Public Defender's Office proposes $4.1 million in savings through changes in charging, revocations

By Gretchen Schuldt

​The state could save about $4.1 million in public defender costs over two years by changing the way some criminal cases and non-criminal community supervision revocations are handled, according to budget documents.

The proposed changes also would free up law enforcement and judicial resources to concentrate on more serious cases, according the proposal submitted by the State Public Defender's Office.

The agency's overall two-year budget request is $233.6 million, up $14.8 million, or 6.8%, from its previous budget of $218.8 million, according to budget documents.

Indigent defendants in criminal cases qualify for SPD representation, but are not entitled to that representation in non-criminal cases, such as forfeiture cases. Those cases often are handled in local municipal courts.

Allowing more cannabis possession cases to be handled as local forfeiture violations instead of criminal offenses could save about $595,000 per year, the agency estimated. Currently, state law allows possession of marijuana to be handled as a local ordinance violation. Second-offense possession of marijuana can be charged as a felony in Wisconsin.

The Public Defender's Office is recommending the state allow first and second offenses of simple possession to be pursued as forfeiture violations and that third offense possession be considered a misdemeanor. The office has made similar recommendations in the past.

"In FY20, the SPD represented clients in 6,304 related to possession of drugs," the Public Defender's Office wrote in a budget document. The savings would be realized if a third of those cases were converted to forfeiture violations.
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The state would save even more by offering an alternative to prosecution in first-offense misdemeanor disorderly conduct cases, SPD said in its budget document.

"Before issuing a criminal charge under this misdemeanor statute, the district attorney
would be required to offer the alleged first offender the opportunity to either 1) complete
a diversion program by satisfying all conditions of the program, including restitution
when applicable; or 2) pay a forfeiture under a stipulated finding of guilt of a noncriminal
ordinance violation," SPD wrote. 

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Diverting first-offense disorderly conduct cases could save more than $1 million per year; allowing more cannabis cases to be handled as ordinance offenses could save the about $600,000 per year.

The offers would be made to people who had not been convicted of a previous felony or of a similar offense in the previous three years.

Most defendants who receive the alternative-to-prosecution offer would take it, SPD predicted. 

Most of the proposed eligible cases now, as misdemeanors, "do not result in jail time; they
are ultimately dismissed (on the prosecutor’s motion or following an acquittal at trial),
reduced to a conforming ordinance, or addressed with one or more alternatives to
incarceration," SPD wrote. 

About half the agency's 7,546 cases could have been diverted if the proposal were in effect during the last fiscal year, saving $1.1 million, the agency said.

The agency also proposed:

• Eliminating revocation of community supervision (such as probation or extended supervision) for non-criminal rules violations and imposing non-custodial sanctions instead. "We estimate that approximately one-third of the SPD’s 6,271 revocation cases could have been diverted if this proposed provision had been in effect" saving about $808,000 during fiscal 2020.
• Eliminating the felony bail jumping charge and allowing misdemeanor penalties no matter the underlying charge. Currently, people charged with a felony who violate the conditions of their bond face felony bail-jumping charges, while those out on bail for a misdemeanor who violate their conditions face misdemeanor bail jumping charges. "While the proposed change "is not likely to have a significant impact specifically for SPD as these individuals were already receiving representation prior to the bail jumping charge being added, it will have significant impacts for prosecutors, the courts, jails, and prisons," SPD said. A small savings of about $157,000 annually might be realized., the agency said.