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By: Alexandria Staubach Last week the Senate passed SB 86/AB 57 erasing prosecutorial discretion to dismiss or amend certain criminal charges without prior authorization from the court and prohibiting deferred prosecution sentences for certain crimes. The new law would bar a prosecutor from dismissing or amending any of the included offenses without approval of the court. The bill does not define the criteria for a request for court approval. A judge granting such an application would be required to submit an annual report to a standing committee of the legislature detailing each application approved, and how each application was consistent with the public’s interest and the legislature’s intent “to encourage the vigorous prosecution of persons who commit offenses that are covered crimes.” Covered crimes are
The Milwaukee Police Association, Wisconsin Chiefs of Police Association, Wisconsin State Lodge Fraternal Order of Police, and National Insurance Crime Bureau registered in support. Neither the Wisconsin District Attorneys Association nor the Wisconsin State Public Defender registered for or against either bill. Republicans call the legislation “commonsense,” but some disagree. At a hearing before the Senate Committee on Judiciary and Public Safety on August 22nd, Rep. Lena Taylor (D-Milwaukee) expressed concern over increased costs for the entire criminal justice system and a lack of funding in the legislation to address those costs, especially in the face of current court backlogs. The legislation was “piling on” without giving the courts and criminal-justice system the added resources necessary to implement the legislation, she said. The ACLU strongly urged committee members to reject the bill, citing several reasons why a charge may be dismissed or amended, including “the innocence of an individual charged with a crime, insufficient evidence for a charge to stand, or constitutional concerns with police action.” “(P)rocedural justice, fairness, and upholding the constitutional rights of the accused are foundational principals of the criminal legal system,” the ACLU said. The bill quietly passed in the Senate on Sept. 14, without comment from Republicans or Democrats. It heads to Gov. Tony Evers’ desk for signature. Sponsors of the bill are shown in the following chart. 
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By Alexandria Staubach Just two days after Assembly Speaker Robin Vos announced a new bill to move Wisconsin toward a nonpartisan redistricting process, the Assembly approved the bill. On Tuesday, Vos (R-Rochester) announced AB 415 to adopt what he termed a nonpartisan redistricting process styled after the process used in Iowa. In a move that Assembly Minority Leader Greta Neubauer (D-Racine) called “slapdash,” Vos placed AB 415 on the agenda for a vote during Thursday’s Assembly floor session, bypassing public hearing and comment. The bill was voted on late Thursday, just before midnight. It passed largely along party lines with one Democrat, Rep. LaKeshia Myers (D-Milwaukee), also voting in favor. AB 415 comes in the wake of a petition filed by Law Forward and co-counsel on August 2 asking the Supreme Court to take jurisdiction of an original action challenging Wisconsin’s “severally and politically gerrymandered maps.” Vos offered no salient reason why AB 415 could not proceed through the normal legislative process, nor did he explain the urgency with which his majority is now moving. He said Tuesday, “Hopefully it means that we will take all of the money that has been wasted by the liberal interests suing us over the maps and instead we get to say we don’t need to waste those taxpayer dollars because we can adapt the process that has been used flawlessly in Iowa.” Iowa State Auditor Rob Sand commented on AB 415 ahead of Thursday’s vote, saying, “This is not the Iowa model. It’s also just impossible to expect Iowa-style fair results when you still have the capacity to gerrymander at the end of the day, which is what this bill allows for. They can reject, and reject, and draw their own. You can’t do that in Iowa, that’s why the Iowa system works.” Moreover, the Iowa method is not without fault. In Iowa, Republicans hold a majority in both the House and Senate, empowering them to accept or reject maps drawn by their nonpartisan Legislative Services Agency. In October 2021, Iowa's Republican legislators did just that, rejecting the agency’s first map proposal because it all but doomed Republican U.S. Rep. Ashley Hinson’s seat. Iowa subsequently adopted maps that preserved Hinson’s seat. For years Democrats have asked that Republicans redraw maps in a nonpartisan way, yet Vos’ proposal was met with derision and skepticism. Gov. Tony Evers said Republicans are “making a last-ditch effort to retain legislative control by having someone Legislature-picked and Legislature-approved draw Wisconsin’s maps.” During the floor session Vos chided Democrats for failing to meaningfully critique the content of the bill (introduced just two days before). He accused them of relying on the Law Forward lawsuit and a favorable vote from Supreme Court Justice Janet Protasiewicz, whom he said Democrats “bought and paid for.” Republican lawmakers may be feeling