 By Alexandria Staubach The Wisconsin Assembly this week spent its time voting on AB 58, which generally prohibits the display of any flag other than the U.S. flag or State of Wisconsin flag from being flown, hung, or otherwise displayed from the exterior of any government building. “Are we really going to pass a law prohibiting the city and county of Milwaukee from raising a flag celebrating Black people’s liberation from chattel slavery?” asked ACLU of Wisconsin in a letter of opposition to the Legislature. In a word, “yes.” The stated purpose of the legislation is to unify Wisconsinites. “Our goal with this non-partisan bill is to ensure that our schools and government institutions remain above partisan politics,” said Rep. Jerry L O’Connor (R-Fond du Lac) in written testimony. But the bill has specific language that would preclude the flag representing Juneteenth from being flown. Milwaukee has flown the Juneteenth flag from city hall during the week of June 19 since 2020, having one of the oldest annual public celebrations of the holiday. “This action has been and will continue to be more divisive,” said Rep. Christine Sinicki (D-Milwaukee). “Diversity should be celebrated, not hidden away,” she said. She questioned whether the bill violates First Amendment rights and whether it will survive legal challenges should it be enacted as law. The bill applies to municipal buildings as well as state buildings. And it won’t affect just Juneteenth flags. The pride flag received special attention at Thursday’s hearing. It would no longer make periodic appearances at government buildings, especially the Capitol, if the law is enacted. Rep. Chuck Wichgers (R-Muskego) took issue with several constituents who reached out before the day’s proceedings to express opposition to the legislation but who could not tell him what the pride flag means, when he asked. “Their own communities don’t know what the flag fully means or represents but we all have to accept it,” he said. “I don’t think we should be in the business of putting flags up that sow divisiveness to protect one group’s feelings but offend many others,” he said. Wichgers made no secret of his opposition to the pride flag specifically, concluding, “flying that above our Capitol is beneath our dignity.” No flag could relate to any political party or social cause, sexual orientation, gender identity, religious viewpoint or racial identity. Those related to a “gang or extremist group as designated by the federal bureau of investigation” are also expressly precluded. Exceptions are made, however, for flags of local governmental units, foreign dignitaries and delegations, the armed services, indigenous nations, special law enforcement units, and universities, among others. Despite O’Connor’s testimony that the bill was nonpartisan, and his insistence that the legislation would help everyone “get along,” the vote proceeded along party lines, with 50 Republicans voting in favor of the bill and 44 Democrats opposing it. Four members “paired” their vote to facilitate their absence. Vote pairing occurs when members of the opposite party or with opposing views agree in advance to not vote on a given issue, effectively canceling the other out. The pair is not counted toward the official vote but is recorded. The bill now moves to the Senate. If passed there, it would then go to the governor for approval or veto. 
0 Comments
By Margo Kirchner
Gov. Tony Evers just vetoed a bill that would have required the Department of Corrections to recommend revocation if a person on extended supervision, parole, or probation is charged with a new crime. In his veto message, Evers wrote that he objected "to the unfunded mandate that such revocation would impose on the Department of Corrections, which would move Wisconsin in the wrong direction on criminal justice reform without improving public safety. This bill is estimated to have a fiscal impact of more than $330 million in just the first two years and hundreds of millions of dollars in unknown, ongoing costs to state taxpayers in the years to follow. This significant price tag does not include construction costs to build additional state correctional facilities, which would likely be needed, or take into account the fiscal impact on local governments. This fiscal impact is particularly untenable on the heels of the legislature significantly underfunding existing operations at the Department of Corrections in the most recent state budget." Evers wrote that "Wisconsin should be investing in data-driven, evidence-based programming that addresses barriers to reentry, enhances educational and vocational opportunities for individuals who will be released after completing their sentence, and provides treatment for mental health and substance use issues, which will help to reduce recidivism and save taxpayer money while improving public safety." Wisconsin Justice Initiative and Wisconsin Justice Initiative Action wrote to Evers on Wednesday, urging him to veto the bill, AB 85. Currently, the DOC has discretion to pursue revocation when a person on release is charged with a new crime. Revocations are then decided by administrative law judges, rather than sentencing judges. AB 85 would have taken away the DOC’s discretion and required that the department recommend revocation, even though new charges are based only on probable cause and could later be dropped or defeated at trial. The Assembly passed AB 85 in March along party lines with the exception of cross-over votes by one representative from each side. The Senate passed the bill in June along party lines. The bill was sent to Evers yesterday. As of today, Wisconsin holds 23,346 people in prison. The most recent available number of people on probation or parole, from May 31, is 63,420. Estimates indicated that if the bill became law, more than 4,600 additional people would end up in Wisconsin prisons each year, with a price tag of $250 million annually once the additional population was in place. In written testimony in the Legislature, even the Badger State Sheriffs’ Association and Wisconsin Sheriffs and Deputy Sheriffs Association questioned the bill, expressing concern about its cost and impact on jails and prisons. WJI and WJI Action's letter to the governor said that “the bill turns the long-standing American concept of ‘innocent until proven guilty’ on its head. The bill would require that a person on supervision is presumed guilty of a violation of the terms of release merely upon accusations of other, as yet unproved, conduct, which