A History of Wisconsin Sentencing- Part XXVII

Part XXVI discussed the guidelines approaches considered by the CPSC’s Sentencing Guidelines Committee, which boiled down to debate between the conceptual approaches of the Governor’s Task Force on Sentencing and Corrections and of the previous grid-based guidelines. This post discusses the synthesis by which the debate was resolved.

The critiques of both approaches contained in the report provide an implied indication of the issues discussed by the subcommittee. The contrasts between the Rule of Law Approach apparently led to discussion regarding the balance between the individualized guidance of the Rule of Law approach and the aggregated approach of guidelines grids; between narrative and numerical methods of guidance; and between a focus on the contemporary circumstances of the offense and a focus on criminal history. But the “most critical” issue, and the one on which the Committee’s deliberations ultimately rested, regarded whether or not the guidelines system should include a grid.

Proponents of the grid won out, and the grid became the foundation on which the rest of the guidelines design would be built. To provide a measure of compromise, however, a “hybrid” approach was developed which attempted to “draw[…] on the strengths” of both approaches. While the proposal would include a grid, for the stated purposes of proportionality and projection, it would also “preserve[…] individualized sentencing and judicial discretion,” partly by including “crime-specific,” situational factors for judges to consider.

Further refinement of the grid model was necessary, as members still raised objections that the numerical scoring of the grid “lent an improper scientific caste,” and that too much weight was placed on criminal history. Thus, for the final product the Committee performed another merger, constructing a “middle-ground approach” that “attempted to incorporate some of the aspects of each of the proposals.” The grid and its ostensible advantages were maintained, but further compromises were made on each of the critics’ objections. The axis of the grid dealing with offenders was expanded from a criminal history approach to a more generalized “risk assessment,” which directed judges to consider other offender attributes and warned that criminal history “should be assessed with caution.” Numerical scoring within the grid, meanwhile, was eliminated in favor of a narrative approach which divided the offense into qualitative categories “roughly approximat[ing]” the types of crimes and offenders judges confronted. Offense severity would be divided into mitigated, intermediate and aggravated categories, and offender risk assessments divided into low, medium and high; together, they would create a 9-cell graph in which sentence recommendations could be placed. Because the worksheet’s guidance was more conceptual and subjective than a numerical system, the worksheet would also be accompanied by guidelines notes to “elucidate for judges and litigants many of the considerations and concepts underlying the questions posed on the worksheet.” In several cases, the notes articulated the standards by which offenses or offenders would “generally” fall into certain categories on the grid. For instance, placement in the “lesser” risk assessment category was “strongly suggested” for offenders who were not on legal status and had no criminal history, or convictions for non-violent misdemeanors only.

The CPSC’s guidelines were very similar in nature to the former Wisconsin guidelines; at their foundations, each was an advisory, descriptive grid system. But the process of merging the features of the old guidelines grid with the Rule of Law approach left the CPSC guidelines less controlling than its predecessor- or stated differently, more descriptive than the “hybrid” approach of before. The merging of narrative and numerical guidance- narrative categories with numerical ranges- made grid placement a less objective, concrete process and thus left even more leeway for judicial discretion. Although the worksheet notes provided “suggestions” for placing cases within grid ranges, in practice judges could now define the terms as well as the results of their grid placements. And partly as a result of those more ambiguous terms, the new guidelines were not even nominally presumptive. There were no expectations at all that a judge would have to place any certain case in any certain cell; rather, they would be free to depart from the ranges as they pleased.

Part XXVIII discusses the debate over the content of the guidelines.