the heat from a multimillion-dollar opposition campaign that targets their threats to impeach Protasiewicz if she fails to recuse herself from the Law Forward case after criticizing Wisconsin’s legislative maps on the campaign trail. Democrats largely focused their objections to the legislation on an insufficient opportunity to vet the bill, which could change the face of Wisconsin legislative map drawing into the foreseeable future. It is a “clear red flag that this bill skipped the entire legislative process,” said Rep. Alex Joers (D-Middleton). “If this is about anything more than diverting the public’s attention from your plan to impeach Judge Protasiewicz, put your money where your mouth is and vote to refer this to the committee on campaigns and elections where it can have fair hearing where we can do the work,” said Rep. Lisa Subeck (D-Madison). “This is about distracting the public from your folly of impeachment,” she added. Not all Democrats toed the party line at last night’s session. Myers criticized Republicans and Democrats alike for a failure to communicate about the legislation. She pointed out that across Wisconsin, more than politics is on the line for Black and Brown people. She told her caucus members, “Maybe you get the luxury of toeing the company line, but not everybody does.” The bill calls for maps to be drawn by the nonpartisan Legislative Reference Bureau. The LRB would report to a five-member advisory commission. The commission would include two Democrats, two Republicans and a fifth commissioner chosen by the first four. The LRB would send the maps it draws to the Legislature for approval. Changes would be prohibited. If the first drafts are rejected, the LRB would get a second opportunity to draw maps and the process would repeat itself. If the second set is rejected, the Legislature would then be able to amend the maps or draft its own, which would ultimately need approval from the Wisconsin Supreme Court. Having passed in the Assembly, the bill moves to the Senate, where Republicans hold a 22-11 majority. Senate Majority Leader Devin LeMahieu (R-Oostburg) has been equivocal on whether the Senate would act on the legislation. Evers has threatened to veto the measure.  By Gretchen Schuldt Gov. Tony Evers signed a bill sharply raising the penalty for first-degree reckless homicide involving drugs from 40 years in prison to 60 years in prison. The governor did not justify or explain his action in the press release announcing the signing, though he addressed reasons for signing another bill. The measure was introduced as SB101, and is now Act 29. First-degree reckless homicide is charged when someone dies of an overdose after taking drugs, virtually always voluntarily. The charge can be issued against a drug dealer or even a friend who was with the user when the user purchased the drugs. Technically, the law prohibits causing the death of another person "by manufacture, distribution, or delivery of, or by administering or assisting in administering," certain drugs. Opponents of the bill say it will prevent people who are with the victim at the time of the overdose from seeking help before death occurs because they are worried about prosecution. Evers did not address that possibility. Evers also signed a bill requiring increased transparency from the Parole Commission, including the requirement that additional statistics and information be published on the Department of Corrections' website. That bill, AB47, is Act 31. Evers was more forthcoming about his reasons for signing this bill than he was in explaining why he signed the overdose bill. “Ensuring transparency, accountability, and appropriate support and notification for victims, survivors, and their families is absolutely vital to the success of the Parole Commission and of our criminal justice system as a whole,” Evers said. Justice-related bills pending in the Legislature include those below. A chart showing the sponsors of each is at the bottom of this post. SB302/AB301 – Sexual contact lawsuits This bill would allow more time for a childhood victim of incest, sexual assault, or sexual contact to sue the alleged perpetrator. Currently, the victim must bring an action before reaching the age of 35; this bill would raise the age to 45. In addition, it would apply to all adult offenders, not just clergy members. SB313/AB313 – Failure to stop for a school bus The minimum penalty for failing to stop for a stopped school bus with flashing red lights would increase 10 times, from a forfeiture $30 to $300, under this legislation. The maximum penalty would jump from $300 to $1,000. The bill also would require the Department of Transportation to assess three demerit points against the record of a person convicted of failing to stop for a school bus. Under the demerit system, repeated traffic violations can lead to the suspension of a person's driver's license. SB314/AB315 – Possession of child pornography Under this bill, the depiction of actual children engaged in real or simulated sex no longer would be necessary to be charged or convicted of possessing child pornography. Instead, possessing pornographic images of someone who looks like a child or of computer-generated or hand-drawn pictures of children would be enough. The bill, according