Legislation that would lock up lots more people and cost hundreds of millions of dollars to implement is headed to the governor's desk. Please contact Gov. Tony Evers and ask him to veto the "Tougher on Crime" package.
His contact info:
E-mail: EversInfo@wisconsin.gov or use the contact form here
Governor Tony Evers
115 East, State Capitol
Madison WI 53702
The ACLU of Wisconsin put together a nice summary of the bills, which is below.
AB805: Costly, Cruel, and Excessive
● What it does: AB 805 would require the Department of Corrections (DOC) to recommend revocation of probation or community supervision for merely being charged with – not necessarily convicted of – a crime, which means an individual may be sent back to prison with only a finding of “probable cause,” rather than “beyond a reasonable doubt.” The bill is unnecessary and excessive, since making such a recommendation is already an option for agents if they think the charge merits revocation. Revocations already make up the largest source of new prison admissions, with more than 3,000 revocations per year during the past several years.
● What it costs: According to the Department of Corrections’ fiscal analysis of the bill, AB805 would result in 4,672 additional people being incarcerated in state prisons at a cost of more than $156 million annually, resulting in the need to construct two new state prisons. AB 805 would also burden local taxpayers with increased jail costs, because the people held under it will be housed at local county jails at local expense.
AB 806: More Children in Cages, Not Communities
● What it does: AB 806 broadens the criteria for the Serious Juvenile Offender program – the kind of program most states have eliminated. AB 806 would result in sending more children to the troubled, failing and expensive Lincoln Hills and Copper Lake facilities which the Legislature has already voted to close – or to new, costly, unnecessary prisons. We know that incarcerating more children will not help the youth nor will it make our communities safer. Instead, widespread research and the practice of most states shows that youth outcomes improve and community safety increases when they are provided services close to their home communities and in the most family-like settings possible.
● What it costs: While DOC was not able to estimate the total fiscal impact of the bill, it costs nearly $200,000 a year to incarcerate a child in a juvenile correctional facility.
AB 808: Removing Local Control & Decision making from prosecutors
● What it does: AB 808 makes it more difficult to reduce charges in designated cases – which will only add to the state’s current prison overcrowding crisis.
● What it costs: Fiscal notes are indeterminate for the bill, but lengthening sentences will result in increasing the number of people incarcerated in Wisconsin.
AB 809: Limiting Opportunities for Rehabilitative Programs
● What it does: AB 809 prohibits early release on parole or probation for people with a broader range of felonies – even if those people have completed programming or have extraordinary health conditions. It is not sensible to keep people locked up simply because their original conviction was one of these felonies. Older people pose fewer disciplinary problems during their incarceration and reoffend at lower rates upon release. The programming offered through earned release helps people to change their behaviors before they leave prison, which makes our communities safer.
● What they cost: According to the DOC’s fiscal analysis, the cost is indeterminate for the bill, but as of June 2019, 13,912 people were eligible for the current program. Under this bill, 3,800 people would no longer be eligible for programming. By prohibiting early release for a broader range of people, this legislation will serve to exacerbate mass incarceration and cause more people to languish behind bars without appropriate treatment and programming.
AB 853: Mandatory Minimums and Incarcerating Youth
What it does: AB 853 increases penalties for a range of vehicle-related offenses and imposes harsh mandatory minimum sentences against children who commit them. The legislation requires that a person under the age of 18 found to have taken part in the theft of a vehicle, or merely for just knowingly riding in one, must serve at least 30 days in juvenile detention.
Incarceration is a deeply traumatic experience for people of all ages, but especially for youth. States across the country have made significant changes to their juvenile justice systems, dramatically reducing levels of imprisonment while shifting toward a rehabilitation-centered model. AB 853 would make Wisconsin even more of an outlier, further criminalizing and harming youth who are in need of real treatment.
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By Gretchen Schuldt
A Milwaukee police officer repeatedly denied under oath stepping or standing on Milwaukee Buck Sterling Brown's leg after Brown was tased in a Walgreen's parking lot, even though a video clearly shows the officer did so.
