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Gov. Tony Evers found himself in familiar territory last week, issuing his first 10 vetoes of the legislative session.

Only this time, instead of putting the legislation to bed, as a veto has done for decades in Wisconsin, the governor’s pen triggered a “veto watch” among Democratic lawmakers.

“Our caucus has determined protecting Gov. Evers’ veto to be a top priority,” Assembly Minority Leader Greta Neubauer, D-Racine, told Wisconsin Watch, adding that Democratic lawmakers are “remaining extremely vigilant and will do so throughout the session to ensure that we are able to uphold (the governor’s) vetoes and prevent Wisconsin from moving backwards.”

But why do Democrats need to be on alert when Republicans control fewer than 66 seats in the Assembly — the two-thirds supermajority needed to override a veto?

The answer: The Wisconsin Constitution says that to successfully override a veto, lawmakers only need support from two-thirds of members who are present on a given day — not two-thirds of all Assembly members. So if just three Democratic lawmakers were absent on a given day, Assembly Republicans could have a two-thirds majority and would be able to undo Evers’ vetoes.

It’s been a record 38 years since the Legislature has overridden a veto, a failure that “in recent decades has made the governor’s veto power practically invincible,” according to a January 2023 memo on the veto override process from the nonpartisan Legislative Reference Bureau.

How do vetoes work in Wisconsin?

When lawmakers send a bill to the governor for a final signature, the governor has six days, excluding Sunday, to veto it or it becomes law. Once the governor vetoes a bill, it first returns to the chamber where it originated. In the Assembly, Republicans control 64 of 99 seats. In the state Senate, they control 22 of 33 seats. The Assembly can vote on a veto override for the same bill multiple times during a session, whereas the Senate may only vote for one on the same bill once, according to the LRB.

Evers has vetoed bills passed by the GOP-controlled Legislature at a record-breaking clip in recent years. During the 2021-22 legislative session, he struck down 126 bills sent to his desk, or 32% of all bills sent to his desk, the most by any governor in a single session in Wisconsin history. Other governors have vetoed on average 3.7% of bills they receive, the LRB reported.

Four of the bills Evers vetoed last week would have made changes to Wisconsin’s unemployment insurance system. Another would have prevented state agencies and local governments from restricting the sale of gas-powered vehicles.

But with such slim margins this session, the governor’s veto doesn’t feel invincible to Democrats, and lawmakers are planning accordingly in an attempt to avoid being caught off guard by a surprise vote scheduled by their Republican colleagues. To prepare for a potential surprise override vote, Assembly Democrats are slated to receive a briefing from the LRB on the veto override process this fall, Neubauer spokesperson Sidney Litke told Wisconsin Watch.

When could a veto override take place? 

Veto votes may take place at any time during a regularly scheduled floor session. Those periods include Sept. 12-15, Sept. 18-21, Oct. 10-13, Oct. 16-19, Nov. 7-10, Nov. 13-16 and in 2024 on Jan. 16-19, Jan. 22-25, Feb. 13-16, Feb. 19-22, March 12-14 and April 11, 16-18. 

Next year on May 14 and 15 any vetoes that have not been overridden are automatically placed on the calendar for what is known as a “veto review floorperiod.”

“All of our members have made this commitment to be in Madison for every scheduled session day,” Neubauer said.

And now that there are vetoes available to be scheduled for an override vote, the Democratic leader said all 35 of her caucus members will also be in Madison on all skeletal session days — procedural sessions usually involving only a few members that are required to maintain established floor schedules on session days when the full body doesn’t actually meet.

Evers is also conscious that his veto authority is protected by the slimmest of margins.

“After the last election I met with all the legislators on the Democratic side and said, ‘You can’t be sick this year.’ And so far that’s worked out,” the governor told Wisconsin Watch earlier this summer in Oshkosh. He added, “We are well prepared to ensure that we keep the margins where they should be. Obviously, the Republicans have a large number of people in the Legislature, but the Democrats will always be there.”

Both Evers and Neubauer said they have not discussed with Republicans an informal deal to avoid a surprise override vote.

Assembly Speaker Robin Vos, R-Rochester, through a spokesperson, didn’t respond to a question about whether he would schedule an override vote if Democratic lawmakers were absent and Republicans had a two-thirds majority on a given day. Senate Majority Leader Devin LeMahieu, R-Oostburg, through a spokesperson, didn’t respond to a question about whether he would support an override effort that had been approved by Assembly Republicans using procedural tactics.

Why would a veto override matter? 

Neubauer cautioned that a snap override attempt could harm the Legislature as an institution.

“People … have an understanding of the ways in which the rules have been changed in the Legislature — through the gerrymander and otherwise — to further consolidate Republicans’ power,” she said. “And I don’t think that an unscheduled veto override attempt would reflect well on our democracy and on the institution.”

She continued, “That being said, we just have to be as prepared as possible.”

Senate Minority Leader Melissa Agard, D-Madison, echoed Neubauer, likening a surprise override vote to other recent Republican “over stretches,” including lame duck legislation in 2018 that sought to weaken Evers and Attorney General Josh Kaul, Republicans’ decision to gerrymander the state’s voting maps to insulate their majorities and the attempt to submit fake presidential electors to Congress after the 2020 election.

“These types of parlor tricks are not true governing,” Agard told Wisconsin Watch. “They aren’t in the best interest of our state.”

Could courts play a role? 

A Republican veto override would leave little recourse for Democrats.

Even with liberals taking control of the Wisconsin Supreme Court last week, Democrats could face a tough path to reversing any potential surprise overrides via the courts.

Aside from what’s in the constitution, the Legislature sets the rules for override process. There are no statutes governing the process and the Legislature can change or enforce the rules however it wants, according to the LRB memo.

The state Supreme Court stated in 1983 that “if the Legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.”

The LRB concluded in its memo that the courts have no role in overseeing the veto override process.

“The veto override process is an internal, procedural matter created and governed by the Legislature alone. The Legislature adopts rules that regulate the process, and courts may not adjudicate the application or interpretation of the rules,” LRB director Rick Champagne wrote. “The veto override process is in every way a self-determined legislative process.”

Neubauer said Democrats are prepared to prevent it from getting that far.

“Our caucus is very clear that this is one of our top priorities for this session,” she said. “We’ve discussed it countless times and we are in very close communication with every member of the caucus and will be throughout the session to make sure that we’re doing what we need to do. And people will make real sacrifices — time with their family, vacation, time in their districts — in order to make sure that we are doing everything in our power to protect the veto.”

Wisconsin Watch reporter Jacob Resneck contributed to this report.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Wisconsin Democrats on ‘veto watch’ after Tony Evers blocks 10 bills is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

This story was produced as part of the NEW (Northeast Wisconsin) News Lab, a consortium of six news outlets covering northeastern Wisconsin.

Wisconsin Watch is a member of the network. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

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In September 2015, Charles Joe Reuter IV knew two things for certain: He needed help to beat his growing dependence on opiates — a habit that landed him behind bars, waylaid his career goals and separated him from his two children — and he was not going to get the treatment he needed in jail. 

The then-29-year-old Appleton man faced jail time for a domestic battery conviction, one of several drug-fueled crimes he had committed after 16 years of drug use morphed into destructive heroin addiction. 

Had Reuter served his sentence in jail, he would have been free in less than five months. But when Outagamie County Circuit Court Judge Vincent Biskupic agreed to pause his jail time so he could attend treatment — a practice he has done in more than a dozen other cases — it sounded like a smart option. 

“I’ve never gone to jail and then gotten out and been better for it,” Reuter told Wisconsin Watch. 

“It’s dry time. You’re not going to be getting high. But at the same time, you’re not having any type of treatment or rehabilitation. So it’s very hard to get out and be any different.”

On its face, the arrangement that Biskupic explained in court to Reuter sounded straightforward: Attend treatment, remain sober and update the court on treatment progress. Whether Reuter would have to serve the time that remained on his jail sentence would be determined by his progress, Biskupic indicated. 

But as addiction recovery often goes, Reuter made progress, then slid backwards. He attended multiple treatment centers, each one followed eventually by a relapse, each relapse followed by additional court proceedings.

Biskupic’s approach looks a lot like one taken by a drug court, a model that typically offers offenders a way to minimize legal consequences if they remain sober, crime-free and participate in a structured program. Outagamie County has offered a drug and alcohol treatment court since 2009. But Reuter was not in it. 

Instead, he found himself in an ad hoc drug court run by Biskupic — one without a clear timeline and with expectations that often changed. And it has left the arrangement open to the same criticism that some experts level against drug courts; namely, longer punishment for those who fail to meet demands.

Biskupic declined to be interviewed for this story. But in a statement emailed by his attorney, Biskupic said that judges, attorneys and social workers in Outagamie County have sought sentencing options that allow defendants to seek treatment for drugs and alcohol in response to a 10-year rise in crimes related to substance abuse. Biskupic said none of the cases have been appealed or reversed by higher courts — suggesting the approach was not problematic. 

Between September 2015 and January 2018, Reuter was scheduled to meet with Biskupic at least 13 times for so-called review hearings, formal check-ins to update the judge on his life and treatment progress. Attendance was mandatory. On one occasion, after Reuter missed a court appearance, Biskupic issued an arrest warrant. The judge set no date for when the supervision would end. 

But the continuous monitoring did not help Reuter’s case before Biskupic. In 2018, after Reuter walked away from a treatment program, Biskupic finally ordered him back to jail to sit the remainder of his sentence. He awarded Reuter no credit for the time he spent in treatment. 

For Reuter, a sentence that would have meant less than five months in jail stretched on for more than two years. His was not an isolated case. 

In 2016, Biskupic temporarily released from jail another defendant, Christopher Kartsounes, so he could attend drug and alcohol treatment. Kartsounes did so, but Biskupic then refused to close his case until he found stable housing. Eventually, Kartsounes relapsed. After he did, Biskupic ordered him back to jail to complete his sentence. Had Kartsounes simply sat his jail term from the beginning, he’d have been free more than six months earlier. 

