By Gretchen Schuldt
Penalties for crimes against anyone at least 60 years old – "an elder" – would increase dramatically under a bill approved by the Legislature and now awaiting action by Gov. Evers.
The bill was approved despite the absence of any information about its financial impact.
Under Senate Bill 17:
Several organizations supported the bill, including AARP, the Alzheimer's Association, the Greater Wisconsin Agency on Aging Resources, the Outagamie County Board, and the State Bar. No organization registered against it.
"Senate Bill 17 helps to discourage bad actors from engaging in the abuse and exploitation of older Wisconsinites by increasing criminal penalties for related crimes and makes it easier for victims to file restraining orders," State Rep. John J. Macco (R-Ledgeview) said in testimony supporting the bill. "Additionally, this bill streamlines court processes to freeze assets of a defendant, making it more likely for victims to receive financial restitution."
By Gretchen Schuldt
A bill in the State Senate that would greatly expand phone and audiovisual proceedings in criminal cases must preserve a defendant's right to reject such e-hearings in favor of "critical in-person hearings," WJI President Craig Johnson told a Senate Committee.
"Without preserving this 'opt-out' right for defendants (in criminal cases), video hearings likely will become more and more common, thus creating a culture in which defendants as well as witnesses and counsel will be expected to appear, as they have for much of the last year, via 'Zoom' and other remote technology for important fact-finding hearings," he told the Judiciary and Public Safety Committee in testimony submitted for a public hearing.
Senate Bill 219 would allow "any criminal proceeding" to be conducted over the phone or by audiovisual means "unless good cause to the contrary is shown." Currently, the law limits the proceedings that can be conducted electronically.
There are many defendants who face challenges with technology, Johnson said.
"An elderly person or someone with cognitive limitations may not understand how to use a smart phone or computer," he said. "Someone who is poor or lives in an area without good internet or wireless service may have trouble with this technology. If a person prefers to appear in person, in a courtroom, with their lawyer, before a judge, and see and hear the proceedings, including witnesses, LIVE, they should have the opportunity and right to do so."
Low-income and rural households may have limited access to the Internet or slower speeds, he said.
"We have seen this reflected in concerns about equal access to online education during the last year of this pandemic," Johnson said. "Increasing reliance on video conferencing in court proceedings can exacerbate this digital divide."
The Wisconsin Supreme Court, in State v. Soto, discussed the problems that could arise with video proceedings, Johnson said.
"The opinion notes that the physical presence in a courtroom provides a setting that emphasizes the solemnity and gravity of the proceeding," he said. "The physical courtroom setting also effectively displays the power and importance of the state, as personified by the circuit court judge."
By Gretchen Schuldt
A bill pending in the state Legislature that would allow "elder" victims and witnesses to provide early testify in criminal cases is unnecessary and provides undue benefits to prosecutors, WJI told a Legislative committee last week.
The bill, Assembly Bill 43, would allow witnesses and alleged victims at least 60 years old to give their testimony in criminal court cases ahead of the trial and possibly over the phone. The measure already has been approved by the state Senate as Senate Bill 18.
"Although we very much sympathize with complainants in criminal cases who are older, this bill duplicates a process that already addresses many of the concerns that exist in these situations," WJI President Craig Johnson said in testimony to the Assembly Judiciary Committee.
State law allows a witnesses' testimony to be taken provided through deposition if it appears the person will not be able to appear at trial. The law gives judges the power to reject deposition requests.
The law also allows either side to request deposition testimony. AB43, however, would allow only the prosecution to request early testimony and does not require a reason for the request. The judge would be required to hold a hearing within 60 days to take the testimony.
Johnson said the bill would create a speedy trial right for alleged victims and witnesses. That, he said, "could adversely impact a defendant's ability to prepare a defense. In so doing, it can create grounds for costly appeals which would drag out cases longer than under current law. This is the exact opposite result from what appears to be intended."
The bill does not say what happens if the judge fails to meet the 60-day deadline, Johnson wrote.