"He was kicking at the time. I put my foot against his leg to prevent him from kicking anymore," Officer James Collins said. "I did not step on his leg. I did not stomp on his leg."
The start of the video shows that Brown moved his legs but did not kick in the moments before Collins stepped on him.
Brown was confronted by several Milwaukee police officers after he parked illegally in a handicapped parking space at a Walgreens parking lot about 2 a.m. Jan. 26, 2018. He was tased, taken to the ground, handcuffed, and arrested.
He has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, has filed several deposition excerpts. WJI is printing excerpts of some of them.
Read previous posts, with transcripts, about Officers Joseph J. Grams and Bojan Samardzic and Sgt. Jeffrey Krueger. The full transcript of Collins' deposition is here.
The City of Milwaukee and other defendants in the suit have denied Brown's allegations.
After the incident, the officers involved, including Collins, were ordered to take remedial training that included showing video of and critiquing officers' conduct during the event,
Collins acknowledged that he was told during the training that his action was inappropriate.
"They (officers in charge of the training) said it was inappropriate, yes. They did not say I was standing -- I don't believe they used the terminology "standing," but I was informed that I was blocking. I was not standing on his leg," he testified.
"They told you specifically it was inappropriate," said Thomsen, Brown's lawyer.
Thomsen: It was an unreasonable use of force. Correct?
Thomsen: And you've just told me under oath that your standing on Mr. Brown's leg was not reasonable. Correct?
Collins: I was not standing on his leg.
Thomsen: Your -- whatever you want to say....
Collins: I was blocking his foot with my foot.
Thomsen: And it was not reasonable use of force. Correct?
Collins: That's what I was told, yes.
Thomsen: I want to know, do you believe it?
Collins: I don't believe it, no....I did not stand on his leg. I was blocking his leg with my foot.
The topic came up again later.
Thomsen: So why do you think you got two days off for calling Mr. Brown a douchebag but you didn't get any time off for actually having your foot on his leg?
Collins: My foot was blocking his foot. It was not on his foot. You keep implying that I was stepping on it. I was not stepping on his foot. I was not stepping on his leg.
Thomsen: Do you agree based on the training that you received that because Mr. Brown was not allowed to leave, his constitutional rights were violated?
Collins: Knowing that it was just a parking citation, yes.
The Milwaukee Police Department is keeping from the public part of its proposed standard operating procedures on policing public demonstrations.
There are significant redactions to the proposed SOP forwarded to the Fire and Police Commission by Police Chief Alfonso Morales.
The Police Department is gearing up to handle demonstrations and protests during the Democratic National Convention here next summer. The proposed SOP would give the police wide authority to curb demonstrations.
Want to see what you're missing? Click here for the full proposal.
The Fire and Police Commission's Polices and Standards Committee will consider the proposed operating procedure at its meeting Feb. 20 at 5:30 p.m. at Milwaukee City Hall.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench who still are serving. We also are chronicling "Evers' judges." The information presented is taken from the appointees' own judgeship applications.
Name: Daniel Kelly
Appointed to: Wisconsin Supreme Court
Appointment date: July 22, 2016 (primary election Feb. 18, 2020)
Law School – Regent University, Virginia Beach, VA
Undergraduate – Carroll College, Waukesha
High School – Arvada West High School, Arvada, CO
2014-appointment – Owner, Rogahn Kelly LLC
2013-2014 – Vice president and general counsel, Kern Family Foundation
1998-2013 – Shareholder, Reinhart Boerner Van Deuren
Wisconsin State Bar
Virginia State Bar
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Primarily complex commercial litigation over previous 18 years. Served as head of appellate practice at Reinhart. Handled criminal cases early in career and served as Milwaukee County special assistant district attorney under Reinhart's auspices. Worked on administrative cases almost exclusively befor the Government Accountability Board or its predecessor, the State Elections Board.
I have also had the opportunity, from time to time, to litigate constitutional issues. I have represented individuals and the government in First Amendment, Due Process, Equal Protection, and Takings Clause cases.