Kartsounes struggled to find permanent housing while his case with Biskupic remained open and said the open-ended sentence accelerated a downward spiral that eventually landed him in prison. 

Reuter was more equivocal. He said he holds no animosity toward Biskupic, whom he described as a “caring judge,” and accepts responsibility for not remaining sober. But he also recognized that the small degree of freedom Biskupic gave him ultimately hurt him.

“Give someone enough rope, they’ll hang themselves,” Reuter said. 

Stayed sentences, vague promises 

In some cases, Biskupic has embraced an open-ended approach to sentencing since he was appointed to the bench in 2014 by then-Gov. Scott Walker. According to Wisconsin Watch’s statewide analysis of electronic court data, only a small handful of judges handle cases in a similar manner in Wisconsin — and Biskupic is by far the biggest practitioner.

Over the past seven years, Biskupic has used the tactic not just for those struggling with addiction, but also as an incentive for defendants to obtain their GEDs or pay fines, restitution and court costs. In court, he used vague language to explain the arrangements, setting no end-date for the supervision. Instead, explanations often carried an implicit promise: If defendants fulfill the obligations Biskupic imposes, they could close their cases and avoid additional jail time. 

Within that time, Biskupic called at least 46 defendants involved in 52 cases back to court for repeated review hearings — demanding updates about the status of their court-ordered payments, work-searches and treatment progress — and issued arrest warrants for people who failed to appear, court documents show. 

The sentences Biskupic issued to defendants typically depended on their sobriety. All had been on probation — a sentence that allows someone to remain in the community so long as they stay crime-free, report to a probation agent and follow a list of rules — but had their probation revoked for violating rules before they began their supervision under Biskupic.

Typically, judges send defendants to jail or prison when their probation is revoked. But Biskupic instead effectively sentenced some defendants to open-ended arrangements by “staying” their sentences, pausing their jail term while they attended drug and alcohol treatment. 

In theory, the arrangement offers advantages for defendants who agree to the deals, potentially allowing them to avoid additional jail time or close their cases early. But for defendants like Kartsounes and Reuter, the months spent in treatment only added to the time they spent under Biskupic’s supervision.

They were not alone. Of the 16 defendants whose sentences Biskupic paused so they could attend drug or alcohol treatment, at least 11 had to return to jail after they participated in treatment, whether they remained in lock-up or were allowed to leave jail for work.

When Biskupic sentenced Reuter, he explained that he would pause his remaining jail time and reconsider the punishment upon completion of substance abuse treatment. 

“I am willing to stay the remaining portion of your nine-month sentence while you do that program and then evaluate it after, maybe reconsider my sentence and see how you do,” Biskupic said in September 2015. 

But it remains unclear whether he has the legal authority to impose such a sentence. About two dozen legal experts consulted by Wisconsin Watch had a wide range of views about Biskupic’s use of review hearings. Some said the practice is legal, some called it a gray area and some said it has no basis in state law. Others had never heard of it before.

Attorneys from the State Public Defender’s Office (SPD) office have helped notch such deals for their clients. The office declined an interview for this story and said it could not speak to individual cases, but spokesman Willy Medina said in a statement that the alternative arrangements can benefit clients by helping them avoid jail time — if they comply with the judge’s conditions. 

“SPD attorneys work to give their clients the best options available, explaining the potential outcomes and letting them make decisions about their future,” Medina said. 

Sobriety, with a carrot and stick

As the war on drugs ramped up in the late 1980s, drug courts emerged as an avenue to keep low-level drug offenders from filling jails and prisons and accruing convictions that would remain on their criminal histories. 

They have become increasingly popular over the past 30 years, benefitting from bipartisan support. Proponents have appealed to both conservatives and progressives by framing them as a treatment-over-punishment model that saves costs by reducing recidivism. They are “designed to stop crime by treating substance use disorders and other serious problems underlying criminal conduct,” according to the National Institute of Justice.

Drug courts fall under the larger umbrella of so-called problem-solving courts, which give specific groups a way to avoid criminal convictions if they fulfill any number of conditions a judge imposes. Treatment courts can look slightly different depending on the jurisdiction, but typically follow standards set forth by Wisconsin Association of Treatment Court Professionals. 

Outagamie County runs not just a drug and alcohol court, but also a court designed for veterans — which Biskupic oversees — another for defendants with mental health issues, and a court that allows low-level defendants to avoid formal probation with the state’s Department of Corrections if they complete a structured program.

Criteria for admission varies by the type of court, but offenders convicted of violent crimes are typically excluded from the outset, in accordance with guidance outlined in the state law that authorized treatment courts. 

Some drug and alcohol courts offer low-level offenders a way to avoid criminal convictions upon successful completion of the program. In Outagamie County, it is primarily offered as a way for people on probation to avoid prison pending completion of the program, said Circuit Court Judge Mitchell Metropulos, who oversees the drug and alcohol court.

“Our clients typically have failed past attempts on probation and with treatment. Our court allows them to be subjected to more intense supervision and treatment. If they fail our court they will likely have their supervision revoked and will go to prison or face a lengthy county jail term,” Metropulos said.

Traditionally only about one-third of offenders who complete drug court programs later commit new crimes, he added, compared to two-thirds of those who are incarcerated or complete traditional probation.

“So the payback is pretty good, but we throw a lot of resources at these folks,” Metropulos said.

“And I think that’s pretty much across the board in Wisconsin and the nation with regards to treatment courts.”

Participants can complete the drug court program in a year, Metropulos said, but more typically take at least a year and half to finish. At the outset, participants receive a drug and alcohol assessment and begin treatment — either in a residential, clinical setting or at an outpatient provider within the community. They undergo counseling to challenge their “criminal thinking” patterns and attend recovery support groups, Metropulos said. Those who need stable housing are often routed to sober living houses, typically group homes that require abstinence from drugs and alcohol. 

A team of professionals guide participants through drug court, including a program point-person who coordinates treatment services, a probation agent who meets regularly with participants and a representative from a treatment provider. The drug court judge and representatives from both the district attorney’s and public defender’s office also take part in the program. 

County funding is available to cover treatment costs for participants who lack health insurance, but participants typically pay a $40 monthly fee for the cost of drug testing, said Metropulos. 

Bernie Vetrone, director of criminal justice treatment services for Outagamie County, said participants are tested for drugs three times a week. In court, each participant — there can be up to 20 in the program — stands before the judge and talks about how their week has gone. If the team determines they are making progress, they may be rewarded with a $5 gift card to a convenience store — a measure of positive reinforcement. 

“Treatment court is all about positive reinforcement because what we’ve found in criminal justice is that positive reinforcement works much better as a behavioral modification tool than negative reinforcement,” Vetrone said. 

But sanctions and punishments are a feature of the program, too. Metropulos said the drug court embraces a “medical model,” offering more intensive treatment to participants who relapse on drugs or alcohol, while “criminal mindset” behavior like lying or attempting to cheat a drug test is met with increasingly harsh punishment, ranging from a few days or weeks in jail up to termination from the program. 

“Eventually we have to tell them, if you can’t be honest with us, you can’t show up to seriously engage in treatment, you continue to manipulate us, we will have to look at termination,” he said. 

Those who succeed in treatment court gradually earn new freedoms or face fewer check-ins, and could potentially close their cases early. But those who fail can pay a heavy price, having to serve the time behind bars they were hoping to avoid by participating in drug court.  

‘Skipping the middleman’

The approach Biskupic has taken to sentencing shares similarities with the official drug and alcohol court, with one important distinction: In his court, Biskupic alone called the shots. Regular review hearings stood in for the weekly court appearances required by the drug court program. He had no treatment team beside him or structured program to offer.

Those Biskupic ordered to attend drug and alcohol treatment were often referred to a specialist contracted by the county’s department of health and human services who helped them locate treatment facilities or link them to services. 

Those resources, available to all county residents, were not specific to people involved in the criminal justice system. It often fell on defendants to contact the coordinator and secure their place in a treatment program, court records indicate — no easy task for those without free access to phone and internet after being taken into custody following a revocation.  

Alicia Cook, who for more than six years served as the county’s contracted alcohol and drug specialist, said her position evolved as word spread among inmates and criminal defense attorneys that she could help people find treatment. Cook said she spent the bulk of her time in this role calling around to treatment facilities looking for openings appropriate for the individuals. 

“Because of the heroin crisis, because of the amount of people who were becoming incarcerated, because of the amount of people who were out in the world who are dying of overdoses, judges became more open to the idea of having a person bail bonded so that they could go into residential treatment,” Cook said. 

In Biskupic’s version of drug court, he would pause a defendant’s jail term by “staying” their sentence while they completed treatment. Depending on their progress, he could either stay that sentence permanently — saving them from additional jail time — or, if defendants floundered, he could lift the stay, sending defendants back to jail to resume their jail sentences.  

Vetrone, whose department helps coordinate a number of programs for offenders in the county, was not immediately familiar with Biskupic’s alternative approach when contacted by Wisconsin Watch. But he described Biskupic as a diligent judge who works hard to understand the factors that drive someone’s criminal behavior. 

As someone who worked in probation and parole for 20 years, Vetrone sees Biskupic’s approach as one that could offer more accountability and “hands-on contact” to low-level offenders who may fall through the cracks of the traditional probation system, which often forces probation agents to spend more time and energy on offenders who committed the most serious crimes. 

“Is it normal? Not really. But is it inappropriate? No, not, in my opinion,” Vetrone said of Biskupic’s approach.  

“I think this is a case of a judge being concerned with certain people that come before him. And trying to go that extra step to make sure that this person can be rehabilitated and not fall through the cracks,” Vetrone said. “So, I have absolutely no concerns with this. It’s a little unorthodox, maybe, but nothing I’d be concerned about.” 