are made on only probable cause.” Further, WJI and WJI Action wrote, “individuals on supervision or parole already face overwhelming odds against making it to the finish line. . . . People on release face a long list of behavior controlled by the DOC, and for more than a decade, the Department of Corrections has failed to develop rules and guidance implementing 2013 Wisconsin Act 196 to provide those on release with guidance.” As WJI reported recently, Act 196 calls for DOC to develop a list of sanctions that may be imposed for the most common violations, offering “clear and immediate consequences for violations.” The law also mandates that any rule developed by DOC take into account the impact of revocation on an offender’s employment and family. WJI and WJI Action pointed out that Wisconsin’s prisons are already at capacity and that this bill sends that number higher, at great fiscal and societal cost. The organizations also questioned the removal of discretion from the DOC. Minister Roy Rogers, executive director of The Onesimus Group Milwaukee and a WJI board member with personal experience in the justice system, had this to say about the bill: "Assembly Bill 85—though cloaked in the language of accountability—is, in truth, a reactionary measure. It weakens due process, disrespects the discretion of our criminal justice professionals, and burdens our communities with costly, ineffective incarceration." "Out of the 6,280 individuals charged with new crimes while under supervision in 2019, we must ask: how many of those charges ended in actual convictions? According to the Department of Corrections and the Badger Institute, more than half did not. Yet this bill would treat every charge as though it were already a conviction—punishing men and women based solely on an accusation." "That’s not justice," he told WJI. "That’s preemptive punishment—a direct threat to the constitutional principle of 'innocent until proven guilty.' . . . Charges can stem from false accusations, mistaken identity, or insufficient evidence. And in historically over-policed, marginalized communities, we know all too well that it doesn't take much to find yourself charged." Rogers, too, noted that the bill stripped discretion from DOC agents and administrative law judges, who "weigh the severity of the violation, the individual's risk level, and history. That’s what smart justice looks like. AB 85 would remove all that wisdom and replace it with a blunt, one-size-fits-all mandate—rooted in fear, not facts." "Public safety is essential," Rogers told WJI. "But AB 85 did not offer real safety—it offered mass disruption under the guise of accountability. We cannot incarcerate our way into healthy neighborhoods. We need wiser strategies that reduce harm, restore people, and invest in transformation."  By Margo Kirchner
Though many who pay municipal tickets do not realize it, they are funding myriad government operations that may have little to do with their conduct. Municipal tickets for violations like speeding, illegal turns, or disorderly conduct include a "deposit" amount, which the defendant can pay to avoid going to court or which the judge may impose after a finding of guilt. That deposit amount starts with a base forfeiture number, to which are added at least four extra charges. For some violations, the total amount due far exceeds the initial base amount for the offense. Take, for instance, a ticket with a base forfeiture amount of $10, for conduct such as a signal violation by a bicyclist or electric scooter rider. By statute, the municipal court must add a penalty assessment of 26% ($2.60), which goes to the Wisconsin Department of Justice to fund law enforcement training. Next comes a $13 crime lab and drug law enforcement surcharge, and then a $10 jail surcharge. The former flows through the Wisconsin Department of Administration to fund equipment and operations in the state crime laboratory and activities relating to drug law enforcement and DNA evidence. The latter, as its name suggests, goes to the county to pay for physical improvements and educational and medical services in the jail. That the bicyclist's signal violation has nothing to do with the crime lab, drug enforcement, or DNA evidence doesn't matter. Nor does the fact that municipal offenses result in forfeitures, not jail time, as the penalty. The surcharges are added to almost every ticket. Only a few offenses, such as failure to wear a seat belt or failure to carry proof of vehicle insurance, escape the extra surcharges. Then the municipal court tacks on its own costs from $15 to $38. Most of that goes to the municipality, but $5 of the court costs go to the Wisconsin Department of Administration for the state's general fund. Municipalities can set their own court cost amount within the statutory range. Presumably the money helps fund municipal court operations. A bill introduced earlier this summer in both houses of the Legislature (AB 320/SB333) would raise the range for municipal court costs to between $42 and $51, meaning that the lowest end of the range would exceed today’s highest permitted court costs charge and the deposit amounts on municipal tickets would rise statewide. The bills were referred to committees and await hearings. Assuming court costs at the current maximum, after all the extra charges: that $10 ticket costs the defendant $73.60—more than seven times the initial base amount. A common ticket for speeding up to 15 MPH above the limit starts at $30, resulting in a total deposit amount of $98.80—more than three times the initial base amount. Base forfeiture amounts of $50 and $100 become $124 and $187 respectively. A $150 base forfeiture amount becomes $250, while a $200 base forfeiture amount becomes $313. Things get even more expensive for those found guilty of a reckless driving or intoxicated driving offense. Those tickets generally start with a base forfeiture amount of $150 to $300. But then there’s a $535 “driver improvement surcharge” and a $75 “safe ride program surcharge.” Thus, a base amount of $250 becomes $986. The driver improvement surcharge is split between the state and county for mental health, disability, alcoholism, and drug abuse services. The safe ride program surcharge goes toward funding free rides home from Wisconsin Tavern League bars. If the judge orders installation of an ignition interlock device, another fee of $50 for the county gets tacked on. The base forfeiture amounts for traffic offenses are set statewide. For nontraffic offenses, the