Where's the crime?

In Tried and Convicted I wrote about how Wisconsin’s criminal injustice industrial complex spends staggering sums of money to arrest, charge, prosecute, convict, lockup, and then supervise its citizens—often for the better part of their lives.  Our state’s love of punishment and perpetual monitoring is well-known, and stands in stark contrast to other states like our neighbor to the west, Minnesota.  Even conservative states like Idaho are coming to terms with the “evils of big government” associated with such irrational policies; the Red States appear downright progressive when compared to Wisconsin.  But what crimes, exactly, are Wisconsinites committing?  What justifies such massive expenditures, year after year, that could otherwise be put to better use?

In an excellent law review article titled The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis, 2018 Wis. L. Rev. 619, 636, Amy Johnson includes a table listing the “top ten charged offenses in 2016.”  I’ve combined a couple of categories to list the top five, below.

1. Bail jumping (felony and misd.):  27,042
2. Disorderly conduct:  19,524
3. Drug paraphernalia and THC:  15,110
4. Misd. battery:  8,084
5. Resisting / obstructing a cop:  7,702

(Next on the list are three property-related crimes—theft, property damage, and retail theft—with theft the most common of those three at only 5,673.)

Far and away the most common crime is bail jumping, and this is not even a real crime in any meaningful sense of the word.  By that I mean: (1) the underlying act is either literally not a crime, or (2) if it is criminal, it will be covered by another criminal charge as well.  For example, suppose you get into an argument with your spouse whom you’re divorcing.  He or she calls the cops.  You get charged with disorderly conduct (DC) and released on bond.  As a condition of bond, you are to have “no contact” with your spouse.  But a few days later, he or she “texts” you, you text back, and then he or she reports it to the police because it would be good leverage in the divorce case.  Bam!  Bail jumping for violating the “no contact” order.  (Nothing prohibited him or her from contacting you; only the reverse is true.)  Just like that, an otherwise non-criminal act was just transformed into a crime—and that type of situation accounts for a lot of the 27,042 cases listed above.  If you were on bail in a felony case (instead of the DC), then the text message would be felony bail jumping.  And if, instead of sending a text, you had committed a real crime, e.g., reckless driving, you’d be charged with bail jumping and the crime of reckless driving—all for the same act!  So that’s bail jumping in a nutshell.  And it’s by far the most commonly charged crime in our state.   

Nothing comes close to bail jumping except DC.  And as you might have guessed from reading the above paragraph, DC includes virtually anything and everything you can imagine saying or doing.  DC needn’t cause an actual disturbance; rather, if your conduct is such that it merely “tends to” cause a disturbance, you can be charged criminally—even if no one was actually disturbed.  (Prosecutors love to point this out to juries in closing arguments.)  Defendants are charged with DC all the time for things they wouldn’t even dream are criminal.  (You can read the statute and case notes, here.)  Finally, DC, like bail jumping, is also a tack-on crime.  If a person, for example, gets angry and kicks a door causing a scuff mark, that’s both criminal property damage for mere defacement and DC.  I would conservatively estimate that for more than 90 percent of all DC charges, either no one was disturbed in any way or the underlying act leading to the DC was also charged as a separate crime with a DC kicker.  This extra charge allows the prosecutor to extort a plea bargain instead of having to prove his or her case at trial. 

Next is drug paraphernalia and THC (pot)—I’ve combined the two in the above list—which are now legal in many states.  These shouldn’t even be criminal, yet Wisconsin loves to arrest, prosecute, convict, supervise, and even imprison people for this duo of crimes.  Democratic candidate for Governor Matt Flynn would put an end to this if elected.  Not only would he try to legalize pot in Wisconsin for recreational use, but until that happens he would pardon defendants convicted of this crime.  In a recent debate, he said: “As governor, if judges convict someone for non-violent cannabis possession at 10AM, I will pardon them by 2PM. I will also require judges to provide a financial impact statement at sentencing so taxpayers know exactly how much we’re spending.”

Misdemeanor battery weighs in at number four on our list.  So far, this is the only thing that should be criminalized.  But prosecutors still abuse it.  With many charges of battery, the “victim” hasn’t suffered any actual injury.  Mere “pain” is enough, and any report of pain will do; there is no way to verify whether someone was really caused pain or how much pain they were in.  Some of the battery charges that get reported are absurd beyond belief, and include a grab of the arm or a flick of the ear.  And the police are always quick to jump in with the necessary leading question to create the criminal charge: “Did this cause you pain without your consent?”  (Answer, “Oh, yes it did.”)  On top of this problem, many battery allegations are completely justified by self-defense, but that’s something that doesn’t get hashed out until trial (f there is a trial).  Prosecutors charge first, and if they can’t extort a plea bargain, they’ll worry about the facts later. 

Fifth on our list is obstructing or resisting an officer.  Many obstructing charges involve the suspect giving a false name in hopes of evading arrest for outstanding unpaid tickets, for example.  This usually takes the cop anywhere from fifteen seconds to five minutes to figure out, and then the person is carted off to jail, later to be charged with obstructing.  (Interestingly, though, as I explain in Anatomy of a False Confession, cops can lie to us without consequence.) Further, much like battery “victims,” cops can be sensitive too.  If upon arrest the suspect “stiffens up” or “tenses up,” the suspect-turned-defendant is often charged with “resisting” for what is a natural reaction to being handcuffed and forced into the backseat of a squad.  Remember, the more counts the prosecutor can charge up front, the less likely it is that he or she will have to actually try the case later. 

So there you have it!  Those are the top five charges filed in Wisconsin’s massive criminal injustice industrial complex.  Will taxpayers ever say “enough is enough,” and start demanding accountability?  I doubt it.  The closest thing I’ve seen is Matt Flynn’s call for “judges to provide a financial impact statement at sentencing so taxpayers know exactly how much we’re spending.”  That would be a nice start.  It’s easy for police to arrest, prosecutors to prosecute, judges to imprison, and the Department of Corrections to supervise when they’re doing it all on someone else’s dime.