Vetrone said it is not uncommon for treatment courts to refer participants to outside parties for services — a veteran’s court participant, for example, may be referred to the federal Veterans Administration to address certain needs. Biskupic is effectively performing the services of a case manager, he said.

“Judge Biskupic is just skipping the middleman and just doing it directly himself,” Vetrone said. “In essence, he’s doing the same thing we would do.”

Indeed, Biskupic’s approach has much in common with a typical drug and alcohol court, including the fact that both can result in longer sentences and harsher punishment for those who do not successfully complete their obligations.  

Drug court criticism

Over the past two decades, as an opiate crisis fueled by pharmaceutical companies gave way to a heroin epidemic that ravaged rural America, more states and counties have established drug courts. Nationally, about 3,700 drug courts exist today. But as the treatment model proliferated, a growing number of researchers and experts have raised concerns that their benefits have been exaggerated — and the risks minimized.  

“Drug court success stories are real and deserve to be celebrated,” reads a report from the Drug Policy Alliance. “However, drug courts also leave many people worse off than if they had received drug treatment outside the criminal justice system, had been left alone, or even been conventionally sentenced. The successes represent only some of those who pass through drug courts and only a tiny fraction of people arrested.” 

To Kerwin Kaye, an associate professor of sociology at Wesleyan University who wrote about the unintended consequences of drug courts in his book Enforcing Freedom, one of the most understated concerns over the model is that about half of all drug court participants ultimately fail the program. But this detail is not always made clear to people before they agree to participate, he said.

“Fifty percent is not an insignificant number. You need to make a big deal of that” when explaining the program to defendants, Kaye said. 

Standards written by the Wisconsin Association of Treatment Court Professionals require that participants be informed in advance that they may face an extended sentence if they fail to complete the program. 

Even so, failure looms large even for Outagamie County’s official drug and alcohol court. Between 2014 and 2020, 57 of the 253 people who participated in the program graduated, according to data obtained through the state’s open record law. That would mean 77% of participants fell short within that period, excluding the few people who were withdrawn from the program for administrative reasons. 

But because participants begin and finish the program on different timelines, Metropulos said it is more accurate to compare the number of those terminated to those who graduate, which would represent a 50% completion rate — in line with the national average. 

In his research, Kaye found that drug court coordinators often fail to properly underscore the consequences of failing to complete a program before participants agree to it. 

“A problem with drug courts in general is that they don’t explain the deal ahead of time: ‘There’s a 50% chance you might not make it, you might fail. In which case, by the way, you would have wasted all this time under court supervision, and now you’re going to get the full sentence because you’ve already had to plead guilty to participate in most drug courts,’” he said. 

While Kaye understands Biskupic is not running a formal drug court, he said the same risks apply to his model. In fact, he said, the risks may be even more pronounced with what Biskupic has established — in part because Biskupic has no treatment team alongside him to help support and monitor defendants.  

‘I can’t do much more’

Unclear expectations were the case for Kartsounes, who mistakenly believed his remaining jail time would be waived if he completed treatment. Kartsounes said he had never heard about an open-ended arrangement like Biskupic’s until the judge offered the option in court. 

And even with guidance from a public defender, he said, he only understood the deal in its broadest terms. In the end, Kartsounes said his prolonged case with Biskupic led to further legal trouble that ultimately landed him in state prison.

Reuter, too, ended up worse off after Biskupic granted him perceived latitude. In the nearly two years his case with Biskupic remained open, he attended four separate treatment programs, including one in South Carolina. During periods of sobriety, Biskupic praised Reuter and encouraged him to keep pursuing his education at Fox Valley Technical College, where he studied marketing and business management. 

But in 2018, after he walked away from a local treatment program before completing it — which he described in court as a “bonehead decision” driven by a compulsion to get high — Biskupic finally ordered him back to jail to complete his sentence. 

“This file has to wind down. You have done more than most people,” Biskupic told Reuter, adding later: “We’re to the point where, you know, at least from my situation, I can’t do much more.” 

Like Kartsounes, Reuter was not credited for the time he spent in treatment. To Kaye, that represents one of the biggest concerns, both for Biskupic’s version of drug court and for treatment courts writ large. 

“Don’t penalize people for trying to do treatment. You should, under no circumstances, end up with a longer prison sentence after having gone through a drug court than you would have gotten otherwise. You should get credit for the time that you’ve spent under judicial supervision,” Kaye said. 

“You’re being penalized for trying to get your life together. That should never be a consequence of participating in these programs.”

Phoebe Petrovic is a Report for America corps member. This piece was produced for the NEW News Lab, a local news collaboration in Northeast Wisconsin. The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, Wisconsin PBS, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

‘Skipping the middleman’: Defendants faced shifting demands in Outagamie County judge’s one-man drug court is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

This story was produced as part of the NEW (Northeast Wisconsin) News Lab, a consortium of six news outlets covering northeastern Wisconsin.

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The defendant in Outagamie County Circuit Judge Vincent Biskupic’s courtroom had been sentenced to pay $3,125 in restitution and other court costs for battery and disorderly conduct. Over 11 hearings spanning nearly four years, Biskupic pushed the woman to pay up, at one point ordering her to apply to 20 jobs in a two-week time span to prove she was working toward paying off the debt. 

The effort didn’t work. Biskupic eventually held her in contempt for failure to pay and inadequate job searching and ordered 30 additional days in jail if she failed to make overdue payments, court records show. Wisconsin Watch and WPR are not naming the woman because she was not available for an interview.

Over the past seven years, in at least 52 cases involving 46 defendants, Biskupic has used “review hearings” to either monitor a defendant’s behavior or to pressure them to pay court-ordered financial obligations, a Wisconsin Watch and WPR analysis of court records found. 

In 23 of those cases, court records indicate that Biskupic monitored defendants’ payment progress. The judge held more than 73 post-sentencing review hearings across those cases, calling a defendant back an average of three times per case. Between 2018 and 2020, Biskupic had four people arrested for failure to show up for review hearings related to their unpaid financial obligations, according to court records. 

These practices, which experts say may be legal, are a departure from the norm — and seen by some, even in Outagamie County, as a poor use of resources. And the chief judges who lead Wisconsin’s circuit court system have warned all judges that jailing poor people for failure to pay court-ordered financial obligations could violate their constitutional rights.

In one case, court records show Biskupic held two review hearings to pressure a defendant to pay $516 in court fees and fines for driving after license revocation. The person was arrested in January 2020 for failure to show up at a hearing.

In another driving-after-revocation case, Biskupic held review hearings with a defendant who owed the court $579, ordering the man’s arrest in July 2016 after he failed to show up for one of those hearings. The defendant wasn’t arrested for failure to show until July 2019, almost three full years later, court records show.

In another case in which a defendant was charged with resisting or obstructing an officer, court records show, Biskupic held 10 hearings with a defendant to monitor his progress on paying $4,319 in restitution and other court-ordered financial obligations. Biskupic ultimately tracked the defendant’s payments for nearly three and a half years. 

In extensive correspondence, Daniel T. Flaherty, a private attorney with Godfrey and Kahn who represents Biskupic, referenced state statutes and case law he argued gave the judge the authority to monitor the payment progress of defendants. However, some legal experts consulted by Wisconsin Watch and WPR reached other conclusions.

Judge John Hyland of Dane County Circuit Court wrote in a statement that he “did not find such a passage” in the restitution statute — which Flaherty cited — that would allow continued review hearings aimed at monitoring payment. Hyland helped write the Criminal and Traffic Benchbook, the official how-to for Wisconsin judges overseeing criminal cases. 

In response to a second statute cited by Flaherty, related to failure to pay fines, fees, surcharges or court costs, Cecelia Klingele, a University of Wisconsin-Madison Law School professor, said “a judge can decide to impose a jail sentence until the money is paid.” She also noted that, “implicit in that power is some ability to monitor whether the money is paid or the work is done, though the statute does not spell out what such monitoring might look like.”

The Wisconsin Supreme Court confirmed in 1972 that it is legal for judges to order defendants to jail for up to six months for failure to pay court costs, fines and fees — which are separate from restitution to victims.

But, said the court, “It must be remembered that courts generally … are not collection agencies and should not be made such.” The decision goes on to say that judges should not imprison indigent defendants with no ability to pay. 

“The constitution we believe forbids the imprisonment as a fine-collection method when the court knows it cannot work,” the high court found.

Biskupic declined interview requests to discuss his supervision of defendants, and in a written statement did not explain his motivations for monitoring their progress on court-ordered financial obligations.

Judges rarely collect debts

Civil authorities typically handle debt collection in Wisconsin. Those include the county clerk of courts and the state Department of Revenue, which have no power to issue arrest warrants. Experts involved in the collection of court-ordered financial obligations in Wisconsin counties say judges rarely help collect payments. 

A survey sent to all 72 clerks of circuit court by the Wisconsin Clerks of Circuit Court Association on behalf of Wisconsin Watch and WPR also revealed that judges across Wisconsin rarely monitor the status of payments.

Among the 40 clerks who responded to the survey, 34 said judges in their counties do not hold review hearings with defendants who have failed to pay their court-ordered financial obligations. 

And even in the six counties where clerks indicated such hearings do happen, the clerks called  the practice uncommon. For example, Door County Clerk of Circuit Court Connie DeFere said such hearings “seldom” occur because “we find (the state debt collection program) the BEST for collection efforts.”

Outagamie County is among those that rely on the state revenue department to collect debt, and has been since 2019, according to Curt Nysted, financial operations manager for the Outagamie County clerk of courts office. The county previously referred past due court-ordered payments for tax refund intercept — the withholding of part or all of a defendant’s refund to cover debts owed to the government.

