A History of Wisconsin Sentencing- Part XXIV

Part XXIII initiated a discussion of the Criminal Penalties Study Committee's interpretation of their legislative charge. This post continues that discussion by looking at the perceived charge most consequential for its work: protecting judicial discretion.

The Committee’s other key interpreted intention was one less prominent in public debate over the law: that the legislature intended to shift “more complete…sentencing decisionmaking to the judiciary” at sentencing- in short, to make the system determinate. Barland noted that this placed much greater responsibility upon judges, who would have virtually sole responsibility for formulating sentences- and consequently that the Committee’s charges regarding guidelines, a sentencing commission, and code reclassification were meant to aid in that shift to the judicial decision. In other words, truth-in-sentencing had placed its implementation in the hands of judges; thus, the CPSC’s recommendations regarding implementation would be in the service of helping them.

This view is important to note, as it acknowledged that the judicial perspective would be the underlying framework for the Committee’s work to follow. Policy justifications were to be framed in terms of the concerns of judges, and policy problems identified and proposed to be solved via the judges’ sentencing decision. The Code Reclassification subcommittee’s decisions were to be justified in terms of allowing the court to effectively “deal with” offenders at sentencing; guidelines were “especially” important for judges “who will be making essentially irrevocable decisions on sentence lengths;” the policy goal of population control would be accomplished through providing attractive alternatives to prison for judges to use at sentencing; and the Milwaukee Probation Problem was so precisely because judges were uncomfortable sentencing offenders to it.

Moreover, the Committee made it consistently clear by its decisions that the guiding principle for the judicial decision- in other words, the most effective way to for judges to “deal with” the offenders they sentenced- was via the maintenance of judicial discretion and individualized sentencing. The protection and expansion of discretion was a priority within the committee’s decisions on guidelines, code reclassification, and policy implementation alike. The only principle that the guidelines could not undermine, other than committee’s general “sense of proper punishment,” was discretion, or in the Committee’s terms, “the independence of the judiciary by removing from the judiciary and key decisionmaking authority.” Likewise, there was wide agreement at the session at which guideline ranges were set that “relatively broad ranges” should be set “to maintain flexibility.”

Such considerations were perhaps even more dominant within the Code Reclassification subcommittee, where essentially all of the major policy decisions were justified in terms of maximizing discretion. The decisions to repeal all minimum sentences and fines and to adjust the fine structure for drug cases were all justified in terms allowing the court “full discretion” to make the sentencing decision. In the words of the report, “guided by sound judicial discretion and assisted by sentencing guidelines…the judge should have the maximum flexibility to mete out the appropriate sentence in every case.”

The Committee’s overarching prioritization of discretion appears to be the result of several contributing factors. The most obvious reason is legislative intent: the Committee was mandated to develop advisory guidelines, which by definition could not undermine discretion. Thus, the calibration of a balance between discretion and competing considerations had already been settled in Act 283. For example, the CPSC had to reject the North Carolina’s mandatory guidelines as “incompatible with [Act 283’s] mandate that [the] guidelines be ‘advisory.’” While mandatory guidelines would have been a means to better satisfy the Committee’s goal of obtaining predictability and proportionality, their legislative mandate simply did not allow them that consideration.

Key as the advisory mandate probably was, it cannot explain the preeminence of discretion elsewhere in the document--and thus suggests that the mandate was not the only force at work in the Committee’s choice to emphasize it in the guidelines. The Committee did interpret legislative intent as mandating it to help judges make decisions, but it need not necessarily follow that the best way to do so was through maximal discretion. What other, non-legislative reasons might the Committee have had for taking that approach?

Part XXV will answer that question.