TOUGHER CRIME LAW RAISING RED FLAG

No-parole prison terms to begin without new sentencing rules

By David Doege and Richard P. Jones of the Journal Sentinel staff

Wisconsin's criminal justice system begins operating under the long-awaited
truth-in-sentencing law this week, and the historic change in the way felons
will do prison time is generating uneasiness in courthouses throughout the
state.

Under the law, individuals convicted of committing crimes on Friday and
thereafter will have to serve their entire prison sentences, and won't be
eligible for parole or "good time" once they're behind bars.

Truth in sentencing has several other significant features, including the
advent of a two-part sentencing procedure, increased maximum prison terms, a
replacement for parole called extended supervision, and letting judges
impose conditions on defendants once they're released from prison.

"It may be the single biggest change in law in the history of our state,"
said Eau Claire County Circuit Judge Thomas H. Barland, who chaired a
committee that spent 14 months reviewing the state's felony code and
drafting sweeping changes that were supposed to take effect the same day as
truth in sentencing. "The big difference is that more responsibility for
sentencing is placed on the judge.

"Everything is fixed at the time of sentencing. It's fixed for the duration
of the confinement and the extended supervision," he added. "There is no
flexibility. That's an awesome responsibility, especially if you're handing
down a long sentence."

What's causing uneasiness among lawyers, prosecutors and judges, however, is
that companion legislation aimed at overhauling the criminal code is stalled
in the Legislature. That means truth in sentencing will begin under the
current sentencing structure.

"It's difficult to predict just what will happen," Barland said. "Much
depends upon the attitude of the sentencing judges.

"The concern is that some judges will tend to give sentences somewhat like
the old sentences because of their concern that the public wouldn't
understand a shorter sentence even though it will be longer because there is
no parole," Barland said. "That's the big worry."

Milwaukee County District Attorney E. Michael McCann, who served on
Barland's committee, agreed.

"I think the judiciary is uneasy, and I'm uneasy," McCann said.

It was more than a year ago that lawmakers passed truth in sentencing by
overwhelming majorities in both houses. Gov. Tommy G. Thompson, who sought
the change, signed it into law.

In passing truth in sentencing, lawmakers agreed to rewrite the criminal
code, the first major revision in 50 years, to make the punishment fit the
crime under the new law.

Working under a tight deadline, Barland's criminal penalties study
committee, consisting of judges, prosecutors, defense lawyers and citizen
members, sent its recommendations to the Legislature in fall. However,
lawmakers adjourned their fall session without acting on the proposed
revisions, and the debate has degenerated into a partisan blame game.

Sentencing 3 Ways

As truth in sentencing goes into effect under the existing felony code,
judges will continue sentencing defendants whose crimes occurred before
Friday under the old rules, complete with parole, good time and previous
features that have been in effect for decades. Defendants sentenced for
crimes committed Friday and thereafter will be sentenced under the new law.

If, as most expect, the Legislature eventually passes a revised criminal
code, judges ultimately will be sentencing a third way. In Milwaukee County,
which has 12 felony courts, that means judges could be sentencing defendants
three ways on the same day.

"We envisioned 'old world' defendants and 'new world' defendants, but now
we're going to have 'middle world' defendants as well," said Milwaukee
County Circuit Judge Elsa C. Lamelas, another member of Barland's committee.

"That's a nightmare," said Janine Geske, a former state Supreme Court
justice who worked with the committee. "We're going to have three sets of
rules, which is going to lead to some confusion and difficulty.

However, she noted: "The world will go on. Judges will do the best they
can."

Under the new law, sentencing becomes a two-part procedure. The judge will
impose a total sentence, then break it down into prison time and extended
supervision time.

The combination of the two parts cannot exceed the maximum possible prison
term for the crime, and the extended supervision must be at least 25% of the
length of the term of confinement.

For example, a person convicted of first-degree sexual assault faces a
maximum sentence of 60 years in prison. In the first portion of his
sentencing, a judge who imposes a period of confinement of 20 years must
then set a period of extended supervision of at least five years. The total
sentence would equal 25 years.

Barland's committee proposed sentencing guidelines to assist judges so
sentences for similar crimes are somewhat uniform statewide. But some expect
disparity without guidelines.

"There is going to be no consistency," predicted Milwaukee defense attorney
Martin E. Kohler. "Heavy sentencers are now going to have a greater
opportunity to give more time."

Milwaukee County Circuit Judge John J. DiMotto said confinement time under
the new procedure should be less than the sentences now imposed because the
current system includes parole. Defendants currently become eligible for
parole after serving 25% of their sentence and must be paroled after serving
66% of the term.

"They should be less in the future, but I suspect that there will be some
judges who will not ratchet down their sentences," DiMotto said.

Milwaukee defense attorney Steven R. Kohn said some judges might fear that
handing down shorter confinement times, even though they are, in reality,
longer, will be used against them by judicial challengers.

"Judges who are afraid of the political winds are going to continue to mete
out extremely long, if not maximum sentences," Kohn said. "Unfortunately, in
the political climate that exists in judicial elections, it's an issue which
can be used to attack judges, as reflected in some of the past judicial
races."

While the parole process has typically drawn criticism over the years, the
Parole Commission's existence assured judges that if a defendant changed
remarkably from when that person was sentenced, the opportunity existed for
an early release from prison.

"We never know for sure how a defendant will do in prison," Lamelas said.

No Payoff for Inmates

With the end of parole, there will be no opportunity for a mid-course
correction.

"That's bad in the sense that if the judge gives a harsh sentence or
misjudges the defendant, there is very little that can be done to correct
that," Barland said.

With the elimination of parole and good time, McCann wonders whether inmates
with hefty sentences will be more apt to misbehave.

"There is a payoff now if you behave," he said.

While it's true that "bad time" can be added to an unruly inmate's sentence
under the new setup, McCann isn't sure that will make much difference to
convicts serving lengthy real-time terms.

"If I know that I'm definitely not getting out for another 30 years, will
those days or weeks or months they might add to my sentence down the road
matter?" McCann noted. "It will be interesting to see."

Meanwhile, McCann said that prosecutors' powers increase under the new
sentencing schemes.

"Our charging document will tell defendants the total amount of real time
they face if they go to trial and are found guilty," McCann said. "In the
past, a crime carrying 40 years meant a maximum of 27 years with parole.

"Now a 40-year maximum is a real 40 years. Will less defendants take their
cases to trial because of that? I don't know. Will judges see a defendant
taking a case to trial as demonstrating a lack of remorse and add real
years? I don't know," he said. "Nobody knows how judges are going to
sentence."

Geske said the immediate impact of the new law would be on the courts, but
how the new law will affect the prison system remains to be seen.

Barland said if judges keep in mind that parole is no longer possible and
adjust their sentences accordingly, the impact on corrections could be
minimal.

Walter Dickey, former state corrections chief and a member of Barland's
committee, agreed with Geske that there won't be any immediate impact on the
state prison system.

In fact, he said, the corrections system will be dominated by "old world"
offenders for the next two years at least, and for that reason he sees no
urgency to enacting the criminal code changes.

One thing is certain, though. With each sentence a judge hands down, he or
she will commit the state or county to pick up the incarceration costs for
that specified amount of time.

At the current per-inmate incarceration figure of $20,000 a year, the
dollars add up quickly.

"In one busy morning in Milwaukee, a judge could commit millions of dollars
without anyone else signing off on it," McCann said. "I can't think of
anything else where that kind of power exists."