"What if the defendant does not have a lawyer representing him or her?" he asked. "What happens if the defense lawyer has been on the case for just a few days or a week and has not been given adequate time to prepare? What if a defense investigator has not finished work on the case? Again, these are issues that can result in lengthy and costly appeals."
The bill also could violate a defendant's constitutional right to confrontation because it would allow alleged victims and witnesses to testify by phone or by audivisual means, rather than face-to-face, "live" in a courtroom, he said.
"Finally," Johnson said, "the bill says that the elder's testimony 'shall be admissible in evidence against the defendant in any court proceeding in the case.' It does not make mandatory admissibility of the testimony on behalf of the defendant if it is exculpatory."
Other groups offered testimony in favor of the bill. The Alzheimer's Association, for example, said it has "witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a
victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify in the case."
The Greater Wisconsin Agency on Aging Resources, Inc., the Elder Law and Special Needs Section of the State Bar of Wisconsin, and AARP Wisconsin also supported the bill.
By Gretchen Schuldt
A bill introduced in the Legislature last week has the potential to criminalize possession of home-brewing equipment used for anything other than wine-making.
The bill, AB250, also would prohibit anyone with a felony record from getting a retail license to sell tobacco or cigarettes, though it does not explain the why the prohibition is needed or even helpful.
On the home-brewing front, the bill "generally prohibits a person from possessing a still or other apparatus for manufacturing, rectifying, distilling, refining, or purifying intoxicating liquor other than wine," according to the Legislative Reference Bureau. (Emphasis added.)
Violations would be punishable by up to nine months in jail and a $10,000 fine.
The bill does not prohibit brewing beer at home, but prohibits possessing the apparatus that could also be used for liquor-making. Think carboys and airlocks. The bill also would outlaw possession of stills not used to make alcohol. Collectors may have them, and stills are used to distill other, non-alcoholic products such as water, oils and perfumes.
The bill also carries a presumption of guilt. It says that mere possession of the equipment "is prima facie evidence of possession for the purpose of manufacturing, rectifying, distilling, refining, or purifying of intoxicating liquor other than wine."
Yes, there are exceptions to the proposed law. "The prohibition does not apply to a person that holds an intoxicating liquor manufacturer's or rectifier's permit from DOR or that has registered the still or a distilled spirits plant under federal law."
By Gretchen Schuldt
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.
By Gretchen Schuldt
The criminal record expunction effort that came oh, so, close to approval in the State Legislature last session is back for another try and one of its chief backers, State Rep. Evan Goyke (D-Milwaukee), said there is reason for optimism.
"A lot of our effort during the last two years was education," Goyke said. When legislators first considered the idea of giving those convicted of crimes a second chance, "their initial position was cautious and negative," he said.
More people are more knowledgeable about and less opposed to the bill, he said. There also is new leadership and possible new rules in the Senate, which may help as well, he said.
The revived bill again has bipartisan support. Other key backers of the measure include State Rep. David Steffen (R-Green Bay), State Sen. Alberta Darling (R-River Hills) and State Sen. Kelda Roys (D-Madison). The four have signed on to a co-sponsorship memo being circulated among other legislators.
An expunction bill last year came within three senators of passage, but bill supporters could not corral those votes.
Under current law, a person who wants to have a criminal conviction expunged from their record must ask the judge at the time of sentencing, before a 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 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.
The bipartisan bill being proposed would change the law in several ways. It would remove the discriminatory age limit of 25 and would allow the people convicted of crimes to request expungement when they complete their sentences.
"The decision of whether or not to expunge a record should be based on merit and how an individual rehabilitated themselves, rather than an age," the four legislators said in the memo. "Wisconsin is one of only four states to have an age limit. This bill removes the age limit in order to focus on individuals that have successfully completed their sentence and have not reoffended."
Other limits, including the types of crimes eligible for expunction, would remain in place.
