Criminal Law Section Blog | Criminal Law Section

This blog is published by the State Bar of Wisconsin's Criminal Law Section, which represents judges, prosecutors, criminal defense attorneys, and academics with the purpose of improving the practice of criminal law in Wisconsin and promoting respect and fairness.

Members of the State Bar of Wisconsin may join the section by visiting (login required).


The Wisconsin legislature has put a bail constitutional amendment on the April 2023 ballot, but what does this entail? Currently, Wisconsin pretrial release law allows for defendants to be released under reasonable conditions designed to assure their appearance in court, to protect members of the community, and to prevent intimidation of witnesses. In addition, financial conditions are limited to the amount that is necessary to assure appearance of the defendant.1 The question on the April ballot is as
Continue Reading New Proposed Cash Bail Amendment Penalizes Those in Poverty

​The words of the Miranda warning have reached quasi-immortal status, driven by their incessant use in popular films and long-running television shows. Precisely when the rights they memorialize attach, however, is much less clear than many realize.

That gap in knowledge can leave defendants critically exposed when placed under arrest. They believe, based on their favorite TV shows, that they have the absolute right to remain silent and not have such silence used against them.

In truth, the fact
Continue Reading To Remain Silent (Or Not): The Fifth Amendment in Federal Court

While criminal law practitioners are naturally well-informed about practice in circuit court, those who don’t regularly handle traffic offense cases may be less familiar with municipal courts and their role in the unified court system. However, it is not uncommon for a client to have matters pending in municipal court, whether due to charges split between the two types of court or due to the trend towards charging more minor matters as ordinance violations rather than crimes. The purpose
Continue Reading Municipal Courts: Justice Delivered Locally

Evidence-based decision making is all the rage in American criminal justice.The basic idea is that everything we do with offenders – diversion, pretrial release, sentencing, supervision, and so forth – should be research-based, with the overriding goal of reducing future offending. If a given intervention does not reduce risk, then it should probably be abandoned in favor of more effective alternatives.So, how does incarceration – one of the oldest criminal justice interventions in continuous use in the United
Continue Reading It’s a ‘Fact’: Incarceration Does Not Reduce Recidivism

Imagine you were just charged with a criminal offense for the first time in your life.

At your initial appearance, the judge or commissioner informs you that you are presumed innocent, but sets bond at $10,000. You come from poverty, and there is no chance that you or your family could post that amount of money.

You are put onto a bus. They take your clothes and all your belongings, and in exchange give you a uniform and a
Continue Reading Protecting the Presumption: The Constitutionality of Pretrial Detention in Wisconsin

Federal law establishes harsh mandatory minimum penalties for defendants who possess certain quantities of specified controlled substances.

One of the few available mechanisms for obtaining a sentence below a mandatory minimum sentence, commonly referred to as the safety-valve provision, is outlined in 18 U.S.C. 3553(f) and §5C1.2 of the United States Sentencing Guidelines. A sentencing court is not bound by the mandatory minimum prison sentence if a defendant qualifies for safety-valve relief.
Eligibility for the Safety-valve Provision
The safety-valve
Continue Reading The Safety-valve Provision: Does ‘And’ Mean ‘And’?

Rare is a law school commencement address that does not include a stirring, evocative plea to the new members of the legal profession to change the world,1 leading to the inevitable question:
What ethical limitations apply to a lawyer advocating systemic reforms?
First: The Rules
While the rules encourage efforts to improve the law, your clients come first!

The first rule is to zealously advocate for your client.2 When all parties are represented by skilled, competent counsel,
Continue Reading The Supreme Court Rules and Ethics for Agents of Change

The recidivism risk of individuals who have been sentenced to prison often figures prominently in criminal justice policy debates.

Nationally, the most frequently cited recidivism figures come from a series of large-scale studies conducted by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS). The BJS recently released its
latest recidivism report, and this one is its most ambitious yet – covering repeat-offending over a ten-year period following release from prison.
About the Study
The BJS tracked
Continue Reading New Recidivism Study Contains Surprises

The United States Supreme Court in 2004 famously adopted a new approach to the Confrontation Clause in Crawford v. Washington.1 Writing for the majority in Crawford, Justice Antonin Scalia announced that henceforth an out-of-court statement’s admissibility as evidence at trial would depend, subject to a few narrow exceptions, on whether the statement was “testimonial.”

However, in that preliminary exploration of the new jurisprudential terrain, Scalia provided little clear sense of what would make a statement “testimonial.”

Continue Reading Wisconsin Supreme Court, a New Jensen Decision, and the Confrontation Clause

The recent court of appeals decision, State v. Nhia Lee, which is now pending in the Wisconsin Supreme Court, highlights the challenges the State Public Defenders Office (SPD) has in finding counsel to take its conflict and overflow cases, especially in rural parts of the state. It also highlights the need for additional communication between the SPD and the circuit courts about efforts to appoint counsel.

To that end, the SPD has created uniform procedures for tracking and
Continue Reading Evolving Challenges in the Appointment of Counsel in Criminal Court

My law partner and I stared out our office windows on a blustery day in March 2020. Gazing upon an eerily deserted Capitol Square in Madison, we digested what living in a pandemic meant.We were not able to wrap our minds around it at the time. The virus was a spring snowstorm bearing down on Wisconsin in the early days. We wrestled with tasks that had been mundane. How does a person safely go grocery shopping and why
Continue Reading A Pandemic Positive: Changes in Courtroom Practice Increases Access