to the Legislative Reference Bureau, would make it illegal to knowingly receive, distribute, produce, possess, or access, with the intent to look at, obscene photographs, film, motion pictures, or digital or computer-generated images or pictures that contain a visual representation that appears to depict an actual child engaged in sexually explicit conduct although the representation does not depict an actual child. (Imagine the arguments over whether that 16- or 17-year-old looks like a child or an adult!) Violations would be punishable by up to 25 years in prison and a $100,000 fine. The bill includes a three-year mandatory minimum sentence. SB321/AB329 – Child sex dolls It would be illegal to possess child sex dolls, under this bill. Such dolls are defined as "anatomically correct doll, mannequin, or robot, with features that resemble a minor that is intended for use in sex acts, for sexual gratification, or for manipulating children into participating in sex acts, instructing children how to participate in sex acts, or normalizing sexual behavior with children," according to the Legislative Reference Bureau. Penalties for violations would vary depending on how many dolls are involved, past offenses, and past convictions for crimes against children. A first offense involving fewer than three dolls, for example, would be punishable by up to 3½ years in prison and a $10,000 fine. For a second offense involving at least three dolls, the penalty would be up to six years in prison and a $10,000 fine; for a third offense, up to 10 years in prison and a $25,000 fine. The penalties are tougher if the doll is intended to represent a specific child or if the offender has been previously convicted of intentional child abuse of a child, first-degree sexual assault of a child, sexual exploitation of a child, use of a computer to facilitate a child sex crime, or possession of child pornography. The bill also makes it a felony to provide premises for the use of a child sex doll, or to transfer, advertise, or display a child sex doll, instructions on how to create one, or materials intended to create one. The bill also prohibits intentionally making a child sex doll. Exempted from the created prohibitions under the bill are law enforcement officers, physicians, psychologists, attorneys, court officers, and others involved in law enforcement or child therapy, as long as their sex-doll activity is done in the lawful performance of their duties.  By Gretchen Schuldt A chart showing the sponsors of these two measures is at the bottom of this post. SB309/AB310 — Revocation of supervision, expunction A Republican proposal to strip the presumption of innocence from anyone on community supervision and incarcerate thousands of people has been introduced again, carrying a price tag that dwarfs that of the 2021 version of the bill. The bill also would tighten rules on expunction. The new bill, Senate Bill 309/Assembly Bill 310, would require the Department of Corrections to recommend revocation of community supervision of anyone on probation, parole, or extended supervision who is charged with any new crime. Not convicted — just charged. Enactment of the bill would permanently add an estimated 4,673 individuals to the prison population, according to Department of Corrections' fiscal estimates for both the 2021 and 2023 bills. The 2023 estimate says the cost of those additional incarcerated individuals would be $209 million per year when the bill's full impact is felt. Those figures are based on a 2022 average annual per-incarcerated-person cost of $44,400. The 2021 cost estimate projected increased operational expenditures of $171 million annually when the measure was fully implemented. Those estimates were based on a 2020 per-incarcerated-person cost of $36,200. The 2023 full-implementation operational cost estimate is $38 million, or 22%, higher than the 2021 estimate. Both the 2021 and 2023 fiscal estimates say the bill would require the construction of two new prisons. The 2021 estimate put the cost of a new 2,000-bed, medium-security prison at $450 million to $550 million; the new fiscal estimate puts the cost at $687 million to $839 million. The new high-end construction estimate is $289 million, or 53%, more than the 2021 high-end figure. Both bills were based on the same assumptions. DOC estimated in each that there would be an additional 6,280 revocation cases per year and 47% of the recommendations would be ratified by the Department of Administration's Division of Hearings and Appeals, which reviews and decides such cases. The estimate assumes that each additional revocation would result in 19 months in prison. The Hearings and Appeals Division now affirms about 87% of revocation recommendations and the average time served for those is 39 months. DOC said it is likely that a smaller percentage of revocation recommendations would be affirmed if the agency must try to revoke everyone accused of a crime. DOC said it now uses several factors to determine whether revocation is appropriate. The bill also would make expunction harder for some to achieve. Currently, a record is not expunged until a person has completed the court-imposed sentence. A person has not completed a sentence if convicted of a subsequent crime or if