municipal court sets the deposit amount within a range approved by the municipality. At sentencing, though, the municipal judge could still impose any amount within the approved range. In other words, the deposit amount is a guideline for those paying their tickets, but the judge could go up or down in the end. Yet, even with all the added fees in municipal courts, tickets there cost less than in circuit courts, where there's another surcharge to fund the justice information system and court support services. A speeding ticket charged in circuit court with a $50 base amount (for speeding up to 15 MPH over the limit) costs $200.50. In early 2023, WJI called on Gov. Tony Evers to use the state’s budget surplus to eliminate or reduce court fees and surcharges because of their negative impact on the poor. WJI asked the governor to look specifically at the surcharges unrelated to the specific case at issue. In other words, drop the crime lab fee in cases that do not involve crime lab work, etc. WJI argued that at the very least, court fees and surcharges should be redirected to support the underfunded state court system rather than other parts of government. As this year’s legislative bills suggest, proposals continue to seek an increase, rather than a decrease, in the various fees and surcharges.  By Alexandria Staubach
A popular bill to restore awards of attorney’s fees in public records cases is making its way through the Wisconsin State Assembly after having passed unanimously in the Senate … again. AB190/SB194 would allow those suing public authorities over failure to comply with public records requests to recover reasonable attorney’s fees when the authority discloses records after the record seeker files the lawsuit. The statute is consistent with how courts awarded attorney's fees awards until recently and comes as backlash to a 2022 Wisconsin Supreme Court decision. In Friends of Frame Park. v. City of Waukesha, the Supreme Court said plaintiffs could recover attorney's fees only upon securing a court order or judgment in a public records case. If the public authority released the records requested at any time during the court proceedings before the court directed disclosure, it would not be on the hook for the plaintiff’s attorney's fees. Written testimony in support of the bill submitted by the ACLU of Wisconsin points out that “courts had previously recognized if the government actor was only ‘voluntarily’ releasing documents because of the lawsuit filed against them, they should still have to pay the requestor’s legal fees.” Friends of Frame Park rejected that interpretation. The bill’s author, Rep. Todd Novak (R-Dodgeville), told fellow legislators that “a dangerous trend may arise where government entities have increased power to withhold records, as the public will need to weigh whether the litigation costs are worth expending to compel the release of the records.” Novak testified to a sparsely attended Assembly Committee on Senate Affairs hearing late last month. “You shouldn’t have to get to a point where you go to court, before a municipality or whoever turns over the records,” he said. The bill enjoys broad bipartisan support and is embraced by advocacy groups often opposed on other topics. Both the ACLU of Wisconsin and the conservative litigation center Wisconsin Institute for Law & Liberty support the measure. “The inability to obtain attorney’s fees upon prevailing in an open records lawsuit can make it prohibitively expensive for Wisconsinites to challenge the denial of requests or excessive delays in response times,” wrote Luke Berg, WILL deputy counsel, in support of the bill. Berg cautioned that under the present interpretation, “fewer attorneys will be willing to bring open records cases on a contingent fee basis, putting greater transparency and accountability at risk.” The bill duplicates one introduced during the last legislative session. That bill, too, enjoyed bipartisan support and passed unanimously in the Senate. However, Speaker Robin Vos failed to bring the issue to a vote in the Assembly. At last month’s hearing, Novak said he hopes to bring the current bill “over the hump.” On July 8, the current bill passed unanimously in the Assembly Committee on State Affairs and was referred to the Committee on Rules.  Entrance to the Wisconsin Senate in the Wisconsin State Capitol. Photograph by Margo Kirchner. By Alexandria Staubach The Wisconsin Senate recently voted along party lines to codify several types of specialty courts, including a controversial business court. The bill, having previously passed in the Assembly along party lines, now heads to Gov. Tony Evers for signature or veto. Treatment courts, such as drug courts and mental health courts, have long held bipartisan support. The creation of special civil courts to deal with large business and commercial case has been more controversial. Passage of the bill puts the Legislature’s stamp of approval on them. At the bill’s May 15 reading in the full Senate, Sen. Kelda Roys (D-Madison), criticized the bill as creating a “rocket docket for guys like Elon Musk,” without providing funding for any of the specialty courts, especially the treatment courts. “We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters,” said Roys. To date, specialty courts have generally been created by the courts themselves. For instance, Milwaukee County Circuit Court last summer started a specialty court for cases in which a defendant’s competency is at issue. Specific judges have been assigned to a specific type of case, sometimes with training in that legal area. AB 73 would recognize in statute the following specialty courts: adult drug treatment court, juvenile drug treatment court, operating-while-intoxicated treatment court, mental health treatment court, family dependency treatment court, veterans’ treatment court, hybrid treatment court, and tribal healing-to-wellness court. Treatment courts have long been used throughout the state. The bill also statutorily recognizes a specialized docket for commercial cases, the subject of Roys’ concern. A special court for business interests is relatively newer and will not immediately affect every county in Wisconsin. We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters. Wisconsin Sen. Kelda Roys (D-Madison) Wisconsin’s commercial courts were born out of a 2017 Supreme Court rule that characterized the specialty docket as a “pilot project.” That pilot project lasted more than seven years in only certain trial courts in the state.
