Tuesday, April 24, 2007

A History of Wisconsin Sentencing- Part XXIII

Part XXII introduced the membership and statutory charges of the Criminal Penalties Study Committee. This post examines the policy priorities of the CPSC, as defined by the legislature as well as by members.

Before we discuss the actions and recommendations of the other subcommittees, it is first necessary to examine the policymaking context in which those recommendations were placed- specifically, the Committee’s interpretation of legislative intent and their other overarching policy priorities.

Chairman Barland noted that “the Committee is a creature of the legislature, given specific instructions by that institution” to undertake. As noted, those instructions left many of the details up to the Committee itself, likely intentionally, and as we have already seen in the case of the Education subcommittee, the Committee was not averse to doing work outside its statutory charges when deemed necessary. Nonetheless, Chairman Barland’s Forward to the Final Report, the Report itself, and subcommittee sections within the Report all began by placing their work in the context of Act 283.

Both Barland’s and the Committee’s interpretations of Act 283’s intent concur with the justifications highlighted in the previous section. Barland, using the common buzzwords, noted that the bill “was enacted to restore credibility and coherence to criminal sentencing,” in order to combat “growing public cynicism regarding the effectiveness of our criminal courts.” Moreover, Barland’s view of the work of the CPSC accorded with what was provided by the context of its legislative development and gubernatorial instructions; he noted that “risks in [the] shift” to truth-in-sentencing included disproportionality stemming from a lack of guidance for judges, and consideration of cost projection.

Their two most important interpretations, judged by the concrete measures derived from them, involved sentence lengths and sentencing responsibility. The Code Reclassification subcommittee corroborated the statements made by Rep. Walker as to what truth-in-sentencing was not, arguing that “the clear message of Act 283 is that the legislature wants ‘absolute truth’ in the sentencing process” and that the law does not “suggest that offenders should be held in confinement for periods of time longer than under current law.” Coupled with the Committee’s preexisting instructions and concerns regarding cost and population control, efforts which would be undermined by increased sentence lengths, the Committee took explicit measures attempting to ensure that prison time served under truth in sentencing would be “no longer than under the old system.”

The primary effort towards that end, made by the Code Reclassification subcommittee, was the development of a “mandatory release converter.” The M.R. converter, as it was called in shorthand, translated the mandatory release date under the old system, two-thirds of the sentence provided by the judge, into their recommendation for the maximum sentence under truth in sentencing, so that “the maximum term of confinement for each crime in the new truth-in-sentencing system roughly parallel[ed] the maximum the person could serve in prison under the current indeterminate sentencing law.” To use the final report’s example, in a burglary case where the statutory maximum sentence is ten years, mandatory release would come after 6 and two thirds years. Hence, the Committee set a statutory maximum for burglary of as close to 6 and two thirds years as possible under its new classification system. In some cases, that nevertheless meant a slight increase in maximum time served; the closest class for burglary held a maximum sentence of 7.5 years, meaning offenders could serve slightly longer than under the old system. Nevertheless, by lowering most all statutory maximums from their indeterminate levels, the mandatory release converter would prevent wanton increases in prison time served, and thereby in prison populations and costs.

Reflecting the importance of the issue to the full Committee, it “advocated wide use of” the converter in several domains. Members of the Education subcommittee “launched a considerable educational effort…to encourage judges to impose prison times no longer than under the old system,” which included carefully outlining the principles of the converter. Likewise, the Sentencing Guidelines subcommittee seriously considered placing a conversion chart on all guidelines worksheets. Supporters of truth-in-sentencing had clearly stated that they did not want sentences to increase, and the mandatory release converter was the Committee’s attempt to ensure that would be the case.

Part XXIV discusses the importance of protecting judicial discretion to the CPSC.

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