In Re Judicial Administration: Felony Sentencing Guidelines

353 N.W.2d 793, 120 Wis. 2d 198, 1984 Wisc. LEXIS 2754

• Court: Wisconsin Supreme Court
• Decided: August 29, 1984
• Status: Published

Opinions

PER CURIAM.

The legislature, by enacting 1988 Wisconsin Act 371, has authorized the supreme court to promulgate rules for sentencing guidelines for use by Wisconsin judges in sentencing convicted felons if we choose to do so. If we do not, the statutory authority to promulgate sentencing guideline rules passes to a sentencing commission attached to the Wisconsin Department of Administration.

The guidelines, which are to be based primarily on the felony sentences imposed by judges throughout the state in recent years rather than on what could be considered the correct or appropriate sentence for a particular crime under a given set of facts, are to set forth recommended sentence lengths for terms of confinement expressed in ranges of months and indicate the likelihood that the offender would be placed on probation or incarcerated.¹ When imposing sentence, courts will be required to take the sentencing guidelines into consideration and, if they impose a sentence not in accord with the guidelines, state on the record their reasons for deviating from the guidelines. For the reasons set forth below the court declines to exercise this statutory authority to promulgate felony sentencing guidelines.

One year ago this court was asked to mandate, by rule, the use of felony sentencing guidelines in all state trial courts for an 18-month period. At that time the court concluded that it was inappropriate to order the use of felony sentencing guidelines for the following reasons:

“No need has been satisfactorily established to justify the court’s requiring the statewide use of the felony sentencing guidelines; our imposition of the guidelines on the trial judges throughout the state would constitute an unwarranted intrusion into the authority and discretion of the sentencing judges; prescribing penalties for criminal offenses is a matter of legislative, not judicial, policy; our promulgation of the guidelines and our order that they be used by all judges in the state would suggest that the court is prescribing presumptively appropriate sentences, which we are not prepared to do; the proposed guidelines are nothing more than a compilation of the average felony sentencing experience in the state since 1977.” In the Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 690, 335 N.W.2d 868 (1983).

No circumstances have been presented to us to cause us to reach a different conclusion at this time, and we accordingly decline to exercise the authority conditionally conferred on us by the legislature to promulgate felony sentencing guidelines. We continue to recognize, however, that statistical information on felony sentencing in the state, which the court directed to be disseminated to Wisconsin judges by the director of state courts, is a valuable judicial tool, especially for those judges new to the trial court and for those who have been newly assigned to the felony bench as a result of judicial rotation.

In the course of our deliberations last year, we considered a January 31, 1983, report of the Advisory Committee for the Wisconsin Felony Sentencing Guidelines Project, which concluded that there was no unjustified disparity in sentencing in Wisconsin courts, based on the results of a study conducted from late 1977 to early 1979. No facts have been presented to us to indicate that significant sentencing disparity has occurred since then.

If there is disparity in the length of time being served, that is not the result of disparity of sentencing but is the result of the power vested in the Parole Board to authorize early release. Convicted felons continue to receive discretionary paroles and are being released from incarceration prior to their mandatory release dates set by statute. The decision to grant discretionary parole belongs to the chairman of the Parole Board, upon authority delegated from the secretary of the Department of Health and Social Services (DHSS). One-half of the inmates released prior to serving the full sentence imposed on them by the sentencing judge are placed on parole by decision of the DHSS secretary, the secretary’s designee or the Parole Board chairman. In the Matter of Implementation of Felony Sentencing Guidelines, supra, fn. 2 at p. 694. Day, J., concurring opinion, 709-710.

Under the present legislative system of indeterminate sentencing,² trial judges have discretion to determine appropriate sentences for particular offenses. Imposing sentencing guidelines would interfere with the exercise of that discretion. The sentencing judge is in the best position to evaluate the circumstances of each case in making a sentencing determination, and we refuse to intrude on that discretion beyond continuing to require that each judge make a record setting forth the factors considered in imposing a sentence in order to provide evidence on review that sentencing discretion had been properly exercised and that the sentence imposed was the product of the exercise of that discretion. McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971).

We have identified the three primary factors to be considered by a trial court in imposing a sentence: . . the gravity of the offense, the character of the offender, and the need for protection of the public.” Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1979). Other factors we have recognized as properly considered in sentencing are:

“A past record of criminal offenses, a history of undesirable behavior patterns, the defendant’s personality, character and social traits, the results of a presentence investigation, the vicious or aggravated nature of the crime, the degree of the defendant’s culpability, the defendant’s demeanor at trial, the defendant’s age, educational background and employment record, the defendant’s remorse, repentance and cooperativeness, the defendant’s need for close rehabilitative control, the rights of the public, . . . the length of pretrial detention. Citations omitted.” State v. Tew, 54 Wis. 2d 361, 367-68, 195 N.W.2d 615 (1972).

