Tag: Wisconsin

Wisconsin joins crowd of states regulating occupational licensure

On April 16, Wisconsin Governor Scott Walker signed into law Act 278, making his state the sixth in the past two months to establish new rules on consideration of criminal record in the context of occupational and professional licensure.  Effective August 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges, and required to justify in writing any adverse action based on conviction.  Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying. Indiana, Arizona, Massachusetts, Nebraska and Tennessee have all recently enacted laws regulating how licensing boards treat arrests and convictions, in some cases with strikingly similar features, as described in recent posts here and here.  The conviction-related provisions of the model occupational licensing law proposed by the Institute for Justice are reflected in almost all of these new laws, though many of them go even farther to discourage unwarranted discrimination affecting as much as 25% of the U.S. workforce.      Act 278 puts new teeth into the provisions of Wisconsin’s Fair Employment Act that relate to occupational and professional licensing through a new subsection titled “Discrimination in Licensing.”  See Wisc. Stat. § 111.335 (4).  A licensing agency will be required, before denying or terminating a license based on a prior conviction, to state its reasons in writing, including “a statement of how the circumstances of the offense relate to the particular licensed activity.”  An agency must also provide individuals with an opportunity to show evidence of rehabilitation and fitness to engage in the licensed activity.  Moreover, “[i]f the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity . . . . the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction.”  In addition to any evidence of rehabilitation adduced by the applicant, agencies are directed to take into account the nature and seriousness of the offense, any “mitigating circumstances or social conditions surrounding the commission of the offense,” the age of the individual at the time the offense was committed and the time elapsed since, and letters of reference by persons who have been in contact with the individual since. Negligent hiring protections are included for any firm that hired a licensee approved pursuant to an agency determination of rehabilitation.  See Wis. Stat. § 452.139. Act 278 tightens provisions of current law that permit denial of licensure based on a pending criminal charge, or based on a juvenile adjudication, if the offense conduct is “substantially related” to the licensed activity, by adding a proviso that the substantial relationship standard will be met in this context only if the charge or adjudication involved a “crime against life and bodily security” or a crime “against children.” Like most of the other recently enacted occupational licensing laws, Act 278 requires agencies to make it possible for individuals to obtain a preliminary determination as to whether they would be disqualified from obtaining a license due to a prior conviction, a determination that is binding on the agency in connection with a formal application. A fee may be charged to cover the cost of processing. This provision comes straight from the model occupational licensing law proposed by the Institute for Justice, discussed in our post of April 18. Finally, each licensing agency must also publish on its Internet site a document indicating the offenses or kinds of offenses that may result in denial or termination of a license. The provisions of Wisconsin’s Fair Employment Act are further elaborated in the Wisconsin profile from the Restoration of Rights Project.   Read more

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

Divided Wisconsin Supreme Court declines to extend Padilla to other serious consequences