Last year, the Supreme Court evaluated the pilot project and declined to extend it for another two years. The court divided along ideological lines. Referencing the same courts that were part of the pilot project, the bill provides procedures for establishing commercial courts in the following judicial districts and their corresponding counties: the second district (Kenosha, Racine, Walworth), the third district (Dodge, Jefferson, Ozaukee, Washington, Waukesha), the fifth district (Columbia, Dane, Green, Lafayette, Rock, Sauk), the eighth district (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, Waupaca), and the tenth district (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Iron, Polk, Rusk, St. Croix, Sawyer, Washburn). Judges would be assigned to those counties with prior or existing commercial courts by the chief justice of the Supreme Court, “after considering the recommendation of the chief judge of the encompassing judicial administrative district,” according to the bill. The bill can be retroactively applied to any county that chooses to develop a commercial court. The first district, composed solely of Milwaukee County Circuit Court, which is the busiest judicial district, was not part of the pilot program and does not currently have a commercial court. Roys at the May 15 floor session strongly supported recognition of treatment and diversion courts, saying that they were “win-win.” She suggested that the Legislature dedicate state funds to run them. “Without an appropriation, without money, programs can’t run,” she said. Recognition and funding of the treatment courts is “one step that we can take to address the shameful fact that Wisconsin incarcerates two to three times more people than our neighboring state of Minnesota, and I refuse to believe that Wisconsinites are two to three times worse than Minnesotans,” Roys said. But she proposed that the Legislature delete the provision recognizing business courts. The commercial courts do “nothing to help everyday Wisconsinites,” she said. Sen. André Jacque (R-New Franken) disagreed with Roys, saying the bill “was not about creating a rocket docket for anything” and that “these are all specialty courts that have been in operation in Wisconsin, and very successfully I might add.” Jacque sponsored the bill in the Senate, along with Sen. Van Wanggaard (R-Racine), Sen. Dan Feyen (R-Fond du Lac), and Sen. Steve Nass (R-Whitewater). In written testimony filed with the bill, Jacque said the commercial courts would “aid the effective resolution of commercial disputes and help provide more certainty for our economy.” Before declining to extend the pilot project last year, the Supreme Court held a public hearing in September 2024 at which those involved in commercial litigation overwhelmingly supported continuing the business court. Retired Judge Richard G. Ness was a rare voice against the project. Ness said at the September hearing that the program is the “creation of a solution for a problem that doesn’t exist.” He said that in his 13 years on the bench, he never encountered an inability to effectively deal with civil business cases. Justice Rebecca Grassl Bradley asked how business court differed from juvenile court, sexual assault court, probate court, criminal courts, and other civil courts. She told Ness that he was holding the commercial courts to a “very different standard” than the other specialty courts. Ness, who testified that he also spent 26 years representing big business, previously said in an op-ed for Wisconsin Watch that the project “has granted large commercial interests outsized influence over our court system’s handling of their cases, exactly as intended.”
The Assembly (left) and Senate (right) chambers at the Wisconsin State Capitol. Photographs by Margo Kirchner. By Alexandria Staubach
With three months of the legislative session in the rearview mirror, several bills concerning the criminal justice system have moved through committees and to a vote in either the Senate or Assembly. The rough progression of a successful bill is: introduction → referral to committee → passage by committee → vote by full chamber → transfer to the other chamber to go through the prior three steps there, too → to the governor for signature. Fora refresher on the life cycle of a bill, see here. The bills below are those that WJI is actively tracking and which have made noteworthy progress, not including the bill that would require the Department of Corrections to recommend revocation for individuals charged with new offenses. WJI recently covered that legislation in more depth, here. All summaries are quotations taken directly from the analysis by the Legislative Reference Bureau. Titles and the status description are in WJI's words. A * before the bill number means the bill is substantially similar to one introduced in a previous session that failed to pass or the governor vetoed. “AB” means Assembly Bill, while “SB” means Senate Bill. AB26/SB5 Battery to juror or witness to trial Summary: Under current law, the crime of battery is defined as intentionally causing another person bodily harm and is a Class A misdemeanor. Under current law, if the battery is a special circumstance battery—for example, the battery is committed against an individual because of the individual's status as a law enforcement officer, witness in a trial, or juror—the penalty is increased to a Class H felony. Under this bill, a threat or battery against a juror or a threat or battery against a family member of a juror is a Class H felony. Status: Passed in the Senate (28 yes, 4 no); referred to committee in the Assembly, where public hearing took place April 9. *AB29/SB6 Impoundment of vehicles used in certain traffic offenses Summary: Under this bill, in addition to the penalties available under current law for the following offenses, the vehicle used in the offense may be immediately impounded and remain impounded for 90 days or, for a violation occurring on a highway under the jurisdiction of a political subdivision, a shorter period established by the political subdivision: 1. Operating a vehicle without a license, with certain exceptions, or with a revoked operating privilege. 2. Speeding at a rate higher than 25 miles per hour above the speed limit. 3. Fleeing from a law enforcement officer. 4. Racing on a highway. Status: Neither the Assembly nor Senate has put the bill to a vote, but the bill has made its way through the committee process in both chambers and is eligible for a vote in either. *AB34/SB25 Court-issued criminal prosecutions Summary: Under current law, a district attorney has the discretion as to whether or not to issue a complaint to charge a person with a crime. Current law also provides that, if a district attorney refuses to issue a complaint against a person, a judge may conduct a hearing to determine if there is probable cause to believe that the person committed a crime and, if so, issue a complaint. Under this bill, when there is an officer-involved death, which is a death that results directly from an action or an omission of a law enforcement officer, and the district attorney determined there was no basis to prosecute the officer, a court may not issue a complaint against the involved officer unless there is new or unused evidence presented. Status: Passed in the Senate (19 yes, 13 no); referred to committee in the Assembly. *AB4/SB30 Mandatory civics education Summary: Beginning in the 2027-28 school year, this bill requires school boards, independent charter schools, and private schools participating in a parental choice program to include in their respective curricula instruction in civics that includes specific topics and pupil development goals. Status: Passed in the Assembly (52 yes, 46 no); referred to committee in the Senate. AB24/SB57 Sheriff assistance with immigration activity Summary: This bill requires sheriffs to request proof of legal presence status from individuals held in a county jail for an offense punishable as a felony. The bill