Criminal Law Newsletter
Sentencing reform effective October 1, 2009
For crimes committed on or after December 31, 1999, the following new sentence reduction provisions are potentially available:
- Earned Positive Adjustment
- Consideration for Release under Sec. 302.113(9h)
- Extraordinary Health Conditions/Aged
- Risk Reduction Sentences
- Early Discharge from Extended Supervision/Probation
- Revocation of Extended Supervision
Electronic monitoring and home monitoring determined by jail, not judge
When a judge sentences a defendant to serve time in a county jail, the county sheriff can disregard any directive from the judge that the defendant be prohibited from serving the sentence with electronic monitoring also known as electronic surveillance or home monitoring. Sec. 302.425(2), Wis. Stats., provides:
Sheriff’s or superintendent’s general authority
Subject to the limitations under sub. (3), a county sheriff or a superintendent of a house of correction may place in the home detention program any person confined in jail who has been arrested for, charged with, convicted of or sentenced for a crime. The sheriff or a superintendent of may transfer any prisoner in the home detention program to the jail.
US Supreme Court strikes down Wisconsin practice of search of vehicle incident to arrest
Since the 1981 US Supreme Court case New York vs. Belton and the 1986 Wisconsin Supreme Court case State vs. Fry, there has been little doubt that a law enforcement officer is entitled to search a defendant’s vehicle after arresting the defendant. In a surprise April 2009 decision, Arizona vs. Gant, the US Supreme Court significantly limited the routine practice of all Wisconsin law enforcement officers since the 1980s. The US Supreme Court said that warrantless searches are presumed to be unreasonable, subject only to a few specific and well-delineated exceptions. The Court held that law enforcement may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest.
This is a significant reversal of a 25-year trend of affirming more and more intrusive police invasion of privacy.
Open-carry gun memo from Attorney General J.B. Van Hollen
In April 2009, Attorney General J.B. Van Hollen issued a memo concluding people can carry guns in the open as long as they don’t create a disturbance. The State Constitution allows citizens to openly carry firearms for lawful purposes, including hunting. The AG went on to say that in some circumstances, opening carrying a firearm may warrant a disorderly conduct charge, but he said other facts and circumstances should be considered before automatically charging someone with disorderly conduct simply for carrying a firearm in the open.
Wisconsin remains one of two states where it is illegal to carry a concealed weapon.
Open-carry gun trial in West Allis
Shortly before the memo, West Allis Municipal Court judge heard one of the first so-called open-carry gun cases heard in a Wisconsin court. Municipal Judge Paul Murphy said he had reviewed several state statutes and court cases related to the right to keep and bear arms. "There being no law whatsoever in dealing with the issue of an unconcealed weapon or the so-called open-carry is why we’re here today." In the end he determined the defendant’s actions did not rise to disorderly conduct and found him not guilty.
The defendant, Brad Krause, had worn a gun in a holster while he was planting a tree in his yard. After the ruling he said: "The reason people are upset about this is it’s not about guns. It’s about civil liberties. And we obviously have a property issue. There was no warrant issued, no exigent circumstances, no permission to enter the property, yet the police stormed in with guns drawn and put my life at risk." Asked why he was carrying a gun to plant a tree, Krause said, "There’s no requirement to justify why you’re able to exercise constitutional rights. I and everyone else are able to go to church, they’re able to vote, they’re able to speak their mind. Even though the city might not like it, we have that right."
Drug convictions no longer mandate driver license suspensions
For offense occurring prior to April 30, 2009, a criminal conviction for possession of controlled substance mandated that the Court impose a 6-month to 5-year driver license suspension. The law has changed. The judge now has the option of imposing a driver license suspension but is not required to do so.
Trend toward "leniency" for child porn sentences
"Judges are looking skeptically at prosecutors’ requests to give 15- to 25-year sentences for viewing sexual images of minors, handing down more sentences of 5-10 years, or in some cases probation," according to a January 20, 2010 Wall Street Journal article that summarized data from the U.S. Sentencing Commission. A federal judge in Chicago, according to the article, "recently sentenced a child porn viewer to 6 years in prison, rejecting the 20- to 24-year term recommended by the guidelines."
