The Legislature is back in session. We’re flagging and summarizing the latest justice-related proposals. If something here catches your eye, links will take you to the full bills. A table showing the bills' sponsors is at the bottom of this post.

Senate Joint Resolution 10 — Measuring public opinion on restoring abortion access

Democratic legislators are trying again to get abortion on the ballot.

The question on the 2024 spring ballot would simply ask, “Shall Wisconsin's 1849 abortion law be repealed and the constitutional right guaranteed under Roe v. Wade be restored?"

The 1849 law prohibits abortion unless it is necessary to save the life of the mother.

A similar ballot question failed last month on a party-line vote, with Republicans opposed.

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Senate Bill 11 — Expanding treatment alternatives and diversion programs

Under the bill, grant funding for treatment alternatives and diversion programs could be used to support services that provide treatment, as an alternative to prosecution or incarceration, for any kind of mental illness. Currently, the grants are used to pay for only alcohol or drug treatment services. 

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Senate Bill 21 — Increasing allowed personal property for those in custody

People incarcerated by the state would be allowed to keep personal property valued up to $150 and a musical instrument or electronic item worth up to $350, under the bill. Incarcerated individuals now are allowed to possess personal property with a value up to $75, except that a person can possess a musical instrument or electronic item worth up to $350. Medically prescribed items still would be allowed, as is the case now.

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Senate Bill 25 — Lowering the dollar threshold for felony theft of property

Under the bill, felony theft charges would apply in cases now charged as misdemeanors. Currently, thefts involving goods valued at less than $2,500 are misdemeanors punishable by up to nine months of incarceration and a $10,000 fine. Under the bill, theft of property worth $1,000 to $5,000 would be a felony punishable by up to three years in prison and a $10,000 fine.

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Senate Bill 38 — Reforming expungement law

Supporters of expungement reform are trying again to modify the state’s law governing when a criminal record can be cleared.

The restrictions now are pretty strict. A record can be expunged if the maximum potential prison sentence is six years or less, the crime involved was not a violent felony and was committed by someone under 25 years old, and the person had never been previously convicted of any felony. 

In addition, expungement must be requested when a person is sentenced, meaning the judge is expected to decide whether the person is eligible for expunction before there is a track record on which to base that decision.

Under the new bill, the age restriction would be lifted. Certain restrictions would remain, including those on past felonies, violent felonies, and the six-year maximum prison sentence. 

The law, if passed, would also make some offenses ineligible for expungement, including traffic crimes, violating a domestic abuse injunction or restraining order, criminal trespass, and criminal damage to a business. 

Eligibility for expungement still could be granted or denied by the judge at sentencing, but if the court does not grant eligibility, the person could petition for expungement after completing their sentence.

If the petition is denied, the person can’t file another petition for two years and then must pay the county $100. A person would be limited to a maximum of two petitions per crime.

Only one expungement per person would be allowed.

The bill would be retroactive to include those convicted of crimes before its adoption.

By Gretchen Schuldt

Gov. Tony Evers has signed into law tougher new penalties for crimes committed against anyone at least 60 years old.

The bill also allows older people seeking domestic violence, individual-at-risk, or harassment restraining order to appear in a court hearing by telephone or through audiovisual means. Currently, people seeking restraining orders  appear in court in person.

“Aging and older Wisconsinites are particularly vulnerable to financial and physical abuse and exploitation, and unfortunately, we are seeing a devastating and concerning rise in these crimes,”  Evers said. "This bill is an important bipartisan action to help put an end to elder abuse and protect some of our most vulnerable loved ones and neighbors.” 

​Evers ran for office promising to reduce the prison population.

Under the new law:

• Any second-degree sexual assault against an "elder," as the law calls them, will become a first-degree sexual assault and the maximum penalty increases from 40 years in prison to 60 years in prison. It does not matter whether the person convicted of the crime knew the victim's age.
• There is a new crime of "physical abuse of an elder person," patterned after a law against physical abuse of a child. Penalties for violating the new law vary from up to 40 years in prison for intentionally causing great bodily harm, to 3½ years for recklessly causing great bodily harm.
• Prosecutors can seek to freeze the assets of defendants in financial exploitation crime cases where the victim is an elder and the property involved is worth more than $2,500. The prosecutor can seek to freeze assets up to the full value involved in the alleged crime to preserve them for potential restitution to the victim.
• Maximum sentences for crimes committed against an elder automatically increase, whether or not the convicted person was aware of the victim's age. The sentence for any crime punishable by up to one year of incarceration increases to a maximum of two years; the sentence for a crime punishable by one to 10 years of incarceration increases by an additional four years; and the sentence for a crime punishable by more than 10 years in prison increases by up to six years.
  
  

Counties last year reported 3,574 potential cases of elder abuse, according to the state's Annual Elder Abuse and Neglect Report. Counties also reported an additional 1,003 cases of neglect by others and 4,896 self-neglect cases.

