STATE BAR OPPOSES SENTENCING MANDATES

Doyle Aide Says Rulings Must Be Fair, Cost-Effective

A proposal to impose mandatory sentencing guidelines on circuit judges if
their sentencing practices are not "cost-effective" has drawn fire from the
State Bar of Wisconsin and the judiciary.

State Supreme Court Chief Justice Shirley Abrahamson told the Legislature's
Joint Finance Committee this week that judges have grave concerns about
Gov. Jim Doyle's budget proposal on sentencing guidelines.

Many prosecutors and defense attorneys are joining judges in opposing use
of mandatory sentencing guidelines, said Milwaukee attorney John Birdsall
of the State Bar's Criminal Law Section.

"We are dead set against this," said Birdsall, who favors advisory
guidelines that leave full discretion to judges.

"Mandatory guidelines deeply erode the discretion that prosecutors have -
and that courts have - in charging decisions and sentencing decisions," he
said in an interview. "It's just a mimicking of the federal system, and we
are strongly and unanimously against it."

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

Those 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 one gram or less of
cocaine; and possession with intent to deliver 200 to 1,000 grams of marijuana.

Goal Is To Report By January

Under Doyle's plan, the commission would have to report to the Legislature
by January 2004 whether judges' sentences for those crimes are consistent,
cost-effective and promote public safety and the integrity of the criminal
justice and correctional systems.

If the Sentencing Commission determines that judges' practices are not
accomplishing those objectives, the commission must create mandatory
sentencing guidelines for the 11 crimes, which judges would have to follow,
according to Doyle's proposal.

Dan Leistikow, Doyle's spokesman, said that Doyle was not pushing for
mandatory guidelines and that the sentencing commission would make that
decision.

Doyle's main concern was consistency, Leistikow said. But the fiscal impact
of judges' sentences also must be considered, given the current state
budget crisis, he said.

"This is a concern about fairness," Leistikow said. "It's basically a
review of sentencing across the state to find any disparities that there
might be in sentencing of a given crime in similar circumstances.

"It comes down to having a system that's fair and that gives people equal
treatment under the law," he said.

Directing that sentences be cost-effective, Leistikow said, "is a
recognition that the costs of a given sentence is something that could be
among the considerations at sentencing."

Considering cost questioned

But the chief justice questioned whether judges should consider cost when
deciding on appropriate punishment and rehabilitation.

"We do not know what 'cost-effective' means, as the definition changes
depending on one's perspective," Abrahamson testified Thursday before the
Joint Finance Committee.

"A victim will likely define the term differently than the government
does," she said. "The most cost-effective sentence in the long run is
probably the sentence that turns the offender into a law-abiding citizen."

A resolution by the state's 10 chief judges, who supervise 241 circuit
judges, asks lawmakers to give the sentencing commission more time to
review data before considering mandatory guidelines.

Issuing a report by January would be nearly impossible, the resolution says.

Advisory sentencing guidelines for those 11 crimes have been developed, but
judges have barely begun using them, several local judges said. There was
confusion about when judges were supposed to start using the guidelines.
Some said they were to be used after Dec. 31, 1999; others said not until
Feb. 1, 2003.

Abrahamson suggested that the commission consider one to two years' worth
of data before issuing a report.

Leistikow said the governor believed there was sufficient data to make a
determination. Also, if the commission determines that mandatory guidelines
are necessary, there is no deadline for implementation.

But Birdsall pointed out that the sentencing commission is not even
operating yet.

There also is no funding yet for the commission to do its work. Doyle has
proposed a budget of about $603,000 for the next two years to fund two
staff positions. The commission has sought six positions and about $800,000.

State Rep. Dean Kaufert (R-Neenah), co-chairman of the Joint Finance
Committee, said in an interview Friday that lawmakers will carefully review
the concerns raised. He said it may be wise to remove the policy from the
budget and consider it later on its own.