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Public defender pushes for deferred prosecutions

Schwantes (click for larger version)
August 14, 2012 | 03:03 PM
ELKHORN — About once a week, Public Defender Travis Schwantes receives a call from a former client in need of help.

The client tells Schwantes, who is the attorney manager at the Elkhorn Public Defender's office, that he is doing well and is up for a promotion or a new job, but a previous felony conviction is standing in his way.

The client wants help removing the felony from his record, and Schwantes tells him there is nothing he can do.

"A felony conviction is a life-long consequence," Schwantes said. "At the age of 26, if someone is convicted of a felony, they have it on their record when they are 76."

During an Aug. 10 Walworth County Criminal Justice Coordinating Committee meeting, Schwantes pitched the possibility of using deferred prosecution in nonviolent felony cases.

Schwantes wasn't detailed in his proposal but instead wanted to see if the rest of the committee would be open to exploring it.

With deferred prosecution, if a defendant follows certain guidelines the criminal act can be cleared from his record.

The consequences for the offender could include paying restitution and completing community service. It also would require the offender to avoid legal trouble for a certain amount of time.

Deputy District Attorney Joshua Grube said he would be willing to meet with Schwantes to discuss how deferred prosecution could work.

However, Grube said he had a number of immediate concerns with deferred prosecution, specifically regarding victim's rights issues.


In some cases, young offenders already have a similar option available to them.

Under Wisconsin law, defendants under the age of 26, who are convicted of a Class H or I felony, are eligible for expungement.

These offenders committed a low-level felony, which can include identity theft crimes, theft, possession of marijuana (second or subsequent offense), possession of heroin and the delivery of small amounts of some drugs.

If these young, low-level felony offenders successfully complete probation, their criminal record can be expunged.

However, if the offender is older than 26, expungement isn't an option.

Felony convictions make it more difficult to obtain employment, and people who have good jobs are less likely to commit new crimes, Schwantes said.

"We would like for them to be employed so they don't reoffend," Schwantes said.

The deferred prosecution also could save courtroom time and tax dollars, Schwantes said.

Schwantes said clients often want to take responsibility for a crime, pay restitution and even serve jail time, but are reluctant to plead guilty to a felony charge.

"They are educated enough to know that the felony is going to have a huge impact," he said.

Sheriff David Graves asked Schwantes how successful other communities are that have similar programs.

Graves said he has heard "horror stories" from other sheriffs of people who receive deferred prosecution and go on to commit violent crimes.

After the meeting, Graves said he will need more information before he decides whether he supports deferred prosecution.

Grube said prosecutors and defense attorneys have tools at their disposal to handle cases, which can keep a felony off a defendant's record.

Grube said he has worked with defense attorneys before charges are issued.

In some of those cases, the defendant pays restitution, completes community service and the prosecutors charge the defendant with misdemeanors.

Judge James Carlson said many people have argued for deferred prosecution in marijuana possession cases.

Grube said when he handled drug cases, he typically sent first-offense marijuana cases back to municipal court.

Grube also had a concern about holding off prosecution.

If a defendant fails to meet the requirements to have the charges dismissed or reduced, the prosecutor will have to bring a case with older facts to trial.

Over time, Grube said witnesses and evidence disappear.


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