It's a wrap, part 2

The Wisconsin State Capitol. Photograph by Margo Kirchner.

By Alexandria Staubach

We continue our summary of justice-related bills and those with significant potential to impact the rights of marginalized populations in Wisconsin.
 
Consistent with part 1 of this post, these are bills passed in the final weeks of the last substantive legislative of this term. Limited legislation will be produced until January 2027.
 
At the end you’ll find bills that have passed in the Assembly and could still be taken up by the Senate when it convenes for a “limited-business” session in March.
 
Six new laws create crimes or increase penalties for criminal conduct despite a failure (thus far) to pass legislation that could help ease the burden on an already stretched criminal justice system, even as Wisconsin creeps closer to record-breaking incarceration and overcrowding in its prisons.
 
As of Feb. 20, the Wisconsin DOC in-custody population was 23,461, while prison population data shows that the system is designed to house 17,822 individuals.  Nearly every adult institution continues to operate above capacity.
 
Of specific note, Waupun Correctional Institution, a facility that has been the subject of federal investigation and several indictments over employee conduct and prisoner deaths since June 2023, is operating above capacity. It was previously the only maximum security institution operating below capacity but crossed that threshold in late January 2026, adding 46 new individuals to its population in the last 24 days.
 
The summaries below come directly from descriptions of the bills written by the Legislative Reference Bureaus. Italics are additions by Wisconsin Justice Initiative, except as to SB 431.
 
New crimes and increased penalties
 
AB 677 Creating a crime of grooming a child for sexual activity
Under current law, child enticement is a Class D felony. Child enticement is the act of causing or attempting to cause a child to go into any vehicle, building, room, or secluded place for various sexual purposes, including sexual contact or sexual intercourse; prostitution; to expose a person’s genitals, pubic area, or intimate parts to the child or to cause the child to expose his or her genitals, pubic area, or intimate parts; or to record the child engaging in sexually explicit conduct.
This bill creates a crime of grooming a child for sexual activity. Under this bill, no person may engage in a course of conduct, pattern of behavior, or series of acts with the intention to condition, seduce, solicit, lure, or entice a child for the purpose of engaging in sexual intercourse or sexual contact or for the purpose of producing, distributing, or possessing depictions of the child engaged in sexually explicit conduct. The bill provides examples of a course of conduct, pattern of behavior, or series of acts that could constitute grooming, including verbal comments, suggestions, or conversations of a sexual nature directed toward a child; inappropriate or sexualized physical contact; written, electronic, or digital communications to seduce, solicit, lure, or entice a child; and isolating a child. A person who is convicted of the crime of grooming a child for sexual activity is guilty of a Class G felony, except that, if the person is in a position of trust or authority over the child, the classification increases to a Class F felony; if the child has a disability known to the person, the classification increases to a Class E felony; and if the violation involves two or more children, the classification increases to a Class D felony. Additionally, the person is subject to consequences for committing a child sex offense such as the requirement to register with the Department of Corrections as a sex offender. The crime does not apply to a person who is 18 or under if it involves a child who is not more than four years younger than the person unless the violation involves force, coercion, or abuse of a position of trust or authority over the child.
 
SB 431 Expansion of permitted discrimination based on arrest record under the Fair Employment Act
This bill changes the circumstances under which an employer or licensing agency may consider pending charges against an individual under the fair employment law when making employment or licensing determinations.
 
Under the current fair employment law, it is generally an unlawful act of employment discrimination for an employer or a licensing agency to refuse to hire, employ, admit, or license any individual; to bar or terminate an individual from employment; or to discriminate against any individual in promotion, in compensation, or in terms, conditions, or privileges of employment or labor organization membership because of the individual’s arrest record. “Arrest record” is generally defined as information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted, or tried for any felony, misdemeanor, or other offense. In Oconomowoc Area School District v. Cota, 2025 WI 11, the Wisconsin Supreme Court ruled that the phrase “other offense” encompasses noncriminal offenses and that, therefore, the prohibition against arrest record discrimination extends to pending charges other than criminal charges. However, under certain exceptions to the foregoing prohibition, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, an individual because the individual is subject to a pending charge if the circumstances of the charge substantially relate to the circumstances of the particular job or the licensed activity.
 
The bill eliminates the requirement, in the exceptions to the prohibition on arrest record discrimination, that the pending charge be a criminal charge.
 
SB 610 Increasing the maximum penalty for certain controlled substance offenses if the violation occurs near a homeless shelter
Current law prohibits a person from delivering or distributing, or possessing with the intent to deliver or distribute, cocaine, cocaine base, fentanyl, a fentanyl analog, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone, or any form of tetrahydrocannabinols. The penalty for violating the prohibition varies by substance and amount, but current law increases the maximum term of imprisonment for violating the prohibition by five years if the violation takes place on or in, or within 1,000 feet of, a park, a jail, a multiunit public housing project, a public swimming pool, a youth or community center, a school or a school bus, or the premises of a treatment facility that provides alcohol and other drug abuse treatment. This bill adds that the maximum term of imprisonment may be increased by five years if the violation takes place on the premises of a homeless shelter or within 1,000 feet of the premises of a homeless shelter.
 
Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.
 
AB 109 Increased penalties for crimes against adults at risk
This bill allows a term of imprisonment that is imposed for a criminal conviction to be increased in length if the crime victim was an adult at risk. Under the bill, a maximum term of imprisonment of one year or less may be increased to two years; a maximum term of imprisonment of one to 10 years may be increased by up to four years; and a maximum term of imprisonment of more than 10 years may be increased by up to six years. Under the bill, the term of imprisonment may be lengthened irrespective of whether the defendant knew that the crime victim was an adult at risk.
 
The bill also increases the severity of crimes for sexual assault of an at-risk adult, permits asset seizure and freezing of a defendant charged with financial exploitation of an “elder person,” and matches the set of penalties that apply to physical abuse of an elder person to those for an adult at risk.
 
AB 89 Retail theft aggregation and providing a penalty  
Under current law, the penalty for the crime of property theft varies by the value of the property taken. The penalty ranges from a Class A misdemeanor if the value of the property is not more than $2,500 to a Class F felony if the value of the property exceeds $100,000. Similarly, the penalty for the crime of retail theft varies by the value of the merchandise or service that is taken. The penalty ranges from a Class A misdemeanor if the value is not more than $500 to a Class G felony if the value exceeds $10,000.
 
This bill specifies that, if, in a six-month period, a defendant commits more than one violation of property theft or more than one violation of retail theft, the value of items taken at each violation may be aggregated and the crimes may be prosecuted as one property theft crime or one retail theft crime. The penalty for the crime would be determined by the aggregated value of the items taken.
 
SB 533 Intentionally disarming a correctional officer
Under current law, a person is guilty of a Class H felony if they intentionally disarm a peace officer by taking from the officer a dangerous weapon or an item such as a tear gas bomb, hand grenade, projectile, shell, or pepper spray. This bill expands the crime so that it applies to intentionally disarming a correctional officer or juvenile correctional officer as well as a peace officer and includes items that the correctional officer requires for their duties, such as keys or radios.
 
Voting and other issues
 
AB 385 Campaign contributions by foreign nationals
For campaign finance purposes, this bill prohibits a political committee, conduit, or political party from accepting any contribution made with a credit card via the Internet unless the contributor provides the credit card verification value or code and the billing address associated with the card is located in the United States. However, if the contribution is made by a U.S. citizen living outside of the United States, and the credit card billing address is not a location in the United States, the individual must provide the mailing address of the location in the United States that the individual uses for voter registration purposes.
 
AB 223 Requirements for persons circulating nomination papers
Under current law, any person may circulate nomination papers for a candidate if the person is eligible to vote in Wisconsin or is a U.S. citizen aged 18 or older who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state. A person is eligible to vote in Wisconsin if he or she is a U.S. citizen aged 18 or older who has resided in an election district in this state for at least 28 consecutive days.
 
Under this bill, a person must be eligible to vote in Wisconsin in order to circulate nomination papers for a candidate. However, under the bill, nomination papers and petitions for the candidacy of candidates for the offices of president and vice president of the United States may continue to be circulated by any person eligible to vote in Wisconsin or by any U.S. citizen aged 18 or older who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state.
 
Similarly, under current law, any person who is eligible to vote in Wisconsin or who is a U.S. citizen aged 18 or older and who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state may circulate a recall petition.
 
Under the bill, a person must be eligible to vote in Wisconsin in order to circulate a recall petition and have the signatures on the petition be counted toward a recall.
 
SB 652 Eliminating race-based higher education program requirements
This bill changes certain race-based programs or requirements in higher education. In general, the bill modifies these programs and requirements so they apply to disadvantaged students rather than minority students. Under the bill, the term “disadvantaged,” with respect to a student, means having experienced any unfavorable economic, familial, geographic, physical, or other personal hardship. The term may be further defined by rule but may not include the consideration of 1) a student’s race, ethnicity, national origin, gender, sexual orientation, or religion or 2) a student’s identity as a member of a group without regard to individual qualities.
 
Impacted programs include: Minnority Teacher Loan Program, Minority Undergraduate Grants, Minority Student Enrollment at Medical College of Wisconsin and Marquette University School of Dentistry, Minority and Disadvantaged Student Programs, Lawton Grants, Minority Student and Participation and Retention Plan, Minority Student Participation and Retention Grants, Incentive Grants.
 
Bills passed by the Assembly that the Senate could take up at their limited-business session
 
AB 514 Criminal justice system expansion
Under current law, Kenosha County has eight circuit court branches, Brown County has eight circuit court branches, and Menominee and Shawano Counties have two circuit court branches. This bill adds four circuit court branches: one in Brown County beginning August 1, 2027, one in Menominee and Shawano Counties beginning August 1, 2027, one in Brown County beginning August 1, 2028, and one in Kenosha County beginning August 1, 2028.
 