In a phone interview, Nysted said Outagamie courts “have found it more effective” to refer past-due payments to civil authorities and collection agencies than to call defendants back to court to monitor the status of their payments, which he called “not a cost effective method” to collect past-due payments.

No jailing for debt in ‘decades’

Carlo Esqueda, the clerk of Dane County Circuit Court, told Wisconsin Watch and WPR that if a defendant fails to set up a payment plan and the court-ordered payment deadline arrives, his office issues two letters “asking that the amount be paid, or that a payment plan be arranged.” If they are ignored, they will enter a civil judgment on the case, he said.

From there, the debt is referred to a third-party collections agency. In most Wisconsin counties, that is the state Department of Revenue. At this point, Esqueda said, the debt is no longer the purview of the court or clerk’s office and is handled wholly by revenue officials. 

“In Dane County, judges are not involved at this latter stage of the process,” Esqueda wrote in an email, adding “Dane County hasn’t issued a warrant/put anyone in jail for nonpayment of court-ordered financial obligations in decades.”

La Crosse County Clerk of Circuit Court Pam Radtke wrote in an email to Wisconsin Watch that judges in the county “do NOT monitor court ordered financial obligations — once the obligation is ordered, the clerk of courts works on collections.” She did note that in some other counties “it is the practice … for the judges to hold review hearings to monitor payment.”

Melissa Pingel, Winnebago County clerk of circuit court and president of the Wisconsin Clerks of Circuit Court Association, said judges don’t typically monitor defendants’ payments in her county — a neighbor of Outagamie County.

“We don’t do the failure to pay warrants, we don’t do driver’s license suspension … because the philosophy here is that that’s only harming (defendants) more,” she told Wisconsin Watch and WPR, noting that those additional sanctions for being unable to pay court-ordered financial obligations can create a “cycle” of entanglement in the criminal justice system.

‘Collateral consequences’ feared

Prolonged involvement and contact with the criminal justice system, especially for low-level, low-income offenders, can “create a cascading series of harmful criminal justice responses,” experts told Wisconsin Watch and WPR.  

“It becomes potentially just a cycle that a person can’t get out of: poverty, more punishment, more poverty, more punishment, more poverty,” said Marquette University Law School professor Michael O’Hear.

Said Wayne Logan, a law professor at Florida State University who studied the impacts of court-ordered financial obligations on defendants: “When you’re … still under the yoke of the system, that creates the opportunity for getting in further trouble with the system.” 

A December 2018 report from the Wisconsin Director of State Courts Office, which oversees and manages Wisconsin’s court system, offered a similar assessment and added that jailing people for failure to pay often costs taxpayers more than it brings in revenue. 

“Overall, arresting and incarcerating someone for failure to pay is an ineffective mechanism for collecting court related (financial obligations) and should be used sparingly,” the report stated.

To help avoid these concerns, a subcommittee of Wisconsin chief judges in June 2019 made a series of recommendations about jailing defendants for the nonpayment of court-ordered financial obligations. Among the committee’s recommendations were:

• Before ordering financial obligations, the court should determine whether a defendant can reasonably afford to pay, and consider “imposing community service as an alternative” to payment;
• Counties should utilize the State Debt Collection program to recoup past-due payments — which the committee determined “is an efficient and cost-effective” system; and 
• Eliminate “jail as a consequence to failure to pay, or (limit) it to the most egregious circumstances.”

Punitive responses to failure to pay are “not particularly effective, cost money and risk violating a defendant’s Constitutional rights,” the committee concluded, adding that financial obligations should be reduced to civil judgments and referred to the state debt collection service.

Shifting demands, failure to pay

In the case where Biskupic held 11 review hearings, the woman ordered to pay restitution was granted at least one extension on making the payments, court records show, while the judge continued to amp up the pressure. In June 2016, Biskupic ordered her to apply to at least 20 jobs over a two-week period — nearly 18 months after she was originally sentenced. 

Court records also show that throughout the ongoing hearings, the defendant struggled with multiple physical ailments, including arthritis, pneumonia, broken ribs and a broken hand, which she said made it difficult to work. At one point, she was also temporarily unemployed “due to a plant close down,” court records show.

All the while, Biskupic continued to call her into court. But Flaherty, Biskupic’s attorney, said that was in part due to the defendant’s request for an extension to pay. 

“(The defendant) and her attorney have never contested the court’s sentence,” Flaherty noted. “The prosecutor’s office has never appealed the court’s sentence. At several of the review hearings, (the defendant) asked for more time to make payments. The Court accommodated the defendant’s requests.”

Eventually, in December 2018, the court issued a civil judgment, ending any threat of arrest for failure to pay or appear at hearings. Only then, the defendant was back in Outagamie County Jail serving time. And as of July, she was back in jail for several crimes, including aggravated battery of an elderly person and possession of drug paraphernalia.

Phoebe Petrovic is a Report for America corps member. This piece was produced for the NEW News Lab, a local news collaboration in Northeast Wisconsin. The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, Wisconsin PBS, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Judge’s rigorous collection of court-ordered debt atypical in Wisconsin — even in his own county is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

This piece was produced for the NEW News Lab, a local news collaboration in Northeast Wisconsin.

Microsoft is providing financial support to the Greater Green Bay Community Foundation and Community Foundation for the Fox Valley Region to fund the initiative.

Listen to Phoebe Petrovic report on this story for WPR

Beau Jammes sat inside Dodge Correctional Institution, a maximum security prison in Waupun, Wisconsin. It was late March 2018, and he was 25 years old.

Jammes looked at the form before him, picked up a pen and began to write: “Judge Vincent R Biskupic unlawfully stayed a portion of my jail sentence for 19 months.”

The complaint to the U.S. District Court for the Eastern District of Wisconsin requested lost wages, employment and housing, along with “mental stress” and “pain and suffering.” 

The young man elaborated later in an amended complaint. On lined paper in a dark, squat script, he wrote that the Outagamie County judge had placed him “on a de facto term of probation … in order to monitor my behaviors.” It was, Jammes alleged, “illegal.” 

Jammes’ case was among 31 such cases between 2014 and 2020 in which a Wisconsin Watch investigation found Biskupic offered to stay or furlough defendants’ jail time if they complied with his conditions.

A stay formally pauses or postpones a person’s sentence. State law restricts judges’ ability to issue them. A furlough allows an incarcerated person to temporarily leave confinement to attend events such as funerals. 

Related content:

Timeline: Key dates from Beau Jammes’ review hearings with Judge Vincent Biskupic

‘Why do you keep harassing me?’: An Outagamie County judge controls defendants after sentencing

Behind the story: How we reported on a judge’s unusual sentencing practices

Biskupic’s supervision departed from traditional probation overseen by the Wisconsin Department of Corrections. It is not spelled out in state law and has no sunset period. Several attorneys said they consider these arrangements advantageous. Others argued they make defendants vulnerable to uncertainty through shifting demands and protracted timelines. Some legal experts questioned whether the practice is lawful. 

Wisconsin Watch found Biskupic ordered four defendants arrested for failing to show up for these legally dubious review hearings. 

Jammes objected to Biskupic’s lengthy supervision and shifting demands. In filing a federal lawsuit, Jammes was among a rare few defendants who challenged Biskupic’s arrangements. A magistrate judge dismissed Jammes’ claim, saying judges generally have “absolute immunity” when performing official duties.

Biskupic did not answer detailed questions about his practice, writing in a statement that state Supreme Court rules limit his comment on specific cases. He noted the cases in question “resolved mostly in the four-year period of 2015-2018” — the latter being the same year Jammes filed his complaint. Biskupic did not answer a question about whether he has stopped the practice. 

Biskupic’s attorney, Daniel T. Flaherty of Godfrey and Kahn, provided information on some defendants’ additional criminal records, like Jammes, and he defended the judge’s actions.

Biskupic’s offer welcomed 

At first, Jammes and his lawyer, Gary Schmidt, a seasoned private attorney appointed by the state public defender’s office, felt optimistic — even grateful — for the stay Biskupic offered. 

They appeared before the judge in December 2015, after the DOC revoked Jammes’ probation primarily for a weapons violation — later proven unsubstantiated. In Wisconsin, when people get revoked from probation, they generally are sent to jail or prison to serve their sentence. 

Jammes faced up to two years in prison for his original crime: Resisting an officer as a repeater. The DOC recommended six to nine months. The prosecutor recommended that range’s higher end.

“I will do anything to prove to you that this is not what it is,” Jammes said. “Even if you have to put me back on probation, if you want me to prove it to you. I’m not this person.”

Under Wisconsin law, circuit judges cannot reinstate probation after revocation. So Biskupic gave Jammes a year in the Outagamie County Jail — “a straight jail sentence” with work release and ability to earn good time. But then, he raised a possibility that Jammes’ attorney had neither requested nor ever experienced. 

“This isn’t a deal, but this is what I’m going to offer you,” Biskupic prefaced.

Biskupic explained that if Jammes kept a job and provided a letter sharing his progress, the judge “might stay some of that remaining time.” A temporary stay would freeze Jammes’ jail sentence, letting him out while the remaining incarceration loomed; a permanent stay would erase the remaining days.

At the hearing, Biskupic did not explicitly state which he would issue.

“You stay focused and do the things that you have the ability to do, this one year sentence can get reduced based on a petition and a follow-up hearing,” he said.

A month later, Schmidt filed a motion asking Biskupic to reduce Jammes’ sentence to time served, meaning his incarceration would end. In the motion, Schmidt emphasized that Outagamie County prosecutors had found no evidence of the crime for which he was revoked and had dropped their charges. 

Biskupic convened a hearing. But instead of modifying Jammes’ sentence — a standard practice spelled out in state law — he reverted to his initial offer and temporarily stayed his jail time. 

“You are not completely where I want you to be on stability, but you are going in the right direction. To help encourage you in the right direction I am going to give you a break,” the judge said. “That doesn’t mean (the jail sentence) goes away. It’s just put on hold.”

