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%.

By Gretchen Schuldt

A State Assembly committee recommended adoption of a bill that would make more people eligible to have their criminal records expunged, but also added four more crimes ineligible for expungement.

Felony stalking offenses, misdemeanor property damage to a business, misdemeanor criminal trespass to a dwelling, and violation of a domestic abuse injunction or restraining order would be ineligible for expungement under an amendment adopted by the Criminal Justice and Public Safety Committee on an 8-6 vote. The bill then was forwarded to the full Assembly on a unanimous vote.

The Senate's Judiciary and Public Safety Committee recommended Senate adoption of the bill, without the additional four ineligible crimes, on a 5-2 vote.  

The full Assembly is expected to consider its version June 16.

Wisconsin's expungement law is stricter than other states' laws. Currently, a person who wants to have a criminal conviction expunged from their Wisconsin record must ask the judge at the time of sentencing, before the 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 of the crime 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 in prison.

Both the Assembly and Senate versions of the bill would change the law in several ways. It would remove the discriminatory age limit of 25 and would allow people convicted of crimes to request expungement when they complete their sentences.

Other limits, including a prohibition on expunging records related to violent crimes and crimes carrying penalties of more than six years in prison, would remain in place.

Under the bill, 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 legislation also makes clear what it means to successfully complete a sentence. That would include completing community service, paying all fines, fees, restitution, and completing any community supervision without revocation. 

By Gretchen Schuldt

​Penalties for crimes against anyone at least 60 years old – "an elder" –  would increase dramatically under a bill approved by the Legislature and now awaiting action by Gov. Evers.

The bill was approved despite the absence of any information about its financial impact.

Under Senate Bill 17:

• Any second-degree sexual assault against an elder would become a first-degree sexual assault and the maximum penalty would increase from 40 years in prison to 60 years in prison. It would not matter whether the offender knew the victim's age.
• There would be an entirely new crime of "physical abuse of an elder person," patterned after a law against physical abuse of a child. Penalties for violating of the new law would vary from up to 3½ years in prison for recklessly causing great bodily harm to up to 40 years in prison for intentionally causing great bodily harm. 
• Prosecutors could seek to freeze the assets of defendants in financial exploitation crime cases where the victim is an elder and the property involved is worth more than $2,500. The prosecutor could seek to freeze assets worth up to the full value involved in the alleged crime to preserve them for potential restitution to the victim.
• Maximum sentences for crimes committed against elders would automatically increase, whether or not the offender was aware of the victim's age. The sentence for any crime punishable by up to one year of incarceration could be increased to a maximum of two years; the sentence for a crime punishable by one to 10 years of incarceration could be increased by an additional four years; and the sentence for a crime punishable by more than 10 years in prison could be increased by up to six years.
• Elders seeking domestic violence, individual-at-risk, or harassment restraining orders would be allowed to appear in a court hearing by telephone or audiovisual means. They currently must appear in person.

Several organizations supported the bill, including AARP, the Alzheimer's Association, the Greater Wisconsin Agency on Aging Resources, the Outagamie County Board, and the State Bar. No organization registered against it.

"Senate Bill 17 helps to discourage bad actors from engaging in the abuse and exploitation of older Wisconsinites by increasing criminal penalties for related crimes and makes it easier for victims to file restraining orders," State Rep.  John J. Macco (R-Ledgeview) said in testimony supporting the bill. "Additionally, this bill streamlines court processes to freeze assets of a defendant, making it more likely for victims to receive financial restitution." 

By Gretchen Schuldt

​A bill in the State Senate that would greatly expand phone and audiovisual proceedings in criminal cases must preserve a defendant's right to reject such e-hearings in favor of "critical in-person hearings," WJI President Craig Johnson told a Senate Committee.

"Without preserving this 'opt-out' right for defendants (in criminal cases), video hearings likely will become more and more common, thus creating a culture in which defendants as well as witnesses and counsel will be expected to appear, as they have for much of the last year, via 'Zoom' and other remote technology for important fact-finding hearings," he told the Judiciary and Public Safety Committee in testimony submitted for a public hearing.

