Bill that would increase compensation for wrongfully convicted could make for open records problem

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Wisconsin State Capitol

MADISON — A bill that would increase compensation for people wrongly convicted of crimes has open records advocates worried over what it would do to court records.

The bipartisan bill from Rep. Dale Kooyenga, R-Brookfield, and Rep. Gary Hebl, D-Sun Prairie, would help the wrongly convicted with up to $50,000 per year spent behind bars, plus transitional services and access to state health insurance.

Another provision requires a court to seal all records related to the conviction if it’s requested by the person freed. Open records advocates say that would make it hard to examine the case to figure out where it went wrong.

“Do we really want to hide from public view the court file in cases where an injustice was done by the justice system?” said Wisconsin Freedom of Information Council president Bill Lueders.

Lueders pointed to the recent “Making a Murderer” Netflix documentary series about Manitowoc County native Steven Avery, who served 18 years in prison for sexual assault before he was exonerated. A few years after his release, Avery was sentenced to life in prison for the 2005 death of photographer Teresa Halbach. Under the current bill, Lueders said, much of the information about how the sexual assault case was handled would not have been public, giving Avery sole discretion on what to divulge.

“Sealing it all up conceals not only the fact that it happened, but also the misconduct that occurred in the case,” said Madison media law attorney Robert Dreps.

Hebl said he’s a strong supporter of open records and transparency, but in the case of people who were wrongly convicted, the records can hurt their chances to remake their lives.

“The fact that they’ve gone through this horrible travesty of judgment and spent so much time in prison for something they didn’t do, I think it’s incumbent upon us to give them some reasonable rights,” Hebl said.

The state Assembly passed the bill unanimously Tuesday and the Senate could take it up this week.

Lueders is pushing for the Senate to remove or amend the language on records. Hebl said he hasn’t heard from any legislators interested in doing that.

Hebl noted defendants could share their records with the public or with media if they want, but Dreps said giving that right only to defendants raises First Amendment concerns.

“I don’t sacrifice my constitutional rights to a defendant’s whim,” Dreps said.

He instead suggested attaching a note to any court records or online records when a case is overturned. Lueders said for most of those, shielding information won’t help with the reputation of the person involved. Many are high-profile cases with extensive media coverage that would still live online.

“You’re not going to make it go away by hiding certain court records,” Lueders said.