Part XXV completed the discussion of the CPSC’s emphasis on discretion. This post begins the discussion of the work of the Sentencing Guidelines subcommittee, whose work to develop new guidelines was largely guided by that emphasis.
The Sentencing Guidelines subcommittee began with a basically blank slate. While the guidelines recommendations would have to be advisory, the Committee had received no charge or guidance whatsoever on how those recommendations were to be made. Hence, the philosophy, and consequently the format, of the guidelines would be completely of the group’s own design. Coupled with “the full Committee’s quick deadline to issue its final report,” the subcommittee had a formidable task on its hands.
Subcommittee members therefore began by looking to guidelines systems already in place, “to determine if any one stood out as an attractive option to import” directly. Notably, the Committee based their choices primarily on the issue of population control; along with the federal system, Delaware, Virginia, North Carolina, and Ohio were studied “because those [truth-in-sentencing] states had reduced the increase in their prison population.” For all their respective success in that vein, however, the subcommittee identified several flaws in each approach. The mandatory guidelines of North Carolina and the Federal system were incompatible with Act 283’s “advisory” mandate; the calculations in several systems were “too complex” or “elaborate” for the committee; and members took issue with various of the specific sentence recommendations provided as too lenient, too harsh, or otherwise problematic. As a result, the committee rejected importation and chose to design a “unique” guidelines format of their own.
The Committee began that debate by considering a wide range of guiding principles to underlie the guidelines. Everything from the “current” emphasis on public protection to deterrence, rehabilitation, cost control, and the place-based approach of the Task Force on Sentencing and Corrections was considered as a potential “purpose” for the guidelines format to serve. In the end, the committee chose to emphasize the two concerns of the legislature that Barland would subsequently note in the Forward. Proportionality and fairness, as well as “predictability” for the purpose of projecting costs, were to share priority with public safety and the preservation of discretion and individualized sentencing.
A similarly wide range of potential guidelines formats were set forth for the subcommittee to consider, from presumptive ranges to the “narrative” system of guidance used in some European courts. But the two proposals which occupied much of the debate, judging from their inclusion in the Final Report, were based in past Wisconsin sentencing practice (and probably not coincidentally, the experiences of several of the CPSC’s members). The “Rule of Law” approach, pushed by Professor Dickey, was an adaptation of the recommendations of the Task Force on Sentencing and Corrections, intended to emphasize public safety as its guiding principle. Per the Task Force’s more holistic approach, numerous situational factors were to be included in the format; there would be “facts about the offense,” such as the location, and “about the victim” as well as the attributes of the offender. Concordant with the principles of CCC (see p. 37), the recommended outcomes of the guidelines provided to judges would be based on “contain[ing] the risks posed by the offender’s return to the community” and considering whether the “punishment deserved by this offender [can] be effective within the community.”
The other proposal highlighted in the final report was an update of the grids used in the old Wisconsin Sentencing Guidelines. This was described as less a matter of substantive support for the former system, however, than a desire for stability. If the Rule of Law approach was focused on considerations of public safety, then the primary goal of the updated guidelines approach was to fulfill “the theory that actual prison time served under indeterminate sentencing should equal Truth-in-Sentencing”- or in other words, to attempt to hold prison costs and populations steady.
Indeed, the report notes that objections to the substance of the old system was what prevented agreement on the proposal for its update. Members variously objected to the nominal presumptiveness of the ranges; the old, possibly outdated data which had been used to construct the guidelines; and the sentence length recommendations within the grids, as being too low. Several objections were raised to Dickey’s proposal as well, which centered on its “amorphous,” grid-less design. Among other issues, members worried that its qualitative, subjective methods of guidance might not fulfill the goals of proportionality and prediction, but rather “could lead to contradictory results for similarly situated offenders” and allow “no ability to predict corrections numbers or resources.”
Part XXVII discusses how the debate was resolved.