Nearly half of Wisconsin’s counties never used the hate penalty in the last five years. Dane County stands out.

The State of Hate is a five-part series based on a review of hundreds of pages of hate investigation police reports as well as five years’ of criminal charges in Wisconsin. This is Part Four, covering hate in criminal prosecutions.

Nearly half of Wisconsin’s county-level prosecutors never used the hate crime penalty in criminal cases from 2016 to 2020, a News 3 Investigation found. In that same time frame, prosecutors got 24 convictions on charges that included the hate crime penalty–with Dane County emerging as one of the most aggressive counties in the state in recent years for hate prosecutions.

Dane County district attorney Ismael Ozanne said his office’s policy comes down to applying the law that’s already there: prosecuting hate that motivated a crime whether “in whole or in part.”

But in other cases statewide where police bring evidence of bias, it still frequently fails to measure up to a prosecutor’s requirements for adding an enhancer that could make the case harder to prosecute.

Why hate crimes aren’t charged

When an employee at a resort in Sauk County threatened to kill his coworkers and specifically targeted a woman married to a Black man using racial slurs against her, her husband, and her children–the case went on to be charged without a hate crime penalty.

The current Sauk County district attorney, who was not the DA for the 2018 charging decision and wasn’t able to comment directly on the case, said using the hate penalty in intimidation situations like this can be complicated based on the law.

Hate speech directed at a victim who is selected by the actor because of the race of a 3rd party, even a family member of the victim, does not seem to be contemplated by the current language of the statute,” DA Michael Albrecht explained in an email. He went on to explain that it becomes even more complicated if threats are made to one person about another person, et cetera.

With every degree of separation, it becomes exceedingly more complex to prove the enhancer is applicable, though undoubtedly the speech itself is abhorrent and worthy of a criminal charge.”

Prosecutors say the bar for proving that bias motivated a crime beyond a reasonable doubt is a high one. Whether racial slurs used in an attack will count as evidence of bias depends on a lot of factors, including the prosecutor.

“We can’t just look at something in one little moment and say, ‘Well, this is why it happened,'” says Fond du Lac County District Attorney Eric Toney, who is also running for Wisconsin Attorney General.

Toney is prosecuting the most serious current hate crime case in the state, a deadly hit-and-run last year where a Hispanic man (who has been found incompetent to stand trial) is accused of killing a white man, later telling investigators he targeted Philip Thiesen because he was white.

What Toney didn’t prosecute as a hate crime is an incident last year at a restaurant in Fond du Lac, where a white man turned a meeting about workplace and wage issues into an attack on the other person’s race. Police records say Jason Collins (who was later found guilty of charges connected to the incident) got angry and made statements like “All Mexicans do is lie,” they “didn’t understand the laws of America”, and other racial comments before physically attacking several coworkers, including a Hispanic individual.

Victims told police they were afraid for their safety and felt it was a hate crime, records say.

“It is not a crime in America, no matter how terrible it is, for someone to utter racist slurs,” Toney said. “Sometimes, that just proves that somebody is racist, but that does not necessarily prove that the crime was specifically because of somebody’s race.”

At the same time, slurs and other actions are some of the only forms of evidence available to prove a hate crime, a bar that means proving a person specifically targeted somebody else because of their race.

“We can’t look into a person’s mind,” Toney says. “It has to be based on their words or actions.”

Five years of hate crime penalties

“It’s on prosecutors to make sure that cases are being charged appropriately,” Wisconsin Attorney General Josh Kaul said in an interview.

Like many states, hate is a sentencing penalty that prosecutors add to a crime, which allows for a longer sentence as well as misdemeanor cases to be upgraded to a felony.

It’s easy to find hate crime investigation numbers at a law enforcement level, however flawed or underreported, because the state mandates they be collected — but what isn’t being publicly tracked are the prosecutions and convictions in those cases. A News 3 review found just 37 counties used the penalty in initial charges, many of which were later dropped or dismissed, in the past five years.* Almost half hadn’t used it at all.