In the abuse category, there were 2,148 cases or calls about financial abuse, 717 about emotional abuse, 650 about physical abuse, 41 about sexual abuse, 14 about unreasonable confinement or restraint, and four about treatment without consent.

Of all the reports, including those for neglect and self-neglect, more than half – 52.5% – were either unsubstantiated or unable to be substantiated.

In another signing, Evers signed a bill that regulates police use of force. It creates standards for when police can use force, creates a duty to report improper use of force, and creates a duty to intervene or prevent improper use of force.

vers vetoed a bill that would have reduced shared revenue payments to counties and municipalities that reduce police, firefighter, or emergency responder funding or personnel.

By Gretchen Schuldt

​A bipartisan group of lawmakers is asking its colleagues to co-sponsor legislation to fully fund a new $42 million juvenile prison in Milwaukee County to replace the scandal-plagued Lincoln Hills and Copper Lake facilities in Irma.

​The Legislature voted in 2018 to close Lincoln Hills and Copper Lake by July 1 of this year and transfer its residents either to a new Type 1 facility to house serious juvenile offenders, or to secure residential care centers that would be built in different areas of the state.

"That date has come and gone, and we have yet to break ground on the first state Type 1 building," the legislators said in the co-sponsorship memo they are circulating to their colleagues. It was authored by State Reps. ​Michael Schraa (R-Oshkosh), Calvin Callahan (R-Tomahawk), and Evan Goyke (D-Milwaukee), and Senators Van Wanggaard (R-Racine), Mary Felzkowski (R-Irma), and Lena Taylor (D-Milwaukee).

​A court-appointed monitor reported last month that youth at the facilities were growing more frustrated and the staff seemed defeated.

The new state budget includes $4 million for planning, design, and site selection for a new Type 1 facility, but does not include money to build it.

"In the four years since the passage of 2017 Act 185, the environment at Lincoln Hills and Copper Lake has remained unstable," the legislators wrote. "The pandemic only exacerbated the difficulties there, with programming pauses and staff turnover contributing to an explosion of violent activity in 2020."

A petition of no confidence against facility administrators by union employees showed that staff injuries were up 4,700% in the first six months of the year from the last six months of 2020. In addition, youth/staff battery was up 117%, sexual misconduct was up 75%, and use-of-force incidences were up 58%, the memo said.

"It is far past time for this facility to close," the memo said. "The Legislature must do its part and approve the funding for the new Type 1 correctional facility, for the sake of the employees who work there, and the youth that have been placed in the care of the state. It is our duty." 

By Gretchen Schuldt

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

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

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

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

Wisconsin's expungement law is stricter than other states' laws. Currently, a person who wants to have a criminal conviction expunged from their Wisconsin record must ask the judge at the time of sentencing, before the judge has any idea how that person does in prison or on supervision. The law also limits the availability of expungement to those less than 25 years old at the time of the crime and to those who do not have a felony conviction record. The offense for which expungement is requested must not be a violent felony and must not carry a penalty greater than six years in prison.

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

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

Under the bill, once an expunction petition is filed, a judge would review it and either grant or deny it. If denied, a new petition could not be filed for two years. 

The bill also would limit a person to one expunction.

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

By Gretchen Schuldt

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

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

Under Senate Bill 17:

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

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

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

By Gretchen Schuldt

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

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

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

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

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

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

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

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

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

By Gretchen Schuldt

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

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

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

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

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

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

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

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

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

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

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

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

Updated 4/15/2021

By Gretchen Schuldt

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

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

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

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

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

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

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

By Gretchen Schuldt

​The State Legislature has authorized pay raises for lawyers in the State Public Defender's Office that will allow them to regain parity with their counterparts in prosecutors' offices.

The bill will allow SPD to give merit pay increases of more than 10% for fiscal 2021-22. It now awaits Gov. Tony Evers' signature.

The public defender raises will be funded with money already in the SPD budget – partly with money saved because so many people are quitting the agency and partly with money saved due to the drop in caseload during the coronavirus pandemic.

"While these cases are likely to come back at some point, that does not seem likely in the next few months," State Public Defender Kelli Thompson told the Senate Judiciary and Public Safety Committee. "In using these savings now, we have the opportunity to fix this disparity without appropriating new funds."

Some 78 staff members have left the office since March 2020,  she said.

"Continuing to visit clients and their families in person, going to jails, and in-person court proceedings and the added workload that has been associated with the pandemic has added significant pressure that has increased turnover," Thompson said.

The pay of assistant state public defenders and assistant district attorneys are usually linked, but that link got broken during 2019-2021 budget deliberations – assistant district attorneys got raises, but assistant state public defenders did not. A bill to restore pay period was introduced in the last legislative session, but died when the session ended.

​"Throughout the pandemic, SPD attorneys have been working; their offices have remained open and staffed," said State Rep. Amy Loudenbeck (R-Clinton) and State. Sen. Jerry Petrowski (R-Marathon), authors of the bill, which received bipartisan support. "The global pandemic has not paused the Constitutional rights of poor and indigent clients, which means that SPD attorneys have continued to appear in court, visit clients in custody, and provide professional representation."

