By Gretchen Schuldt
Penalties for second-offense marijuana possession, already a felony, would increase substantially if butane extraction was used in the production process, under a bill making its way through the Legislature.
Industry officials say that occasional users may have no clue how their product was processed, although frequent imbibers may be able to tell the difference by the taste.
The maximum penalty for second-offense (or greater) possession now is 3½ years in prison and a $10,000 fine. Under the bill, the penalties for second-offense (or greater) marijuana would increase depending on the amount of butane-extracted cannabis involved. The amounts and maximum penalties would be:
The bill also would significantly increase the penalty for manufacturing, delivering, or selling any amount of butane-extracted cannabis. Currently, marijuana manufacturing and dealing carries different sentences depending on the amount involved. Under the bill, those crimes, regardless of amount, would be punishable by up to 15 years in prison and a $50,000 fine. That means a person could go potentially to prison for a very long stretch for sharing a gummy bear with a friend.
Butane extraction is a common method of concentrating cannabis resin. Butane extraction can produce a THC concentration of up to 90%. The concentrate is used in a variety of products, including edibles and vaping juices.
Commercial entities generally use a closed system of butane extraction, which is not considered an explosion hazard. Closed systems keep the butane from escaping into the atmosphere.
Some processors, including those running clandestine labs, use an "open blasting" system that allows the butane to escape into the atmosphere, creating a danger of explosions.
The pending bill does not differentiate between open and closed production methods used or whether any hazards are actually present.
"This is a very misguided effort," said Bryce Brisbin, director of technical sales at Luna Technologies, a cannabis extraction company. Closed-system butane cannabis extraction is safe and provides a high-quality product, he said.
"Open blasting should be banned, totally illegal," he said. "It's incredibly stupid."
State Rep. Jesse James (R-Altoona), a sponsor of the legislation in the Assembly, said in prepared testimony last week that "The criminal elements and punishments of possessing, manufacturing, and delivery of BHO (butane honey oil) is the same as marijuana. I understand marijuana is needed to make BHO, but the process is making a totally different product, with a higher potency, which sells at a higher rate, putting the lives of those who manufacture it and others at risk."
He acknowledged that the closed-loop system was generally more "safer, controlled, and effective" than the open blasting system.
"The societal harms stemming from more prevalent and more potent cannabis is well-established in research exploring the effects on public safety and violent crime, traffic safety and the workforce," said State Sen. Duey Stroebel (R-Saukville), another sponsor. "The narrative surrounding the alleged medical benefits of cannabis tends to readily dismiss the aforementioned harms."
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
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
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:
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.
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."
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