Revocation proposal returns, more expensive than ever

By Gretchen Schuldt

​A chart showing the sponsors of these two measures is at the bottom of this post.

​SB309/AB310 — Revocation of supervision, expunction

A Republican proposal to strip the presumption of innocence from anyone on community supervision and incarcerate thousands of people has been introduced again, carrying a price tag that dwarfs that of the 2021 version of the bill.

The bill also would tighten rules on expunction.

The new bill, Senate Bill 309/Assembly Bill 310, would require the Department of Corrections to recommend revocation of community supervision of anyone on probation, parole, or extended supervision who is charged with any new crime. Not convicted — just charged. 

Enactment of the bill would permanently add an estimated 4,673 individuals to the prison population, according to Department of Corrections' fiscal estimates for both the 2021 and 2023 bills. The 2023 estimate says the cost of those additional incarcerated individuals would be $209 million per year when the bill's full impact is felt. Those figures are based on a 2022 average annual per-incarcerated-person cost of $44,400. 

The 2021 cost estimate projected increased operational expenditures of $171 million annually when the measure was fully implemented. Those estimates were based on a 2020 per-incarcerated-person cost of $36,200. The 2023 full-implementation operational cost estimate is $38 million, or 22%, higher than the 2021 estimate.

Both the 2021 and 2023 fiscal estimates say the bill would require the construction of two new prisons. The 2021 estimate put the cost of a new 2,000-bed, medium-security prison at $450 million to $550 million; the new fiscal estimate puts the cost at $687 million to $839 million. 

The new high-end construction estimate is $289 million, or 53%, more than the 2021 high-end figure. 

Both bills were based on the same assumptions. DOC estimated in each that there would be an additional 6,280 revocation cases per year and 47% of the recommendations would be ratified by the Department of Administration's Division of Hearings and Appeals, which reviews and decides such cases.

The estimate assumes that each additional revocation would result in 19 months in prison.
 
The Hearings and Appeals Division now affirms about 87% of revocation recommendations and the average time served for those is 39 months. DOC said it is likely that a smaller percentage of revocation recommendations would be affirmed if the agency must try to revoke everyone accused of a crime. DOC said it now uses several factors to determine whether revocation is appropriate. 

The bill also would make expunction harder for some to achieve. Currently, a record is not expunged until a person has completed the court-imposed sentence. A person has not completed a sentence if convicted of a subsequent crime or if probation was revoked and the person has not satisfied all the conditions of probation, according to the Legislative Reference Bureau summary of the bill. Under the proposed measure, a sentence would not be completed if criminal charges are pending against the person or if the person violated any rule or condition of probation or at least a year has not passed since being put on probation.

The ACLU of Wisconsin has registered against the bill. No organization or individual has registered in favor.

SB291/AB300 — Protections for election workers

Battery against an election worker would be a felony punishable by up to 3½ years in prison and a $10,000 fine, under a bill pending in the state Legislature.

"It is true that Wisconsin already has strict criminal laws regarding assault and battery, and some may say that there is no need to specify that it is a crime to commit these acts against an election worker," State Rep. Joy Goeden (R-Hobart) said at a public hearing last month.

She and co-author State Sen. Andre Jacque (R-DePere), however, believe "it is necessary to make this purposeful declaration: if you punch someone it’s a crime and yes, it is the same crime if you punch an election worker who is just doing his or her job," Goeden said. "Don’t do it."

Currently, state law classifies battery as either a misdemeanor or a felony, depending on the harm caused and the identity of the target. In the latter case, for example, battery is a felony if the victim is a public officer and if the battery is designed to influence an official action or in retaliation for such an action, according to the Legislative Reference Bureau. Under the bill, any battery against an election worker of official would be a felony.

The bill also would provide some other protections. It would prohibit public access to personally identifiable information of election workers and officials, except for the names of the city and state where an election worker lives. The bill also would give whistleblower protection to municipal clerks, county clerks, and election officials who witness and report election fraud or irregularities and would prohibit discipline against those workers for reporting what they reasonably believed to be election fraud or irregularities.

While Brown County Clerk Patrick Moynihan Jr. said in testimony before the Assembly Campaigns and Elections Committee that the whistleblower provisions "provide reasonable assurances against any potential unlawful retribution," Protect Democracy Policy Advocate and Counsel Edgar Lin (full disclosure: Lin is a WJI Board member) raised several issues.

The term "lawfully report" section, he said, should have included a process for doing so. The reporting structure is not defined in the bill, nor are deadlines set for reporting or investigating alleged irregularities. 

"What happens if a disgruntled employee weaponizes this protection by making a false or frivolous disclosure?" Lin asked. "Will they be required to pay attorneys fees and costs? Or even damages? What are the remedies if the employer was found liable for retaliatory action against a whistleblower?"

"Without a clear process, a whistleblower event — regardless of merit — could descend into chaotic litigation, which could further undermine the confidence in our election system," he said.

The word "irregularity" also needs to be better defined, he said. 

" 'Irregularities' is too broad without a concrete definition," he said. "It may inadvertently catch benign events that may technically be an irregularity. For example, if the post office takes a small chunk out of an absentee ballot during their handling and without any evidence of actual ballot tampering, should that be counted as an “irregularity”? 

"Instead of 'irregularities' ... the bad act should be grounded by existing laws, rules, regulation, and/or guidance," he said.

The League of Wisconsin Municipalities and the League of Women Voters of Wisconsin have registered in favor of the bill. No organization or person has registered against it.