On 9/5/2014, Eye on Oshkosh Host Cheryl Hentz, and Oshkosh Scene writers Tony Palmeri and Emilie Heidemann interviewed Waukesha County District Attorney Brad Schimel, candidate for the Wisconsin Attorney General. This interview is the last in a series of candidate interviews that included the 54th Assembly District, State Treasurer, Wisconsin Attorney General, and Congress.
Democrat candidate Susan Happ was invited to participate in a joint interview with Harris and was also offered additional opportunities to complete the interview.
Cheryl Hentz: Why are you running for the office of Attorney General?
Brad Schimel: You do some days wonder why you’d get yourself to run for statewide office but it is a beautiful state and we’re travelling on average about fifteen hundred miles a week of campaign miles and I’ve been to virtually every county campaigning and it’s fantastic. There are great people. It’s a beautiful state to drive around and we’re enjoying it and I actually like campaigning and I don’t know if that’s strange to say that but I love the retail campaigning. Ultimately, public service is customer service and, you know, I tell that to my staff at the Waukesha DA’s office all the time, that you’ve got to remember that you’re in customer service because if you forget that then you’ve just become that bureaucrat that people complain about in government and I don’t want there to be that.
Hentz: What is your experience in the field?
Schimel: I’ve been with the Waukesha DA’s office for almost 25 years now. I started as an intern in my last year of law school and after a brief period in private practice they had an opening and I got hired, sub there and then as an assistant DA. In 2006, I was elected the District Attorney in Waukesha County, ran a contested race, and have been there ever since. I tell you I really love the work. I’m not running for Attorney General because I can’t stand being DA. I’m running for Attorney General because I think, I think I have something to offer the people. With my years of experience, I’ve done some things. I’ve been part of things I should say. Because, you don’t – the most important things you do you don’t do alone; and so early on in my career when I was in the, in the traffic unit in the office we were very concerned about recidivism with intoxicated driving cases. They just keep coming back over and over again. Especially, once you get the third offense. And, so working with one of the judges, we worked with Mother’s Against Drunk driving to create the first Victim Impact Panel in the state of Wisconsin. We had to do it without any taxpayer money, because the county board wasn’t opening up their checkbook, and, we managed to do it and it’s that’s still running now. It’s a fantastically successful program and other communities around the state have taken the template and done it for themselves.
Later on I was in the sensitive crimes unit which prosecutes child abuse, sexual assault and elderly abuse and we became very concerned that when we had a child disclose sexual or physical abuse, the only place to go at the time was the child protection center in Milwaukee. And first it frightened a lot of people from the suburbs to have to go into Milwaukee to do this downtown. It was a great facility. The only problem was that it was the only facility. So, all of the counties in Southeastern Wisconsin were taking kids there. So, you’d have to schedule an appointment two weeks out. You can’t expect an 8 year old who has finally gotten the courage to tell you about some abuse usually by someone close to them to now follow up. We’ll more about this in two weeks when we have the appointment doesn’t work, and we felt we’re better than that. We set out in Waukesha county to open up our own child advocacy center. We drove up to Minneapolis for a conference to learn how. There were people of all different walks of life and political persuasions… We learned how to do and we came back and we said we’re going to make this happen and about two years later, we opened the doors on the first full service child advocacy center in the state of Wisconsin. What I mean by that is it goes everything, one stop shopping under that roof, and we’re nationally accredited because of that status. We did it without a dime of taxpayer money. We own the building. We managed to get charitable donations and things and we built the template that other communities around the state have used as well and now there are child advocacy centers all over the state. There’s one up in the Fox Valley now. Now, instead of waiting 15 days for an interview, that child will be interviewed within 24 hours and usually the very same day that they make this disclosure. Within hours, they will be there in an interview. We’ve been able to use this successfully in domestic violence cases, where as you can imagine, in a lot of domestic violence cases kids are witnessing bad things in the home. We can bring those kids to that center now and we’ve got the capacity — every, every kid that could use a forensic interview or medical exam because of some danger in their lives, we can take care of them there and, so I’ve been involved in things.
We also in Waukesha County have the first alcohol treatment court that was founded in the state of Wisconsin. Another great thing, we’re turning the recidivism rate. Recidivism for people who don’t complete our program are about 38%. If you put them in our program, it, it’s under 10% for recidivism and it’s programmed that isn’t that expensive to run. Most of the people in it are third and fourth offenders. Most of them still have jobs. They’re able to pay part of the fee to be in it, and when they’re done they look back and they say it was a great investment.
Tony Palmeri: Speaking of drunk driving, Wisconsin is the only state in the nation where the first offense is not at least a misdemeanor. Is it time to change that?
