Tag: Wisconsin

Reduced charge more harmful than original?

An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records.  The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database.  Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles. Now the Wisconsin Court of Appeals has held that the court may not seal the record of a non-criminal violation.  Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014).  The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions. For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible.  If she had been convicted of drug possession or fraud she might have been able to close the book on this episode. Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges). The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records.  For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed. Read more

Sexting prosecutions derailed by concerns about collateral consequences

The District Attorney of Oneida County (WI) has decided not to file criminal charges against forty teenagers implicated in a widespread sexting scandal in the Rhinelander school district.  His decision was reportedly based on concerns raised by parents and others about the collateral consequences of a criminal record.  In a joint press release, school officials and the local sheriff noted that felony charges could have limited students’ future employment prospects: Although Wisconsin law does consider incidents such as this as felony offenses, and it does not have disciplinary alternatives for such offense, criminal charges were not filed against the students involved, which could be detrimental to the future of the students and, in turn, could be harmful to our community as these students will not be allowed to enter certain occupations Under Wisconsin law, anyone convicted of a felony, no matter how minor, is permanently barred from obtaining over 100 professional licenses, and subject to many other adverse effects that may last a lifetime. Instead of charging the students criminally, the school district is bringing in a Wisconsin Department of Justice special agent to give presentations to the students and parents about the seriousness of taking inappropriate photographs and distributing them on social media. Ten of the forty students who sexted on school grounds got one-day suspensions, and students who behavior violated the school athletic code were suspended for certain events. The editor wonders whether such a resolution would be likely in an urban school setting. Read more

Dismissed charges not always the best outcome?

Which is a better outcome for a defendant in a criminal case: a) dismissal of all charges; or b) finding of guilt with probation or fine? Although most defendants and their attorneys would without hesitation choose option a), the choice is not always clear cut for some young defendants in in at least one Midwestern state. So why might a former client say that “I can’t get a job because the charges against me were dismissed“? Or ask “ Why didn’t my lawyer tell me to plead guilty?” How is there a potential advantage of a conviction compared to dismissal? In Wisconsin, computerized court records make it easy for the public, including prospective employers, to see public records of court cases, including charges that have been dismissed. However, a statute (Wis. Stat. sec. 973.015) allows for certain records to be sealed, depending upon the defendant’s age and the classification of the crime. However, the statute does not allow for sealing records in cases that resulted in dismissal, so they remain accessible through computerized searches. Therefore, if a defendant is greatly concerned about the potential effect of the record on future employment (or other effect on reputation), an expunged record may be preferable to a public record of a dismissed charge. The defense attorney should at least be aware of the options and explain them to the client, rather than assuming which option the client would prefer. This example also shows that it is critically important for defense lawyers to be aware of the relief that may be available to avoid or mitigate collateral consequences. Defense attorneys are becoming increasingly aware that for some defendants, collateral (or civil) consequences may be more important than the direct penalties ordered in the criminal case. Although the counter-intuitive situation described above may be unique to Wisconsin, the broader need to consider collateral consequences is universal. Unfortunately, public defenders in many jurisdictions have neither the resources nor the statutory authority to provide representation on civil issues like immigration, housing, employment, or government benefits. However, defenders increasingly strive within legal and budgetary limitations to provide holistic representation, which includes sensitivity and responsiveness to client concerns transcending the criminal penalties that they face. Ordinarily clients want to resolve cases without incarceration. An avid hunter, however, may take jail time in March if the only other option precludes venison in November. By knowing the client’s priorities, defense attorneys can best explore and recommend options to the client’s benefit. More commonly, defense attorneys can use knowledge of potential consequences to negotiate persuasively for reduction or dismissal of charges. Often, prosecutors and judges are not interested in adverse collateral consequences for defendants. An alternate disposition may address the concerns of the prosecutor without having the same collateral consequences as the original charge. In collaboration with Margaret Love, her research team, and the Colorado Public Defender, the Wisconsin State Public Defender has prepared some state-specific materials on collateral consequences. Although they are not directly applicable in the other 49 or in Washington, D.C., perhaps they can serve as a template for similar materials in your jurisdiction (particularly, the interview form, which is the last item below): * Civil Consequences of Conviction: The Impact of Criminal Records under Wisconsin      Law * Felony Convictions and Employment (Wisconsin Law) * Client Employment Interview Form Read more