Last month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts. [1. Ed. Note: State high courts have reached differing conclusions about the scope of the Padilla holding under the federal Constitution. The Illinois Supreme Court held in People v. Hughes that failure to warn about the possibility of civil commitment was sufficient to invalidate a plea. The Utah Supreme Court reached a contrary conclusion in State v. Trotter.] The defendant, seeking to withdraw his guilty plea to a charge of first-degree sexual assault of a child, relied on a claim that his trial attorney had failed to advise him of the potential for a chapter 980 commitment following his term of incarceration. He further alleged that had he been informed of that possibility, he would not have pleaded guilty. The defense relied heavily on Padilla v. Kentucky, in which the U.S. Supreme Court found that Padilla’s attorney performed deficiently by providing incorrect information about the immigration consequences of a drug conviction. The 2010 Padilla decision recognized that despite the traditional distinction between direct punishment and collateral consequences, the duty of defense attorneys in advising clients includes immigration consequences when a criminal conviction would automatically render the client deportable. Interpreted narrowly, the Padilla exception to the direct/collateral dichotomy is limited to the unique consequence of immigration (and possibly limited to circumstances in which these consequences are clear under federal immigration statutes). Read more broadly, however, Padilla could support case-by-case consideration of whether reasonable representation requires the attorney to provide information about the other legal consequences of conviction. And in this broader context, the potential for lifetime civil commitment under chapter 980 would seemingly be a logical extension of Padilla’s reasoning. In adopting the narrower interpretation, the Lemere majority starts with the traditional distinction between direct components of a criminal sentence and collateral consequences, which are indirect and may be contingent upon future events or proceedings. The majority also emphasized that the Padilla Court described deportation as a specific, severe, and “nearly automatic” consequence that could not be neatly categorized as either direct or collateral. The majority relied upon a subsequent U.S. Supreme Court case, Chaidez v. United States, 133 S. Ct. 1103, 1112 (2013), for the view that Padilla had created an exception, but had not rejected the distinction between direct and collateral consequences. In addition to noting the limited holding of Padilla, the majority compares the consequences of deportation and chapter 980 commitment, starting with their relative severity. Although acknowledging that a chapter 980 commitment is serious and can even be a lifetime commitment, the majority concludes that chapter 980 “is not as uncompromisingly severe a consequence as deportation.” Next, the majority reviewed precedent holding that chapter 980 commitments are not punitive, but rather intended to provide treatment necessary to reduce the threat of future sexual assaults. The majority opinion also analyzes the connection between the criminal conviction and the potential consequence, emphasizing that only a small percentage of eligible inmates are subject to chapter 980 petitions. Even if a petition is filed, the respondent has the right to a trial at which the State has the burden to prove factual elements (dangerousness and mental disorder) in addition to the nature of the conviction. The dissent, written by Justice Ann Walsh Bradley and joined by Justice Abrahamson, evaluated the chapter 980 consequence as similar to the immigration consequence in Padilla because of its severity and because the conviction renders the defendant automatically subject to the consequence. The dissent concludes that these factors override the traditional direct-collateral distinction. The dissent criticizes the majority’s attempt to minimize the severity of a chapter 980 commitment and the attempt to characterize chapter 980 as less certain than deportation. The dissent relies on statistics regarding the duration of commitments and cites both U.S. and Wisconsin Supreme Court opinions emphasizing the risk of (or automatic eligibility for) deportation, not the certainty of deportation. The majority and dissent agree on one point: The best practice is certainly for the defense attorney to discuss with his or her client all meaningful consequences of a plea. Not all consequences are as well known or as common as chapter 980, but there are resources available to assist in identifying potential consequences. An open-ended client interview is important to learn what consequences (such as areas of employment and other activities) may be of particular interest.   Read more

Wisconsin court rules for non-citizen years after her plea

In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016).  The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea. Melisa Valadez became a lawful permanent resident of the United States in 2001, at age 15. At age 19, she was convicted in three cases of drug-related offenses. In all three cases, the Wisconsin state court failed to provide statutory warnings that a plea of guilty or no contest could carry adverse immigration consequences. (The case was decided under Wisconsin Statute 971.08(1)(c), which requires the court to warn about immigration consequences prior to accepting a plea, and so does not implicate the right to counsel as applied in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010)). After serving jail time and successfully completing probation, Ms. Valadez had no subsequent convictions. In 2013, she filed a motion to withdraw her guilty pleas, arguing that the convictions would likely result in her exclusion from (denial of admission to) the U.S. if she were to leave and then seek to return. The State argued that, because she was not threatened with deportation, she had not demonstrated a likelihood of an adverse consequence, which is a statutory requirement for relief when the court has failed to provide the immigration advisal. The Wisconsin Supreme Court held that by showing that exclusion was likely under the applicable federal statutes, Ms. Valadez had satisfied the likelihood requirement regarding an adverse impact.  She did not need to leave the U.S. and actually suffer the adverse consequence of exclusion. By contrast, when relying upon a likelihood of deportation as the pertinent adverse consequence, a defendant must allege specific facts to show a causal connection between the conviction in question and the likelihood of a deportation proceeding (a burden difficult to meet if immigration authorities have not detained the defendant or initiated deportation proceedings). Although the intermediate court of appeals had raised the issue of timeliness of the defendant’s motion, the parties agreed that even if a time limit might be appropriate in other circumstances, Ms. Valadez was entitled to a ruling on the merits of her motion. This case underscores the importance of potential immigration consequences to non-citizen defendants in criminal cases. In the context of plea negotiations, the defense attorney has a constitutional responsibility to provide accurate information about these consequences, and by statute the court must give the basic notice that a guilty or no contest plea may result in adverse consequences. Read more