also requires sheriffs to comply with detainers and administrative warrants received from the federal department of homeland security regarding individuals held in the county jail for a criminal offense. Under the bill, sheriffs must annually certify to the Department of Revenue that they have complied with each of these requirements. If a sheriff fails to provide such a certification, DOR must reduce the county’s shared revenue payments for the next year by 15 percent. The bill also requires sheriffs to maintain a record of the number of individuals from whom proof of legal presence is requested who are verified as unlawfully present in this state and a list of the types of crimes for which those individuals were confined in the jail. The information must be provided to the Department of Justice upon request, and DOJ must compile the information and submit a report to the legislature. Status: Passed in the Assembly (51 yes, 43 no); referred to committee in the Senate. AB78/SB65 Impoundment of vehicles used in certain reckless driving offenses Summary: Under current law, a political subdivision may enact an ordinance authorizing law enforcement officers to impound vehicles used in reckless driving offenses if the person cited for reckless driving is the owner of the vehicle and the person has a prior reckless driving conviction for which a forfeiture was imposed that has not been fully paid. Under this bill, such an ordinance may authorize the impoundment of any vehicle used in a reckless driving offense regardless of ownership of the vehicle or prior record of the operator. The bill also provides that a local ordinance may authorize impounding such a vehicle until outstanding fines and forfeitures owed by the vehicle’s owner are fully paid. Also under the bill, upon impounding a vehicle under such an ordinance, the law enforcement officer must attempt to determine if the vehicle has been reported as stolen, and if so, the officer or the impounding political subdivision must attempt to contact the owner. If the vehicle is reported as stolen, the vehicle must be released to the owner without the payment of a fee or charge. Status: Passed in the Assembly, vote count unavailable; referred to committee in Senate. AB73/SB80 Statutory recognition of specialized dockets for treatment courts and commercial litigation Summary: The bill recognizes in statute treatment courts, which are defined in the bill to include adult drug treatment court, juvenile drug treatment court, operating while intoxicated treatment court, mental health treatment court, family dependency treatment court, veterans treatment court, hybrid treatment court, and tribal healing to wellness court. The bill also statutorily recognizes a specialized docket for commercial cases (which portion of the bill was introduced last session as well). Status: The bill has been referred to committee in both chambers; the committees in both the Assembly and Senate have held public hearings. *AB66/SB76 Prohibition on dismissing or amending certain criminal charges and deferred prosecution agreements Summary: Under this bill, a prosecutor must get the court’s approval to dismiss or amend a charge if the charge is for any of the following: 1) a crime of domestic abuse or a violation of a domestic violence temporary restraining order or injunction; 2) theft of an automobile; 3) a crime of abuse of an individual at risk or a violation of an individual-at-risk TRO or injunction; 4) first-degree, second-degree, or third-degree sexual assault; 5) a crime against a child; 6) illegal possession of a firearm if the person has been convicted of, adjudicated delinquent for, or found not guilty by reason of mental disease or defect of, committing, soliciting, conspiring, or attempting to commit a violent felony, as defined under current law; or 7) reckless driving that results in great bodily harm. The court may approve the dismissal or amendment of such a charge only if the court finds the action is consistent with the public’s interest in deterring the commission of these crimes and with the legislature’s intent, expressed in this bill, to vigorously prosecute individuals who commit these crimes. If the court approves any dismissal or amendment in a year, the court must submit an annual report to the legislature detailing each approval. Status: Passed in the Assembly (53 yes, 44 no); referred to committee in the Senate. A similar bill was passed by the Legislature last session and vetoed by Gov. Tony Evers. AB65/SB77 Entering certain places with intent to commit battery Summary: Under current law, it is a Class F felony to enter a dwelling or certain other places with intent to steal or commit a felony therein. Under this bill, it is also a Class F felony to enter one of those places with intent to commit battery that is misdemeanor battery rather than felony battery. Under current law, the penalty for a Class F felony is a fine not to exceed $25,000 or imprisonment not to exceed 12 years and six months, or both. Under this bill, it is also a Class F felony, or a Class E felony if certain additional circumstances apply, to intentionally enter a dwelling or certain other places without consent with intent to commit any battery. Status: The bill has been referred to committee in both chambers; the committees in both the Assembly and Senate have held public hearings. *AB87/SB95 Requiring payment of restitution for restoration of the vote Summary: Under current law, a person convicted of treason, felony, or bribery may not vote unless the person’s right to vote is restored through a pardon or through completion of the term of imprisonment, including parole or extended supervision, or probation for the crime that led to the disqualification. Under the bill, in addition to completing his or her term of imprisonment or probation for the crime, a person must have paid all fines, costs, fees, surcharges, and restitution, and have completed any court-ordered community service, imposed in connection with the crime. Additionally, under this bill, if the defendant is sentenced or placed on probation for human trafficking, the court must require restitution be paid immediately and, if the defendant fails to pay immediately, the court must issue an execution against the defendant’s property. Status: Passed in the Assembly (53 yes, 43 no); the Senate committee recently held a public hearing. AB75/SB115 Collection and reporting of certain criminal case data Summary: This bill requires state DOJ to collect from the director of state courts all of the following information for each criminal case: 1) the county in which the case was filed; 2) the name of the prosecuting attorney assigned to the case; 3) the name of the court official assigned to the case; 4) the criminal charge filed; 5) the charging recommendation from the referring law enforcement agency, if applicable; 6) for each case, whether the court released the defendant without bail, upon the execution of an unsecured appearance bond, upon the execution of an appearance bond with sufficient solvent sureties, or upon the deposit of cash in lieu of sureties, or denied release, and the name of the court official who made the decision; 7) for each case for which a court required the execution of an appearance bond with sufficient solvent sureties, the monetary amount of the bond and the name of the court official who made the decision; 8) for each case for which a court required the deposit of cash in lieu of sureties, the monetary amount of cash required and the name of the court official who made the decision; 9) any other conditions of release imposed on the defendant and the name of the court official who made the decision; 10) whether any plea bargain was offered in the case; 11) whether a deferred prosecution agreement was offered in the case; 12) whether any charge relating to the case was dismissed; and 13) whether the case resulted in a conviction Status: Passed in the Assembly (53 yes, 43 no); the Senate committee held a public hearing.
