Pubdate: Mon, 27 Dec 1999 Source: Milwaukee Journal Sentinel (WI) Copyright: 1999, Milwaukee Journal Sentinel. Contact: 414-224-8280 Website: http://www.jsonline.com/ Forum: http://www.jsonline.com/cgi-bin/ubb/ultimate.cgi Author: David Doege and Richard P. Jones of the Journal Sentinel staff TOUGHER CRIME LAW RAISING RED FLAG No-parole prison terms to begin without new sentencing rules By David Doege and Richard P. Jones of the Journal Sentinel staff Wisconsin's criminal justice system begins operating under the long-awaited truth-in-sentencing law this week, and the historic change in the way felons will do prison time is generating uneasiness in courthouses throughout the state. Under the law, individuals convicted of committing crimes on Friday and thereafter will have to serve their entire prison sentences, and won't be eligible for parole or "good time" once they're behind bars. Truth in sentencing has several other significant features, including the advent of a two-part sentencing procedure, increased maximum prison terms, a replacement for parole called extended supervision, and letting judges impose conditions on defendants once they're released from prison. "It may be the single biggest change in law in the history of our state," said Eau Claire County Circuit Judge Thomas H. Barland, who chaired a committee that spent 14 months reviewing the state's felony code and drafting sweeping changes that were supposed to take effect the same day as truth in sentencing. "The big difference is that more responsibility for sentencing is placed on the judge. "Everything is fixed at the time of sentencing. It's fixed for the duration of the confinement and the extended supervision," he added. "There is no flexibility. That's an awesome responsibility, especially if you're handing down a long sentence." What's causing uneasiness among lawyers, prosecutors and judges, however, is that companion legislation aimed at overhauling the criminal code is stalled in the Legislature. That means truth in sentencing will begin under the current sentencing structure. "It's difficult to predict just what will happen," Barland said. "Much depends upon the attitude of the sentencing judges. "The concern is that some judges will tend to give sentences somewhat like the old sentences because of their concern that the public wouldn't understand a shorter sentence even though it will be longer because there is no parole," Barland said. "That's the big worry." Milwaukee County District Attorney E. Michael McCann, who served on Barland's committee, agreed. "I think the judiciary is uneasy, and I'm uneasy," McCann said. It was more than a year ago that lawmakers passed truth in sentencing by overwhelming majorities in both houses. Gov. Tommy G. Thompson, who sought the change, signed it into law. In passing truth in sentencing, lawmakers agreed to rewrite the criminal code, the first major revision in 50 years, to make the punishment fit the crime under the new law. Working under a tight deadline, Barland's criminal penalties study committee, consisting of judges, prosecutors, defense lawyers and citizen members, sent its recommendations to the Legislature in fall. However, lawmakers adjourned their fall session without acting on the proposed revisions, and the debate has degenerated into a partisan blame game. Sentencing 3 Ways As truth in sentencing goes into effect under the existing felony code, judges will continue sentencing defendants whose crimes occurred before Friday under the old rules, complete with parole, good time and previous features that have been in effect for decades. Defendants sentenced for crimes committed Friday and thereafter will be sentenced under the new law. If, as most expect, the Legislature eventually passes a revised criminal code, judges ultimately will be sentencing a third way. In Milwaukee County, which has 12 felony courts, that means judges could be sentencing defendants three ways on the same day. "We envisioned 'old world' defendants and 'new world' defendants, but now we're going to have 'middle world' defendants as well," said Milwaukee County Circuit Judge Elsa C. Lamelas, another member of Barland's committee. "That's a nightmare," said Janine Geske, a former state Supreme Court justice who worked with the committee. "We're going to have three sets of rules, which is going to lead to some confusion and difficulty. However, she noted: "The world will go on. Judges will do the best they can." Under the new law, sentencing becomes a two-part procedure. The judge will impose a total sentence, then break it down into prison time and extended supervision time. The combination of the two parts cannot exceed the maximum possible prison term for the crime, and the extended supervision must be at least 25% of the length of the term of confinement. For example, a person convicted of first-degree sexual assault faces a maximum sentence of 60 years in prison. In the first portion of his sentencing, a judge who imposes a period of confinement of 20 years must then set a period of extended supervision of at least five years. The total sentence would equal 25 years. Barland's committee proposed sentencing guidelines to assist judges so sentences for similar crimes are somewhat uniform statewide. But some expect disparity without guidelines. "There is going to be no consistency," predicted Milwaukee defense attorney Martin E. Kohler. "Heavy sentencers are now going to have a greater opportunity to give more time." Milwaukee County Circuit Judge John J. DiMotto said confinement time under the new procedure should be less than the sentences now imposed because the current system includes parole. Defendants currently become eligible for parole after serving 25% of their sentence and must be paroled after serving 66% of the term. "They should be less in the future, but I suspect that there will be some judges who will not ratchet down their sentences," DiMotto said. Milwaukee defense attorney Steven R. Kohn said some judges might fear that handing down shorter confinement times, even though they are, in reality, longer, will be used against them by judicial challengers. "Judges who are afraid of the political winds are going to continue to mete out extremely long, if not maximum sentences," Kohn said. "Unfortunately, in the political climate that exists in judicial elections, it's an issue which can be used to attack judges, as reflected in some of the past judicial races." While the parole process has typically drawn criticism over the years, the Parole Commission's existence assured judges that if a defendant changed remarkably from when that person was sentenced, the opportunity existed for an early release from prison. "We never know for sure how a defendant will do in prison," Lamelas said. No Payoff for Inmates With the end of parole, there will be no opportunity for a mid-course correction. "That's bad in the sense that if the judge gives a harsh sentence or misjudges the defendant, there is very little that can be done to correct that," Barland said. With the elimination of parole and good time, McCann wonders whether inmates with hefty sentences will be more apt to misbehave. "There is a payoff now if you behave," he said. While it's true that "bad time" can be added to an unruly inmate's sentence under the new setup, McCann isn't sure that will make much difference to convicts serving lengthy real-time terms. "If I know that I'm definitely not getting out for another 30 years, will those days or weeks or months they might add to my sentence down the road matter?" McCann noted. "It will be interesting to see." Meanwhile, McCann said that prosecutors' powers increase under the new sentencing schemes. "Our charging document will tell defendants the total amount of real time they face if they go to trial and are found guilty," McCann said. "In the past, a crime carrying 40 years meant a maximum of 27 years with parole. "Now a 40-year maximum is a real 40 years. Will less defendants take their cases to trial because of that? I don't know. Will judges see a defendant taking a case to trial as demonstrating a lack of remorse and add real years? I don't know," he said. "Nobody knows how judges are going to sentence." Geske said the immediate impact of the new law would be on the courts, but how the new law will affect the prison system remains to be seen. Barland said if judges keep in mind that parole is no longer possible and adjust their sentences accordingly, the impact on corrections could be minimal. Walter Dickey, former state corrections chief and a member of Barland's committee, agreed with Geske that there won't be any immediate impact on the state prison system. In fact, he said, the corrections system will be dominated by "old world" offenders for the next two years at least, and for that reason he sees no urgency to enacting the criminal code changes. One thing is certain, though. With each sentence a judge hands down, he or she will commit the state or county to pick up the incarceration costs for that specified amount of time. At the current per-inmate incarceration figure of $20,000 a year, the dollars add up quickly. "In one busy morning in Milwaukee, a judge could commit millions of dollars without anyone else signing off on it," McCann said. "I can't think of anything else where that kind of power exists." - --- MAP posted-by: Don Beck