REVISION OF CRIMINAL CODE 'ESSENTIAL,' JUDGE SAYS

Barland Fears Chaos From Truth-In-Sentencing Law

A revised criminal code is "absolutely essential" if the state's new
truth-in-sentencing law is to work smoothly, according to a judge who
chaired a panel that proposed major changes in the code.

"There is no question about the need for it," said Eau Claire County
Circuit Judge Thomas H. Barland. "It is really going to create chaos in the
state without it. There are no sentencing guidelines, harsher sentences, no
sentencing commission. It's absolutely essential that it pass, the sooner
the better."

The new law takes effect Friday, and those who are convicted of committing
felonies from that day on must serve their entire prison sentence behind bars.

For them, parole is no longer possible. It will be replaced by a period of
extended supervision set by the judge the same day he or she imposes the
prison sentence.

In adopting the truth-in-sentencing law last year, state legislators agreed
to also revise the criminal code, something Barland's Criminal Penalties
Study Committee spent 14 months doing. The panel sent its recommendation to
the Legislature in fall.

A bill to implement those changes passed the Republican-controlled Assembly
on an 83-13 vote in September. However, the measure has yet to come to a
vote in the Democratic Senate.

The bill remains in the Senate Judiciary Committee, chaired by Sen. Gary
George (D-Milwaukee). George wants to negotiate changes with the Assembly,
but Assembly Speaker Scott Jensen (R-Town of Brookfield) has refused,
insisting that the Senate first act on the bill already passed by the
Assembly.

So far, Gov. Tommy G. Thompson won't call a special session, and lawmakers
won't call themselves back for an extraordinary session. So the bill is on
hold until at least Jan. 25, when the Legislature is scheduled to return to
the Capitol.

"It's a real tragedy that the Legislature didn't take it up," said former
state Supreme Court Justice Janine P. Geske. "The committee was made up of
really respected individuals, both liberals and conservatives, a lot of
good legal thinkers.

"I thought they did a really good job of being fair and scholarly, and I
just think it's tragic that the Legislature hasn't taken it on," she added.

Barland's committee proposed an expansion of the classes of felonies, from
six to nine, in an attempt to strike some balance between the crimes and
prison sentences, after years of penalty enhancers and new crime laws
previously enacted by the Legislature.

The criminal code bill would eliminate many of those enhancers and give
judges greater discretion in sentencing. It also offers temporary
guidelines for judges to follow and calls for a permanent Sentencing
Commission to improve on those guidelines.

Milwaukee County Circuit Judge John J. DiMotto said the code was in need of
updating before truth in sentencing, but with the new law, revamping felony
penalties is even more important.

"I believe the Legislature needs to reclassify felonies to make them
reflective of what they are," DiMotto said. "For instance, right now
robbery and burglary carry the same 10-year prison term. Someone who
burglarizes a garage faces the same amount of time as someone who robs you
on the street, even though they are two very different crimes."

Walter Dickey, a professor at the University of Wisconsin-Madison Law
School and former Department of Corrections secretary, served on Barland's
committee but dissented from its recommendations.

"The penalties are so high now that that's almost of no importance
whatsoever, because in order to approach the maximums you've got to hand
out so much time that it doesn't really matter at all," he said.

He also described the guidelines as meaningless because they are voluntary.

Attorney General James Doyle disagreed, saying the guidelines were
necessary to help avoid a wide disparity in sentencing as judges across the
state apply the new law. He said it also was important for the Legislature
to end the political bickering and adopt the new classification of penalties.

"If they would sit down and recognize that both of their positions make
good sense, this could get done," Doyle said. "But in this political
atmosphere, sometimes that's very difficult to do, even to the point of
playing this kind of brinkmanship."

Appeared in the Milwaukee Journal Sentinel on Dec. 27, 1999.