A History of Wisconsin Sentencing- Part XXI

The past several posts have described the controversial and lengthy legislative history of truth-in-sentencing in Wisconsin, culminating in the passage of 1997 Wisconsin Act 283 in June 1998. This post draws on the findings of that history to tentatively outline the legislative intent by which history suggests Act 283 should be interpreted.

Bringing together our discussions of the terms of debate over truth-in-sentencing and the legislative history of its actual proposals, there seems a few conclusions which may be fairly drawn about the legislative intentions behind Act 283.

Firstly, based on the statements of its proponents, truth-in-sentencing in Wisconsin was oriented primarily towards remedying the public’s relationship with the system, by adjusting the “implicit ideology” perceived to be broadcast by the early and unpredictable release procedures of the indeterminate system. The fundamental policy change in Act 283, its 100% time-served requirement, was justified first and foremost on the “credibility” and “confidence” it would restore to the system from a specifically public viewpoint. Truth-in-sentencing was not, thus, directed primarily towards reducing crime, dealing with prison populations or costs, or “rationalizing” the prison system. Although those may have been considerations, they were not the direct effects truth-in-sentencing was designed to have, nor were they primary public justifications for passage of the bill.

Stated in those terms, the crux of the debate over the policy was based on the extent to which such secondary policy considerations were to intrude- or, in other words, the extent to which practical considerations of implementation, regarding costs, populations, rationalizing the system and otherwise, were necessary additions to the proposal. The addition of what was to eventually be called the Criminal Penalties Study Committee included in Doyle and Thompson’s compromise and SB 345, and enshrined in Senate Substitute Amendment 1 to Act 283, was the concrete result. However, the CPSC was less a full resolution of those issues than a means to kick the can down the road. CPSC Reporter Thomas Hammer would later note that based on the final decisions in Act 283, “the legislature did not envision [truth-in-sentencing] going into effect without considerable supplementation.” But by assigning that task to the CPSC, and giving it only general charges for designing guidelines, a commission, and parole revocation procedures, the legislature sidestepped the need to reach explicit agreements on what the details of that supplementation might be- much as their predecessors had done in passing 1983 Act 371.

As such, we may deduce the decisions of the CPSC are considerably more important in determining the goals and intentions behind the guidelines and Commission that would result; their role specifically was to develop the practical details we are primarily concerned with in this paper. Hence the most important things that the history of Act 283 can tell us regard the intentions for the activity of the CPSC. Once again, there are a few conclusions that may be fairly drawn.

Although we cannot be truly certain without knowledge of the text of Doyle and Thompson’s compromise, or of who introduced the Senate amendment creating the CPSC, it does not appear that Attorney General Doyle’s original concerns over anticipation of space or cost was intended in Act 283 to be a primary concern of the CPSC. Even though cost was a stated concern on the part of the legislators who also supported a committee, the CPSC itself would later note that it received no “express statutory charges” to consider those factors, while it did receive express charges relating to the criminal code revisions and parole revocation procedures that were also part of Doyle’s original vision for the Committee. It has been acknowledged that the legislature did have some concern for the issue; in his foreword to the CPSC final report, Judge Barland noted that they “recognized…[that under truth-in-sentencing] it could be difficult to predict future prison and community corrections needs.” But the lack of a statutory charge relating to the issue, coupled with the fact that the legislators on record as supporting an implementation committee made no recorded mention of cost or population containment as part of the committee’s role, appears to indicate that it was not seen by the legislature as being among the leading priorities of the Committee.

We can be more certain that Governor Thompson did see cost as a priority for the Committee. Upon appointing Judge Thomas Barland as chairman of the Committee, Thompson conveyed his concerns to Barland “about the rising cost of operating the prisons” and requested that the Committee “address those problems as best [they] could.” Indeed, mirroring concerns expressed by Democratic critics, Thompson’s Secretary of the Department of Administration told Barland that both he and the Governor especially did not wish to see increased corrections spending take funding from higher education. Legislators may not have explicitly placed cost on the Committee’s agenda, but Thompson’s instructions indicate that it was still intended to be a vital consideration by at least one key policymaker.

Returning to Act 283, it seems safer to conclude that the leading priorities of the Commission were intended to be the criminal code revision and guidelines-related duties for which it did receive express statutory charges. In turn, this suggests that the primary implementation challenges the legislature felt necessary to confront instead regarded coherency of the criminal code and the need for guidance of judicial sentencing decisions under truth-in-sentencing.

One more hint as to the legislature’s possible priorities comes from the mandate that the temporary guidelines be “advisory.” As a design detail which apparently was specifically added in the middle of the legislative process, it appears to have been based in deliberate intent; and considering that the definitional feature of an advisory system is its deference to judicial discretion, it seems a reasonable deduction that the provision was an indication of intent that discretion be maintained within the sentencing system the CPSC designed.

To reiterate, these do not purport to be definitive conclusions. The sourcing available is far from explicit on any of these matters. However, each of these may be reasonably extrapolated from the statements, writings and actions of those who developed Act 283. Accordingly, I believe it is fair to characterize these conclusions as the most plausible accountings of the legislature’s intent that can be developed from the resources at hand.

Part XXII will begin a series of posts on the work of the Criminal Penalties Study Committee, focusing on its development of new sentencing guidelines for the state.