Tuesday, May 10, 2011

Sentencing -- The Ultimate Exercise of Discretion

By John DiMotto

As a Circuit Court Judge, I have been asked on numerous occasions over the years to participate in various seminars and conferences that have addressed sentencing matters. I am also routinely asked by people "how does a judge arrive at a sentence?" The answer is simpler than the exercise. A judge must analyze:

1) The nature and gravity of the offense.

2) The character of the offender.

3) The protection of society.

Based on the judge's analysis, he/she arrives at a sentence that he/she believes will account for all three of these sentencing factors.

In 2004, the Wisconsin Supreme Court in State v. Gallion, 270 Wis.2d 535, a case in which I was the trial judge, discussed sentencing considerations and revisited the issue of sentencing and set forth the requisite standards of the sentencing framework. The Wisconsin Supreme Court indicated :

1) Sentencing requires an exercise of discretion and that a strong presumption of reasonability is afforded to the trial court.

2) Appellate courts should not substitute their preference.

3) Discretion contemplates a process of reasoning.

a) This process depends on facts in the record or that are derived by inference from the record.

b) Discretion must be exercised on a rational and explainable basis. There must be a statement by the trial judge detailing the reasons for selecting the particular sentence imposed.

c) Discretion does not lend itself to mathematical precision.

4) The sentence imposed should call for the minimum amount of custody which is consistent with the protection of the public, gravity of the offense and rehabilitative needs of the defendant.

5) Probation should be considered as the first sentencing alternative and should be the sentence unless the court finds:

a) Confinement is needed to protect the public, or

b) The offender needs treatment in confinement or,

c) Probation would unduly depreciate the seriousness of the offense.

6) The Sentencing Framework should:

a) Specify the objectives of the sentence on the record.

* General Objectives are Protection, Punishment, Rehabilitation, Deterrence, Restorative Justice and Victim Restitution.

c) Identify which general objectives are of greatest importance.

d) Describe facts relevant to the objectives and explain in light of those facts why the particular component parts of the sentence imposed advance the specified objectives.

e) Identify factors considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision.

* Factors include -- the defendant's prior record; the defendant's history of undesirable behavior; the defendant's character; the results of a presentence investigation; the aggravated nature of the crime; the defendant's degree of culpability; the defendant's demeanor at trial; the defendant's age, education, and employment record; the defendant's remorse, repentance and co-operation; the defendant's need for close rehabilitative control; the rights of the public; the length of pretrial detention; read in offenses; the effect of the crime on the victim.

f) The sentence must be the minimum amount of time consistent with the gravity of the offense, the defendant's rehabilitation and protection of public.

g) Court must first consider probation.

h) Court must explain how the conditions of probation or Extended Supervision advance sentencing objectives.

i) Court must explain how incarceration time advances sentencing objectives.

7) Court must by reference to relevant facts and factors explain how the sentence's component parts promote the sentencing objectives.

8) Court should rely on information provided by others.

9) Character of the victim may be considered.

10) Victim's have sentencing rights.

Sentencing must never be a "knee jerk" reaction to a crime or to a defendant. Sentencing requires a balancing of multiple considerations. Sentencing is the most difficult decision that a circuit judge ever makes. Lives are in the balance -- of people and of the community as a whole.

Every judge takes this responsibility to heart every time he/she walks into a courtroom to do a sentencing. Justice demands nothing less.

1 comment:

  1. I disagree that EVERY judge takes this responsibility to heart every time he/she walks into a courtroom to do a sentencing. I have experienced a very unfair sentencing that was given to my family member. Yes, the family member committed the crime and admitted it with great remorse. He was offered a plea deal and the judge went 25 years over the plea deal and the psi. This person had no priors, was a respectable member of the community, and held a good job for 20 years. Yes, they deserve to be punished for their crime. However, this judge was excessive and reckless in many peoples eyes including law enforcement officials and Da's at the courthouse. The crime was an accident to an extent. This judge has taken away all hope from our family of ever having our loved one involved in our lives again. The defendant is 45 years old and was given a 55 year sentence. The maximum he could of received of 45 incarcerated and 10 extended supervision. As I stated before, he has no priors, etc. There were 60 character letters written on behalf of the defendant to help show his true character. The judge basically admitted he never read them and filed them away. He has been a model prisoner since day one and has zero chance of re-offending. We basically were asking for 20 years and the prosecution was suggesting that as well. This judge destroyed us and has caused shock to the community over this excessive sentencing. I hope anyone who gets caught up in this corrupt pathetic justice system in the future does not accept a plea deal and drags everyone involved through court proceedings and costs the state alot of money. If this judge continues to dole out excessive, un-deserved sentences, that is what will eventually happen. And,he has done this recently again to a different family. The judge took nothing into consideration that would have benfitted our loved one, or would have made his sentence appear unjust. Justice has not been served here. Evil, opinions, hate and corrupt power has been served. 20 years was more than enough. 45 is just un-fathomable. We are destroyed and will never recover from this. People need to have hope. Your "justice" system has succeeded in taking that away from us. This truth in sentencing has opened the playground for judges to be as abusive as they feel without any recourse. It needs to stop. Too many families are being destroyed and lives. This type of action does not deter future crimes. Criminals don't think generally before they commit a crime. All I can say is people are cruel and power happy. It must be close to election time. I hope your days of "reckless Power" come to an end soon.