A History of Wisconsin Sentencing- Part V

Part IV discussed the research and policy work of the Felony Sentencing Guidelines Advisory Committee, which oversaw a pilot guidelines program in 1981 and 1982. This post describes the committee’s final report and the legislature’s subsequent enactment of statewide guidelines.

Upon the completion of both tasks, the Felony Sentencing Guidelines Advisory Committee issued an official report in January 1983, petitioning the Supreme Court for a significant expansion of guidelines reform efforts. The report hailed the pilot guidelines as “a success”, citing an 80% compliance rate and decreases in sentencing variability. It also claimed widespread support for the guidelines, enclosing a thick stack of letters of generally supportive letters from judges as well as District Attorneys, Parole Board members, and other criminal justice professionals. Citing its success and support, the committee proposed that experimental use of all seven guidelines be extended statewide through 1984. But in a four to three vote, the Supreme Court denied the petition on several grounds, among them that the need for sentencing guidelines had not been satisfactorily established, and that the power to promulgate guidelines was “a legislative, not judicial, prerogative.”

The legislature’s efforts towards passing sentencing reform had continued; between 1977 and 1983, 16 bills proposing some form of determinate sentencing were introduced, none of which would pass. With the Supreme Court’s rejection of the guidelines petition, however, consideration of the guidelines moved to the legislature and rapidly attained success. In April 1984, less than a year after the Supreme Court declined, the legislature stepped in to enact 1983 Wisconsin Act 371 (or more simply, Act 371), which deferred to the Supreme Court the power to promulgate sentencing guidelines “within the limits [of maximum and minimum penalties] established by the legislature.” In so doing, Act 371 essentially ratified the guidelines created by the Felony Sentencing Guidelines Advisory Committee, as it contained no requirements regarding the content of the guidelines, instead merely subjecting the guidelines to approval under the administrative rule-making process. Shane-DuBow (1993) would later identify that feature as the key to the proposal’s passage. Deferring the guidelines work to an administrative process, she said, “allowed the legislature to avoid confronting some of the unresolved issues” that had held back the various legislative proposals, by avoiding the need for “specific legislative approval of each recommendation.”

In a National Institute of Justice piece (1985) coauthored by Shane-DuBow, two other conditions were suggested as accounting for the judiciary’s success in preserving the indeterminate system. First, the authors noted, proposals to maintain indeterminacy benefited from a state tradition of deference to expertise. Thus, the continuing support of the indeterminate system by the criminal justice officials, combined with the active lobbying efforts made by some of its leaders, was given credence by legislators. Second, the “criminal justice agenda-setters” were part of a “self-consciously good government legislature” cautious of making reforms without first obtaining research on its potential impacts. Such research was lacking when reforms were proposed in the 1970s; when information did appear in the early 1980s and raised doubts about the effectiveness of determinate sentencing, legislative interest leveled off.

Part VI will describe the establishment of the first Wisconsin Sentencing Commission, and kick off a series of posts on its history.