In addition, I have developed a practice in campaign finance and election law. In that segment, I represent and counsel candidates, office-holders, and campaign contributors. Some of the topics include campaign contributions, reporting obligations, redistricting, and recounts.
Number of cases tried to verdict or judgment: Jury, about 20; non-jury, about 10; arbitration, 0; administrative bodies, 5.
Cases on appeal: 23
Three most significant cases:
AKG Real Estate, LLC v. Kosterman – The Kostermans owned an easement over property AKG wanted to develop into a subdivision. The Kostermans refused an alternative route AKG offered. AKG sued, and the State Court of Appeals sided with AKG, ruling that the benefits to Kosterman were far outweighed by the costs imposed to the parties.
The Wisconsin Supreme Court’s AKG decision reversing the Court of Appeals was outstanding. Bad opinions are immediately identifiable for their departure from the judiciary’s proper role. Good opinions, on the other hand, are notable mostly for the fact that they break no new ground; and when it is necessary to do so, they create as few waves as possible. They reflect only judicial authority, they follow precedent, they do not sweep broadly. Instead, they go only as far as necessary to resolve the conflict at hand.
The Wisconsin Supreme Court recognized that the judiciary ought not second-guess an owner’s decision to keep his property rights. “Even at the risk of sanctioning unneighborly and economically unproductive behavior, this court must safeguard property rights.” The opinion embodying that decision restored precedent, went no further than necessary to return property rights to their proper place, reached the result required by law, and did all this in an elegant and tightly reasoned manner.
It was my honor to represent the Kostermans in the appellate process as lead counsel.
Baldus v. Brennan – (A 2011 lawsuit challenging the gerrymandered redistricting maps designed by Republicans in the Legislature.)
As lead outside counsel, I (in conjunction with the rest of the team) conducted a successful multiple-day trial in which the 3-judge panel affirmed all Congressional districts as written, and all State districts but for two adjoining assembly districts on the south side of Milwaukee (AD 8 and AD 9). The court approved the outer boundaries of the two districts, and simply adjusted the line dividing the two.
Redistricting is a quintessentially political activity, the conduct of which belongs to the political branches of government. This case represented an attempt to replace the judgment of the political branches with the judgment of the judiciary. The panel rejected the overture, and instead affirmed the Legislature's work with the minor exception noted above.
The Wisconsin Justice Initiative will continue to challenge Marsy’s Law in court and oppose its adoption by voters, WJI President Craig Johnson said Friday.
“It’s a bad proposal that carries consequences its supporters don’t really want to talk about,” Johnson said after Dane County Circuit Judge Frank Remington declined to issue a temporary injunction that would block the proposed constitutional amendment from the April 7 ballot.
"Voters really shouldn't have to vote in the dark, and that's the problem with the question and the way it's worded," Johnson said. “The ballot question simply does not tell voters what they are actually approving.”
Besides WJI, plaintiffs in the suit include Johnson, who is a lawyer; attorney and WJI Treasurer Jacqueline Boynton; attorney Jerome Buting; and State Sen. Fred Risser (D-Madison).
Dennis Grzezinski, attorney for the plaintiffs, argued in court that the language on the ballot would mislead voters and does not accurately or adequately explain what is in the amendment.
Oral argument about the proposed ballot question largely focused on Remington’s concerns about alleged direct misrepresentations in specific language of the ballot question.
Supporters of the Marsy’s Law amendment contend it would give victims an even playing field in the criminal justice system.
Grzezinski argued in court that while the ballot question says the amendment merely gives victims’ protections “equal force” to those of an accused, the actual amendment allows a victim’s rights to exceed the rights of a defendant, and the ballot question tells voters that an accused’s rights remain intact, when the amendment actually strips rights from persons accused but not yet charged.
Remington grilled counsel for the defendants on whether the language used in the ballot question adequately reflects the language in the amendment.
