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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."
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 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
Gov. Tony Evers has pardoned more individuals than any other governor in recent history. He has granted a total of 1,436 pardons, which exceeds the total of the next closest official, Gov. Julis P. Heil (1939-1943), by nearly 500. Evers issued 300 pardons in 2024 alone. Evers’ predecessor, former Gov. Scott Walker, granted zero pardons in his eight-year term and even disbanded the pardon board. Although Evers revived the pardon advisory board, the board is not exactly giving clemency away. For some perspective, in 2018 as many as 1.4 million Wisconsinites had criminal records that may hinder gainful employment, according to the Wisconsin Policy Forum. The pardon advisory board conducts hearings quarterly by Zoom. The board currently has eight members, including Evers’ chief legal counsel, Mel Barnes, who serves as board chair; Attorney General Josh Kaul’s appointee, Judge Jeffrey Kremers; and Cindy O’Donnell. Kremers served as a Milwaukee County Circuit Court judge for 26 years, with seven years as chief judge. O’Donnell served as deputy secretary of the Department of Corrections under Govs. Tommy Thompson, Scott McCallum, and James Doyle. Other board members include Anthony Cooper, Sr., head of an organization working to address violent crime, who served time in prison and was pardoned by Evers in 2021; Rev. Jerry Hancock, a former public defender who now works in prison ministry; Nadya Pérez-Reyes, a former public defender now serving as deputy secretary of the Wisconsin Department of Children and Families; Myrna Warrington, director of vocational rehabilitation on the Menominee reservation; and former City of Madison Police Chief Noble Wray. However, at last week’s board hearing Barnes was joined by only Kremers and O’Donnell. The hearing covered 26 pardon petitions. One individual seeking a pardon, Tommy Kirk, Jr., who was originally fifth in line for his hearing, sat through three hours of proceedings because Kremers recused himself from hearing Kirk’s case. Without Kremers, the board lacked a sufficient number of members to hear Kirk. The board kept Kirk on the line waiting for another member to appear, but no one else showed up. Kirk eventually had to return to work. Before leaving, he made his case without a sufficient number of board members present to vote on his pardon application. For many petitioners this was their first application, but some had applications denied previously. A majority of board members must vote in favor of a petitioner for a recommendation to go the governor. Anyone who committed a felony in Wisconsin more than five years ago, has completed all confinement and supervision, has no pending criminal cases in any jurisdiction, and is not currently required to register as a sex offender is eligible for a pardon. But while the technical requirements to receive a pardon are minimal, the governor also requires those seeking a pardon to fill out an 11-page application, which asks about all law enforcement contact, ever, and requires applicants to rehash their crimes “in detail” and explain why the pardon should be granted. Applicants must also pay to obtain certified copies of all court records and authorize the state to do a background check. Letters of recommendation from people who can attest to an individual’s changed ways are given heavy weight. Comments and questions from board members at last week’s hearing suggest that significantly more than mere eligibility is expected, and that near model behavior is required. “For me, pardon is an extraordinary measure,” said O’Donnell to more than one petitioner. Benjamin Zimmer described in detail at the hearing how he purchased one ounce of marijuana at house party in 2012. Zimmer described having to quit nursing school but completing his probation and 100 hours of community service on time and a lack of further encounters with law enforcement in the 13 years since. He listed a host of subsequent accomplishments, from owning his own contracting business to becoming a leading volunteer in his community. According to a letter described by O’Donnell at the hearing, Zimmer even had the support of the judge who originally sentenced him. Nevertheless, Zimmer has been denied previously. Zimmer wasn’t the only individual seeking a pardon for old marijuana crimes. Christopher Teed also described buying one ounce of marijuana at a house party when he was 17—a crime followed by probation revocation and two years in prison. By Alexandria Staubach Gov. Tony Evers has been busy considering bills from the Legislature, tackling 51 bills on Dec. 6 alone. In what WJI sees as a win for the criminal justice system, Evers vetoed Senate Bill 86/Assembly Bill 57, which would have erased prosecutorial discretion to dismiss or amend certain charges without prior authorization from the court and prohibited deferred-prosecution sentences for crimes. WJI opposed the bill’s lack of clear procedure for dismissal authorization and its prohibition of deferred prosecutions in appropriate cases. Those outcomes would have increased burdens on the criminal justice system without providing appropriate resources to deal with the fallout. Voting and criminal justice legislation signed into law by Evers included the following: Assembly Bill 335 (Wisconsin Act 52) Specifies that if a candidate is convicted of certain election crimes, a court must order dissolution of the candidate’s committee and return of unencumbered campaign funds; also requires the court to appoint a new treasurer for the committee to carry this out. Senate Bill 283 (Wisconsin Act 53) Provides that if a municipality, county, or commission chooses to broadcast canvassing