We do not find that the Wisconsin felony sentencing experience is sufficiently relevant to require a court to consider it and state on the record its reasons for deviating from sentencing guidelines based on that experience.

It is apparent from the relevant factors to be considered in imposing sentence that no two convicted felons stand before the sentencing court on identical footing. The sentencing court must assess the crime, the criminal, and the community, and no two cases will present identical factors.

“It is not the philosophy of modern criminal law that the punishment fit the crime alone and that for every violation of a particular statute there be an identical sanction ... it is essential that a sentencing court consider the nature of the particular crime, i.e., the degree of culpability — distinguishable from the barebones legal elements of it — and the personality of the criminal. The interests of both society and the individual must be weighed in each sentencing process.” McCleary v. State, supra, 271.

Neither the interests of the individual being sentenced nor those of the community in which that individual lives are susceptible of accurate assessment in terms of statistical data gathered from other sentencing courts in the state. While each convicted felon is an individual deserving of individual treatment at sentencing, the interests of the public, too, will vary according to the particular community in which the crime was committed, the capacity of the community to rehabilitate the criminal, and the needs of that community for protection from that type of criminal activity.

Under the indeterminate sentencing system which has been established for this state by the legislature, the individuality of the crime, the criminal, and the community demands that an individual sentencing determination be made in each case. The sentencing court must consider specified factors in imposing sentence, but it must retain the discretion to impose an appropriate sentence based on that consideration. “Giving consideration to various relevant factors does involve a weighing and balancing operation, but the weight to be given a particular factor in a particular case is for the trial court, not this court, to determine.” Cunningham v. State, 76 Wis. 2d 277, 282, 251 N.W.2d 65 (1977). We will not interfere with the exercise of that discretion by requiring judges to consider how convicted felons have been treated in other Wisconsin courts and, further, by requiring sentencing courts to articulate their reasons for imposing sentences which do not conform to those recommended by guidelines based on sentencing experience in the state. Judicial review of a judge’s exercise of sentencing discretion is available in the appellate courts to prevent arbitrariness, capriciousness and unjustified disparity, but even that review “must be made in light of the strong policy against interference with the trial court’s discretion in passing sentence.” State v. Killory, 73 Wis. 2d 400, 408, 243 N.W.2d 475 (1976).

We recognize that sentencing is a matter of legislative policy. Drewniak v. State, ex rel. Jacquest, 239 Wis. 475, 1 N.W.2d 899 (1942). The legislature determines what constitutes a crime in Wisconsin and establishes maximum penalties for each class of crime. It is for the legislature, then, to decide whether and to what extent the sentencing court’s discretion should be limited.

The legislature stated its intent in authorizing this court to promulgate felony sentencing guidelines as follows:

“The legislature finds that sentencing of criminal defendants should be even-handed and consistent. Guidelines for use by judges are useful to accomplish this purpose. Under our criminal justice system, the legislature generally establishes the minimum and maximum sentences for crimes, and judges use their discretion to determine, within the limits established by the legislature, what particular sentence is appropriate in a particular case. As this exercise of judicial discretion is so directly related to the establishment of sentencing guidelines, it is most appropriate that the supreme court promulgate rules for sentencing guidelines. Only if the supreme court declines to do so will the legislature establish an independent sentencing commission to establish sentencing guidelines.” Section 751.13(1), Stats.

We agree that consistency in criminal sentencing is desirable, and we conclude, in the absence of facts to the contrary, that the existing system is accomplishing that goal. The legislature considers it most appropriate that this court promulgate rules for sentencing guidelines because it sees a direct relation between the establishment of the guidelines and the exercise of judicial discretion. We disagree; it is precisely because the determination of what constitutes an appropriate sentence in a particular case involves the exercise of judicial discretion that we decline to promulgate guidelines and thereby encroach on that discretion.

The recent statutory authority for this court to promulgate rules providing sentencing guidelines is conditioned on the court’s issuing an order on or before September 1, 1984 directing the director of state courts to continue the study of sentencing guidelines initiated by the sentencing guidelines advisory committee and to begin preparation of proposed rules providing sentencing guidelines. As the court will not issue such an order, the statutory authority to promulgate sentencing guideline rules passes to a sentencing commission attached to the .state department of administration. Section 751.13, Stats.

1 Section 14, ch. 371, creating sec. 973.011, Stats. 1983-84. The guidelines are to include consideration of previous criminal history, status relating to incarceration, probation, parole or pretrial release, the severity of the offense, and mitigating, aggravating and other factors to be considered in sentencing. Sections 973.011(2), (3).

2 For example, the statutory penalty for armed robbery is specified as “imprisonment not to exceed 20 years,” secs. 943.32, 939.50, Stats. Thus, the sentencing judge has the discretion to sentence a convicted armed robber to a term of anywhere from one to twenty years; the sentencing judge may also withhold sentence or impose sentence and stay its execution and, in either case, place the convicted felon on probation, sec. 973.09(1).