Schimel: We don’t know the answer to that yet. I serve on the Wisconsin District Attorney’s association executive board and every biennium, the legislature has a bill where someone proposes making first offense a crime, and every time they get the fiscal estimate they run away with it. It’s been democrat legislatures and republican legislatures alike. And, every time the flaw in the process is, is that no one investigated whether it would help public safety. And, the WDAA district attorney’s association, we’ve urged them every time — Do this! You’ve got 49 other states that have run this experiment already. They’re the incubators. Why don’t you check and see if when they change their law and public safety improved if the number of crashes went down? That’s the number we’ve got to measure because the arrest part, that number can ebb and flow based on the number of law officers you put on the street. You’ve got to look at crashes. If they just look at those simple numbers, we could find out if it moved our safety forward, we should make that investment. If it hasn’t, then we should invest in things that we know do work, like alcohol treatment courts.
Palmeri: How can you as Attorney General get more counties to use treatment courts?
Schimel: One of the big powers that the attorney general’s office has is the power of the purse string. Grants – many transportation safety grants – go through the department of justice to administer and we can make decisions about what makes sense. Right now, the legislature last year put five million dollars into treatment and diversion court startup grants. And that’s fantastic. Part of the problem too is sustainability. These courts get started on the grant, but then the grant gets you two or three years in, and now you’ve gotta figure how you’re going to pay for it and you know you may be able to make the case to your county board that you’re saving them money because they can measure jail days. You can measure reduction in crashes. You can do other things that they could say, you saved us money, we’re going to invest in this.
Palmeri: You have identified heroin and prescription drug abuse as the main issue you see yourself running on. Do you believe it is that much of a crisis now?
Schimel: Yes. If you ask most law enforcement officers and prosecutors they’ll say the same thing. This problem knows no boundaries. There are socioeconomic or political boundaries. This is impacting every community in Wisconsin. We’ve seen in the course of the last eight or ten years the number of deaths from drug overdoses quadruple in Wisconsin and the number keeps climbing. And you know what’s really troubling is it’s climbing at the same time that we’ve seen a large proliferation of Narcan which is bringing people back from near fatal overdoses. And it’s being used a lot. We, in 2012, we had over 5,000 administrations of Narcan in the state of Wisconsin. Can you imagine if we had 5,000 of those people die because that was wasn’t available. But, at the same time the deaths are still climbing. I mean, we’re, we’re making progress but we’re not gaining ground.
Palmeri: So what would you as attorney general do?
Schimel: We’ve gotta approach this from a multifaceted approach, and one of these approaches would be drug treatment courts. That is one thing that we know works. Because, once people are addicted to these drugs – these are opiates – we’re talking about heroine and synthetic heroine essentially, and oxycontin, oxycodone, vicodin, percussettes, and hydrocodone. All of these are drugs that doctors do prescribe for pain, but these can be highly addictive and they can be deadly. About half of the drug overdose deaths are coming from the prescriptions alone; the other half are heroine.
So one of the approaches is drug treatment court because once people are addicted to this, the old ways of resolving drug problems aren’t working. The old standard probation isn’t doing anything. People are doomed to fail on it. When you’re addicted to these drugs, you’re eventually going to prison.
Emilie Heidemann: So you are looking to not necessarily decriminalize it, but ease up on offenders so that addicted individuals can receive the proper treatment?
Schimel: No. It’s not. What we need to do is focus on this from a number of aspects. One of them is drug treatment court. For people who are committing non-violent property crimes, we’ve learned the hard way that you needn’t send them to prison for a couple of years. They will come out no different because nothing in their brain has changed; nothing in their behavior patterns has changed and they get out and they fall back into that same use and often times that use is deadly because when they’ve gone cold turkey without their drug for years, they come back and wanna use it the same way they did before they went in and they die. We have to stop that. That isn’t working. Drug treatment courts do work. So, we take non-violent property type crimes and you take those folks and you give them the opportunity of drug treatment court. The system doesn’t lose anything by using it. The risk is all on them because if they succeed in drug treatment court and I don’t send them prison, I won. I’m saving the taxpayers a ton of money and I’ve got a person coming out of drug treatment court now who is ready to be a healthy contributing member of society again. So it’s a win-win for us. If they fail in drug treatment court, well they’ve already pled, at least in Waukesha county drug treatment court, they’ve already plead guilty. The judge just goes to sentencing and they really lose nothing.
Heidemann: So what does this drug treatment court comprised of?