proceedings live in any election, including live stream or on the internet, the same entity must record the broadcast; the recording must be retained for 22 months. Senate Bill 433 (Wisconsin Act 54) Modifies current law so the requirement that presidential primary absentee ballots be sent at least 47 days in advance of the election applies only to military and overseas voters; all other voters will be sent the presidential primary absentee ballot at least 21 days in advance. Assembly Bill 36 (Wisconsin Act 58) Creates a six-month time limit for the state crime laboratories to process sexual assault kits and an expedited 60-day timeline under certain circumstances. Assembly Bill 166 (Wisconsin Act 61) Expands the definition of “sexual contact” to include instruction by a victim to touch bodily fluids with the purpose to degrade or humiliate the victim sexually or arouse or gratify the perpetrator for purposes of crimes against children and sexual assault.  By Gretchen Schuldt Lawyers in the State Public Defender's office would get pay raises, as would private bar attorneys who agree to represent indigent clients, under Gov. Evers' proposed 2023-25 budget. The agency, though, would lose 63 federally funded attorney positions while gaining 50 support staff jobs. The total number of full-time positions would drop by 13 over the biennium, from 682.85 this fiscal year to 669.85 in 2025. It would also put additional pressure on lawyers already struggling with high caseloads. Evers' budget would increase the starting pay for assistant state public defenders from $26.70 per hour to $35, the same amount he proposed for assistant district attorneys. Wisconsin's pay is well below that of many other states, including those of Montana ($36.96 per hour), South Dakota ($39.59), Texas ($40.87) and Oregon ($43.60) according to the agency's budget request. SPD has had difficulty in recruiting and retaining staff attorneys, according to the request. "Despite a significant increase in the number of attorney positions posted for recruitment, there has been a decrease in the number of individual applications," the agency said. SPD turnover  Source of both charts: SPD budget request SPD attorney applications  The pay for private lawyers who agree to represent SPD clients when staff lawyers have conflicts or workload issues would increase from $70 per hour to $100 per hour and $50 per hour for travel, under Evers' budget. SPD requested a rate of $125 per hour for in-court work, $100 for out-of-court work, and $50 for travel. The travel rate is now $25 per hour. "The current $70 per hour rate has been cited by private bar attorneys as one of the main factors in their decisions to not accept SPD case appointments," SPD said in its budget request. Counties pay at least $100 per hour when judges appoint lawyers, SPD said, giving counties a competitive advantage when seeking lawyers to take cases. "The number of attorneys who have actively taken public defender appointments has declined significantly during the pandemic, from 940 attorneys certified in January 2019 to only 772 attorneys in August 2022, a 17.9% decrease," SPD said. There now are about 770 lawyers on the appointments list, but 13% did not take any cases in fiscal 2022 and 39% took fewer than 26. "The average number of contacts statewide that it takes to appoint a private bar attorney is just over 123. In some counties, it can be more than 200, with the outliers taking more than 1,000 contacts to appoint a single case," the agency said. "There is not a county or jurisdiction in the state that has not felt these effects." It is not clear that $100 an hour will be enough to attract attorneys to take the appointments. Clio, a legal practices management firm, said in its Legal Trends Report in 2021 that the average billing rate for Wisconsin lawyers of any type is $248, and nationally the average hourly rate for criminal defense lawyers is $181, the request said. Evers refused SPD's request for $687,000 for additional expert witness expenses, even though those costs have risen 311% since 2010. He instead said the agency should reallocate funds from other areas. SPD expert witness costs  Source: SPD budget request He also recommended reallocating funds to cover the $402,000 in new funding SPD requested for increased costs related to transcripts, copying, discovery, and interpreters. The requested increase was the amount of the shortfall in that budget in fiscal 2022. SPD transcript, interpreter, and discovery costs  Source: SPD budget request Evers again proposed legalizing marijuana, as he has in the past. He also proposed "requiring a diversion and restitution alternative for certain misdemeanor offenses" but did not identify what those were. SPD proposed a diversion program for disorderly conduct offenses if the defendant has not been convicted of a felony and has not been convicted of a similar offense in the past three years.
SPD handled 4,896 disorderly conduct cases in fiscal 2022, it said in its budget request. Under its proposal, about half of those could have been diverted, saving taxpayers $1.3 million. Overall, under Evers' proposal, the SPD budget would increase from $114.7 million this year to $137 million in fiscal 2025, an increase of $22.3 million, or 19.4%. Four new circuit court branches would be opened by August, costing the state $1.1 million in fiscal 2024 and $1.2 million the following year, under Gov. Evers' proposed 2023-25 state budget. Establishing the branches would comply with 2019 Act 184, which allows the director of state courts to select the counties that will get the new branches. Evers also included $840,800 over the two years to fund additional, undefined costs associated with the new courts.  Eight new state employees would staff the branches. Other employees, such as deputy court clerks, are hired at county expense.