In briefing, WJI and the individual plaintiffs also argued that the amendment misleads voters through errors of omission, in particular the failure to inform the public that the amendment greatly expands who is considered to be a crime victim (extending rights to roommates and live-in help in certain instances) and amends an accused’s protections under other provisions of the Wisconsin Constitution. Remington indicated that the parties’ briefs sufficiently discussed those matters.
In denying the motion for temporary injunction, Remington noted that WJI’s case involves “novel questions . . . not fully developed in the caselaw.” While noting that plaintiffs’ arguments regarding direct misrepresentations in the ballot question gave him pause, Remington found that plaintiffs would not suffer an irreparable harm if the ballot question goes forward that would outweigh the irreparable harm to the state if the ballot question was enjoined.
Remington pointed to language in an order of the Wisconsin Supreme Court in SEIU v. Vos (the lame-duck litigation) last summer stating that the Legislature “suffers a substantial and irreparable harm of the first magnitude” when its work is enjoined. Further, Remington said, a temporary injunction is not necessary, as any vote approving the amendment may be invalidated through a permanent injunction later.
Attorneys for the state agreed to withdraw their motion to dismiss. Remington set full briefing on the merits of the case to occur over the summer, with a motion hearing on August 13.
Grzezinski said after the hearing that the plaintiffs won't need further arguments “if the voters become sufficiently educated to decide that they don’t want to vote for the things that are in the amendment, despite what the question says.”
The Milwaukee Fire and Police Commission on Thursday approved two independent investigations - one into the leak of confidential information about a police investigation and one into whether it was appropriate for the police to have conducted the interview at the Sojourner Family Peace Center.
The leaked information included a video of the questioning by police of Kalan Haywood Sr., who was accompanied by Commission Chairman Steven DeVougas, a lawyer. Haywood was interviewed as part of an investigation into an alleged sexual assault. He was not charged.
The police union has said DeVougas violated ethics guidelines by accompanying Haywood during the police interview.
On Thursday, DeVougas said he had voluntarily asked the city's Ethics Board for an advisory opinion on whether he had violated any ethics rules.
Commissioner Raymond Robakowski suggested that it would be appropriate to place DeVougas on "administrative leave" pending the outcome of the Ethics Board probe; DeVougas rejected that idea. The matter was not on the agenda for action and was dropped.
Just how the two investigations will be accomplished remains to be seen. Robakowski suggested the State Department of Justice be asked to do it, and Commissioner Everett Cocroft floated the possibility of a Milwaukee County Sheriff's Department investigation. Both DOJ and the Sheriff's Department, however, have strong ties to the Police Department and could be seen as biased, a perception that Robakowski said he did not want.
Funding for the investigations also is an issue. It's not clear where the money for the work will come from. Some commissioners said the Common Council should provide the resources.
Updated Feb. 12, 2020 to include link to Daniel Kelly's "Walker's judges" profile.
State Supreme Court candidate Jill Karofsky said she wants to defend the rights of all Wisconsin residents against right-wing efforts to roll them back; candidate Ed Fallone said he wants to bring a different type of experience and background to the Court, and incumbent Justice Daniel Kelly said nothing at all.
Fallone has been a law professor at Marquette University Law School since 1997. He has worked in private practice and has served in numerous community organizations. He received his law degree from Boston University and has served in different capacities in numerous community organizations. His full resume is here.
Karofsky has been a Dane County Circuit Court since 2017. Before that, she served as executive director of the State Department of Justice's Office of Crime Victim Services. She received her law degree from the University of Wisconsin Law School. She also has extensive community involvement. Her full resume is here.
The challengers will face off against Kelly in the Feb. 18 primary, and the top two vote getters will advance to the April 7 general election.
WJI asked each of the three candidates to answer a series of questions. Karofsky and Fallone responded; Kelly, appointed to his seat in 2016 by former Gov. Scott Walker, did not.
(WJI, though, on Feb. 12 posted information about Kelly in our "Walker's judges" series, which is based on candidates' judicial job applications. Kelly's profile is here.)
