Thursday, March 08, 2007

A History of Wisconsin Sentencing- Part VII

Part VI surveyed the creation of the first Wisconsin Sentencing Commission and described their statutory charges. This post describes the guidelines the Commission was created to oversee, as originally designed by the staff of the Felony Sentencing Guidelines Advisory Committee, led by the Commission’s new director.

Judges were to receive their guidance via numerically based “scoresheets.” The Wisconsin Center for Public Policy had used their historical analyses of Wisconsin sentencing practice to select the factors relating to criminal history and offense severity that had measurable impacts upon sentence length, and then assigned them numerical values. For example, in an armed robbery case, three points would be added to the offense severity score if a victim had suffered bodily harm, and two points if the offender had concealed his or her identity during the offense; to calculate the value of the criminal history axis, two points would be added for each prior felony conviction possessed by the offender, among other considerations. These values were based entirely on the historical data collected in the guidelines development process; each value reflected the relative influence that factor had had on previous sentences. The values could thus vary when sentencing practices varied between crimes. Because bodily harm had been found to have more of an effect in first degree sexual assault cases than in armed robberies, for instance, the values on each worksheet consequently varied in proportion to their different impacts: bodily harm would add four points to the sexual assault offense severity score, compared to only three for armed robbery.

Judges could use the total score calculated for each axis to find a location on the grid; higher scores would lead them to the more “severe” end of the grid. Within each grid placement they would find a recommended range, in months, of the terms the offender could serve in prison, as well as the past proportion of cases falling within that grid box in which the offender had been sentenced to incarceration. If less than 50% of offenders for a given grid placement were assigned incarceration, probation would be recommended instead of prison.

Although the Commission would sometimes characterize the grid recommendations as presumptive, Shane-DuBow (1993) more accurately identified them as a “hybrid” approach that combined presumptive and advisory features, as well as descriptive and prescriptive features. The sentence recommendations to which judges were guided were presumptive in the sense that they were “presumed to be appropriate unless persuasive reasons exist to the contrary.” And if judges sentenced outside the ranges, they were required, per one condition of a presumptive system, to state their reasons for doing so on the record. However, discretion to depart from the ranges was protected from any substantive limitation by the mandate that judges’ reasons for departure were not grounds for appellate review of the sentence. “Final discretion remain[ed] with the sentencing judge;” so long as they explicated their reasons for handing down a departed sentence, they were free to use any justification for handing down any sentence in any case. In functional and philosophical terms, then, the guidelines system was fundamentally advisory. Despite the nominal presumptiveness of the guidelines, the sentence ranges were “recommended, not required.”

Since the guideline ranges were based on previous sentencing practice in the state, the system was by definition descriptive. But just as the guideline content still maintained presumptive features, it also involved one significant prescriptive consideration. The historical data which determined the content did not convey every aspect of previous sentencing practice; the factors included were only those related to the “appropriate” considerations of offense severity and criminal history. This dated back to an early decision made by the Felony Sentencing Guidelines Advisory Committee that the “non-legal” factors of race, gender, and other such personal attributes should not be incorporated into the guidelines system, regardless of whether those factors had an influence as sentencing. Thus the guidelines, as subsequently designed and promulgated, did “not reflect actual sentencing practice in the state,” in the purely descriptive sense, “but rather staff’s estimation of actual practice that was not influenced by inappropriate factors.”

Part VIII discusses the work the Commission performed over its lifetime, related to the guidelines and otherwise.

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