Other items included in Evers' proposed courts budget include:
Overall, the circuit court budget, under the proposal, would increase from $116 million this fiscal year, to $118.1 million in fiscal 2024, an increase of $2.1 million, or 1.8%. It would drop to $117.2 million in 2025, a decline of 0.7% from the 2024 amount and a 1% increase from this year's budget. Evers' court proposal includes policy items proposed in other agency budgets. WJI will include them in the discussion of those budgets. The minimum pay rate for assistant and deputy district attorneys would increase from $27.24 per hour to $35 per hour under Gov. Tony Evers' proposed state budget.
Minimum annual salaries would increase from $56,659 to $72,800. The proposed increase is designed to "increase retention of experienced counsel," according to Evers' budget. The raises would cost about $7 million for each year of the biennium. Evers also is recommending one-step pay increases for assistant and deputy DAs in fiscal 2025, costing a total of $1.7 million, and increasing the pay of elected district attorneys in 2025 at a cost of $854,000. District attorney pay varies on county size. In Milwaukee County, the pay is $145,288. For Wisconsin's smallest counties, the pay is $106,288. The total number of positions would increase from 544.9 this year to 586.7 in fiscal 2024 before dropping to 546.7 in 2025. The overall budget would increase from $61.3 million in fiscal 2023 to $74.4 million in fiscal 2025, and increase of $13.1 million, or 21%. The Wisconsin Justice Initiative is calling on Gov. Tony Evers to eliminate several court fees and surcharges or redirect them to support the underfunded state court system.
The state’s $6.6 billion surplus presents the perfect opportunity to ease court-imposed financial burdens on litigants, WJI President Craig Johnson said in a letter to Evers. “It’s time for the state to step up and fund its court system,” Johnson said. “It should not place the burden on poor people, and it should not demand payment for purposes unrelated to the specific case at issue. At the very least, money collected through the courts should be used to adequately fund the courts. It should not be just another source of money for unrelated purposes.” The governor also should include in his 2023-2025 state budget proposal funding for municipal courts to provide language interpretation services and a mandate that they do so, Johnson said. Interpretation services are not required for most municipal court cases, meaning that defendants can be found guilty of offenses and fined without understanding the charges against them or what is discussed in court. Failure to pay the forfeitures can lead to a jail sentence. Johnson listed several steps Evers should take to erase or redirect court fees and surcharges. They include:
Tables of court fees and surcharges are here.  The governor should provide federal ARPA funding to help the State Public Defender's office meet the demand for lawyers to defend indigent defendants in criminal cases, WJI told Gov. Evers in a letter Thursday. The agency has not been able to recruit enough private bar attorneys to represent defendants who cannot afford their own lawyers. The lack of private lawyers willing to take on cases is a perennial problem, but it has reached the crisis stage during the COVID pandemic as courts shut down and cases backed up in the system. Counties around the state are trying to hire the same lawyers for different cases. "WJI urges you to use available ARPA (American Rescue Plan Act) money to temporarily increase funding available for private bar attorneys who accept SPD appointments. While state law sets the $70 hourly rate, you can offer designated grants to counties or private agencies to supplement the statutory rate until court backlogs are cleared," WJI Executive Director Gretchen Schuldt said in the letter.  Evers: Hasn't acted WJI proposed the private bar attorneys receive $150 per hour until the state court backlogs are cleared. Private bar lawyers now are paid $70 per hour. Lawyers who do similar work in Federal Court are paid $155 per hour.
"WJI is aware that money is not the only reason private bar lawyers are not accepting SPD cases. A significant, time-limited increase in the hourly rate will, however, encourage some additional lawyers to take additional SPD cases," Schuldt said. "It will also, significantly, help determine how big an issue pay is in attracting private bar attorneys to indigent defense work." COVID shut down many courts throughout the state, she said. "Indigent defendants sat and are still sitting in jail for much, much longer than they would under normal circumstances," Schuldt wrote. "This upends the presumption of innocence and is simply wrong. In addition, studies show that lengthy pre-trial incarceration is a major factor in compelling defendants to plead guilty, even when that is not in their best interest." "During the pandemic, many judges routinely waived speedy trial deadlines," she said. "This practice raises serious constitutional questions that have not been resolved. Trial delays should not be made longer because the state failed to act to protect defendants’ constitutional rights. The state has an obligation to do everything in its power to ensure that justice is administered fairly, competently, and in a timely manner. To stand by and do nothing while the court system drowns in caseloads is manifestly unjust." 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.  |
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