Mosaics with symbols of legislation, justice, and government from the interior of the Capitol dome in Madison, Wisconsin. Photographs by Margo Kirchner By Alexandria Staubach
The Assembly’s Committee on the Judiciary held a public hearing this week on five bills, all of which seek to make the criminal legal system more punitive. In a perplexing move, legislators again introduced a bill that limits prosecutorial discretion in dismissing and amending charges for certain offenses and offering deferred prosecutions for a list of crimes. The new bill is AB-66. A similar bill made its way through the Legislature late last session but Gov. Tony Evers vetoed it. Multiple law enforcement association representatives appeared at Tuesday’s hearing to testify in favor of the bill. Considerable frustration was directed at dismissals, specifically in Milwaukee. Alexander Ayala, president of Milwaukee’s police association union said, “if it’s not put nicely, in a nice case, with all the evidence and everything, they just get dismissed,” regarding cases that include charges for felon in possession of a weapon. The charge is used as a “bargaining chip,” said Ayala, who shared concerns about rearresting the same individuals on multiple occasions. “If a case isn’t gift wrapped and perfectly presented, some people aren’t willing to put in a little extra effort,” said James Olson, testifying in support of the measure for the Wisconsin Chiefs of Police Association. When asked why he thought so many gun cases were being dismissed, Olson first said he wouldn’t speculate, but then said he has heard “prosecutorial discretion or everybody deserves another chance.” The proposed new law would not be limited to cases involving possession of a weapon after felony conviction. Even misdemeanor acts of domestic abuse and violations of temporary restraining orders would be implicated. Including those misdemeanor cases in the bill causes concern for Christian Gossett, a 23-year veteran prosecutor in Winnebago County. Gossett testified that domestic violence victims often recant their testimony. He worried that having to tell a judge and the defense all the problems with their case in open court, as the proposed new law would require, would not help anyone. “If you’re coaching a football team and you had to go tell the coach on the other team what you’re going to do, you will lose all the time,” said Gossett. “This is not manageable for prosecutors.” He highlighted the diversion work being done in his office’s domestic violence unit, which he said has a recidivism rate of just 3.9% at three years postconviction. By contrast he said traditionally 60-65% of individuals convicted of a domestic violence crime who go through the system will reoffend in 5 years. Gossett was the only person to testify in person against the bill. ACLU of Wisconsin’s executive director of advocacy, Amanda Merkwae, submitted written testimony opposing the bill. “There are a multitude of reasons why a charge may be dismissed or amended by a prosecutor, including the innocence of an individual charged with a crime, insufficient evidence for a charge to stand, or constitutional concerns with police action,” wrote Merkwae. She cautioned that “AB-66 will exacerbate the downstream social and economic harms of overcriminalization to individuals, families, and communities.” The committee also heard testimony on AB-85 at Tuesday’s hearing. That bill would require the Department of Corrections to recommend revoking a person’s probation, parole, or extended supervision for merely being charged with (not convicted of) a new crime. Revocations already make up the majority of new incarcerations in Wisconsin. In 2024, 60% of new prison admissions were for revocation, according to records published by the DOC. There were more than 8,000 revocation incarcerations in 2024 alone. Under the current scheme, an administrative law judge decides whether an individual charged with a new offense gets revoked following charges for a new offense, but revocation must first be recommended by the DOC. “It may come as a surprise, but a convicted criminal on community supervision is not immediately revoked if they’re charged with another crime,” said Rep. Brent Jacobson (R-Mosinee), the lead sponsor of both bills. In his testimony to the committee, Jacobson said 6,280 individuals who were charged with new offenses were not revoked in 2019. Without defining the cost, Jacobson argued that the price of this recidivism is high if we consider case load costs across law enforcement and the resources of the courts. However, Jacobson failed to recognize that the average cost to incarcerate an individual now exceeds $65,000 at Waupun Correctional Institution (a maximum-security facility) and $46,000 at Fox Lake Correctional Institution (a medium-security facility), per the DOC’s 2024 end-of-year reports. “A person who has been charged with a crime while on release has violated that promise of good behavior” said the bill’s cosponsor, Sen. Rob Hutton (R-Brookfield). Olson reiterated Hutton’s point, saying “I don’t know how many chances we need to keep giving people.” Sean Wilson of Dream.org spoke in opposition to the bill. “Discretion is essential to justice,” he said, adding that the legislation undermines the presumption of innocence and would “exacerbate inequalities.” Wilson cited the need for wrap-around services to promote success in reentry instead of another mechanism to ensnare people in the justice system. “The Department of Corrections already recommends revocation in the majority of cases,” Wilson said. “To add another layer where you’re mandating what they’re already doing doesn’t make sense.” Wilson called the bill a “waste of paper.” The committee also discussed:
By Alexandria Staubach On Monday, Wisconsin’s 107th legislative session kicked off with the swearing in of 34 new members, 90% of whom are Democrats. This is the first legislative session impacted by the new district maps signed into law by Gov. Tony Evers in early 2024, ending more than a decade of extreme partisan gerrymandering. Fifteen senators were sworn into office. Six are embarking on their first full term. Five of those six are women, all are Democrats, and two served in the Assembly last term. Thirty new members were sworn into the Assembly, 76% of them Democrats. The new session sees the narrowest advantage Republicans have held since 2011. The Senate includes 18 Republicans and 15 Democrats. The Assembly has 54 Republicans and 45 Democrats. The two bodies got straight to work. The Assembly took its first action of consequence, sending to committee AJR 1, a proposed constitutional amendment requiring valid photo identification to vote in an election. If the resolution passes, it will be the proposed amendment’s second trip through the Legislature. If it passes quickly, it could then appear on the April election ballot. Both chambers voted on structure and schedules. In the Assembly, Rep. Kalan Haywood (D-Milwaukee) unsuccessfully nominated Rep. Greta Neubauer (D-Racine) for speaker, as an alternative to Rep. Robin Vos (R-Rochester). Vos has served in the role for more than a decade. Haywood suggested the Assembly ditch Vos because the chamber should not be “an experimental national right-wing Republican testing ground.” He encouraged his peers to abandon “the stagnation of the status quo.” “Compromise is what will lead to productivity and results,” he said. “We’ve strayed so far from Wisconsin’s long-standing tradition of transparent government with the current leadership,” said Haywood. Vos was ultimately elected with 52 votes of the possible 54 Republican votes. Afterward, Vos gave a speech that included predictions about what will occur during this legislative session. He anticipates a tax cut “focused on those who pay taxes in Wisconsin” and emphatically stated the money set aside from any such cut would not be spent by the treasury. He vowed not to create any new government programs because “socialism, in any form does not make us more free.” Vos also said he would demand “accountability and measurable results for any funding we provide.” He predicted that the newly created Assembly Committee on Government Operations, Accountability and Transparency would “lead the way” in innovating how government operates in the state. Ceremonies took place simultaneously at the Capitol in the two legislative chambers. Justice Rebecca Grassl Bradley administered the oath of office in the Assembly. District II Court of Appeals Judge Maria Lazar administered the oath of office in the Senate. By Alexandria Staubach
On Wednesday a group of lawmakers and public sector employees met to discuss possible changes to the framework surrounding emergency detention and civil commitment of youth experiencing mental health crises. What was the Legislature's Study Committee on Emergency Detention and Civil Commitment of Minors looking to know? First, whether entities and individuals other than law enforcement should have authority to take minors into custody for emergency detention. Second, whether special emergency procedures should be developed to lower the bar for detention and commitment. The overwhelming advice from service providers was that expanding the scenarios under which children can be detained would do nothing to alleviate the underlying mental health crises that the state’s children face. Dr. Steven Dykstra of Milwaukee County’s Behavioral Health Division said expanding detention “would be a complicated journey and I don’t know that much would come out of it.” Dykstra instead encouraged the committee to recommit to expanding early intervention resources and tactics. Dystra discussed a teenage boy in Wauwatosa who was assaulting his mother. The boy’s father drove him to the police station; police in turn called Dykstra. Dykstra was able to get the youth to agree to commitment, avoiding detention and handcuffs. The boy was diagnosed with schizophrenia and responded well to medication. He went on to a modified school schedule and graduated high school. When he started at UW-Milwaukee, he met with administrators to develop a plan for his education and asked whether the school had police officers. Because of his previous crisis and because, according to Dykstra, he was not detained, he felt like he could go to the police if he had another episode. These types of interventions will result in the outcomes the committee is looking to achieve, Dykstra said. “We have lots of power to lock that kid up but very little power to address the underlying distress that drove [them] to that point,” he said. Dykstra highlighted a lack of communication between police, service providers, and families. “Systems that collect the data that demonstrate a mental health crisis … don’t communicate with one another. He said the system as currently conceived cannot connect the dots to identify when a child is on the verge of a mental health crisis, but medical professionals know that years spent in undiagnosed psychosis results in much worse outcomes. He cautioned that parents and children “don’t want to tell us about their symptoms because they’re afraid they’re going to get locked up.” Dr. Tony Thrasher, president of the Wisconsin Psychiatric Association, encouraged the committee to consider a specific modification to the laws governing commitment when schizophrenia is involved. “One situation in which we need to make it easier to hospitalize a young person [is in that] last stretch of time they are sliding toward mental psychosis,” Thrasher said. Specifically in the instance of schizophrenia, “if he’s not dangerous to anyone, I can’t make him go to the hospital, however we know that his long-term prognosis is heavily tied to dramatically different results with early intervention,” he said. “We’re very good at the defibrillation,” meaning emergency situations, said Thrasher, but “we’re missing the other 98% of how to get people well.” Sarah Henery, administrator of the Division of Milwaukee Child Protective Servies (CPS), said that not just in Wisconsin, but nationally, she has observed chronic issues, which are not acute, going unaddressed, highlighting that the state is essentially powerless in situations where a youth is not expressing an immediate desire to cause or inflict self-harm. Under current Wisconsin law, certain individuals may initiate 72-hour holds on a person who is mentally ill, developmentally disabled, or