The questionnaire was patterned after job applications used by Gov. Tony Evers and Walker when they are considering judicial appointments.
The answers here are as the candidates submitted them.
By Gretchen Schuldt
A proposal to require law enforcement to impound any vehicle operated by a person without a valid driver's license would cost the state and local governments up to $50 million a year if the proposal becomes law, according to the State Department of Transportation.
The cost estimate assumes costs of $28.9 million for 258.4 new employees to handle the work involved and $21.2 million in towing and vehicle storage costs that law enforcement agencies would not be able to recover.
In addition, the law proposed by State Sen. David Craig (R - Big Bend) and State Rep. Joe Sanfelippo (R-New Berlin) could leave car owners scrambling to retrieve from the impound lot their vehicles that were stolen and driven by the unlicensed thieves.
"It appears that the owner of the (stolen) vehicle would be responsible for paying the fees to get their own vehicle back," DOT said in a fiscal estimate.
Craig is the lead sponsor in the Senate; Sanfelippo is the lead in the Assembly. Senate co-sponsors are Stephen Nass (R-Whitewater), Andre Jacque (R-DePere), and Howard Marklein (R-Spring Green). Assembly co-sponsors include Scott Allen (R-Waukesha), Barbara Dittrich (R-Oconomowoc), Rick Gundrum (R-Slinger), Cody Horlacher (R-Muskego), Terry Katsma (R-Oostburg), Daniel Knodl (R-Germantown), Mike Kuglitsch (R-New Berlin), Gae Magnafici (R-Dresser), David Murphy (R-Greenville), John Spiros (R-Marshfield), Ken Skowronski (R-Franklin), Paul Tittl (R-Manitowoc), Ron Tusler (R-Harrison), and Chuck Wichgers (R-Muskego).
The Craig/Sanfelippo bill would, with few exceptions, require that a car operated by a driver without a valid license "be immediately impounded." The requirement would apply in cases of driving on a suspended license, driving after revocation, and driving without a license.
"It appears that the owner of the (stolen) vehicle would be responsible for paying the fees to get their own vehicle back." – Wisconsin Department of Transportation
A person could get a car back at the end of an impound period by paying the fine or forfeiture for the license violation and any impound fees. A vehicle could not be released, however, unless it was properly registered and the person to whom it was registered showed proof of insurance and a valid operator's license.
The State Patrol, which issued 11,292 citations last year for driving without a valid license, doesn't have any impound lots and would have to get some, the DOT said.
"It is estimated that it could cost roughly $500,000 to establish each lot when factoring in the costs to obtain real estate, paving, fencing and the necessary security measures," the agency said. The estimate does not say how many impound lots the state would need.
By Gretchen Schuldt
(We'll be coming back to this forum in later posts.)
State Supreme Court Justice Daniel Kelly on Thursday accused challenger Jill Karofsky of "disgusting slander" before insisting that Karofsky apologize to Chief Justice Patience Roggensack, who hadn't been mentioned by anyone until Kelly brought her up.
Marquette University Law Professor Ed Fallone, the third candidate vying for a 10-year term on the court, remained removed from the back-and-forth.
"There may be people around the state of Wisconsin who are happy to see our Supreme Court elections descend to this level," Fallone said. "If there are, I've never met them."
The Karofsky-Kelly battle occurred during a Supreme Court candidate forum sponsored by the Milwaukee Bar Association and WJI. Karofsky went after Kelly hard, saying he catered to right wing special interests.
Near the end of the forum she said, "I just want to respond to Justice Kelly, saying I don't have any examples of him always finding (for) the right-wing special interest, and that's not true. The Koschkee case is a prime example. The lame-duck case is an example where the Supreme Court couldn't even wait to get their hands on that case to make a ruling."
In Koschkee, a 2019 decision, the Supreme Court ruled the governor had the right to reject rules proposed by the State Department of Public Instruction. The ruling reversed the court's 2016 decision on the same issue.