When staff members leave, their cases must be reassigned, Thompson said. It takes time to get a new attorney up to speed, she said.

"This impact can have ­significant ripple effects but in smaller more rural counties it can be that much more pronounced," she said.

Thompson said there also here has also been a drop during the pandemic in the number of private bar attorneys willing to accept SPD appointments to represent indigent clients. Private lawyers are appointed to cases that SPD can't take due to issues such as workloads or conflicts of interest.

The state last year increased the amount it pays private lawyers to $70 per hour, up from the previous rate of $40, which was the lowest in the nation.

​The new $70 amount, however, judging from SPD emails seeking private lawyers to take cases, has not been altogether successful in ensuring that defendants get timely representation.

One defendant with three cases pending in Langlade and Forest counties has been waiting for a lawyer for five months, according to an SPD email this week; Langlade County was seeking private lawyers for eight other defendants as well. SPD also recently was looking for lawyers for nine Sheboygan County Circuit Court defendants, 10 Fond du Lac County defendants, and defendants in several other counties as well.

"The need to retain staff at this time is even more critical to ensuring that the rights of defendants, particularly those being held in custody during a pandemic, are protected and that the criminal justice system is not brought to a standstill by lack of counsel," Thompson said.

The State Bar, Americans for Prosperity, the Association of State Prosecutors, and the Wisconsin District Attorneys Association also supported the bill.

Here's a rundown on justice-related bills and issues in the Legislature this week.

An amendment by David Steffen (R-Green Bay) that would have prohibited the Department of Health Services from providing the COVID vaccine to incarcerated folks less than 60 years old until at least 21 days after the SARS-CoV-2 vaccine is available to the general public was not included in the final version of AB5 adopted by the Assembly Thursday.
 
HOWEVER: ​SB8, which would prohibit people incarcerated in state prisons from being given priority in COVID vaccine priority in the state’s allocation, is still out there.

Below are summaries of some new bills introduced. The summaries are not complete so if something catches your eye, you might want to check out the full Legislative Reference Bureau analysis printed at the top of the actual bill and check out the full bill itself.

HARSHER PENALTIES – When 40 years is not enough

SB17 – This is a long one. It's all about extra penalties if crimes involve victims who are 60 or older. These summaries are lifted right from the Legislative Reference Bureau except for the penalty explanations.

SEXUAL ASSAULT OF AN ELDER PERSON Under this bill, any act of sexual misconduct that is currently a second degree sexual assault is a first degree sexual assault if the victim is 60 years of age or older. Under current law, if a person engages in any of the specified acts of sexual misconduct, he or she is guilty of a Class C felony (fine of up to $100,000, or imprisonment of up to 40 years, or both). Under the bill, he or she is guilty of a Class B felony (60 years in prison) if the victim is 60 years of age or older, whether or not he or she knew the victim's age.

PHYSICAL ABUSE OF AN ELDER PERSON This bill creates the crime of physical abuse of an elder person that is modeled after the current law prohibition of physical abuse of a child. Under the bill, an elder person is anyone who is 60 years of age or older, and a person may be prosecuted irrespective of whether he or she knew the age of the crime victim. Under the bill, the penalties range from a Class C felony for intentionally causing great bodily harm to a Class I felony for recklessly causing bodily harm. (Details in the bill.)

FREEZING OF ASSETS This bill creates a procedure for a court to freeze or seize assets from a defendant who has been charged with a financial exploitation crime when the victim is an elder person. Under the bill, if a person is charged with a financial exploitation crime, the crime involves property valued at more than $2,500, and the crime victim is at least 60 years old, a prosecuting attorney may file a petition with the court to freeze the funds, assets, or property of the person in an amount up to 100 percent of the alleged value of property involved in the person's pending criminal proceeding for purposes of preserving the property for future payment of restitution to the crime victim.

INCREASED PENALTIES This bill creates a scheme that allows a term of imprisonment that is imposed for a criminal conviction to be increased in length if the crime victim was an elder person. Under the bill, a maximum term of imprisonment of one year or less may be increased to not more than two years; a maximum term of imprisonment of more than one year but not more than ten years may be increased by not more than four years; and a maximum term of imprisonment of more than ten years may be increased by not more than six years. Under the bill, the term of imprisonment may be lengthened irrespective of whether the defendant knew the age of the crime victim.

RESTRAINING ORDERS FOR AN ELDER PERSON This bill allows an elder person who is seeking a domestic violence, individual-at-risk, or harassment restraining order to appear in a court hearing by telephone or live audiovisual means. Under the bill, an elder person is anyone who is 60 years old or older. Under current law, a person seeking a domestic violence, individual-at-risk, or harassment restraining order must appear in person in the courtroom at a hearing to obtain a restraining order.