probation was revoked and the person has not satisfied all the conditions of probation, according to the Legislative Reference Bureau summary of the bill. Under the proposed measure, a sentence would not be completed if criminal charges are pending against the person or if the person violated any rule or condition of probation or at least a year has not passed since being put on probation. The ACLU of Wisconsin has registered against the bill. No organization or individual has registered in favor. SB291/AB300 — Protections for election workers Battery against an election worker would be a felony punishable by up to 3½ years in prison and a $10,000 fine, under a bill pending in the state Legislature. "It is true that Wisconsin already has strict criminal laws regarding assault and battery, and some may say that there is no need to specify that it is a crime to commit these acts against an election worker," State Rep. Joy Goeden (R-Hobart) said at a public hearing last month. She and co-author State Sen. Andre Jacque (R-DePere), however, believe "it is necessary to make this purposeful declaration: if you punch someone it’s a crime and yes, it is the same crime if you punch an election worker who is just doing his or her job," Goeden said. "Don’t do it." Currently, state law classifies battery as either a misdemeanor or a felony, depending on the harm caused and the identity of the target. In the latter case, for example, battery is a felony if the victim is a public officer and if the battery is designed to influence an official action or in retaliation for such an action, according to the Legislative Reference Bureau. Under the bill, any battery against an election worker of official would be a felony. The bill also would provide some other protections. It would prohibit public access to personally identifiable information of election workers and officials, except for the names of the city and state where an election worker lives. The bill also would give whistleblower protection to municipal clerks, county clerks, and election officials who witness and report election fraud or irregularities and would prohibit discipline against those workers for reporting what they reasonably believed to be election fraud or irregularities. While Brown County Clerk Patrick Moynihan Jr. said in testimony before the Assembly Campaigns and Elections Committee that the whistleblower provisions "provide reasonable assurances against any potential unlawful retribution," Protect Democracy Policy Advocate and Counsel Edgar Lin (full disclosure: Lin is a WJI Board member) raised several issues. The term "lawfully report" section, he said, should have included a process for doing so. The reporting structure is not defined in the bill, nor are deadlines set for reporting or investigating alleged irregularities. "What happens if a disgruntled employee weaponizes this protection by making a false or frivolous disclosure?" Lin asked. "Will they be required to pay attorneys fees and costs? Or even damages? What are the remedies if the employer was found liable for retaliatory action against a whistleblower?" "Without a clear process, a whistleblower event — regardless of merit — could descend into chaotic litigation, which could further undermine the confidence in our election system," he said. The word "irregularity" also needs to be better defined, he said. " 'Irregularities' is too broad without a concrete definition," he said. "It may inadvertently catch benign events that may technically be an irregularity. For example, if the post office takes a small chunk out of an absentee ballot during their handling and without any evidence of actual ballot tampering, should that be counted as an “irregularity”? "Instead of 'irregularities' ... the bad act should be grounded by existing laws, rules, regulation, and/or guidance," he said. The League of Wisconsin Municipalities and the League of Women Voters of Wisconsin have registered in favor of the bill. No organization or person has registered against it.  By Gretchen Schuldt A bill that would make public more information about Parole Commission decisions and require that victims get more advance notice of parole hearings has passed both houses of the Legislature and awaits action by Gov. Evers. The bill, Assembly Bill 47, would require the Department of Corrections to post on its internet site the names of people granted parole, denied parole, and returned to prison following the revocation of parole. It also would require the department to post monthly and yearly total numbers of those granted and denied parole and returned to prison following parole revocation. The yearly totals would be categorized by the crime of conviction; the sex, race, and age of the person convicted; and the location of conviction. Victims would be notified by mail at least 90 days in advance of the hearing, a substantial increase from the three weeks' notice now required. The Legislature amended the bill to remove several changes that were originally included. The bill, as adopted, maintains the commission's authority to go into closed session to consider applications for probation, extended supervision, or parole. The original bill eliminated that authority. The adopted bill also does not require public notices of the commission's meetings to be published on the DOC's website and include the names of individuals being considered for parole. The Senate vote on the amended measure was 28-5. A chart showing the vote is below. The Assembly did not take a roll call vote on the amended measure, but concurred in its adoption.  