Marquette Law School Professor Michael O'Hear, co-chair of the State Bar's Disparate and Mass Incarceration Subcommittee, discusses a set of policy positions that the board adopted. The State Bar will now focus efforts for legislative reform on issues like bail and early release for elderly inmates and inmates with extraordinary health conditions.

June 20, 2018 – The State Bar of Wisconsin’s Board of Governors took a major step forward today in adopting policy positions on disparate and mass incarceration, setting a legislative priority as the State Bar leadership remains committed to the issue.

At its final meeting of the fiscal year, at the Annual Meeting and Conference in Lake Geneva, the 52-member State Bar board unanimously adopted five policy positions supporting reform proposed by its Disparate and Mass Incarceration Subcommittee.

The State Bar’s Criminal Law Section – comprised of prosecutors, defense lawyers, and academics – reviewed the proposals and provided feedback before board approval.

Specifically, the board voted to support reforming bail and pretrial detention laws to depart from the use of cash bail and move toward use of a validated risk-assessment instrument as a basis for pretrial detention decisions, which is the national trend. Milwaukee County and other Wisconsin counties have already moved in that direction.

Michael O’Hear, a criminal law professor at Marquette University Law School and co-chair of the Disparate and Mass Incarceration Subcommittee, said the cash bail system creates problems in the criminal justice system for defendants of limited means.

“Many people who sit in jail because they can’t make bail are of demonstrably low risk,” he said. “There is very little threat to the community for them to be released.”

The State Bar also supports amending current statutes to facilitate the prompt release of inmates with “extraordinary health conditions” who do not pose a threat to public safety. O’Hear said current procedures are cumbersome and statutory standards are amorphous, leaving those who may qualify with little chance of obtaining a release.

Dist. 9 Gov. Kathleen Chung poses a question concerning changes to the State Bar's Fee Arbitration Program.

Expanding Wisconsin’s geriatric release statute to allow early release for older inmates with indeterminate sentences is another policy that Bar lobbyists will pursue under the proposals adopted by the board.

Currently, sentencing modifications are available to qualifying individuals starting at age 60 if they meet the requisite years of confinement and other criteria.

But the geriatric statute only applies to inmates sentenced under truth-in-sentencing laws that took effect in 2000. Proposed changes would apply the geriatric statutes to individuals who were sentenced before 2000, with no bifurcated sentence.

O’Hear noted that the state tax dollars necessary to house and treat elderly inmates and inmates with serious or terminal medical conditions can be double per inmate.

Finally, the board supports the regular collection and dissemination of data on racial disparities in the criminal justice system, and supports a process for early discharge from supervision for certain individuals released on parole or extended supervision.

O’Hear noted that individuals released from prison are almost always subject to a period of supervision in the community with significant restrictions on their liberty.

“This period of supervision can last decades,” O’Hear said. “But almost all repeat-offending occurs in the first five years of release. The State Bar supports a process by which individuals who do well on supervision can be granted an early discharge. ”

Nonresident Lawyers Division Rep. Kathryn Bullon honors John Gowdy as the first person to become a State Bar of Wisconsin Certified Paralegal through the State Bar's new paralegal certification program.

The Work Continues

During his State Bar presidency in 2016-17, Fran Deisinger spearheaded efforts to address mass and disparate incarceration, calling it “one of the most important justice issues in our state.” He organized a group of defense lawyers, prosecutors, judges, and academics to study the issue and discuss different ways the State Bar could help.

Disparities in the state’s confinement of African American and Native American men are well documented and highly publicized as the highest in the country.

As of 2016, black men accounted for 40 percent of the approximately 22,000 inmates in Wisconsin, despite a 6-7 percent African American population in Wisconsin. In addition, Wisconsin’s overall prison population has risen dramatically since the 1990s.

Outgoing State Bar President Paul Swanson kept the conversation going this past year, and incoming President Christopher Rogers has vowed to continue that effort.

With its vote today, the board signals continued commitment to finding real and lasting solutions to this problem through collaboration with legislators and other stakeholders. The Disparate and Mass Incarceration Subcommittee will continue to study other measures.

Board Adopts Changes to Fee Arbitration Panel Procedures

The State Bar administers a Fee Dispute Arbitration Program to provide an informal and economical alternative to litigation for lawyers and clients who have disputes over legal fees. The board adopted some changes to the rules that govern the arbitration program.

Program Chair Steve Tikalsky said the rules needed practical updates. For instance, the rules on how arbitration panels are selected will change, starting July 1, to create a less cumbersome process for appointing arbitration panelists in each arbitration district.

Previously, the State Bar president appointed panelists in each district after consulting with the State Bar board and the presidents of local and specialty bar associations serving the respective district, creating unnecessary obstacles to fill panels.

Now, the State Bar president appoints the arbitration district chair and the chair, in addition to the president, may appoint the panelists. Tikalsky said the change is a practical amendment that streamlines the process, in addition to other changes.

For instance, the new rules note that the evidence rules for small claims cases apply to arbitration hearings. Previously, the rules noted that any party could present evidence and cross-examine witnesses and raise the same defenses in matters before courts.

Government Lawyers Division Rep. Robert Barrington asks a question about proposed policies concerning mass and disparate incarceration, which the board adopted.

Board Elects Executive Committee Members

The board voted for members of the State Bar’s Executive Committee for fiscal year 2019 (July 1, 2018 - June 30, 2019).

The 14-member Executive Committee, which includes the three presidents, the board chairperson, division representatives, and six other members, exercises all the powers and performs the duties of the board between meetings.

The board selected the following six members for FY 2019: Kori Ashley (Milwaukee); Kathleen Chung (Madison); John Danner (Minocqua); Mary Lynne Donohue (Sheboygan); Erik Guenther (Las Vegas, NV); and Charles Stertz (Sheboygan).

The board approved Dist. 2 Gov. Odalo Ohiko as the next chair of the board for fiscal year 2019.

Other Business

• The board approved Odalo Ohiko (Milwaukee) as the FY 2019 chairperson of the Board of Governors. Ohiko is a solo practitioner, practicing in the areas of criminal, family, and dispute resolution law. The board chair conducts board meetings and sits on the Executive Committee.

• The board approved three State Bar delegates to the ABA House of Delegates: Shane Delsman (Milwaukee), Grant Killoran (Milwaukee), and Chuck Stertz (Sheboygan).

• The board approved President Paul Swanson’s four appointees to the Wisconsin Trust Account Foundation Board. Lawrence Burnett (Milwaukee) and Tim Radelet (Madison) were reappointed. Jerry Vang (Madison) and CPA Michelle Knutson are new appointments.

• The board adopted a State Bar Board of Governors position description to help board members understand the role they play in establishing policy, ensuring financial stability, and serving as ambassadors for the State Bar of Wisconsin.

Upon request, interested members may obtain a copy of the minutes of each meeting of the Board of Governors. For more information, contact State Bar Executive Coordinator Jan Marks by email or by phone at (608) 250-6106.