Marijuana possession cases would be decriminalized so that first and second offenders would face forfeitures for violating ordinances instead of possible jail or prison time, under a recommendation from the State Public Defender's office.
The change would save the office money, since Indigent defendants who face forfeiture penalties -- and not incarceration -- are not entitled to court-appointed attorneys.
The office also is recommending the state eliminate the charge of felony bail jumping and give pay raises to private bar lawyers appointed to represent indigent defendants.
Demoting possession of marijuana from its criminal status could save the State Public Defender (SPD) almost $500,000 per year, according to an issue paper the submitted last week with the agency's budget request.
Currently, simple possession is a misdemeanor for the first offense under state law, punishable by up to six months in jail and a $1,000 fine. It is a felony for the second and subsequent offenses, punishable by up to three and a half years in prison and a $10,000 fine. The public defender is recommending that prosecutors charge the first two offenses as forfeitures and the third offense as a misdemeanor.
Some municipalities, such as Milwaukee, already have marijuana-possession ordinances on the books. Findings of guilt for those offenses do not result in criminal records.
Many marijuana possession cases originally charged as crimes already end up as forfeitures, rather than criminal convictions, through routine plea negotiations, the public defender’s office said.
In fiscal year 2016, which ended June 30, “the SPD represented clients in almost 8,442 related to possession of drugs,” the SPD said. “If these cases would not have qualified for representation due to the suggested reclassification to ordinances, then the SPD would have saved $455,312.”
The office also is recommending the state do away with the felony bail-jumping charge, which is issued when someone already charged with a felony violates terms of his or her bond. Under the public defender’s recommendation, bail jumping would become a misdemeanor, whether or not the underlying charge is a felony.
Misdemeanor bail jumping can bring a maximum of 9 months in jail and a $10,000 fine; felony bail jumping carries maximum penalties of six years in prison and a $10,000 fine.
If the 8,147 felony bail jumping cases the public defender's office handled in FY16 were charged as misdemeanors, the office could have saved about $770,000, the agency said in budget documents. The calculation is based on the difference in the cost difference between an average felony and average misdemeanor case.
In recommending a private bar pay increase, the public defender’s office said the existing $40 per hour rate has been in place since 1995, when it was reduced from $50 per hour. (Travel time is $25 per hour.) Forty bucks an hour now is “now unreasonably below market rate,” the SPD said. A 2013 Wisconsin State Bar study found that the median hourly rate for a criminal law private practicioner is $145.
The office is recommending private lawyers be paid $45 to $60 per hour, depending on the case. The raise would cost a total of $7.6 million in FY19, when it would take effect.
The SPD "is experiencing difficulty in making appointments to the private bar, especially in sexual assault cases, which has consequences for the justice system," the office said in another issue paper. "Many offices serving counties outside of Milwaukee and Dane must routinely appoint attorneys from other counties, increasing travel time and mileage expenses.
The buying power of $40 in 1995 is the equivalent of $25.20 in 2014, the paper said.
There are about 1,200 lawyer on the list to take appointments, but in 2015, 13% did not accept a single case and 31% took fewer than 26, the SPD said.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
Sign up for the free WJI newsletter.
Help WJI advocate for justice in Wisconsin