Legislative update: stripping courts of power, obscenity charges for teachers, eliminating defenses6/26/2023 By Gretchen Schuldt Chief circuit court judges would be stripped of their power to appoint judges to preside over many cases involving businesses, under a bill pending in the state Legislature. That power would shift to the chief judge of the state Supreme Court, who would only have to "consider" recommendations from the chief judges of the state courts' administrative districts, according to the Republican-backed measure. The bill is a significant legislative intrusion into the internal workings of the court system. Another Republican bill would put teachers and school officials at risk of arrest under the state's obscenity laws and strip from them the immunity they now enjoy if their violations occur in their capacity as employees or officials. And a bill backed by Democrats would eliminate common defenses in criminal cases if a crime allegedly was motivated by issues related to sexual orientation or gender identity. More detail about the bills is below. A chart showing the sponsors of each is at the bottom of this post. SB275/AB 280 – Business courts The chief justice of the state Supreme Court would hand-pick circuit court judges across the state who would hear commercial cases, under this bill. Judicial assignments at the circuit court level now generally are decided at the lower court level. The chief justice, in appointing commercial docket judges, would "consider" but not be bound by recommendations from chief judges of administrative districts. The bill also would leave the decision to create specific commercial courts up to the chief justice, who would act on the recommendations of the director of state courts, an unelected bureaucrat. At a minimum, under the bill, the chief justice would be required to appoint four judges for business cases in each of the court system's second, third, fifth, eighth, and 10th administrative district. Judges hearing commercial cases also could hear other types, according to the bill. Wisconsin courts administrative districts  Source: Wisconsin Courts System "The commercial court docket is designed to operate within the framework of the existing state court system with minimal impact on the balance of court operations," the bill states. "It is intended to leverage judicial expertise in commercial law and disputes with commercial litigants' desire to tailor case management practices best suited for resolving substantial business disputes fairly and expeditiously." The Supreme Court, at the direction of then-Chief Justice Patience D. Roggensack, established a commercial court pilot program in 2017 and directly appointed the judges who heard those cases. Retired Dane County Circuit Judge Richard Niess criticized it, saying "the (judicial appointment) process largely bypasses the voter-controlled and otherwise random judicial assignment of cases. It creates a two-tiered court system — one controlled by business interests and one for everybody else." Roggensack "stacked" a committee she appointed to develop the court "with lawyers representing business interests," Niess wrote. "The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system." "The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system." Under the bill, which would expand the business courts, commercial docket judges would have jurisdiction over a wide variety of cases, including cases involving the internal governance or internal affairs of business organizations. The specialty courts would hear cases involving laws governing partnerships, business corporations, cooperatives, banks, savings and loans, and other fiduciaries. They would also hear cases involving allegedly improper business conduct, including unfair competition; private suits alleging violations of the state mark-up law for gasoline or tobacco; deliberate injury to a business; wrongful interference with a business; non-compete clauses; confidentiality agreements; business mergers and consolidations; securities law and securities fraud; intellectual property rights; trademarks; trade secrets; copyright; patent rights; franchise law; the state Fair Dealership Law; sales representative commissions; some Uniform Commercial Code claims exceeding $100,000; receivership cases of more than $250,000; and commercial real estate construction disputes exceeding more than $250,000. The bill would make some case types ineligible for the new dockets. They include small claims, governmental actions seeking to enforce laws or regulations, most cases involving consumer transactions, landlord-tenant disputes, domestic relations, civil rights, taxes, some arbitration issues, construction (except for the commercial disputes above), and environmental claims. SB305/AB308 – Targeting teachers with obscenity statute Public and private school employees would lose their immunity from prosecution under the state's obscenity laws, under a Republican-backed bill in