A History of Wisconsin Sentencing- Part VI

Part V described the legislature’s enactment of the first set of sentencing guidelines in Wisconsin. This post describes how the first Wisconsin Sentencing Commission came to be the body formed to administer them, and describes its statutory mandates. Keep in mind that this is NOT the WSC currently in existence- as noted in Part I, this Commission and its guidelines would be defunct in a decade.

Ratifying the judiciary’s assumptions as well as its efforts, Act 371 accepted discretion as a guiding principle- in particular, regarding promulgation of the guidelines. “As this exercise of judicial discretion is so directly related to the establishment of sentencing guidelines,” the Act notes, “it is most appropriate that the supreme court promulgate rules for sentencing guidelines.” Due to the court’s previous refusal to promulgate, however, the act provided an alternative. If the Supreme Court was to decline, an “independent sentencing commission” would be established within the Department of Administration.

The Supreme Court followed through on its earlier doubts and officially declined to promulgate the guidelines in August 1984. Following the lead of the guidelines’ statement of policy, which had sought to “dispel the perception of unequal sentencing,” the court’s concerns centered on public perception of the system. In a 6-2 decision, the court claimed that since that an indeterminate system did not give the judiciary power to determine the length of time prisoners would serve, promulgation of sentencing guidelines by the court would create “public confusion over which branch of government is responsible for criminal penalties.” The Court also cited budget constraints.

With the court’s decision, the Wisconsin Sentencing Commission was officially formed, beginning its work in December 1984. Apparently reflecting its commitment to the previously piloted guidelines, the Commission appointed Sandra Shane-DuBow as the Commission’s executive director.

The Commission’s statutory responsibilities revolved around the guidelines. Along with charging the commission with official powers of promulgation, Act 371 directed the Commission to “collect, develop, and maintain” statistical data on sentencing practices, for which it could promulgate forms; appoint an executive director to conduct statistical studies and propose sentencing rules; and “explain sentencing practices and rules” to the public. The Commission had only one charge that gave it a policy role outside guidelines development. In tandem with the Supreme Court, it was also to “develop instructional programs for judges” on sentencing issues, specifically including restitution and alternatives to incarceration.

Part of the reason for the Commission’s relatively narrow charge was the narrow intent of the guidelines. As Shane-DuBow later noted (1993), Wisconsin’s criminal justice system was not suffering from many of the problems that were helping trigger reforms in other states. Prisons were not overcrowded or over budget, and crime rates in the state- “especially violent crime”- remained low. Thus, there was no impetus to have either the guidelines or the commission to deal with concerns of population containment or public safety. Rather, legislative intent in Wisconsin was focused only on “ensuring even-handed and consistent sentencing” via the guidelines. In other words, Act 371 followed the guidelines’ internal statement of policy in identifying the prevention of sentencing disparities as the preeminent policy goal of the system. We shall see that the Commission would remain faithful to this focus throughout its existence, though due more to perceived practical constraints than substantive commitment.

Part VII will describe the guidelines promulgated by the Commission.