Senate Bill 219 would allow "any criminal proceeding" to be conducted over the phone or by audiovisual means "unless good cause to the contrary is shown." Currently, the law limits the proceedings that can be conducted electronically.

There are many defendants who face challenges with technology, Johnson said. 

"An elderly person or someone with cognitive limitations may not understand how to use a smart phone or computer," he said. "Someone who is poor or lives in an area without good internet or wireless service may have trouble with this technology. If a person prefers to appear in person, in a courtroom, with their lawyer, before a judge, and see and hear the proceedings, including witnesses, LIVE, they should have the opportunity and right to do so."

Low-income and rural households may have limited access to the Internet or slower speeds, he said. 

"We have seen this reflected in concerns about equal access to online education during the last year of this pandemic," Johnson said. "Increasing reliance on video conferencing in court proceedings can exacerbate this digital divide."

The Wisconsin Supreme Court, in State v. Soto, discussed the problems that could arise with video proceedings, Johnson said.

​"The opinion notes that the physical presence in a courtroom provides a setting that emphasizes the solemnity and gravity of the proceeding," he said. "The physical courtroom setting also effectively displays the power and importance of the state, as personified by the circuit court judge."

By Gretchen Schuldt

A bill pending in the state Legislature that would allow "elder" victims and witnesses to provide early testify in criminal cases is unnecessary and provides undue benefits to prosecutors, WJI told a Legislative committee last week.

The bill, Assembly Bill 43, would allow witnesses and alleged victims at least 60 years old to give their testimony in criminal court cases ahead of the trial and possibly over the phone. The measure already has been approved by the state Senate as Senate Bill 18.

"Although we very much sympathize with complainants in criminal cases who are older, this bill duplicates a process that already addresses many of the concerns that exist in these situations," WJI President Craig Johnson said in testimony to the Assembly Judiciary Committee.

State law allows a witnesses' testimony to be taken provided through deposition if it appears the person will not be able to appear at trial. The law gives judges the power to reject deposition requests.

The law also allows either side to request deposition testimony. AB43, however, would allow only the prosecution to request early testimony and does not require a reason for the request. The judge would be required to hold a hearing within 60 days to take the testimony.

Johnson said the bill would create a speedy trial right for alleged victims and witnesses. That, he said, "could adversely impact a defendant's ability to prepare a defense. In so doing, it can create grounds for costly appeals which would drag out cases longer than under current law. This is the exact opposite result from what appears to be intended."

The bill does not say what happens if the judge fails to meet the 60-day deadline, Johnson wrote.

"What if the defendant does not have a lawyer representing him or her?" he asked. "What happens if the defense lawyer has been on the case for just a few days or a week and has not been given adequate time to prepare? What if a defense investigator has not finished work on the case? Again, these are issues that can result in lengthy and costly appeals."

The bill also could violate a defendant's constitutional right to confrontation because it would allow alleged victims and witnesses to testify by phone or by audivisual means, rather than face-to-face, "live" in a courtroom, he said.

"Finally," Johnson said, "the bill says that the elder's testimony 'shall be admissible in evidence against the defendant in any court proceeding in the case.' It does not make mandatory admissibility of the testimony on behalf of the defendant if it is exculpatory."

Other groups offered testimony in favor of the bill. The Alzheimer's Association, for example, said it has "witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a 
victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify in the case." 

The Greater Wisconsin Agency on Aging Resources, Inc., the Elder Law and Special Needs Section of the State Bar of Wisconsin, and AARP Wisconsin also supported the bill.

Updated 4/15/2021

By Gretchen Schuldt

A bill introduced in the Legislature last week has the potential to criminalize possession of home-brewing equipment used for anything other than wine-making.

The bill, AB250, also would prohibit anyone with a felony record from getting a retail license to sell tobacco or cigarettes, though it does not explain the why the prohibition is needed or even helpful.