Biskupic ordered Jammes to follow several conditions: A full-time job, counseling or addiction meetings, sobriety, take his medications, continue GED classes and stay out of trouble. They’d review his status in March, several months later.

But Biskupic warned, “If I hear that you got arrested in the meantime, I am going to get a warrant for you to come back here even earlier.”

Jammes told the judge the arrangement sounded fair. Neither Schmidt nor the prosecutor objected. 

“I thought it was an opportunity for him to stay out of jail,” Schmidt said in an interview. “(Biskupic) was dangling a carrot in front of Beau to try to encourage him to be employed and to get his GED so that he could get better jobs and survive better in society.” 

Jammes said in an interview that he was initially pleased.

“I got to save my home. I got to save what I’ve earned, what I’ve worked so hard for, and I was kind of grateful.”

‘The judge was a probation agent’

But Jammes’ outlook darkened as time dragged on. The March hearing yielded another — “one more review” — plus a new directive: follow his landlord’s rules. But then, Biskupic again scheduled “one last review date.” And that hearing yielded another. Even more followed.

“The fact that it continued on for months and months … It pissed me off and everything,” Jammes said. “I felt like I was still locked up. I didn’t feel free.”

Biskupic summoned Jammes for a total of seven review hearings — a purgatory that lasted around 19 months. Through it all, Jammes remained tethered to Biskupic. Slipping up could trigger a return to jail. 

Eventually, Jammes said he gave up trying to follow Biskupic’s rules. He got arrested yet again for disorderly conduct and incarcerated by another Outagamie County judge. Biskupic called Jammes in and lifted the stay. After more than a year and a half under Biskupic’s gaze, he at last learned his fate; he was back in jail.

In retrospect, Schmidt thinks Biskupic went too far. 

“I think the judge wanted to keep Beau under his thumb,” Schmidt said. “The judge was a probation agent.” 

After Biskupic sent Jammes back to jail, Schmidt challenged the judge’s authority to craft the unconventional sentence. Biskupic requested that he draft a legal memo on “how long of a furlough is allowed.” 

Court records show he never filed the memo. “My best guess,” Schmidt said, “is that I decided not to appeal because it would be a drawn out process, and Beau’s case would have ended before the matter got in front of the appellate court.”

Probation — the usual way 

In Wisconsin, judges impose probation which the state Department of Corrections monitors and enforces. Through this so-called community supervision, the DOC holds people accountable for law-breaking without locking them up. The DOC says it is designed to “strengthen the family unit, encourage lawful behavior, and provide local treatment programs.”

The agency lists 18 standard rules for all probationers, which emphasize following the law, public welfare and rehabilitation. Agents also set specific conditions, as do judges, who have broad discretion to set any “which appear to be reasonable and appropriate” according to law. Throughout probation, participants must regularly check in with the DOC agent assigned to monitor their behavior. 

Judges may require a person to return to court to provide updates; Milwaukee’s Domestic Violence Courts have a longstanding policy of compulsory probation review hearings. While these resemble Biskupic’s mandatory review hearings, there’s a crucial difference — the person is on probation, and a DOC representative attends.

According to the Wisconsin Criminal and Traffic Benchbook, which provide courts with legal guidance, judges should only forgo probation if they deem someone likely to commit future crimes, outside “rehabilitation services (have been) exhausted” or community supervision would “unduly depreciate” the crime’s gravity. 

“Often, probation is sort of the default sentence,” said Cecelia Klingele, associate professor at University of Wisconsin Law School, where she teaches criminal law, including sentencing.

Pages of single-spaced statutes and departmental rules detail how Wisconsin’s probation functions. These set out the maximum initial lengths, varying by crime, and articulate rigid processes and limitations shaping how judges may extend probation — and how the DOC may revoke it. 

The law also explains that, technically, probation is not a sentence, but rather a sentence alternative. 

Wisconsin places people on this form of community supervision at a higher rate than it locks them behind bars. But while probation is intended as an alternative to incarceration, it can facilitate a “pipeline” to imprisonment. 

Klingele explained that rule violations can result in incarceration, “whether or not they’re relevant to the individual person and case.” As a result, she said, “probation is not nothing.” 

DOC spokesperson John Beard said via email: “Revocation decisions depend on the violation and the individual’s risk and overall adjustment to supervision. Typically, only serious violations lead to revocation. … There are many possible responses to violations that include interventions, sanctions and alternatives to revocation.”

In Wisconsin, as elsewhere in the United States, strict requirements over long periods mean a significant portion of people on community supervision — an umbrella term for probation, parole or extended supervision — become incarcerated without committing new crimes. 

A report from the Columbia Justice Lab found that in 2017, over one-fifth of adults in Wisconsin prisons landed there for violating a technical rule. In recent years, Wisconsin’s community supervision regime has sustained scrutiny and calls for reform.

“I think that courts and litigants are often frustrated by the constraints of the law and the ways in which probation in many ways has become a trap for the unwary,” Klingele said. “And I know DOC is making great efforts to try to improve supervision practices, streamline rules of supervision and address some of the criticisms that have been made about probation.”

But, she added, “It is true that the way we structure these standardized rules for people makes it easy for us to end up punishing behavior that actually isn’t even criminal in and of itself. And that often is indicative of poverty and lack of opportunity as much or more than it is about deviance.”

‘Probation … through the judge’ 

It’s in the shadow of this probation system that Biskupic operates something like it. 

Of the defendants who took Biskupic up on his offer, almost all had been revoked from probation like Jammes. They faced almost certain incarceration, and having been extended a chance at freedom — no matter how tenuous — seized it. 

“I thought maybe the judge was just going to run it for a couple of months to make sure that Beau stayed out of trouble for awhile, and then that would end it,” Schmidt said. “But he kept extending it and extending it.”

Over 19 months, Biskupic measured Jammes against an elusive benchmark: “stability.” 

“I will decide what stable means, whether it’s a few weeks, a few months,” Biskupic said. Transcripts indicate the concept encompassed nearly all aspects of Jammes’ life, including work, housing, friends, health and — especially — education. But Biskupic never defined it, and its boundaries seemed to shift. 

“We’re not going to keep this going forever,” he told Jammes in April 2017. “But I want to see some stability from you.”

At one hearing where Jammes appeared without his lawyer, the judge raised the bar. The stay’s original order said Jammes merely had to continue to make progress in the GED program. Now, Biskupic was telling him he had to get his GED. 

“I know Mr. Schmidt still isn’t here; but it’s not like I’m doing anything of evidentiary value that’s adverse to your interests. The GED is going to open some doors for you,” Biskupic said. “So what I’m looking to do is give you one last review date. If you are doing okay and you have this GED, we can end this.” 

Jammes, who says he has dyslexia, never got his GED. The transcripts indicate he worked toward it for months through courses and practice tests. 

“I had everything going for myself, but he continued and continued and continued ‘cause I didn’t have my GED.” 

Jammes said that, in effect, the stay required him to “continue probation, just through the judge.”

And it meant the case lasted longer. Had Jammes just served the time Biskupic gave him, he could have left jail and closed his case in July 2016. But the stay caused a delay; Biskupic ordered Jammes back to jail in September 2017.

“I don’t think there is any actual statutory authority for the judge to act that way,” Schmidt said. “I think he was just using his discretion, what he thought was helpful for Beau. (But) I think once the maximum term for any kind of probation or confinement expires I think the court’s jurisdiction ends.”

He added, “There was no way to know how long this judge was going to continue to run this on.”

Nora Demleitner, professor at Washington and Lee University School of Law in Lexington, Virginia, says this type of court action can prolong involvement in the criminal justice system for people committing low-level offenses.

“This sentencing strikes me as a prime example of net-widening,” said Demleitner, who reviewed several cases at Wisconsin Watch’s request. “Some of these people, it looks like they could have been just discharged. But he (Biskupic) is hauling them back in and then sometimes putting them, it sounds like, it’s under quite a bit of pressure or even sends them to jail.”

‘Probation is not permitted’ 

In at least two cases, the state public defender’s office appointed counsel to represent people at Biskupic’s self-styled review hearings while characterizing the nature of the case as “probation modification/extension.” But court records show neither of those defendants were on probation at the time. 

The state public defender’s office declined to explain the discrepancy. Spokesman Willy Medina said in a statement: “Ethical requirements and the passage of time make it very difficult for SPD to go through the specifics of past cases.” 

In 2016, an Outagamie County assistant district attorney motioned to lift a stay issued by Biskupic “based on the revocation of his probation, the fact that this is a sentence after revocation and probation is not permitted.” 

In an email, Flaherty said this defendant “was never placed on probation to the court,” but rather was “monitored through his various treatment programs and through the efforts” of a substance abuse specialist contracted with the county. However, he acknowledged: “At review hearings, the court received updates on the defendant’s progress with treatment programs.” 

Flaherty also characterized the time spent out of jail as a “furlough,” rather than a stay. Though a slippery term, multiple legal experts said a furlough is a temporary, authorized absence from an incarcerative institution, typically for events like funerals. 

‘Legal fictions’

About two dozen legal experts consulted by Wisconsin Watch and WPR had a wide range of views about Biskupic’s use of review hearings. Some said the practice is legal, some called it a gray area and some said it has no basis in state law. Others had never heard of it before.

“The little secret of criminal justice is sometimes we do legal fictions because it benefits the client and we all think it’s okay,” said Brandt Swardenski, a private defense attorney and former state public defender. “Imposing and staying sentences and having someone come back in for reviews … gets a little fuzzier because there’s limited situations when a court’s supposed to impose and stay a sentence.”

The state public defender’s office said in a statement that statutes do grant judges “broad discretion at sentencing” but failed to elaborate.

