Monday, September 03, 2007

A History of Wisconsin Sentencing--Part XXXIV

In many ways, the legislature’s treatment of sentencing reform in 1999 and 2000 had been a rerun of 1997 and 1998; in turn, 2001 would be a rerun of 1999. The Assembly was quick to the trigger, introducing 2001 Assembly Bill 3 on the first day of the new biennial session, fast-tracking the legislation, and passing it within a month by a margin of 86-10. AB 3 was “patterned after” AB 465; it adopted the CPSC’s recommendations unmolested, including full funding for the Sentencing Commission, making adjustments only to integrate new penalties enacted by the legislature into the criminal code. It did not, however, include any of the provisions sought by Senate Democrats. Sen. George therefore blocked the bill upon its arrival in the Senate, sticking to his insistence on an informal compromise. Silence fell on the issue for another year, stuck in the same procedural gridlock as before.

Once again, it was up to the Governor’s office to attempt to move the process forward. Stating that “I’m trying to kick start this whole thing,” Governor McCallum rekindled debate by placing the CPSC recommendations in the budget adjustment bill introduced in January 2002, Assembly Bill 1 of the 2002 special session. McCallum, like Thompson before him, extended an olive branch to Sen. George in his proposal; AB 1 included a geriatric release clause, as well a provision creating a panel to develop criteria for allowing judges to modify sentences. But George remained obstinate, insisting upon a concrete release provision and repeating that the “vastly different” positions of the Assembly and Senate would have to be reconciled.

While the Assembly narrowly passed McCallum’s proposal with few changes, the Senate subsequently amended its version of the bill to reflect some of George’s demands, inserting language allowing judges to change sentences after inmates had served 25% of their time, and giving judges the option of ordering drug treatment for offenders. With other issues also at stake, the Senate passed its amended version of AB 1 in April, sending the bill, and its truth-in-sentencing provisions therein, to the formal conference committee Sen. George had been forestalling all along.

When the conference committee convened in June, none of the leading adversaries were involved. Rep. Walker had been elected Milwaukee County Executive; Sen. George was campaigning for Governor; and Rep. John Gard (R-Peshtigo), rather than Speaker Jensen, acted as lead negotiator for the Assembly Republicans. With the bad blood removed, Rep. Gard and Majority Leader Chvala were able to reach a settlement in the conference report. The most significant facet of their agreement was the inclusion of Sen. Chvala’s proposal for a more limited sentence modification mechanism, which would allow inmates committing less serious felonies to petition for judges for release at 85% or 75% of their sentence, depending on the felony class of crime they had committed. The proposal was a breakthrough on both a substantive and political level; not only did it constitute an compromise on the most contentious difference between houses, it would also allow Sen. Chvala to overcome Sen. George’s opposition and deliver the support of the Senate Democratic caucus.

Legislators and some judges vehemently protested the modification provision, worried, respectively, that it would “gut the truth out of truth-in-sentencing” and increase judicial workloads substantially. However, both houses narrowly concurred in the conference report, and McCallum did not heed demands to veto the petition provision in the final bill. The Governor signed AB 1 into law with the compromise intact on July 29, 2002, as 2001 Wisconsin Act 109. The Act “included virtually all of the Committee’s proposals,” which had never really been controversial in the first place; the guidelines worksheets and notes, the (updated) criminal code revisions, and the Committee’s recommendations for Extended Supervision revocation were enshrined with few, if any changes.

After the dust had settled, Professor Hammer bitterly summarized the process: “it is difficult to imagine a more dreadful way” for the state to have transitioned to truth-in- sentencing. Indeed, the three-year delay in passing the CPSC’s recommendations had had a number of detrimental effects on the Wisconsin sentencing system, several of which Hammer mentioned. During that period, “there were no guidelines to help the courts adjust to truth-in-sentencing,” nor any “organized dissemination of data to inform judges about the sentencing practices of their colleagues.” The delay would cause ongoing administrative complications in the courts, as offenders would have to be sentenced in three different ways depending on when their crime was committed- under the indeterminate system, under truth-in-sentencing but without guidelines or criminal code revisions, and under truth-in-sentencing and with the guidelines and criminal code revisions- potentially even for different charges in the same case. And most simply but perhaps most significantly, numerous needed sentencing reforms were delayed. The Sentencing Commission’s efforts towards integrating data systems, linking criminal justice agencies, building a computer model and monitoring sentencing practices, all responses to problems the CPSC had seen during its own deliberations, had been held in limbo while the problems they were intended to confront remained. Now that the Commission had finally been ratified into existence, it would have a lot of catching up to do.

This post concludes the series on the history of WI sentencing from its first sentencing commission to the approval of its second. The second will be sunsetted at the end of this year, having not won approval for its continuation from the governor or the legislature. As that commission's first executive director, I can and may provide elaborate reasons for that lack of approval, but, for now, its rejection is proof that it did not meet the expectations of state policymakers enough to justify its existence longer. It did complete a required report on the impact of race on sentencing, which we have noted here, and its website contains a wide range of reports and data that readers from other states might find valuable, including a report on recidivism of robbers cited by other studies in other jurisdictions and a study of judicial responses to possible alternative sanctions that was published nationally. Commission staff are currently finishing an NIJ-funded study of the factors considered at sentencing by WI judges concerning selected major offenses; we will let you know when it is released. It's something you will find valuable. Those staffpersons are being moved to another agency to maintain and continue work with sentencing, corrections, and court data, so the research and data function of the commission proved appreciated. The rest of the second commission clearly did not.

We want to thank Joe Fontaine for his authorship of these posts. And remind you that he will be graduating from U-WI's Institute for Public Affairs next spring for those of you impressed with the work. He's even sharper than he appears here. He's going to get a lot of offers if you don't get there first.

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