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October 22, 2008

Wisconsin state appellate court urges guideline repeal

This Chicago Tribune article provides this report on an interesting ruling from a Wisconsin state appellate court today:

Wisconsin lawmakers should scrap a law requiring judges to consider sentencing guidelines when punishing people who commit certain felonies, an appeals court said Wednesday. The state commission that kept the guidelines current no longer exists and that makes considering them a pointless exercise, the District 2 Court of Appeals said.

Lawmakers eliminated the Wisconsin Sentencing Commission in a cost-saving measure in last year's state budget. The commission was created in 2001 to study sentencing patterns in Wisconsin, with a goal of making them more uniform from county to county....

But lawmakers failed to repeal a law that requires judges to consider the guidelines when they eliminated the commission. The appeals court warned Wednesday that is giving defendants an avenue for appeal since many judges are no longer filling out the worksheets or looking at the guidelines. Lawmakers must get rid of the law, Chief Judge Richard Brown wrote for a three-judge panel.... Brown made the plea at the end of an opinion in which the court upheld a 30-year prison term for a former Mr. Wisconsin body building champion convicted of torturing and sexually assaulting a woman for hours. The trial judge did not mention the guidelines when he sentenced Timothy Kaprelian of Racine on two counts of second-degree sexual assault and one count of false imprisonment last year.

The appeals court ruled that was a "harmless error" since the judge did consider many of the same factors before imposing the sentence. Lawyers should not cite similar errors as grounds for appeal in the future, it said. "Given the demise of the commission ... most trial judges have fashioned their own highly workable -- and perhaps more elaborate -- assessments and, as here, the record demonstrates that the sentence was the result of a thoughtful, deliberative process," Brown wrote.

The 16-page ruling in Wisconsin v. Kaprelian is available at this link.

October 22, 2008 at 08:12 PM | Permalink


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I'm surprised it would only take one year for such a system to fall apart. I would expect that the last published guidelines would carry on through inertia if they had actually been followed before the commission was abolished.

That certainly appeared the direction the CoA were headed at the federal level before Gall.

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