the Legislature. Currently, the law protects from prosecution employees, board members, or trustees of some educational institutions and libraries, as long as they are acting within the scope of their jobs. The obscenity statute explains the reason the immunity was granted: The Legislature "finds that the libraries and educational institutions ... carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions." The bill would make elementary, secondary, and tribal school employees and officials subject to prosecution. The immunity still would apply to employees and officials of libraries, technical colleges and tax-exempt colleges and universities. The obscenity statute makes it a crime to import, print, sell, possess for sale, publish, exhibit, play, or distribute any obscene material; to produce or perform in any obscene performance; to distribute, exhibit, or play any obscene material to a person under the age of 18 years; or to possess with intent to distribute, exhibit, or play to a person under the age of 18 years any obscene material. First-offense violations of the statute are punishable by forfeitures of up to $10,000, and every day the obscenity violation continues is be a new violation. Under state law, “Obscene material" is any writing, picture, film, or other recording that: 1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole; 2. Describes or shows sexual conduct in a patently offensive way; and 3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole. The law also prohibits prosecutions without the express permission of the attorney general. SB307/AB307 – Eliminating defenses Defendants in criminal cases would be unable to plead they acted in self defense or were provoked into committing their alleged criminal actions if the action stemmed from learning or knowing about the alleged victim's gender identity or expression or sexual orientation or the potential disclosure of those factors. The defense elimination would apply in situations where the victim "made a romantic or sexual advance without use or threat of force or violence toward the defendant or in which the victim dated or had a romantic or sexual relationship with the defendant," according to the Legislative Reference Bureau explanation of the bill. It would apply, too, when the alleged victim dated or had a romantic or sexual relationship with the defendant. The bill also would eliminate the ability of a defendant to plead not guilty by reason of mental disease or defect if the state were brought about by the factors listed above.  By Gretchen Schuldt
A rare mix of Democrats, Republicans, law enforcement, and the state Public Defenders Office came together this month to support a bill that would prohibit minors from being charged with prostitution. Thirty-one people in favor of the bill appeared at a public hearing and another 10 registered in support. No one appeared or registered in opposition. The measure, Assembly Bill 48/Senate Bill 55, would bring the state in line with federal law, which recognizes children engaged in commercial sex acts as victims, not criminals, State Sen. LaTonya Johnson (D-Milwaukee) said. It also would align with laws in Illinois, Minnesota, and Michigan, she said. "My hope is that it will make it easier for law enforcement and child welfare authorities to convince these children that they have done nothing wrong and are in no way responsible for the horrific acts they were forced into by their traffickers," she said. "Sexually exploited children exist in my district and in your district," State Rep. Jill Billings (D-La Crosse) told the Assembly Committee on Criminal Justice and Public Safety. "The trafficking of children is happening in urban areas, rural areas, and has been reported in all 72 Wisconsin counties." State Sen. Jesse James (R-Altoona) said the average age a girl enters the sex trade is 12 to 14 years old. For boys, he said, it is 11 to 13 years old. "At times, there is a disconnect between the language we use and how we treat victims in the legal system," the state Public Defender's Office said in testimony. "A person under 18 years of age in the State of Wisconsin is presumed to be unable to give consent to engage in a sex act. In most circumstances a person under the age of 18 may not legally enter into a contract. Both are required under the legal definition of prostitution. More importantly, children engaging in sex acts for money are forced or coerced by the traffickers to engage in these acts. Treating children as delinquents/criminals only furthers the process of victimization." "This bill would prevent the prosecution or adjudication of individuals under the age of 18 for acts of prostitution, recognizing that they are often coerced, manipulated, or forced into these situations," said Donelle Hauser, president and CEO of Lad Lake. The organization said it has been working with underage victims of trafficking for more than 10 years. "By reframing the approach to address the underlying victimization rather than perpetuating a cycle of punishment, we can help these young individuals escape the exploitative environment and provide them with the necessary tools and support to rebuild their lives." "Child victims of sex trafficking are indeed victims — these are minors who cannot consent to