Tuesday, May 15, 2007

A History of Wisconsin Sentencing- Part XXV

This post continues Part XXIV’s discussion of the emphasis on judicial discretion among the members of the Criminal Penalties Study Committee, the group charged with developing new sentencing guidelines to accompany Wisconsin’s truth-in-sentencing law.

It appears that discretion was above all else a point of substantive agreement on the part of Committee members. We have already noted the “consensus” among those setting the ranges- which included all five judges on the committee- that flexibility be maintained. Likewise, Barland has noted “we early concluded that whatever we did with guidelines would have to be voluntary.” Indeed, the committee’s deliberations came at a time of concern among some in the legal community over the decreasing power of trial judges, a major factor in which was the limits tough on crime reforms had placed on discretion.

That said, there are also two more practical factors which likely both contributed to and provided further justification for the Committee’s consensus. The Code Reclassification subcommittee directly appealed to historical and legislative precedent in arguing for the repeal of minimum and mandatory consecutive sentences in the criminal code. Their decision to do so in the name of allowing “maximum sentencing discretion,” the Committee wrote, was “consistent with the general approach to crime classification and penalty variations embraced by the legislature” in previous classification efforts. More explicit corroboration of this justification came from their decision to repeal minimum sentences for drug crimes. There, the Committee argued that “the exercise of sound judicial discretion in sentencing drug offenders should not be restricted by minimum penalties when the legislature has not seen fit to so restrict discretion” for penalties in the criminal code.

Along with specific legislative precedents in regard to classification, there are several other, more general historical precedents affirming the importance of discretion. We have seen already that the legislature, in 1983 Act 371, identified “the exercise of discretion” as an essential part of the sentencing decision. Likewise, we have seen that the statement of policy underlying the guidelines it created, as developed within the judiciary by the Felony Sentencing Guidelines Advisory Committee, provided an even more forceful defense of the approach. State case law also provided strong support for discretion; as the Supreme Court’s later opinion in State v. Gallion noted, individualized sentencing, and by association discretion, had “long been a cornerstone to Wisconsin’s criminal justice jurisprudence” in cases such as State v. McCleary (1971) and State v. Lechner (1998). And on a broader level, the maintenance of discretion was consistent with the American Bar Association’s Criminal Justice Sentencing Standards that had in place for several decades. In short, judicial discretion had been the modus operandi of Wisconsin criminal justice for decades beforehand, accepted by the legislative and judicial branches alike and affirmed by national standards. Given that many of its members had extensive experience within that system; their stated deference to legislative precedents in general; and the fact that Act 283 gave them no reason to upset the apple cart, it seems safe to say that the CPSC’s emphasis on discretion could be seen as simply following entrenched and agreed-upon historical precedent.

Any desires the Committee had to buck that precedent would likely have been quelled by the second likely factor, the importance of judicial interests to the Committee’s concerns. Reforms intended to aid the judiciary such as the CPSC’s would naturally have to be solicitous of the interests of their target constituency, a fact already acknowledged by the makeup of the Commission’s membership. Including Chairman Barland, fully one third of the Commission was made up of sitting judges. And in turn, discretion was perhaps a greater and more deeply held priority among that constituency than any other. Judges’ support of discretion, as many have noted, is a matter not just of precedent or substantive commitment but of self-interest; restrictions on discretion are restrictions on their own professional authority. This view was certainly the case in Wisconsin. According to Judge Barland, the Committee “knew that the judiciary was adamantly opposed to mandatory guidelines.”

Together, the substantial judicial presence within the membership of the CPSC; the importance of judicial acceptance in the success of the Committee’s proposed reforms; their strong and justifiable interest in discretion; and the lack of a legislative charge directing otherwise formed a powerful practical case in favor of an emphasis on discretion. Emphasizing discretion was both good politics and good policy; it would (perhaps be necessary to) garner support from the judges on the Committee that was needed to pass recommendations, and promised a much more receptive hearing from the judges statewide whose acceptance would be necessary to successfully implement those proposals.

Discretion, then, was clearly the foundation of the CPSC’s sentencing proposals, for substantive, historical, and political reasons alike. However, this is not at all to say that discretion constituted the ends of the CPSC’s proposals. Houses are built on foundations, and, as Chairman Barland framed it, the purpose of the Committee’s policy recommendations was specifically to help channel judges’ discretionary decisions towards other policy goals. As Judge Barland noted, the Committee’s charges to create guidelines and a sentencing commission, and reclassify the criminal code were specifically in response to the “risks” of a “shift to more complete…sentencing decisionmaking to the judiciary.” As noted before, he named two risks in particular: disproportionality and difficulty in “predict[ing] future prison and community corrections needs,” the latter another dimension of the concern for cost and population containment that underlay the M.R. converter. As we turn to the subcommittee work on sentencing guidelines and computer modeling, we will see that both, especially the latter, were indeed significant considerations therein.

Part XXVI discusses the work of the Sentencing Guidelines subcommittee of the CPSC.

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