Evers vetoes bill curbing plea deals

Gov. Tony Evers vetoed legislation this week that would have required judicial approval before prosecutors could dismiss or amend charges in serious criminal cases, prompting the bill’s lead sponsor to call the veto “a win for violent offenders.”

The legislation would have placed new checks on the use of plea bargains and charge reductions in cases involving violent felonies, including firearms offenses, domestic abuse, sexual assault, auto theft, crimes against children, and reckless driving resulting in great bodily harm. 

Under the bill, prosecutors could only amend or dismiss charges with a judge’s approval. The bill also would have prohibited deferred prosecution agreements in certain sexual assault cases and required annual reporting to the legislature.

State Sen. Rob Hutton (R-Brookfield), the bill’s author, called the veto a setback for public safety.

“Governor Evers’ veto is a victory for violent felons, dangerous reckless drivers, car thieves and abusers who hope to walk away from the consequences of their crime, and it’s a defeat for the law-abiding citizens those people prey upon,” Hutton said. 

Hutton said his legislation was about protecting the public, reinforcing the public’s faith in the justice system, and making it clear that serious crimes would be seriously prosecuted.

“Unfortunately, the governor’s veto sends the message that consequences for even serious crimes can be avoided through lenient plea deals,” he said.

Hutton linked the veto to a veto of another bill that would have required the Department of Corrections to recommend revocation for individuals on community supervision, parole, or probation if they are subsequently charged with new crimes. 

“This is yet another senseless veto that preserves a status quo where law-abiding citizens feel threatened and repeat offenders feel empowered,” he said. “It’s frustrating beyond words that innocent children and families in our community will continue to live in fear.”

In his veto message, Evers stated that he was vetoing the bill because he had heard from victim-witness professionals, district attorneys, and the defense bar about the negative ramifications of the changes.

“First, I am vetoing this bill because I object to restricting the discretion of prosecutors and judges to address pending charges and, further, subjecting prosecutorial discretion to judicial review,” Evers said. “As the U.S. Supreme Court has observed, the concept of prosecutorial discretion rests on the recognition that the strength of the case, deterrence, enforcement priorities, and the allocation of finite resources, among others, are factors rendering prosecutorial decisions ill-suited for judicial review.”

The governor also stated that he was vetoing the bill because he objected to restricting the availability of evidence-based deferred prosecution agreements, which he claims have been shown to yield better outcomes and be more cost-effective than traditional incarceration. 

“Further, I am equally concerned about the implications this legislation would have on crime victims and survivors across our state,” he said. “By way of example, as was pointed out to me by several district attorneys …., prohibiting deferred prosecution agreements in certain sexual assault cases ‘would result in prosecutor[s] becoming much more selective on charging sexual assault cases, and thus more victims of serious crimes receiving no level of justice.’ Similarly, the Wisconsin Victim Witness Professionals also identified restricting the availability of deferred prosecution agreements as having a ‘negative impact’ on ‘crime victims and communities we serve.’”

Making the case

Supporters and opponents of the bill had debated its merits back in March at a public hearing before the Senate Committee on Judiciary and Public Safety.

At that hearing, Hutton told lawmakers the legislation was intended to address what he called a revolving door in the justice system, where repeat offenders are arrested only to be released by a lenient prosecutor.

“Felons illegally possessing firearms are a common example of repeat criminals who face no real consequences and are set free only to immediately re-offend,” he testified. 

He cited police concerns that cases involving reckless drivers, car thieves, and abusers are often dismissed or downgraded, allowing offenders to return to the community. Hutton pointed to a Fox 6 investigation finding that from 2011 to 2015, 37 percent of felony gun possession cases referred by police to the Milwaukee County District Attorney’s Office were never charged. 

“Because prosecutors often dismiss charges without checks or balances, the revolving door of the justice system keeps turning and the cycle of lawlessness continues,” he said. 

Rep. Brent Jacobson (R-Mosinee) also testified in support, saying the bill would ensure that serious crimes receive the seriousness they deserve.

“Currently, a prosecutor can unilaterally dismiss or amend criminal charges without approval from the court,” Jacobson said. “Under [the bill], prosecutors would be required to get court approval to dismiss or amend a charge if it is one of seven crimes, including sexual assault, violating a restraining order, crimes against a child, and illegal possession of a firearm. This proposal would also prohibit prosecutors from entering a deferred prosecution agreement for individuals charged with those same seven crimes.”

Jacobson said the measure would not prevent prosecutors from seeking dismissals or amendments but would ensure such decisions are consistent with the public interest.

“I can think of few things more frustrating and demoralizing for our law enforcement officers to repeatedly arrest the same individuals, at times for the same offenses, over and over again,” he said. “For the sake of the safety of our communities and the integrity of our laws, we must ensure that dangerous criminals face the full ramifications of their actions.” 

Opponents warn of overloaded system

The ACLU of Wisconsin opposed the bill, arguing it would worsen racial disparities as well as lead to over-incarceration and higher costs without improving safety. 

“We cannot continue to double down on harmful policies that have pushed our correctional system to a breaking point and failed to actually improve safety and material conditions in Wisconsin communities,” the organization said. 

The group observed that Wisconsin has more than 23,000 people incarcerated in state prisons, about 12,000 in county jails, and more than 63,000 on probation, parole, and extended supervision. Wisconsin also has the highest black incarceration rate in the country, with black residents nearly 12 times more likely to be incarcerated than white residents, the ACLU asserted. 

The ACLU stated that the bill would require courts to approve charge reductions only if the action aligns with the legislature’s intent to “encourage the vigorous prosecution” of listed crimes, prioritizing deterrence over procedural justice, fairness, and upholding the constitutional rights of the accused.

The State Public Defender’s Office also testified against the bill, calling prosecutorial discretion a foundational safeguard. The office said cases frequently evolve as facts emerge, defense counsel investigates, and victims provide new information. 

“As a result, prosecutors may choose to dismiss or amend a charge for a variety of reasons — they may determine there is insufficient evidence to proceed to trial, there may be constitutional concerns with police action, or, most notably, the individual charged may be determined to be innocent upon further review,” the office wrote. “Restricting prosecutors’ ability to dismiss or amend certain charges based upon their experience and the individual facts and circumstances strips them of their discretion.” 

The office warned that the legislation amounted to a one-size-fits-all automatic charging structure, replacing evidence-based practices that take individual circumstances into account. 

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.