But Michael O’Hear, a professor at Marquette University Law School, said in an interview, “We’ve got case law, apparently, that says once the judge imposes the sentence that the judge simply needs to turn the matter over to the executive branch of government for implementation of the sentence, unless one of these (few) recognized exceptions apply.” 

Some see benefits in Biskupic’s practice

Nevertheless, some attorneys and defendants subjected to the practice said they considered it helpful and that Biskupic acted with good intentions. 

In many cases, Biskupic stayed incarceration so people could attend drug or alcohol addiction treatment. 

One defendant, Kristen Gurholt, said she was grateful that Biskupic stayed her jail sentence so long as she wrote a letter to her son apologizing for the behavior that landed her behind bars. She called Biskupic “amazing,” adding, “I don’t have a single bad thing to say about him.” 

Former state public defender Amanda Skorr, who now works as a private defense attorney, said Biskupic’s supervision was less restrictive than probation supervised by the state DOC. 

“He’s not depriving people quite as much of some of their rights and liberties that they (would) have if he were to put (them) on regular probation,” Skorr said in an interview. “It’s not as awful as it sounds because probation to the court is really very, very different than probation to a probation agent.”

However, she acknowledged: “The risk is you don’t know when it’s going to end and what the consequence is if you don’t do it.”

Said Craig Mastantuono, a private defense attorney and adjunct law professor at Marquette: “If a judge routinely engages that practice without clear statutory definition, then you’re really subject to that judge’s discretion without … guardrails. That could be a dangerous thing if the discretion utilized becomes more outlandish and judges are making up wish lists without much statutory guidance for what they want to see accomplished.” 

Schmidt, Jammes’ attorney, called the case “an example of the court overreaching.”

“There should be some status completion and conclusion here,” he said. “Beau never got to that point. There was always something more that the judge wanted.”

Phoebe Petrovic is a Report for America corps member. This piece was produced for the NEW News Lab, a local news collaboration in Northeast Wisconsin. The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, Wisconsin PBS, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Man decries lengthy ‘de facto probation’ in Outagamie County is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

This piece was produced for the NEW News Lab, a local news collaboration in Northeast Wisconsin.

Microsoft is providing financial support to the Greater Green Bay Community Foundation and Community Foundation for the Fox Valley Region to fund the initiative.

Chris Kartsounes had heard enough of Outagamie County Circuit Judge Vincent Biskupic’s demands. In May 2017, at his sixth hearing after having already been sentenced — when a case would normally be over — Kartsounes lost his cool. 

“I’m tired of this, your honor,” he said. “I’ve served my time. I’ve done everything I’m supposed to do … Why do you keep harassing me?” he asked, firing profanities at the judge. 

After the outburst, Biskupic accused Kartsounes of drinking — a violation of the condition that he remain sober while out of jail. When Biskupic asked whether a breathalyzer would detect alcohol, Kartsounes said he did not know. The judge promptly sent him back to the county jail in Appleton, where Kartsounes would serve the nearly four months that remained on his 12-month sentence. 

Just like dozens of defendants identified by Wisconsin Watch and WPR whose cases landed in Biskupic’s courtroom, Kartsounes, now 55, faced an uncertain future — one in which he didn’t know when his punishment, and the court’s control over his life, would end.

Experts say judges in Wisconsin have among the widest latitude in the country to impose fines, send defendants to jail or place someone on probation — an alternative that allows people to remain in the community so long as they stay crime-free and report to a probation agent. 

Over the past seven years in at least 52 cases involving 46 defendants, Biskupic has used so-called review hearings to either monitor a defendant’s behavior or to push them to pay fines, fees or restitution, Wisconsin Watch and WPR found. These check-ins — not spelled out in state law — often involved defendants updating the judge on their lives and their progress toward meeting Biskupic’s conditions.

About two dozen legal experts consulted by Wisconsin Watch and WPR had a wide range of views about Biskupic’s use of review hearings. Some said the practice is legal, some called it a gray area and some said it has no basis in state law. Others had never heard of it before.

A Wisconsin Watch and WPR analysis shows Biskupic is by far the biggest practitioner in Wisconsin of review hearings that, as in Kartsounes’ case, are held after a person has been revoked from probation. After a detailed review of each case file, Wisconsin Watch and WPR found that in 29 cases, Biskupic held 142 such review hearings — more than twice as many as any other judge in Wisconsin between 2014 and 2020. Some attorneys with clients subjected to the practice refer to it as “probation to the court,” although that term is not defined in state law. 

Wisconsin Watch and WPR also found:

• Biskupic ordered four defendants arrested for failing to show up for these legally dubious review hearings after their probation had been revoked.

• Biskupic had another four people arrested for failing to show up for review hearings aimed at collecting overdue fines, fees and restitution. Civil authorities generally handle such collection efforts — and have no power to issue arrest warrants. 

• The judge also bypassed Outagamie County’s treatment courts, fashioning his own form of supervision that included a shifting set of demands that went beyond addiction treatment to include getting a high-school equivalency degree, following a landlord’s rules and getting a “better job.”

For some defendants, the arrangement feels beneficial, allowing them to close their cases early or avoid more jail time. 

Others see risks: The lack of structure — including criteria for which cases are eligible for this option, an explanation of the arrangement’s purpose and a clearly outlined calendar of how long supervision will last — creates uncertainty.

Judge as ‘probation agent’ 

More than half of the sentences identified by Wisconsin Watch and WPR came with a carrot and stick: If defendants attended treatment or got full-time work, Biskupic might close their cases early. If they failed to meet those conditions, they could be returned to county jail to serve the rest of their sentences. 

In the remaining cases, Biskupic called people back to court, sometimes even after their sentences were served, to demand they make good on court-ordered payments — a task that is typically handled by the clerk of courts.

Nine months before Biskupic ordered Kartsounes to jail, the judge had sentenced him for bail jumping — a charge he got after drinking in violation of court-ordered sobriety. At the time, Biskupic offered what Kartsounes assumed was a deal: Successfully complete treatment for alcohol, and the rest of his jail time could be forgiven. Even Kartsounes’ attorney believed that was a possibility, court records show, though no formal agreement was ever struck.

Biskupic did not directly answer a set of 22 detailed questions about the use of these arrangements. Biskupic, a former Outagamie County district attorney and unsuccessful Republican candidate for state attorney general, was appointed to the bench in 2014 by then-Gov. Scott Walker. He was elected to a six-year term in 2015 and re-elected in April, both times unopposed. 

In a statement, he said Wisconsin Supreme Court rules “limit a judge’s public comments on court cases.” Biskupic’s private attorney Daniel T. Flaherty of Godfrey and Kahn rejected the characterization of Biskupic’s actions as “probation to the court” or court supervision, saying the judge himself has not used these terms. 

Flaherty cited two rulings from the Wisconsin Court of Appeals and Supreme Court that he said give Biskupic the authority to grant a jail inmate a temporary furlough to get alcohol or drug treatment. 

However, Deja Vishny, a private defense attorney and adjunct professor at Marquette University Law School, said those holdings do not apply to the actions Biskupic has taken because they deal with a court’s ability to grant a furlough before sentencing. The stays Biskupic issued have come after sentencing. 

Vishny told Wisconsin Watch and WPR that there are few situations in which a judge can stay a sentence, and “deciding that you’re going to be the probation agent for the person is not one of them.”

“(Biskupic) just has absolutely no authority to do what he’s doing,” she said. 

‘De facto’ probation 

For defendants like Kartsounes supervised by Biskupic, the arrangements look a lot like being on probation with the state Department of Corrections. In these cases, however, there is no probation agent. Defendants are answerable only to Biskupic. And he alone determines when his control over their lives will end, acting as judge, debt collector and, at times, counselor, court records show.

In an interview, Milwaukee County Circuit Judge Frederick Rosa, who has served 17 years on the bench, said he had never heard of such a practice.

“I don’t know of anybody imposing and staying a sentence that isn’t monitored by the (Wisconsin Department of Corrections) probation department,” said Rosa, who was named Wisconsin Judge of the Year by the State Bar of Wisconsin in 2017.

Dane County Circuit Judge John Hyland, who helped write the Criminal and Traffic Benchbook, the official how-to for Wisconsin judges overseeing criminal cases, said some of these practices do not appear to have a basis in state law. Hyland said he is not aware of any legal authority for a judge to use a stay to release people from jail, set conditions and monitor their behavior through review hearings — unless they are on state probation. 

“I do not find any provision in the (sentencing statute) which provides jurisdiction over a person sentenced to jail,” Hyland wrote after reviewing several of the questioned cases at the request of Wisconsin Watch and WPR. “Technically, the person’s bail has ended upon being sentenced, even though a stay of the sentence has been granted for some period of time. Given that, I do not know what authority would permit review hearings or continued court appearances.” 

In 2000, the Court of Appeals ordered a defendant resentenced after finding such an arrangement exceeded the judge’s authority. In that case, an appellate judge found the Barron County Circuit Court judge “did not have the authority to indefinitely stay the execution of (the defendant’s) sentence,” and could not create a “ ‘de facto’ probation” by staying a defendant’s jail time to monitor her progress in alcohol treatment. 

The appeals court also ruled that allowing the defendant to potentially avoid serving her sentence entirely was outside the lower court judge’s discretion, saying, “This type of authority is more akin to the governor’s authority to commute a sentence or to pardon.”

But since it was an unpublished opinion, the decision did not set a precedent that other Wisconsin judges must follow.

Flaherty, Biskupic’s attorney, responded that “each file has its own unique facts for a trial court judge to consider.” He noted that the 2000 appeals court ruling has “no binding authority on trial court judges.” 

Wisconsin Watch and WPR found one case in which a person avoided serving their full sentence after satisfying Biskupic’s conditions. In May 2015, a man received 10 months in jail for disorderly conduct with domestic abuse and repeater modifiers after getting his probation revoked. Biskupic allowed him to serve the first four months with work release privileges and stayed the remaining six pending a review hearing. By December of that year, after the man paid his fines and attended counseling, Biskupic discharged the remaining six months of jail time because he considered the “conditions completed,” according to court records. 

