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.
Gov. Tony Evers can free incarcerated men and women without the assistance of the State Legislature. He has simply chosen not to do it.
The Legislative Reference Bureau made that perfectly clear in March, when it released a report entitled, "Emergency Release of Prisoners Due to COVID-19."
Here is what is said about Evers' powers. The added emphasis is ours.
The governor’s authority to release inmates from state correctional facilities derives from both the Wisconsin Constitution and the Wisconsin Statutes.
Constitutional powers of clemency. Article V, section 6, of the Wisconsin Constitution provides the governor with the power to grant clemency to individuals who have been convicted of a crime except in cases of treason or impeachment, subject to certain statutory limitations. This clemency can take one of three forms: a reprieve, a commutation, or a pardon. A reprieve is a temporary delay of punishment, in which case a prisoner could be released and punishment delayed for some period before being reinstated. A commutation is a reduction in punishment and could take the form of shortening a prison term and releasing an offender early. Finally, a pardon is an official act of forgiveness for a crime after the sentence has been completed that restores certain civil rights, but does not erase the record of the crime.
The governor’s use of this authority is wholly discretionary. For example, Governor Scott Walker did not grant clemency in any form during his two terms as governor. Governor Evers has reinstated a pardons board to handle clemency applications. The governor has set criteria for obtaining clemency such that only pardons are available; reprieves and commutations are not currently included in the administration’s application criteria. Rather, a person must have completed his or her sentence at least five years before applying. Under the current policy of the Evers administration, any clemency application by a person who has not completed his or her sentence will be denied. Thus, while the Wisconsin Constitution provides that the governor may use his or her clemency power to shorten prison terms and release inmates, the current administration’s policy suggests that this is unlikely....
The entire LRB document is here.
Help WJI advocate for justice in Wisconsin