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Wisconsin bills would require judge’s OK before prosecutors could drop certain charges

Law enforcement groups support the bill, while the ACLU cites concerns about people being over-charged

Two black desk chairs are positioned by a table in a courtroom.
Chairs remain empty before a hearing begins on Wednesday, Feb. 2, 2023, at the Dodge County courthouse in Juneau, Wis. Angela Major/WPR

Legislation advancing in Wisconsin could make it harder for prosecutors to drop charges in certain types of cases.

A state Senate committee heard testimony Tuesday on Senate Bill 86, which would require prosecutors to get approval from a judge or court commissioner if they wanted to dismiss or amend charges in seven types of cases.

The bill would also prohibit deferred prosection agreements in those categories of cases. That’s when an offender agrees to certain conditions, like drug testing, attending therapy or completing community service, in exchange for the charges against them being reduced or dismissed.

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The restrictions would apply to the following list of alleged crimes:

  • Domestic abuse or a violating a domestic abuse temporary restraining order or injunction
  • Automobile theft
  • A crime of abuse by an individual at risk or a violation of an individual-at-risk temporary restraining order or injunction
  • First-degree, second-degree or third-degree sexual assault
  • A crime against a child
  • Illegal possession of a firearm if the person has been convicted of, adjudicated delinquent for, or found not guilty by reason of mental disease committing or attempting to commit a violent felony
  • Reckless driving that results in great bodily harm

Backers of the legislation say it will provide a check on district attorneys and ensure that people are held accountable for serious crimes. An identical version of the bill cleared Wisconsin’s Assembly this spring, with Republicans voting in favor and Democrats voting against.

“It is incredibly frustrating to be arresting the same individuals, even sometimes just hours after previous arrest, and what has become a revolving door of criminality,” said Mukwonago state Rep. Nik Rettinger, a Republican co-author of the legislation. “You must get more serious about these types of crimes before they escalate to the level of a tragedy.”

But state Rep. Lena Taylor, D-Milwaukee, worries the added approval requirements would worsen court backlogs.

“I also am very concerned as a lawyer by profession for our court system that is highly overburdened,” she said. “This is going to be a whole other layer of cases that have to be reviewed.”

If judges or court commissioners do approve dismissals of or amendments to any charges, the legislation would also require court officials to submit annual reports to the state Legislature.

Law enforcement groups, including the Wisconsin Chiefs of Police Association and the Milwaukee Police Association, have registered in support of the bills. But the American Civil Liberties Union of Wisconsin opposes the legislation, citing concerns that the proposal would lead to “over-criminalization.”

“There are so many different reasons why a charge might be dismissed or amended, including someone being innocent, or there isn’t enough evidence in order for the charge to remain and, in all of those circumstances, it would require all of these extra steps in order for a court to allow a charge to be dismissed or amended,” she said. “There are so many collateral consequences to having a criminal record, making it really difficult to find employment, to find housing, to get access to education.”

The Wisconsin District Attorneys Association, which represents county prosecutors across the state of Wisconsin, has not registered to lobby either for or against the bill.

“We certainly appreciate the Legislature looking to continue to improve public safety, but judges already have the discretion to reject plea agreements and dismissals in any type of case,” said WDAA President Eric Toney, citing a 2010 Wisconsin Supreme Court decision that affirmed a judge’s authority to reject plea agreements.

Toney serves as Fond Du Lac County’s elected district attorney and is a former Republican candidate for Wisconsin attorney general.

Mark Richards, a longtime defense attorney in Racine County, called the proposal a “useless, meaningless law.”

“I look at it as another way of making things more difficult to move cases along,” he said. “Prosecutors don’t just dismiss cases because it’s fun and easy. They dismiss cases when they can’t prove something. … It’s just another layer of bureaucracy imposed upon the courts.”

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