But for some defendants, these hearings in Biskupic’s courtroom were not merely an annoyance. Biskupic sometimes issued arrest warrants for people who failed to appear at his review hearings, and some were required to post cash bail of up to $579. Wisconsin Watch and WPR found that Biskupic ordered eight people arrested for failing to show up for review hearings.

Although Outagamie County has several treatment courts — where a judge monitors defendants to make sure they go to counseling and pass alcohol and drug screenings — Kartsounes’ case and dozens of others were not part of any formal program. 

Former state public defender Brandt Swardenski said he has explained to clients appearing before Biskupic that entering these supervisory arrangements with the judge can be a “benefit,” but that they are “stepping into a sort of gray area of the law, and so you’ve got to understand by getting this benefit, you’re subjecting yourselves to further consequences down the line.”

Repeated ‘review hearings’

Kartsounes completed treatment, with court records showing he received “maximum benefit” from the program. He even stayed at the treatment facility for several extra months. Still, Biskupic refused to close the case. And after the outburst, he sent Kartsounes back to jail to serve the sentence Kartsounes had been trying to avoid.

In the seven months since letting Kartsounes out of jail, Biskupic called him back again and again for review hearings, each time with the penalty of arrest if he failed to show.

After Kartsounes completed treatment, Biskupic wanted to see proof of stable residence and continued treatment — then, court transcripts show, the judge would be “content” to close the case. A physical disability made it hard for him to find work, Kartsounes said. He was living in a motel, afraid of signing a lease he would not be able to fulfill if he went back to jail. 

These conditions were not part of Kartsounes’ sentence but tacked on later as Biskupic continued supervising the case long after most Wisconsin judges would have closed it. 

Stayed sentences, lengthy supervision

One practice Biskupic uses to supervise defendants is to stay a sentence — a mechanism judges can use to postpone or pause a term of incarceration. With a jail sentence hanging overhead, Biskupic required people to fulfill any number of conditions he ordered, including remaining sober, obtaining a GED or applying for jobs. Biskupic assessed their compliance and determined whether he would allow them to remain on the stay at periodic review hearings in his courtroom.

In extensive correspondence, Flaherty defended Biskupic’s approach to the cases identified by Wisconsin Watch and WPR, saying prosecutors did not object to the sentences, and that defendants did not appeal their cases — suggesting the practice is not problematic. But Wisconsin Watch and WPR’s review of more than four dozen court cases showed that defense attorneys and prosecutors did sometimes question the propriety of these arrangements. 

In a written statement, Biskupic said stakeholders within the Outagamie County criminal justice system — including attorneys, social workers and jail staff — have sought opportunities for defendants and inmates to access treatment for drugs and alcohol or mental health needs in response to a 10-year rise in criminal cases related to substance abuse. 

The court considers available options upon sentencing, he said, including “stipulations from the attorneys for clients to enter local treatment programs while on temporary furlough from the county jail.” 

Biskupic added: “In the last seven years, the Branch 6 Court (Biskupic’s court) has not had any trial court decisions reversed by the Wisconsin Court of Appeals or the Wisconsin Supreme Court.” 

The state public defender’s office, whose attorneys have represented defendants in these atypical arrangements with Biskupic, acknowledged that the sentences “may appear unusual, and may not have worked the way every client thought it would,” but said it is public defenders’ duty to explore the best option available to each client. 

“As counterintuitive as it might seem, for some of our clients, formal probation is more difficult than most other sentences, including a term of imprisonment,” spokesman Willy Medina said in a statement. “If a judge exercises his or her discretion at sentencing, our job is to describe the ramifications to the client, both positive and negative, and ultimately do what the client chooses.”

Deal with Biskupic brings regrets 

In September 2015, Biskupic sentenced Charles Joe Reuter IV, to nine months in jail. In December of that year, Biskupic paused his sentence in the same way he did with Kartsounes, so Reuter could attend treatment for substance abuse. Although Reuter attended multiple treatment programs, he relapsed several times. Eventually, after Reuter failed to complete another treatment program, Biskupic authorized a court order for his arrest, sending him back to jail to sit the remainder of his sentence for battery and domestic abuse. 

All told, Biskupic did not close Reuter’s case until February 2018. Had Reuter just served his jail sentence to begin with, he’d have been free about two years earlier, court records show.

Reuter said in an interview he didn’t realize how much the stay extended his overall case. He said he felt Biskupic, whom he described as a “caring judge,” was “trying to do what was best at the time.” 

But would he accept an arrangement like this again? “Oh no, definitely not. Nope.” 

Other people, like Kartsounes, ended up entangled with Biskupic’s supervision for months or years longer than the case would have lasted had they just served the initial jail sentence. 

For example, Biskupic temporarily released Kartsounes from jail so he could attend the treatment program, supervised him for almost eight months and then sent him to jail, where he remained until September 2017. Had Kartsounes just served his time in lock up, he’d have been done more than six months earlier than he was released, according to court records and information from the Outagamie County Jail.

Court authority questioned 

Wisconsin Watch and WPR’s analysis found Biskupic held 142 review hearings with defendants who had been sentenced after getting revoked from probation — more than twice as many as any other circuit court judge in Wisconsin from 2014 through 2020.

And it is unclear whether judges have the authority to supervise defendants in this manner. 

Most at issue is for how long and for what reasons judges like Biskupic can stay jail time. Stays postpone or pause sentences. Biskupic issued them to allow people to remain in the community and complete court-ordered conditions.

State statute lists three scenarios in which a judge may stay “a sentence of imprisonment”: placing someone on probation; for any length of time up to 60 days; or for “legal cause.” The Wisconsin Supreme Court said in 1998 that, “A stay for the purpose of personally accommodating a defendant, however, is not a stay for legal cause.” Biskupic’s use of stays, which court documents show he sometimes interchangeably refers to as “furloughs,” are far more expansive than the 60-day limit, sometimes stretching on for years. 

“It is a little bit gray whether or not courts have the authority to do that,” said Cecelia Klingele, a law professor at University of Wisconsin-Madison. 

“Wisconsin law alludes to the inherent authority of the court over its sentence, but it has not been fleshed out fully in case law, sort of, what are the outer bounds of that power,” she said.

‘Inherent power of the court’ 

Several judges interviewed by Wisconsin Watch and WPR, though, backed Biskupic’s actions. Brown County Circuit Judge Donald Zuidmulder acknowledged there’s no specific state law spelling out this type of judicial supervision. But he believes it’s legal because it’s an “inherent power of the court.”

Judge Mitchell Metropulos, Biskupic’s colleague in Outagamie County Circuit Court, agreed. 

“I’ve done this in the past where I’ll impose a jail term, but I would allow a portion of that jail term to be stayed if they go in through a treatment program,” he said. “I think the court has the authority to supervise a sentence, and I don’t think there’s any limitations as to how long that would last.”

Metropulos added, “I am not aware of any cases that have prohibited this practice. I’m sure we would have been made aware of such a case if it was out there.” 

However, the Wisconsin Judicial Benchbook warns that a judge “has no inherent power to stay (a) sentence” — except when a defendant seeks an appeal.

This isn’t the first time Biskupic has leaned into gray areas of the law. As Outagamie County district attorney in the mid-1990s and early 2000s, he agreed not to bring charges against people if they made donations to a private “crime prevention fund” he controlled. 

A 2002 investigation by the Wisconsin State Journal exposed Biskupic’s practice and, through interviews with judges and law professors, explored how it created a two-tiered system of justice, enabling the wealthy to buy their way out of punishment. One man who paid an $8,000 donation said the deal felt like he had been “shaken down.”

Soon after, Biskupic lost his bid for Wisconsin attorney general and the Wisconsin Ethics Commission condemned him for his conduct and warned other prosecutors against the practice. In 2008, lawmakers officially amended state law to make the practice illegal.

Injury leads to addiction 

Kartsounes remembers the 1980s as the golden decade, the peak of rock ‘n’ roll, motorcycles and indulgent parties. An era, he said, that boiled down to one motto: “Big hair, don’t care.”

Kartsounes grew up in Appleton, the second-oldest of four children and an avid guitar player. By day, Kartsounes put on a collared shirt, tied his hair in a ponytail and headed to a 9-to-5 job working with computers and electronics. By night, he played local bars and jam nights. Friends called him Oz, a nod to bat-biting rock star Ozzy Osbourne. The nickname matched his stage persona.

In 2001, the party officially ended with a freak landscaping accident. Working on his house, Kartsounes climbed to the top of a tree to trim a dead limb when he slipped and tumbled to the ground. He broke both of his heels when he hit the ground — an injury that caused lifelong pain and a shuffling gait. Kartsounes said he became dependent on the pills doctors prescribed for the pain. 

“If you’re taking handfuls of pain pills every day, you’re going to be physically addicted to them like a dog,” he said. 

Kartsounes said he got by with the help of opiates for about 12 years, until the morning he woke up inexplicably paralyzed. He had protein in his blood and a number of other health complications, he said. Homebound and immobilized, Kartsounes drank from morning until night, and often in between. If he woke before dawn, he’d pour a glass of whiskey, he recalled. On at least one occasion, according to court transcripts, his blood-alcohol content registered above 0.42% — a level of intoxication that can lead to coma or death.

Chaos and legal trouble followed. 

His first serious offenses came in 2013. As he remembers, he was awakened by two men who entered his house without permission. Confused and angry, Kartsounes says he pulled out a pistol and demanded the men leave. The gun discharged and police came, resulting in several charges, including intoxicated use of a firearm. He was later convicted and placed on probation with the state DOC. Then in 2014, he was arrested on suspicion of operating while intoxicated — his fourth OWI. 