drug dependent, based on observed behavior that is dangerous to themselves or others. Juveniles may be subject to emergency detention if they are unable or unwilling to cooperate with voluntary treatment. Sen. Jesse James (R-Altoona) chairs the Legislative Council Study Committee on Emergency Detention and Civil Commitment of Minors, which examines the effectiveness of emergency detention and civil commitment laws and recommends legislation that may create more child-appropriate civil commitment procedures. Rep. Patrick Snyder (R-Schofield) is vice-chair. Other committee members include Sheila Carlson, Green Bay Police Department behavioral health officer; Jill Chaffee, vice-president of community based services for Lutheran Social Services; Maryam Faterioun, an addiction and substance abuse counselor in Waukesha; Judge Cody Horlacher of Waukesha County Circuit Court; Dr. Kristen Iniguez, a Marshfield physician who cares for children subject to abuse and neglect; Sen. LaTonya Johnson (D-Milwaukee); Sharon McIlquham, assistant corporation counsel for Eau Claire County; Rep. Shelia Stubs (D-Madison); and Katie York, deputy State Public Defender. By Alexandria Staubach
Earlier this month the Wisconsin Court of Appeals upheld the Wisconsin Department of Justice’s denial of Scot Van Oudenhoven’s handgun purchase application based on an previous misdemeanor domestic violence conviction that had been expunged under Wisconsin law. The decision reinforces the narrow effect of expungement on criminal convictions in Wisconsin, where they are difficult to obtain and of limited effect. Expungement seals a criminal court file but has no impact on the conviction itself. Judge Gregory B Gill Jr. wrote for District III appeals court. He was joined in the opinion by Judges Lisa K. Stark and Judge Thomas M. Hruz. Van Oudenhoven was convicted of battery as an act of domestic violence in a 1994 Calumet County case. In 2019, a Calumet County Circuit Court judge granted Van Oudenhoven’s petition for expungement. In 2022, Van Oudenhoven attempted to purchase a handgun in Wisconsin. The Wisconsin Department of Justice (DOJ) denied the purchase based on his misdemeanor battery conviction. After Van Oudenhoven exhausted administrative remedies with the DOJ, he sought judicial review in Winnebago County Circuit Court. Judge Teresa S. Basiliere affirmed the DOJ denial. Federal law prohibits the sale of firearms to individuals who have been convicted of offenses related to domestic violence, but among the exceptions are misdemeanor cases. Possession is permitted where the misdemeanor conviction has been “expunged or set aside.” On appeal, Van Oudenhoven argued that expungement under Wisconsin law has the same force and effect as “expunged or set aside,” which phrase is not explicitly defined under federal law. Van Oudenhoven argued that the U.S. Supreme Court provided a common understanding of the phrase when it said in Logan v. United States that “expungement,” “set-aside,” “pardoned,” and “civil rights restored,” “describe[] a measure by which the government relieves an offender of some or all of the consequences of his [or her] conviction.” Because Van Oudenhoven’s expungement removed “some” consequences of his conviction, the Calumet County court “expunged or set aside” his conviction, he argued. The Court of Appeals rejected Van Oudenhoven’s argument that his conviction had been “expunged or set aside.” “The terms expunged, set aside, pardoned, and restoration of civil rights all, by definition, require state action that removes the prohibition on an individual from possessing or receiving a firearm under federal law,” wrote Gill. “The state procedure in question must completely remove all effects of the conviction at issue,” he said. Wisconsin’s expungement law does not remove the effects of conviction; “the statue merely removes evidence of the conviction from court files,” said Gill. Current state law permits expungement for an offense with a penalty of six years or less, as long as the offense was 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. If all conditions are met, a subsequent court may grant a request for expungement after the person has successfully completed their sentence. During the last decade, several bills have been introduced to reform Wisconsin’s expungement and pardon laws. Last session, one bill seemed poised for success. Senate Bill 38/Assembly Bill 37 received broad support, with organizations on both sides of the aisle registering in favor, from the conservative group Americans for Prosperity to the ACLU. The bill also had a bipartisan group of 63 co-sponsors. Although the bill successfully made its way through the Assembly, it ultimately failed to get a vote from the Senate. “Expungement is an issue that has been before the Legislature and the Supreme Court for several years, yet, despite extensive study and discussion, there have been few changes made,” wrote the State Bar of Wisconsin in support of the bill. “Without expungement, every sentence is a life sentence,” it said. Some legislators remain undeterred. Rep. Tip McGuire (D-Kenosha) told WJI “It has unfortunately been a long, difficult road for the expungement reform bill. However, every session brings in new legislators and a fresh chance for us to get on the same page and recognize the importance of getting this done.” “Too many people in our state have trouble finding work or housing because of low-level crimes they committed many, many years ago when they were quite young. I’m hopeful we can properly strike a balance between public safety and rightfully giving people a second chance to build a life and a career for themselves,” McGuire told WJI. According to a 2018 Wisconsin Policy Forum report, an estimated 1.4 million individuals in Wisconsin have criminal records that may hinder their ability to find employment. In Milwaukee County, 30,638 cases closed between 2006 and 2017 technically meet the current restrictive eligibility criteria but have not been expunged, said the report. In 2020, the Court of Appeals held that even minor, technical violations of community supervision rules will bar expungement. |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed