of this irregularity." "We pride ourselves on upholding an extremely high ethical standard in our charging decisions and prosecution of criminal cases," Isherwood said. "The loss of someone’s liberty is a tremendous responsibility that we do not take lightly. The Courts have been notified of this information," she said. By Gretchen Schuldt There was just one primary election in state judicial contests Tuesday, with a winnowing of the field from three candidates to two in the race for the Kewaunee County Circuit Court bench. Jeffrey Ronald Wisnicky and Kimberly A Hardtke advanced to the April 5 general election, while John Peterson got knocked out of the running. There will be, as has become tradition for lower courts, few contested seats in the general election – just 10, including the one in Kewaunee County. There are 39 uncontested judicial races for circuit and appellate courts, according to the Wisconsin Elections Commission. The nine other competitive races and candidates are listed below. (In Fond du Lac County, the Branch 5 circuit court seat is listed as having two candidates, incumbent Paul G. Czisny and Douglas R. Edelstein, but Czisny has filed a notification of noncandidacy, according to the WEC. WJI is considering that race non-competitive.) District 2 Court of Appeals – Maria S. Lazar and Lori Kornblum (inc.) Iowa County Circuit Court – Matt Allen and Rhonda R. Hazen. Incumbent Margaret M. Koehler is not seeking re-election. Marathon County Circuit Court Branch 2 – Rick Cveykus and William A. Harris. Incumbent Gregory Huber is not seeking re-election. Oconto County Circuit Court Branch 2 – Ed Burke and Jay Conley (inc.) Portage County Circuit Court Branch 2 – Louis John Molepske Jr. and Stephen W. Sawyer. Incumbent Robert J. Shannon is not seeking re-election. Sauk County Circuit Court Branch 1 – Michael Screnock (inc.) and Blake J. Duren. Vilas County Circuit Court Branch 2 – Meg Colleen O'Marro and Daniel Overbey. The seat is vacant. Winnebago Circuit Court Branch 3 – Lisa Krueger and Brian D. Keberlein. Incumbent Barbara Hart Key did not seek re-election. Winnebago Circuit Court Branch 4 – Mike Gibbs and LaKeisha D. Haase (inc.) *** Besides Edelstein in Fond du Lac County, there are 38 judicial candidates waltzing into office without an opponent (barring write-ins). They are listed below. District 3 Court of Appeals – Thomas M. Hruz (inc.) District 4 Court of Appeals – Brian Blanchard (inc.) Adams County Circuit Court Branch 2 – Tania M. Bonnett. The seat is vacant. Barron County Circuit Court Branch 1 – James C. Babler (inc.) Crawford County Circuit Court – Lynn Marie Rider (inc.) Dane County Circuit Court Branch 3 – Diane Schlipper. Incumbent Valerie L. Bailey-Rihn is not seeking re-election. Dane County Circuit Court Branch 4 – Everett D. Mitchell (inc.) Dane County Circuit Court Branch 5 – Nicholas J. McNamara (inc.) Dane County Circuit Court Branch 14 – John D. Hyland (inc.) Dane County Circuit Court Branch 15 – Stephen Ehlke (inc.) Eau Claire County Circuit Court Branch 1 – John Francis Manydeeds (inc.) Eau Claire County Circuit Court Branch 6 – Beverly Wickstrom. The seat is vacant. Fond du Lac County Circuit Court Branch 2 – Laura Lavey. Incumbent Peter L. Grimm is not seeking re-election. Fond du Lac County Circuit Court Branch 4 – Tricia L. Walker (inc.) Lincoln County Circuit Court Branch 1 – Galen Bayne-Allison. Incumbent Jay R. Tlusty is not seeking re-election. Milwaukee County Circuit Court Branch 5 – Kristela L. Cervera (inc.) Milwaukee County Circuit Court Branch 14 – Christopher R. Foley (inc.) Milwaukee County Circuit Court Branch 25 – Nidhi Kashyap. Incumbent Stephanie Rothstein is not seeking re-election. Milwaukee County Circuit Court Branch 31 – Hannah C. Dugan (inc.) Milwaukee County Circuit Court Branch 34 – Glenn H. Yamahiro (inc.) Milwaukee County Circuit Court Branch 44 – Gwendolyn G. Connolly (inc.) Milwaukee County Circuit Court Branch 45 – Jean Marie Kies (inc.) Monroe County Circuit Court Branch 2 – Mark L. Goodman (inc.) Outagamie County Circuit Court Branch 4 – Yadira J. Rein (inc.) Outagamie County Circuit Court Branch 7 – Mark G. Schroeder (inc.) Pierce County Circuit Court – Elizabeth Rohl (inc.) Portage County Circuit Court Branch 3 – Trish Baker (inc.) Racine County Circuit Court Branch 2 – Eugene A. Gasiorkiewicz (inc.) Racine County Circuit Court Branch 4 – Mark F. Nielsen (inc.) Racine County Circuit Court Branch 5 – Kristin M. Cafferty (inc.) Rusk County Circuit Court – Annette Barna. Incumbent Steven P. Anderson is not seeking re-election. St. Croix County Circuit Court Branch 4 – R. Michael Waterman (inc.) Sauk County Circuit Court Branch 2 – Wendy J.N. Klicko (inc.) Vilas County Circuit Court Branch 1 – Martha J. Milanowski (inc.) Walworth County Circuit Court Branch 2 – Daniel Johnson (inc.) Walworth County Circuit Court Branch 4 – David M. Reddy (inc.) Waushura County Circuit Court Branch 2 – Scott C. Blader. The seat is vacant. Winnebago County Circuit Court Branch 5 – John A. Jorgensen (inc.) 