The "lame duck" reference is to the Supreme Court's 2019 decision to uphold laws passed by the Republican-dominated Legislature to strip newly elected Democratic leaders, including Gov. Tony Evers and Attorney General Josh Kaul, of powers their predecessors enjoyed.
"They plucked it from the circuit court before the circuit court could even hold a hearing on it," said Karofsky, a Dane County circuit judge, "and they did it in the budget veto case again, and no one is going to be surprised by how Justice Kelly rules on those cases. They pulled them from the circuit court so that they could make the decision that they want to make as soon as they possibly could."
Kelly responded sharply, and then pulled Roggensack into it.
"I think we really do have to take Judge Karofsky to task for this disgusting slander, not just on me, but on my colleagues as well," he said.
"This is about your personal advancement and you don't care who you are going to lie about," Kelly said. "But that's really not even the worst of it."
Since he and Roggensack often agree, he said, Karofsky must be referring with her criticism to the chief justice as well.
"And that is an outrageous slander on someone who has been a paragon of integrity for the entirety of her career and the practice of law and her service on the bench," he said.
"Now you owe me an apology for this disgusting slander," he said. "I don't think I'll get one. Because if you didn't have slander, you wouldn't have a campaign. But you do owe Chief Justice Roggensack an apology. She's not here. She's not been part of this campaign. And she did not ask to be slandered by some careless trial judge who can't even be bothered to keep her insults focused on the target. So this is your opportunity. Apologize to Chief Justice Roggensack right now."
"I'm not going to be bullied by you," Karofsky responded.
Karofsky, Kelly said, "does not have the judgment or the character to get anywhere near the Supreme Court."
Forum moderator Steve Walters gave Karofsky a chance to respond.
The comments she made reflect "what the voters, the people in the state of Wisconsin, are seeing," she said. "They are seeing decisions made on the Supreme Court before anyone ever walks into the state Supreme Court chamber. That isn't what justice is."
Justice, she said, "is when a judge looks at the law and the judge allows the facts to percolate in a trial court, where I sit, so that witnesses can answer questions so that there can be a fair hearing, so that there is a process that is followed that everyone can see. That is what justice is. And then after that, the law is applied to the facts of the case and that's how you reach the right answer. That is what people in the state of Wisconsin are asking for and that is what they deserve."
By Gretchen Schuldt
The State Assembly's Criminal Justice and Public Safety Committee will hold an announced-at-the-last-minute public hearing on a package of partisan "tougher on crime bills" Thursday in the State Capitol.
The hearing is scheduled for 9 a.m. in room 412 East.
If you support criminal justice reform, chances are you will not like these Republican proposals. WJI opposes them.
The bill numbers, links to their text, and short summaries of what the legislation would do are below. The summaries are taken from Legislative Reference Bureau information and from the relevant bill's language. Each one will carry a fiscal cost, but the estimates are not yet available.
Please contact your legislator and join the fight for a reasonable criminal justice system. Find out who your state representatives are by going here and clicking on the "Who are My Legislators?" button.
The members of the criminal justice committee are listed here.
Assembly Bill 758 – Under this bill, a person in a facility to await a commitment trial as a sexually violent person is guilty of a Class H felony if he or she commits battery against an officer, employee, agent, visitor, or other resident of the facility. Class H felonies are punishable by up to six years in prison and / or a $10 000 fine.
Assembly Bill 802 – This bill would allow a judge, when determining when videoconferencing can be used in court, to consider the safety of the witness or the risk that the witness may be unavailable to testify if videoconferencing is not used
Assembly Bill 803 – The allowable use of deposition testimony in court instead of live testimony would be expanded under this bill. Deposition testimony would be acceptable if it appears that the witness is "at risk" of being intimidated and thus may not fully cooperate at trial. It also would be allowed if a judge finds that a witness "may have been" intimidated.
Assembly Bill 804 – This bill would increase the penalty for intimidating the victim or alleged victim of domestic abuse from a maximum of nine months incarceration and / or a $10,000 fine to a maximum of 10 years in prison and / or a $25,000 fine.
Help WJI advocate for justice in Wisconsin