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 bill also makes clear what it means to successfully complete a sentence. That would include completing community services, paying all fines, fees, restitution, and completing any community supervision without revocation, according to the co-sponsorship memo.
The bill has strong support among some conservatives. Americans for Prosperity, for example, "have really made this one of their priorities," Goyke said.
"We are inching our coalition bigger," he said.
The bill started in the Assembly last year; this time around, it will go to the Senate first, he said.
By Gretchen Schuldt
The federal government's drug battle goes on.
From pushing new technology that differentiates legal hemp from increasingly legal marijuana to funding opioid treatment, the government is spending billions in an effort to control the use and supply of illegal drugs in the country. If the War on Drugs has been lost, the federal government hasn't surrendered.
There is a piece of good news. The bill prohibits the Justice Department from using its resources to prevent Wisconsin and other states "from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana."
In a move just a step or six behind the times, the new appropriation bill directs the U.S. Drug Enforcement Administration to make available to state and local law enforcement kits that can distinguish between hemp and marijuana so marijuana busts are easier for police agencies.
Marijuana is legal in 35 states.
Hemp, in general, is cannabis without the high. In Wisconsin, legal hemp must contain less than 0.3% of THC, the active ingredient in marijuana. Marijuana and hemp smell the same and look similar, leading to confusion and errors in arrests and prosecutions.
The appropriations measure, better known as the "Coronavirus Relief Bill," tells the DEA to work to "ensure state and local law enforcement have access to this field test technology so they can more efficiently conduct their drug interdiction efforts at the local level," according to a congressional summary.
The bill also directs the agency to make periodic reports to congressional committees on DEA's success in sharing the technology.
An earlier post on justice-related programs funded through the bill is here.
The bill also includes:
By Gretchen Schuldt
The coronavirus relief bill signed by President Trump last month was the fifth longest bill in the history of the United States, according to govtrack.us. The bill actually deals with a lot more than the COVID crisis and $600 stimulus checks.
It funds the government for the next fiscal year, including the Department of Justice and all of its many arms and related agencies; federal courts, the Department of Homeland Security, and a host of justice-related entities.
Below are some highlights from the Department of Justice's general administration section. The information and quotes are taken from the House Rules Committee Joint Explanatory Statements. We'll be posting more information over the next few weeks.
Proposed federal rule could keep full child support obligations running for some incarcerated people
By Gretchen Schuldt
The federal Children and Families Administration is proposing to make it easier for states to keep full child support obligations in place while some debtor parents are incarcerated, likely leading to increased debt when they are released.
The change would apply to those incarcerated as a result of not paying child support or those who committed a crime in which the victim was a dependent child of the offender or receiving child support from that person.
The proposal would allow states to levy the larger obligations even if doing so risks increasing the risk of debt or even recidivism for affected incarcerated people, according to CFA.
Under current rules, child support payment amounts can be adjusted if a parent experiences a major change in circumstances. For example, a parent who is severely injured and is unable to work likely would qualify for reduced child support payments, while a person who wins a $1 million lottery might have to pay more in child support.
Voluntarily leaving a job is not considered a major change, meaning that a parent who simply quits a job likely would not qualify for lower child support obligations.
Federal regulations now flatly prohibit states from considering incarceration to be voluntary unemployment. The rule is designed to reflect an incarcerated person's actual ability to pay and to prevent accumulation of child support arrears.
The proposed rule would allow states the option of imposing full child support obligations on incarcerated who meet the either of the two child-related criteria.
"Some states, based on moral and societal values of justice and fairness, may reasonably determine that persons found guilty of intentional nonsupport, or who show a disregard for the well-being of the custodial parent or child by abusing them, should not benefit from those acts by having their child support obligation suspended or reduced while incarcerated for those crimes – even if that policy risks accumulation of arrears, child support debt, and recidivism," CFA said in its public notice of the proposed change.
CFA is accepting comments on the proposed rule through Nov. 16, 2020. You can make a comment here.
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