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." The proposed amendment would change that to "Monetary conditions of release may be imposed at or after the initial appearance. By Gretchen Schuldt A proposed Wisconsin Supreme Court rule that would ban routine juvenile shackling in court has broad support and would bring consistency to shackling practices across the state, according to the Wisconsin Justice Initiative. “It should provide the necessary clarity that decisions about courtroom security belong to the judiciary and provides a humane framework for those decisions,” WJI President Craig Johnson said in comments submitted to the court. “It has appropriate guidance for the judiciary as to when the presumption against shackling may be overcome, with specific and clear standards.” The Supreme Court will hold a public hearing on the petition at 9:30 a.m. Feb. 15 in the court’s hearing room in the State Capitol. 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. More than a dozen commenters wrote in favor of the petition. No one submitted comments opposing it. The comment period closed Jan. 3. Submitting the petition were attorneys Diane R. Rondini and Eileen A. Hirsch, 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. Commenters supporting the petition said shackling is humiliating and can do psychological harm to children. “Shackling children on a routine basis is dehumanizing,” wrote Kim Vercauteren, executive director of the Wisconsin Catholic Conference. Children appearing in court already have suffered trauma and psychological harm in many instances, she said. Shackling adds to the humiliation and degradation. By Gretchen Schuldt Wisconsin social media users could sue social media companies for removing or limiting the exposure of posts made by or about political candidates or elected office holders, under a bill pending in the Legislature. The bill, SB525, gives content by or about political candidates and office holders higher levels of protection than most speech by anybody else, including religious figures and non-politician civic leaders – unless they are talking about politicians. Its dependence on private enforcement echoes a tactic used in Texas’ new anti-abortion law, which relies on litigation by private individuals to effectively deny women access to abortions in that state. “It’s time that we ensure that Mark Zuckerberg, Jack Dorsey, and their Silicon Valley liberal allies cannot restrict Wisconsinites’ political speech in these essential public spaces,” said state Sen. Julian Bradley (R-Franklin), an author of the bill, in testimony prepared for a public hearing. Bradley’s Assembly co-author is state Rep. Cody Horlacher (R-Mukwonago). Zuckerberg heads the company that runs Facebook; Dorsey, until recently, was Twitter CEO. The bill was recommended for approval, 3-2 on a party-line vote, by the Senate Government Operations, Legal Review and Consumer Protection Committee. Voting for the bill were Republican Sens. Bradley, Duey Stroebel, and Mary Felzkowski. Voting against were Democratic Sens. Kelda Roys and Jeff Smith. The Wisconsin bill would flat out prohibit social media companies from blocking or shadow banning content posted by or about political candidates or office holders unless the material is obscene or contains a credible threat.
“This prohibition applies only to official pages, accounts, profiles, or handles relating to a candidate's campaign or an elected official's office and does not apply to any personal pages, accounts, profiles, or handles,” according to the bill. Successful lawsuits brought by private users could result in statutory damages of not more than $250,000 per day if the post involved statewide candidates and elected officials and up to $200,000 for a claim involving other candidates and elected officials. A judge could award punitive damages and court costs in either instance. The bill also would allow user suits if a social media company removed, banned, or limited the exposure of posts by a non-politician without providing full detailed notice. Violations would carry maximum statutory damages of $100,000, plus punitive damages and court costs. A critic of the bill warned that it would discourage social media companies from removing extremely violent or offensive content from their platforms. Tyler Diers, executive director of Midwest TechNet, an industry group, said the bill would “subject Wisconsin residents to more abhorrent and illegal content on the internet by creating frivolous liability risks for social media companies” that do take down offensive material. Wisconsin, Diers said, “should encourage these companies to have content policies, as they govern the removal of content showing the exploitation of children, child sexual abuse materials, bullying, harassment, gore, pornography, and spam,” he said. The bill also would violate federal free speech law that governs content liability on the Internet, he said. The law, Section 230 of the Communications Decency Act, has "empowered online intermediaries to remove harmful content while providing them with the same ‘conduit immunity’ that commonly exists in other real world offline contexts -- for example, not holding a bookseller liable for libelous books, but rather the individual who committed the libel,” he said. Bill allowing courts to strip parental rights from incarcerated people ripped in public testimony12/17/2021 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. |
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