sex and have been exploited and deserve to be protected," said Nila Grahl, Manager of Children's Wisconsin's Racine & Kenosha Child Advocacy Centers in written testimony. "Youth victims of sex trafficking need supportive health care, services and support — not fear of being charged with a crime. Unfortunately, sometimes the juvenile justice system is the only place youth are engaging with formal systems." "Treating sex-trafficked children as delinquents or criminals is self-defeating and harmful," the Wisconsin Coalition Against Sexual Assault said in testimony. "The current approach increases distrust of law enforcement and child protective services, which hinders efforts to prosecute those responsible for child sex trafficking. Most importantly, the isolation of detention and the stigma of being treated as a delinquent serve only to exacerbate individuals’ feelings of guilt and shame, ultimately re-traumatizing child victims." The bill is pending in committees in the Assembly and Senate. By Alexandria Staubach
In theory, Wisconsin law currently permits expungement of certain felony and misdemeanor convictions. In practice, expungement is rare and difficult to obtain. Senate Bill 38/Assembly Bill 37 could change that. Iterations of the bill were introduced, but failed, in past legislative sessions. However, SB 38/AB 37 has broad, bipartisan support. (WJI discussed details of the bill in a previous post here.) “We are hopeful we can reach an agreement soon, pass the bill through the Senate, onto the Assembly and Governor's desk,” said Rep. Evan Goyke (D-Milwaukee), an advocate for expungement and a co-sponsor of the bill. “What we’ve been able to do with expungement is cultivate and continue to work with a broad and bipartisan coalition that doesn’t traditionally work together. My hope is that this can be an example of what can move criminal justice reform forward in Wisconsin.” A criminal conviction has implications far beyond the conviction itself. Collateral consequences include licensing exclusions that prohibit whole categories of employment, limits on voting, inability to access educational loans, and limits on public benefits. Expungement of a criminal record results in a conviction being sealed from public records. Bill sponsor Sen. Rachael Cabral-Guevara (R-Appleton) stated in testimony to the Senate Judiciary and Public Safety Committee that expungement allows “people who have served their time . . . to fully contribute to their communities, without the discrimination of having an, albeit minor, case open to public record.” Current law is highly restrictive, and the practical effect is that very few people qualify, says Natalie Lewandowski, clinical director of the Milwaukee Justice Center’s Expungement/Pardon Mobile Legal Clinic. The current law permits expungement for an offense with a maximum penalty of six years, as long as the offense is not a violent felony, the person was under 25 years old and had no prior felony record, and the person requested expungement at the time of sentencing. A later court may then grant a request for expungement after the person has successfully completed their sentence. In 2020, the Court of Appeals held that even minor, technical violations of community supervision rules will bar expungement. In its Spring 2023 session, the Expungement/Pardon Mobile Legal Clinic assessed 60 convictions for expungement. Of those convictions, only four were found eligible for expungement, and zero were successfully expunged. Two of the four requests were denied due to probation revocations, one person ultimately failed to meet the age requirement, and one person owed a balance on court costs and fines. To date in its Summer session, the clinic has assessed 16 convictions and found only three qualified for expungement. Only one of the three was found eligible at a hearing, but expungement was nevertheless denied because of an earlier probation revocation. The pending bill eliminates the under-25 age requirement — the most exciting and expansive component, says Lewandowski. She is optimistic that SB 38/AB 37 will significantly expand access and result in more successful outcomes for clients. The clinic estimates that roughly 87% of individuals who previously obtained pardons through the clinic would now be eligible for expungement if the legislation is adopted. The bill also eliminates the requirement that the person must have asked for expungement at the time of sentencing. A sentencing court would retain its ability to grant or deny expungement, but the person could petition for expungement after successfully completing their sentence even if the matter was not addressed. Under the bill, if a petition for expungement is denied, the person could file again after two years and payment of $100. Only one expungement per person would be permitted, and a person could petition just twice per crime. The new SB 38/AB 37 specifies additional offenses that are ineligible for expungement, including traffic crimes, criminal trespass, criminal damage to a business, and violation of restraining orders in domestic abuse cases. The bill would apply the changes retroactively to convictions that occurred before adoption. A 2020 Cato Institute study of data from Michigan found that petition-based expungement