Schimel: Well, it’s much more than an agreement to get treatment. We – we kind of live in their back pocket and typically people take about a year and a half to complete this kind of a program. First off there’s a contract and they agree to give up certain portions of their rights and we agree that if they complete this, we’re gonna reduce the charge and in Waukesha county, the reduction is they may have been facing a felony burglary in the end we’re gonna reduce that down to a misdemeanor theft so they’ve got a better chance at having success because we want them to complete this program and come out healthy again and then be able to get a job. So because we make that trade off, but again, I think the risk is all on the participant but as you come through the program, you get your freedom a little bit at a time. At first when you get released from the jail, you’re going to see the judge weekly, and then every other week. You’ll see your case manager 4 or 5 times a week. They’re going to dig into everything going on in your life. We’re watching for risk factors, for things that might cause you to slip into using. With drug treatment court we’ve got every option in the world available. We can stop you back, we can lock you up for a brief period to deal with the problem. We can up your drug screens. We can up your meetings with the case manager. We can up your appearances with the judge. We’ve got everything available. But, everybody who has ever taken psychology 101 course or raised a child knows that positive reinforcement is much more effective than negative reinforcement. That’s another great thing with drug treatment courts is we reward success and actually we do a lot more rewarding success than we do punishing failure. So, by the time we get to the end, not only will they have demonstrated sobriety, they will have learned the tools to be successful and stay sober. Drug treatment courts work if you follow the model.
Another piece of the solution is we’ve got to take the law enforcement piece seriously. If you’re trafficking in these drugs, we’ve got to take you out. You have to know it and I’m very proud in Waukesha county, we are number one in the state for prosecuting Len Bias drug homicides. If you deliver a drug to someone and they die as a result of using those drugs, I can charge you for first degree reckless homicide. We’re number one in the state and I mean it to be that way because if I’m going to help these people that have the addiction or if I’m going to win on the prevention side, I gotta take the dealers out of the community. So, law enforcement, treatment, and then prevention is the third really big piece of this because as we’re learning form the slow progress we’re making, the only way we’re going to win is if we keep young people from experimenting with those drugs. Almost no one starts with heroine. They almost all become addicted to prescription drugs first and we’re learning from people that come into our drug treatment court that most of them are starting to abuse prescription drugs as young as middle school.
Hentz: How do you feel about the legalization of marijuana?
Schimel: Outright legalization for recreational use would be a mistake for Wisconsin. The marijuana available for sale now on the streets is exponentially more powerful than it was fifteen or twenty years ago. It is a dangerous drug. The Center for Disease Control estimates that one in six using it will become addicted. I see in court regularly people who have unraveled everything about their life because of an addiction to marijuana. There is propaganda out there largely on the internet driven by people who would love to sell it from a storefront rather than a street corner that tries to convince people it is not addictive. The science says otherwise. And also, it is very unpredictable with how it will affect you. Physiologically the effects are not as predictable, and you can actually have impairment for multiple days. It is a dangerous drug, and quite frankly, there are enough pressures on our young people, enough places to trip them up. I don’t think we need to send the message that it is ok to be buzzed. Now, at the same time, let’s be practical about this. Going to prison for marijuana use would be absurd. In Waukesha County, some years ago, as District Attorney, my sheriff and I petitioned our county board and convinced them to create a county ordinance for marijuana so we can issue a citation. We do not have to create a criminal charge. We created a youthful offender diversion program where somebody involved in a property crime or possession of marijuana or drug paraphernalia can go and complete this program, about nine months of meetings and community service, and frankly you come out knowing an awful lot that I didn’t know until I got to be much older. They come out better and we don’t file a case in court. You need to strike a balance, but I don’t think the answer is to outright legalize it.
Hentz: How do you personally feel about same sex marriage?
Schimel: I am going to open up here by making something very clear. As I do my job as Attorney General, my personal view on that issue has no business entering into the equation. My job as the state’s lawyer is to defend Wisconsin law, until the Supreme Court says it is unconstitutional or the people change it. So, you start with that. But, my view is I favor traditional marriage, one man and one woman. That’s my personal view in my personal life, and that is how I voted when the marriage amendment was on the ballot. Now, that doesn’t mean that I don’t accept that people of same sex can be deeply in love with each other and committed to each other. I wonder whether government ought to be in the marriage business at all, or whether we ought to leave it to religion or other things. But that is decisions that are made by the legislature.
Palmeri: But haven’t you said that you wouldn’t even defend the state’s domestic partnership law.
Schimel: I did say that, once. An interview occurred and we were talking about different topics, it came up, and I made a mistake. I would support it. I got out of that interview – the question caught me by surprise – I knew the current attorney general wasn’t defending it, and I thought there must be some reason why he’s concluded that it conflicts with the constitution. I did some research after I got out of that and I changed my position on that. There was no indication in any law anywhere that said that conflicted with Wisconsin’s marriage amendment, therefore the two can stand at the same time, and ultimately the Wisconsin Supreme Court concluded exactly that.