Wisconsin considering redacting youthful dismissed charges

As part of budget deliberations, the Wisconsin Legislature’s Joint Finance Commitment approved a provision that would allow courts to remove records of certain dismissed charges from the computerized statewide records system. Under current law, although certain conviction records of youthful defendants may be expunged, anomalously dismissed charges remain accessible.  The new provision would allow a judge to order removal of a record from the internet site if all charges have been dismissed; all charges carried a maximum penalty not exceeding six years of imprisonment; none of the charges were classified as violent crimes; and the charges were filed before the defendant attained age 25.http://rma-api.gravity.com/v1/beacons/log?cbust=123-37&site_guid=8e869b3a021a8bf8e030fa6bc6ebd3d6&action=beacon&user_guid=38ad249caa95ed029d1657149130d3b2&referrer=&browser_useragent=Mozilla%2F5.0%20(AOL%209.7%3B%20AOLBuild%204343.1028%3B%20Windows%20NT%206.1%3B%20WOW64%3B%20Trident%2F7.0%3B%20SLCC2%3B%20.NET%20CLR%202.0.50727%3B%20.NET%20CLR%203.5.30729%3B%20.NET%20CLR%203.0.30729%3B%20Media%20Center%20PC%206.0%3B%20.NET4.0C%3B%20InfoPath.3%3B%20rv%3A11.0)%20like%20Gecko&OS=Windows&href=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&url=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&article_title=Expungement%20change%20approved%20by%20budget%20panel%20could%20help%20young%20offenders%20%3A%20Wsj&type=contenthttps://apis.google.com/_/scs/apps-static/_/js/k=oz.gapi.en.RArmLpCIYB0.O/m=auth/exm=plusone/rt=j/sv=1/d=1/ed=1/am=UQ/rs=AGLTcCNdsHwKwytm_BdBPIfRKL9FK1gKdQ/t=zcms/cb=gapi.loaded_1https://apis.google.com/_/scs/apps-static/_/js/k=oz.gapi.en.RArmLpCIYB0.O/m=plusone/rt=j/sv=1/d=1/ed=1/am=UQ/rs=AGLTcCNdsHwKwytm_BdBPIfRKL9FK1gKdQ/t=zcms/cb=gapi.loaded_0//api-public.addthis.com/url/shares.json?url=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&callback=_ate.cbs.sc_httphostmadisoncomnewslocalexpungementchangeapprovedbybudgetpanelcouldhelpyoungoffendersarticle1172c39d141d51928bf81a12990bbe1fhtml0http://rma-api.gravity.com/v1/beacons/initialize?u=undefined&sg=8e869b3a021a8bf8e030fa6bc6ebd3d6//apis.google.com/js/plusone.jshttp://b.grvcdn.com/moth-min.js//q.addthis.com/feeds/1.0/trending.json?pubid=ra-4f4bf36f35963358&period=week&domain=host.madison.com&callback=_ate.cbs.fds_ra4f4bf36f359633580  These are the same criteria that apply to expungement of youthful convictions. // <![CDATA[ (function() { var src = '//ox-d.leessp.servedbyopenx.com/w/1.0/jstag?nc=8438-Lee'; document.write('’); })(); // ]]>//ox-d.leessp.servedbyopenx.com/w/1.0/jstag?nc=8438-Lee// http://partner.googleadservices.com/gpt/pubads_impl_65.js https://html5shim.googlecode.com/svn/trunk/html5.js /shared-content/art/tncms-ad-manager/swfobject/swfobject.js// //s7.addthis.com/static/box.9b6859bdb7b6ea817497.jshttps://www.syncaccess.net/lee/mad/api/svcs/meter?sessionId=&contentId=metered&externalId=&referrer=&page=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&authToken=&source=&callback=serverCallback&nocache=1435980516222//s7.addthis.com/static/menu.16fba156d6c0f44d6b65.js//s7.addthis.com/static/hi-res-css.0d3543bb44e244a26641.js//s7.addthis.com/static/counter.650de04709add36ab0dd.js//s7.addthis.com/static/hi-res-css.0d3543bb44e244a26641.js//s7.addthis.com/static/layers.121a0e4a469de658b97e.jshttp://pagead2.googlesyndication.com/pagead/osd.js People who would benefit from the change include people whose only contact with the criminal justice system was a case that was ultimately dismissed after they went through deferred prosecution or a first offenders program. The new law would apply retroactively, thus allowing individuals to apply for removal from the website of charges dismissed before the effective date of the provision.  The redaction of records would apparently apply only to records accessible on the website, not to court records accessible through the local clerk of court, nor to arrest records accessible through law enforcement agencies. The state budget still awaits approval by both houses of the Legislature and by the Governor, who has broad authority for line-item vetoes. Read more