SENTENCING STUDY DROPPED

Measure deleted from state budget proposal had critics among judges

A proposal to study possible mandatory sentencing guidelines for circuit
judges has been dropped from the state budget, to the relief of many judges
and lawyers.

A state lawmaker said that he believes the policy issue will be revived
after the budget passes.

But the State Bar of Wisconsin committee chairman said he hopes the matter
dies.

"I don't think it should be considered even as a separate piece of
legislation," said Milwaukee attorney John Birdsall, chairman of the Bar's
Criminal Law Section, which opposes mandatory sentencing guidelines.

"I think it should be dropped," he said. "Judges and the defense bar have
made it clear that this is just the wrong path for criminal sentencing."

Even the lawmaker who favored debating the issue outside of budget
considerations said that he was dubious about considering restricting
judges' sentencing discretion.

"Taking all the discretion away from judges, I believe, probably is not the
thing to do," said state Rep. Dean Kaufert (R-Neenah), co-chairman of the
budget-writing Joint Finance Committee.

In his 2003-'05 budget, Gov. Jim Doyle had proposed that the new Sentencing
Commission study circuit judges' sentencing practices statewide for 11
felony crimes that comprise about 72% of state corrections spending.

The 11 crimes are first- and second-degree sexual assault; first- and
second-degree sexual assault of a child; burglary; armed robbery; robbery;
theft; forgery; possession with intent to deliver 1 gram or less of cocaine;
and possession with intent to deliver 200 to 1,000 grams of marijuana.

Doyle directed that if the commission found the sentences were not
consistent and cost-effective, the commission must create mandatory
sentencing guidelines that judges would have had to follow.

That idea drew opposition from state Supreme Court Chief Justice Shirley
Abrahamson and the entire judiciary, as well as the bar's criminal lawyers.

Abrahamson declined to comment and said she stood by the remarks she made
before the Joint Finance Committee in March.

She testified at that time that judges were concerned about losing
discretion and questioned whether they should consider cost when deciding on
the appropriate punishment and rehabilitation.

"We do not know what 'cost-effective' means as the definition changes
depending on one's perspective," she said then. "The most cost-effective
sentence in the long run is probably the sentence that turns the offender
into a law-abiding citizen."

Separating issue from budget Kaufert said that he and state Sen. Alberta
Darling (R-River Hills), co-chairman of the Joint Finance Committee, decided
that sentencing guidelines were a policy issue that should be removed from
the budget.

He said he followed the recommendation of the non-partisan Legislative
Fiscal Bureau, which in April listed the guidelines among 21 items that
should be removed because they were policy issues with little fiscal impact.

Doyle plans to resurrect the sentencing practices study and possible
mandatory guidelines after the budget is resolved, his spokesman Dan
Leistikow said.

"It is an issue that won't go away," Leistikow said.

"Sentences vary widely between jurisdictions for the same crime. You might
get a different sentence in La Crosse than you would in Janesville just
depending on which judge you draw.

"So there are concerns about equity and having a justice system that works
efficiently and is fair. The governor will continue to work with the
Sentencing Commission to have this issue addressed."

Sheryl Gervasi, legislative liaison for the State Courts Office, which
supervises 241 circuit judges, said jurists are "pleased" the threat of
mandatory guidelines has been dropped for now.

"A lot of judges don't like the temporary advisory guidelines (already in
place), let alone having mandatory guidelines looming on the horizons," she
said.

Waukesha County Circuit Judge Michael Bohren said that creating a mandatory
sentencing structure for state judges like that of the federal court system
would "remove virtually all discretion from the judge. It places almost all
the sentencing authority in the prosecutor."

Prosecutors would control sentences by deciding what charges to file and
what plea agreements to make, he said.