policies resulted in only 6.5% of eligible individuals receiving expungements in the first five years of eligibility, people who receive expungements tended to have very low rates of recidivism, and expungement recipients exhibited better employment outcomes quickly. By Margo Kirchner A bill before the Legislature would eliminate the need to find a notary public before filing certain court documents. Under the bill, Senate Bill 29/Assembly Bill 27, a person could submit a court document signed under penalty of perjury, and the document would have the same effect as an affidavit sworn in front of a notary public. The bill aligns Wisconsin law with a federal law in place since 1976 and with laws in other states. The Senate has already passed the bill. It awaits action by the Assembly’s State Affairs Committee. In testimony to the Senate Judiciary and Public Safety Committee in support of the bill, Attorney Thomas Shriner of Foley & Lardner said the bill will create an “inexpensive and convenient” means for submitting evidence in Wisconsin courts and agencies. Shriner testified on behalf of the Wisconsin Judicial Council, which recommended the change. The Uniform Law Commission, a nonprofit and nonpartisan organization advocating for consistent laws across states, also supported the bill before the Senate. The bill, if passed, will simplify submission of evidence for summary judgment motions and other points in civil litigation when affidavits are used as evidence. Attorneys will not have to coordinate getting their clients’ signatures notarized in the midst of meeting a motion deadline, for instance. A person submitting evidence to a court or agency without a notary’s signature and stamp would simply need to write and sign at the end of a document: “I declare under penalty of false swearing under the law of Wisconsin that the foregoing is true and correct.” Attorney Sarah Zylstra of the Boardman Clark law firm told Wisconsin Justice Initiative of the proposed rule's advantages for civil litigation attorneys and clients. The use of the rule in federal courts has shown that sworn declarations “are just as effective as affidavits, but with the benefit of being less costly and much more convenient for witnesses and attorneys,” she said. “It is not always convenient to find a notary to notarize an affidavit, and many notaries charge for their services.” The rule “is particularly important for those in rural areas, those who have transportation challenges, and when documents need to be signed quickly, on an emergency basis,” she said. The bill should make procedures simpler for litigants who represent themselves, too. Having documents notarized is one of many steps that self-represented people must accomplish to file court documents. Mary Ferwerda, executive director of the Milwaukee Justice Center, said in response to questions from Wisconsin Justice Initiative that getting a signature notarized is challenging for many people. “Most banks have a notary public on staff, but not everyone possesses bank accounts, and notary public services may not be available to those without an account. And, while courthouses do have notaries public, many people throughout the state do not live adjacent to a courthouse,” she said. Those who lack transportation or live with disabilities that limit their ability to travel are especially affected, she noted. Plus, when notaries charge for their services, “even nominal sums can be difficult to pay,” said Ferwerda. (Ferwerda takes no position on the pending bill.) If the bill passes, oaths of office, depositions, and real estate documents will still require a sworn statement before a notary. Under Wisconsin law in place since 2009, a declarant who is located outside of the United States is allowed to sign documents under penalty of perjury without finding a notary. The bill would mean that declarants within the United States may do so as well. The bill was introduced by Sens. Van Wanggaard (R-Racine), Joan Ballweg (R-Markesan), and Eric Wimberger (R-Green Bay), and Reps. Ron Tusler (R-Harrison), Nik Rettinger (R-Mukwonago), Jeffrey Mursau (R-Crivitz), Elijah Behnke (R-Oconto) and Marisabel Cabrera (D-Milwaukee). Rep. Darrin Madison (D-Milwaukee) has since signed on as another co-sponsor. The change is part of a move toward uniform laws across the states and is known as the “Uniform Unsworn Declarations Act.” Gov. Evers this week signed bills imposing harsher sentences for reckless driving and carjacking.
“Reckless driving and other dangerous behaviors are putting our kids, families, and communities at risk all across our state, and we must do more at the state level to address dangerous behavior on our roads,” he said in a press release. Senate Bill 76, now Wisconsin Act 10, increases the maximum penalty for carjacking from 40 years in prison to 60 years in prison. It also recognizes and defines carjacking as a separate crime. Assembly Bill 55, now Wisconsin Act 9, increases penalties for several driving-related offenses. WJI has written about both measures previously, here and here. Evers also complained that the Joint Finance Committee stripped some traffic-related items from his proposed state budget. Those measures, he said, included:
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