On the home-brewing front, the bill "generally prohibits a person from possessing a still or other apparatus for manufacturing, rectifying, distilling, refining, or purifying intoxicating liquor other than wine," according to the Legislative Reference Bureau. (Emphasis added.) 

Violations would be punishable by up to nine months in jail and a $10,000 fine.

The bill does not prohibit brewing beer at home, but prohibits possessing the apparatus that could also be used for liquor-making. Think carboys and airlocks. The bill also would outlaw possession of stills not used to make alcohol. Collectors may have them, and stills are used to distill other, non-alcoholic products such as water, oils and perfumes.

The bill also carries a presumption of guilt. It says that mere possession of the equipment "is prima facie evidence of possession for the purpose of manufacturing, rectifying, distilling, refining, or purifying of intoxicating liquor other than wine."

Yes, there are exceptions to the proposed law. "The prohibition does not apply to a person that holds an intoxicating liquor manufacturer's or rectifier's permit from DOR or that has registered the still or a distilled spirits plant under federal law."  

By Gretchen Schuldt

A bill that would dramatically expand the pool of people eligible to have their criminal records expunged drew strong support at a public hearing this week before the Assembly Criminal Justice and Public Safety Committee..

Grace, 34, a former Wisconsin resident, told about a crime she committed 13 or 14 years ago, when she took a plea deal on a theft charge, that continues to follow her.

Now she is married, lives in Florida, has children, and wants to be a firefighter.

"The haunting of my past continues to appear, and drag me into the stereotypical felon's barrier," she said. "I am not the felony charge, but it is defining the future I admire to become. Can you imagine the feeling of being known at every intersection of progress by the worst failure of your life? Probably not... I am being disabled by something many years ago should be put into proper context today. I can only imagine the thousands of stories of good people reestablishing their lives, but still walking around with invisible shackles of a poor decision."

Multiple organizations, including WJI, the State Public Defender's Office, the Badger Institute, and the Milwaukee Police Association, testified in favor of the bill, AB69. 

WJI President Craig Johnson said the measure "is very important as it allows people who have made a mistake to get a fresh start without being stigmatized for life in their search for gainful employment, housing, and in other contexts."

​Dale Bormann Jr., president of the Milwaukee Police Association, said his members see the devastation crime visits upon the victim and the perpetrator's family and future.

​"We also see many outstanding members of the community who may have, for whatever reason, engaged in a single criminal act years prior, taking full responsibility for their act and have worked to better themselves, but struggle to  move forward," he said. 

The union hopes "this bill will allow people not to be defined by their worst day but rather the entirety of their collective actions throughout their life."

By Gretchen Schuldt

Crime victims and witnesses at least 60 years old would able to give their testimony in criminal court cases ahead of the trial and possibly over the phone, under a bill approved by the state Senate.

While some groups applauded the bill, Aaron Nelson, the president of a statewide lawyer's organization, said it is unconstitutional because allowing testimony by phone or video violates a defendant's right to confrontation. The bill has other flaws, as well, he said. 

The bill, Senate Bill 18, would require a judge, at the request of the prosecutor, to hear within 60 days the testimony of an "elder" victim or witness and to preserve it in case something happened to the person. 

"The ability to recall certain details is critical to the outcome of court cases," State Sen. Patrick Testin (R-Stevens Point), author of the bill, said in written testimony. "As degenerative brain diseases increase in senior populations, the system must be able to respond to the unique needs of an elderly victim's ability to testify."

Under the bill, now pending in the Assembly, the defendant would be required to be present during the testimony and the victim or witness would be subject to cross-examination.

The bill would allow the victim or witness to testify by phone or video if they have a good reason to do so, and would mandate that the recorded testimony be admissible against a defendant.

It also also would require a judges to work to ensure a speedy trial "in order to minimize the length of time the elder person must endure the stress of the elder person's involvement in the proceeding," the bill says.

But Nelson, head of the Wisconsin Association of Criminal Defense Lawyers, said the the bill is "certainly problematic." 

"The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony."

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.

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."