This bill provides position authority for many court and criminal justice system employees in the 2027-29 biennium…. The bill requires the director of state courts, the district attorneys, and the public defender board to include a request for funding for the positions authorized under this bill in their 2027-29 biennial budget requests.
 
This bill also requires the director of state courts, the public defender board, and the district attorneys to submit to the legislature by December 31, 2032 a report that analyzes the workload and assesses the personnel needs for their operations.
 
You can read more about this bill here.
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AB 640 Supreme Court of Wisconsin maximum age
Article VII, section 24 (2), of the Wisconsin Constitution authorizes the legislature to set an age, of not less than 70 years, beyond which a supreme court justice or judge of any court of record may not serve, unless the person is appointed on a temporary basis as a reserve judge.
 
Under this bill, no person may be elected or appointed, other than as a temporary reserve judge, to serve as a supreme court justice or judge of a court of record if the date of election or appointment occurs on or after the date the person attains the age of 75 years.
 
AB 856 Modifications to OWI provisions based on Supreme Court of Wisconsin rulings
This bill modifies numerous provisions relating to operating a motor vehicle while intoxicated (OWI) to reflect holdings of the supreme courts of the United States and Wisconsin.
 
Under current law, no person may operate a motor vehicle while under the influence of an intoxicant, with a detectable amount of a restricted controlled substance in their blood, or with a prohibited alcohol concentration. Under current law, any person who operates a motor vehicle on public highways in this state is deemed to have given consent to one or more tests of their breath, blood, or urine, for the purpose of determining the presence or quantity in their blood or breath, of alcohol, controlled substances, controlled substance analogs, or other drugs (commonly known as “implied consent”).
 
Under current law, if a person is involved in a motor vehicle accident that causes substantial bodily harm, great bodily harm, or death and a law enforcement officer detects the presence of alcohol, controlled substances, controlled substance analogs, or other drugs, the person may be requested to provide one or more samples of their blood, breath, or urine for testing. If the person refuses, their operating privilege must be revoked. In State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, the Wisconsin Supreme Court held that probable cause of an OWI violation is a prerequisite to revocation of an operating license for a refusal. The bill modifies provisions consistent with this holding.
 
Under current law, a person who would be requested to provide samples for testing but who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent and one or more samples may be collected (commonly known as the “incapacitated driver provision”). In State v. Prado, 2021 WI 64, 397 Wis. 2d 719, 960 N.W.2d 869, the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional. The bill repeals provisions consistent with this holding.
 
Under current law, there are separate but analogous implied consent and incapacitated driver provisions applicable to all-terrain vehicles (ATVs), utility terrain vehicles (UTVs), boats, and snowmobiles. Pursuant to Prado, these provisions are repealed. In addition, if a person refuses to submit to a test of their breath, blood, or urine related to their operation of an ATV, UTV, boat, or snowmobile, they are subject to a criminal penalty. In Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, the U.S. Supreme Court held that it is unconstitutional to criminalize a refusal to submit to a blood test incident to arrest for an OWI violation. The bill modifies relevant provisions to reflect this holding.
 
The bill also modifies the text of the “informing the accused” form, which a law enforcement officer must read to a person from whom a test sample is requested, in part to reflect changes made by the bill.
 
Bills that have likely failed
 
SB 147 Interpreter action by telephonic or live audio visual means
Under current law, in any civil or criminal proceeding other than a trial, a court may permit an interpreter to act by telephone or live audiovisual means. This bill removes the exclusion for trials, so that an interpreter may act by telephone or live audiovisual means in any civil or criminal proceeding.
 
SB 194 Attorney fees and costs when an authority voluntarily or unilaterally releases a contested record after an action has been filed in court
Currently, if a person requests access to a public record and the agency or officer in state or local government having custody of the record, known as an “authority” under the public records law, withholds or delays granting access to the record or a part of the record, the requester may bring a mandamus action asking a court to order release of the record or part of the record. Current law requires the court to award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any such action.
 
The Wisconsin Supreme Court decided in 2022 that a requester prevails in whole or in substantial part only if the requester obtains a judicially sanctioned change in the parties’ legal relationship, for example, a court order requiring disclosure of a record. See, Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57. Under the supreme court’s decision, a requester generally is not entitled to attorney fees and costs if the authority voluntarily or unilaterally without a court order provides contested records after the requester files an action in court.
 
This bill supersedes the supreme court’s decision in Friends of Frame Park. Under the bill, a requester has prevailed in whole or in substantial part if the requester has obtained relief through any of the following means:
1. A judicial order or an enforceable written agreement or consent decree.
2. The authority’s voluntary or unilateral release of a record if the court determines that the filing of the mandamus action was a substantial factor contributing to that voluntary or unilateral release.
 
This standard is substantially the same as the standard that applies for a requester to obtain attorney fees and costs under the federal Freedom of Information Act.