Heidemann: You have said you should be defending the laws and not making them.
Schimel: The default answer is: I defend Wisconsin law. When a person goes out and hires a lawyer to represent their business, you don’t expect that lawyer to show up in court and tell the judge, ‘you know, my client likes this, but I’m going to make a different argument, your honor’. Once Wisconsin elects their Attorney General, they expect you are going to be their lawyer. If you have an attorney general that is picking and choosing which laws to enforce or defend, you might like that one day because they go off in a way that you appreciate, but the next day, they may go a way you don’t like and the problem is you can’t control it. When the legislature is changing or writing the law, there are public hearings, there is warning. It takes a long time typically, and you can influence the process. You could potentially have a meeting with your legislator and tell them ‘listen, you’ve got this completely wrong and here is the unintended consequence that is going to happen’. When the Attorney General does this, you have no warning.Palmeri: Do you not worry with, what I’ll call, the wrong side of history on this issue. Judge Posner, who was appointed by President Reagan, really lashed out at the Wisconsin prosecutors on this, saying ‘It was tradition to not allow blacks and whites to marry, a tradition that got swept away.’ He said, ‘Prohibition of the same sex marriage is a tradition of hate and savage discrimination.’ Do you think Posner is wrong?
Schimel: That is an answer for someone else to decide. I think that Judge Posner’s position is a great reflection with how individuals in the judiciary and individuals in the law enforcement should put aside personal views. Judge Posner may have had different views once upon a time, I don’t know.
Palmeri: But if you had been an Attorney General, say, in the 1950s, in a state that did not allow interracial marriage, do you think the proper role of an Attorney General then was to not put him or herself into the mix and say this is wrong?
Schimel: Yeah, it is. And I understand the argument.
Palmeri: So your job is to uphold the law even if it is something that we might look back in the future as absurd.
Schimel: It might be distasteful to me, but I have to be consistent with that as the state’s lawyer. It is not my job to pick and choose.
Hentz: If you were AG, would you feel comfortable going to the governor whoever he or she may be, and say ‘this issue is losing every time, maybe we should put this on the backburner and fight the fights that we probably know we can win.’ You know, pick and choose the battles you fight more vigorously for.
Schimel: Not only would I feel comfortable doing that, that is part of the job. The AG represents state agencies, the legislature, the Governor in legal challenges. You hire lawyers for two different reasons. Sometimes you’re in trouble and you need to defend against that trouble. But often times your lawyer’s job is to keep you out of trouble. So certainly the AG should be advising the legislature and Governor on the likelihood that this argument is going to be successful, or perhaps the likelihood that passing a particular law is going to bring on a whirlwind of lawsuits, and here is what’s happening in other states. Part of their job is that advisory role, absolutely.
Hentz: Cause Wisconsin just lost another round today.
Schimel: But this all has to move to the Supreme Court because there are differing opinions around the country. This is a giant constitutional issue. This is a federalism question. This is a question that we have to go back and determine what did the Founding Fathers intend because you’ve got competing amendments. The 10th Amendment says everything that’s not specifically discussed in this constitution as a federal power belongs to the states. But then you do have the 14th Amendment Equal Protection Clause. There is a legitimate non-frivolous argument to be made there as well. So you have two non-frivolous arguments, and the only way you’re going to resolve that is when the Supreme Court takes it up.
Hentz: Voter ID is another important issue and I know you said you’d defend that as well. How will you decide which you decide which pieces of legislation you’ll defend against, which ones you’ll maybe challenge, or sign a friend of the court brief on?
Schimel: In terms of challenges to Wisconsin law, if there is any non-frivolous argument that can be made to defend a law, then my job is to defend it. Right now when I go to court as district attorney and I have a search that the police did that I think is dicey, I’m not going to go into court and blow smoke up the judges robe here that this was a perfectly legitimate thing. I’m going to be honest with the court about the facts and the law, and let the judge make a decision based upon the truth being presented. It’s not a game when you’re prosecuting a criminal and it’s not a game when you’re talking about whether laws conflict with the constitution.
(This is an excerpt from the full hour interview. To view the full interview, visit http://new.scenenewspaper.com/2014/10/attorney-general-candidate-interview-brad-schimel/)
Transcription completed by Justin Mitchell with assistance from Emilie Heidemann. Emilie is a sophomore at UW Oshkosh majoring in journalism with political science minor. This interview was done in partnership with Eye on Oshkosh.