A History of Wisconsin Sentencing- Part XXVIII

Part XXVII discussed the compromise the CPSC made on the conceptual framework of Wisconsin’s new, truth-in-sentencing era sentencing guidelines. This post discusses their efforts to develop the content that would guide judges within that framework.

A detailed compromise had been struck on the guidelines format, but the subcommittee still faced the challenge of developing the content of the grids- the factors to be listed and, especially, the sentence recommendations that would be placed within the grid. In this, the committee faced substantial limitations of resources and time. With the first Sentencing Commission’s databases lost, and the data systems used by other criminal justice agencies fragmented, “antiquated,” and difficult to access (which will be covered in detail in the next section), the committee lacked reliable data on state sentencing practices by which to construct descriptive ranges. And the Committee had little time by which to even construct ranges, much less remedy the data problems that existed; the report was due in a matter of months, with the looming onset of truth-in-sentencing prohibiting delay. As the Committee’s report repeatedly pointed out, the former Sentencing Commission, with five employees and databases on hand, had taken 11 years to develop 16 guidelines. The CPSC, with a single program staffer and no easily accessible data, had to develop guidelines in less than a tenth of that time.

The Committee solved their predicament in two ways. First, they limited their efforts to developing guidelines “for the 11 crimes which consume approximately 72% of the corrections resources devoted to prisoners;” the Sentencing Commission could develop “additional” guidelines after it was established. And to obtain the guidelines content with due speed, the Committee appealed to the eventual users of the guidelines, holding a one-day session in June 1999 with eighteen circuit court judges to help formulate their ranges. After “compil[ing] a list of offender and offense characteristics for each crime” for which the Committee intended to develop guidelines, the judges discussed those characteristics, considered hypothetical cases, and “wrote ranges of punishment” into the 9-cell grid the Committee had developed. After some discussion and revision, the written contributions were used by the Committee to develop maximum and minimum ranges within each cell. The subcommittee made a few policy decisions regarding the ranges, such as requiring that the most severe grid range for each offense included the statutory maximum penalty. In large part, however, the final ranges were simply the aggregated product of the figures recorded at the session. With truth-in-sentencing’s onset date looming ever closer and data resources lacking, the subcommittee was unable to validate those ranges before the report’s release.

The Committee was realistic about the results of these efforts. “This approach did not purport to be a scientific process,” the Final Report admitted, but rather just “an attempt to get a general reaction from experienced judges from around the state.” The report also acknowledged that the instructions by which judges filled in the ranges may have been unclear. Nevertheless, there was evident dissatisfaction with the process among Committee members. Professor Dickey used the guidelines development process as one of his justifications for dissenting from the Committee’s recommendations, arguing that the ranges were “based on nothing more than…impressions” and arguing that the “complex decisions” of sentencing judges would not be “made easier, more predictable, more fair, or more likely to create public safety by simplistic grids.” And although Dickey cast the only dissenting vote, he was not the only member with such doubts. In a concurring statement, attorney Steven Hurley may have spoken for more members of the committee. Although he raised similar objections to Dickey’s, noting that “the Committee had little rationale for the numbers that went into the grid cells” and calling the judges meeting “a simplistic exercise,” Hurley claimed to have voted for the proposals “simply because it is better than having made no proposal to the legislature at all.”

The guidelines were not the only area in which Committee members faced such constraints and confronted such problems. Indeed, the Computer Modeling subcommittee faced essentially the same challenges in confronting a task which, if anything, may have been even more difficult to surmount.

Part XXIX begins a discussion of the Computer Modeling subcommittee’s work.