Saturday, March 03, 2007

A History of Wisconsin Sentencing- Part IV

Part III ended by describing the Wisconsin judiciary’s concern that legislators would enact determinate sentencing reforms in the late 1970s. This post discusses the pilot guidelines and policy statement they developed in response.

In the summer of 1980, the Office of Court Operations within the Supreme Court appropriated funding for the purpose of studying and developing pilot guidelines. The Wisconsin Center for Public Policy was again awarded the grant, charged with updating their data from “Felony Sentencing in Wisconsin” and using it to develop descriptive guidelines for burglary, robbery and first-degree sexual assault; making recommendations as to the implementation process; and updating its review of sentencing reforms nationwide. The Court formed another advisory committee, the Felony Sentencing Guidelines Advisory Committee, to oversee the process.

The Center for Public Policy’s approach was even more extensive than in its previous study, though the staff noted that its approach “reflect[ed] the methodology used in other states”. Led again by Sandra Shane-DuBow, researchers collected information on every case of robbery, burglary, and first degree sexual assault committed in the state between January 1977 and June 1980- a total of 3,634 charges- and analyzed them for the presence of 142 different variables related to offender and offense. After identifying average sentence lengths and the extent to which specific factors influenced them, the staff reported to the advisory committee that there were patterns by which descriptive guidelines could be formed. With the advisory committee’s approval, the Center’s staff proceeded to create sentencing “matrices,” or grids, for all three crimes by January 1981. (Later posts will provide more detail on the sentencing grids).

Meanwhile, the advisory committee drafted a statement of policy to set forth the underlying principles of the guidelines system. A clear response to the legislature’s interests in determinate reform, the statement that resulted was a strong defense of the fundamental virtues of judicial discretion, tempered with an acknowledgment of its weaknesses which advisory guidelines could serve to ameliorate. In other words, it was an articulation of what the judiciary meant by reform within the current system of indeterminacy and discretion. It is of enough historical importance to excerpt substantially here:

The independence of the judiciary and the legitimate exercise of judicial
discretion is necessary to maintain the balance of power among the branches of
government. The judiciary is cognizant, however, that it must function within
established rules and precedents to maintain public trust…

The Wisconsin Felony Sentencing Guidelines System is designed to allow the exercise of judicial discretion while reducing variance by providing guideline sentences for similar offenders who commit similar offenses. These guidelines reflect
previous sentencing practice in Wisconsin, and are a starting point for the
exercise of judicial discretion in a particular case…

The ultimate responsibility in imposing sentence must and should remain with the sentencing judge…to dispel the perception of unequal treatment in sentencing, these
guidelines have been developed to assist the sentencing judge charged with that
difficult duty.

In July 1981, the committee’s first three guidelines worksheets were distributed for six months of experimental use in four counties across the state. Their use was subsequently extended through 1982, and expanded to include four more counties. At the same time, members of the court system obtained funding for a further phase of research, to collect data in order to modify the guidelines already in existence and create new guidelines for forgery, theft, 2nd degree sexual assault, and violations of the Uniform Substances Act.

Part V will address the Felony Sentencing Guidelines Advisory Committee’s Final Report, and how their recommendations led to legislative establishment of sentencing guidelines.

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