Out on bail, the court admonished Kartsounes to abstain from drinking. If caught, he would face a new charge for bail jumping. Which is exactly what happened in November 2014, after Kartsounes’ mother found him unconscious and bleeding from the nose. She called for medical help, but police officers also responded. After Kartsounes received medical treatment at a local hospital, he was arrested and charged for violating terms of his bail.

‘Indefinite’ court supervision

In October 2016, Kartsounes ended up in Biskupic’s courtroom, where he was convicted of bail jumping. At the hearing, Kartsounes’ attorney floated the idea of forgiving his jail sentence if he completed a treatment program. While court transcripts obtained by Wisconsin Watch and WPR do not show an explicit agreement between the court and Kartsounes that he could avoid some jail time if he graduated from a treatment program, Biskupic indicated it would be possible to do so. 

But after Kartsounes completed the program and returned to court, Biskupic imposed other conditions: Provide proof of a permanent residence and continued aftercare treatment. 

“I need to know, before I say we’re going to close out the file, that you’re living somewhere other than a hotel, that you have structure set up, and that there’s at least some period of time that you show me ‘I’ve got an apartment’ or ‘I’m staying with my dad,’ ‘I’m going to AA meetings and there’s some stability,’ ” Biskupic told Kartsounes at a review hearing on April 20, 2017.

“Then I would be content,” Biskupic said.

During that hearing, Kartsounes expressed concerns that the ongoing review hearings were making it difficult to find stability in life, according to court records.

“I need to be able to not have all these restraints on my life and try to live a normal life here, your honor,” Kartsounes told Biskupic at the hearing. “I need to sink or swim, and I need to be able to do things as a normal person.”

The judge scheduled another review hearing for a month later. That’s when Kartsounes lost his composure, and Biskupic sent him back to jail. The judge accused him of drinking before court. Kartsounes denied it. 

“That’s a lie,” Kartsounes said in an interview. He admitted to drinking on one occasion while in treatment, a relapse Biskupic knew about but for which he did not send Kartsounes to jail. But Kartsounes maintains he did not drink before court that day — but said that even if he had, he should not have been under Biskupic’s supervision. 

“I shouldn’t have been in court that day in the first place. My sentence was over,” Kartsounes said. 

Back in lockup, Kartsounes began writing letters to the judge from inside Outagamie County Jail. 

“If I had known you wanted me on an indefinite term of court ordered supervision instead of the agreement we had to dismiss my sentence once I graduated from treatment successfully, I would not have agreed,” Kartsounes wrote. 

‘He wants to monitor that growth and change’

Amanda Skorr is a private defense attorney and former public defender in Appleton. Court records show she has objected to Biskupic’s continued supervision of a client at least once, arguing the court lacked “jurisdiction” because “probation has expired.” This took place at a bail hearing for a client usually represented by her state public defender colleague, Swardenski. 

The client was arrested after missing two review hearings related to a temporary stay Biskupic issued to allow him to attend treatment and “get a better job,” according to court records. The judge issued that stay after the client’s probation had been revoked. Flaherty, Biskupic’s attorney, pointed out that the lead attorney on the case, Swardenski, did not follow up on Skorr’s objection when he reappeared with his client.

In an interview, Skorr said she believes Biskupic is supervising defendants because he wants to help them and “make the world better.”

“I truly do believe that the motivation behind that is because he wants to see people grow and change, and he wants to monitor that growth and change,” Skorr told Wisconsin Watch and WPR.

Others agreed with Skorr. Even Kartsounes’ mother believes Biskupic was trying to help. She wrote a letter to the judge to thank him “for saving Chris’ life for now.”

Kartsounes views it very differently. He said his case with Biskupic only accelerated a downward spiral that resulted in more alcohol-related charges and eventually landed him in prison. 

In 2019, he was sent to state prison, where he remained for two years. He said he spent much of that time in solitary confinement — his only means of entertainment and self-improvement coming from the two library books he could check out each week.

In March 2021, he was released from prison, returning to the same reality he left. As of May 2021, he was staying at a hotel in Appleton, looking for full-time work he can perform with his physical disability and searching for permanent housing. He continues to struggle with his mental health. 

There have been bright spots, though. He re-connected with family members from whom he grew estranged during his time in prison and spoke to his brother for the first time in years. Glimpses of the old Chris have started to emerge, his brother said.

“I’m happy to hear some light come through as the days went by with our chats,” Pete Kartsounes said. 

But Chris Kartsounes knows he has a long way to go. “This isn’t my life. It can’t be,” he said one night in tears. He acknowledged that aspects of treatment were helpful, but regrets the way it played out. 

“I wish I would have just done my jail sentence and then gone into treatment,” he said. Instead, after getting help, he moved into a hotel, where he remained until his case was resolved.

“Biskupic left me no way to go forward. I couldn’t move, I couldn’t rent an apartment until this case was done,” Kartsounes said. “The system has ruined me.”

This piece was produced for the NEW News Lab, a local news collaboration in Northeast Wisconsin. The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, Wisconsin PBS, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

‘Why do you keep harassing me?’: An Outagamie County judge controls defendants after sentencing is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

This piece was produced for the NEW News Lab, a local news collaboration in Northeast Wisconsin.

Microsoft is providing financial support to the Greater Green Bay Community Foundation and Community Foundation for the Fox Valley Region to fund the initiative.

How did Wisconsin Watch and WPR confirm that Outagamie County Circuit Judge Vincent Biskupic is among few Wisconsin judges who regularly order defendants to open sentences — leaving some in limbo as he repeatedly called them back to court? That required a painstaking data analysis.

After learning from multiple attorneys about Biskupic’s uncommon sentencing practice, Wisconsin Watch and WPR hired Court Data Technologies (CDT), a Madison-based consulting firm that specializes in examining Wisconsin court data, to search and collect court records for certain cases that Biskupic handled. The search criteria included:

• Cases in which a person pleaded guilty or was found guilty at trial on at least one count of their charges. 
• Cases featuring a “probation review hearing,” “review” or “review hearing” after sentencing — or sentencing after probation was revoked.
• Cases prosecuted between Jan. 1, 2014 through Jan. 1 of this year — to cover most of Biskupic’s time in office.

Related content:
‘Why do you keep harassing me?’: An Outagamie County judge controls defendants after sentencing

Glossary of legal terms

Biskupic oversaw 2,189 cases involving at least one conviction during that period, the data firm found. Eliminating cases that had no “probation review hearing,” “review” or “review hearing” listed in their dockets whittled the list to 142 cases. CDT sorted those cases into four categories: 

• Cases in which probation was never imposed.
• Cases in which probation was revoked and the court docket recorded a “probation review hearing,” “review” or “review hearing” after revocation.
• Cases in which probation was imposed and the court docket recorded a “probation review hearing,” “review” or “review hearing” after probation likely ended, according to a CDT calculation.
• Cases in which probation was imposed and the court docket showed a “probation review hearing,” “review” or “review hearing” after “full satisfaction” of the case.

After receiving the data, Wisconsin Watch and WPR reporters focused exclusively on cases in the first two categories: those in which probation was never imposed and cases in which probation was revoked — situations in which review hearings would likely be uncommon.

In these cases, Biskupic held “probation review hearings,” “reviews” or “review hearings” for defendants whom the Department of Corrections, which oversees probation in Wisconsin, did not actively monitor. Reporters eliminated cases in the last two categories because an initial imprecise records sweep included some cases featuring review hearings while someone was still serving probation. 

Wisconsin Watch and WPR reporters further winnowed the list to eliminate cases featuring common conditions for post-conviction review hearings. Reporters removed cases involving the Safe Streets Options Program, an Outagamie County treatment program for people convicted of intoxicated driving. Also removed: cases involving any of Outagamie County’s four treatment courts or programs offered by Criminal Justice Treatment Services, which provides rehabilitative programs for people in Outagamie County Jail and out in the community, such as CJTS Probation.

Next, reporters scrutinized each case to determine whether they included other conditions that would make Biskupic’s sentencing practices typical. That involved reviewing case dockets using the state’s Consolidated Court Automation Programs database and spending more than 20 hours reviewing case records at the Outagamie County Government Center. 

Further refining the data, reporters eliminated cases involving post-conviction hearings related to enforcing victim impact panel attendance, which state law clearly authorizes. Records obtained at the county government center — costing $1.25 per page — indicated that some of Biskupic’s “review hearings” dealt with requests for work release privileges or appeals. Reporters eliminated those from the data set, since they did not pertain to the types of review hearings in question. 

That left 52 unique cases in which Biskupic utilized uncommon, open-ended sentences. These fell into several categories: 

• Sentence stayed for conditions Biskupic imposed. 
• Sentence stayed for conditions Biskupic offered but a defendant did not take. 
• De facto stay after Biskupic postponed the day a person needed to report to jail well past state law’s 60-day limit on stayed sentences. 
• De facto supervision as Biskupic held hearings to monitor the payment of costs, fines or restitution. 

The 52 cases involved 46 different defendants and resulted in 199 review hearings.

CDT also collected data for judges statewide using the same criteria set for Biskupic’s cases. Using that dataset, reporters determined that Biskupic supervised defendants following revoked probation more than any other Wisconsin circuit court judge. After removing cases handled in treatment courts, veterans courts and numerous other specialized courts, and reviewing case files in person in Outagamie County, Wisconsin Watch and WPR determined that Biskupic presided over 142 review hearings for defendants whose probation had been revoked. 

The judge who held the second-most review hearings for similar defendants presided over no more than 67 hearings, according to the data firm’s analysis. And the true total may be lower, since a case-by-case review of the statewide data would likely eliminate additional cases in which review hearings were held for common reasons — as Wisconsin Watch and WPR found when scrutinizing each Biskupic case.

Behind the story: How we reported on a judge’s unusual sentencing practices is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.