“It doesn’t mean that there were no hate crimes,” Kaul said. “It may be that a prosecutor believes that a hate crime is committed, but they don’t believe they have the evidence to ask for that enhancement.”

It’s also up to police to report hate in charges recommended to district attorneys, More than 300 police agencies didn’t report hate during that same time frame, according to DOJ records.

In total, prosecutors used that enhancer at least initially in 141 different cases from 2016 through 2020. For a handful of reasons, about 11% of those cases aren’t publicly available online. In the remaining cases, about 40% had the penalty dropped, dismissed, or had a handful of other conclusions–like delayed prosecutions. That doesn’t mean the entire case was dismissed; a dismissed charge that included hate was included in sentencing consideration in a handful of cases, while defendants were found guilty in other cases but not of the charge where hate was a factor.

Prosecutors got a successful conviction for the charge with a hate penalty attached in 19% of the cases, and the remaining 40% of cases are still open. Many of those are in Dane County, where a 2019 policy change led to the county becoming increasingly more aggressive in their hate prosecutions.

The outlier: Dane County accounts for a third of all initial hate crime charges statewide

From 2016 to 2020, Dane County initially brought the hate crime penalty in 46 cases, with 7 hate convictions but most of them still open from 2019 and 2020–following a policy change.

By comparison, Milwaukee County used it only four times in the five-year timespan, and Waukesha County, the third-largest county in the state, didn’t use it at all. A string of burglaries against the Amish community in 2016 account for most of the cases in Monroe County, the second-highest number (12) of hate crime cases.

“We felt that it was important for us to make a statement to the community,” Dane County District Attorney Ismael Ozanne said. “We were seeing an uptick in…hate indicators, slurs, that kind of thing, within the police reports.”

The rise in the county’s hate crime charges starting in 2019 represents most of the increase in the penalty’s use statewide.

Wisconsin state law, which protects six classes of people under its hate crime penalty enhancer, allows the penalty to be added to crimes that investigators and prosecutors find to be not motivated by discrimination “in part or in whole.”

Ozanne’s change meant Dane County would emphasize what’s already in the law—bringing a hate crime penalty for crimes not just wholly motivated by hate, but also partially.

“If we as prosecutors look at that wording, ‘in part or in whole,’ and lean more towards the ‘in whole,’ then obviously we wouldn’t be applying the hate crime enhancer as often,” Ozanne explained. The policy change has made Dane County by far the most aggressive county in the state for prosecuting hate, a trend supported by the state’s top law enforcement official.

“When there is that evidence, I think it’s critical that those cases are charged,” Kaul said.

Experts say Dane County’s model is potentially setting an example that is part of the solution. John Vaudreuil, the U.S. attorney for the Western District of Wisconsin during the Obama administration, said prosecutors bear a responsibility to ensure hate is prosecuted in the criminal justice system–for both the victims and the larger communities they represent.

“Hate crimes are message crimes,” Vaudreuil said. “If you attack a Black man, you want the entire Black community to know: you’re not welcome, you’re not like us, leave.”

“But the police and the prosecutor can send an absolutely different message if they stand up and say, ‘We are prosecuting this as a hate crime.’ The message that is sent is, ‘You are welcome, you are our brothers and sisters, we will protect you, you make us better.'”

*About the data: News 3 Investigates reviewed and analyzed hate crime penalty data provided by Court Data Technologies, a Madison-based criminal justice legal services company that uses CCAP subscriber data to provide custom research. Penalty enhancer data appears on cases but is not searchable through the public-facing version of the Wisconsin Court Case (CCAP) search system, since it’s not its own crime. The Wisconsin Court System was not able to provide current data themselves for use of the hate crime penalty, citing instead an expensive annual subscription option.

Note: Dismissed hate crime penalties are visible in online court records, but they don’t appear as part of the online record when they’re dropped from initial charges completely. Case statuses are current as of mid-May.