Criminal : Week of November 19

November 20

Review

• Defenses
  • Basically all of these are admissions of the conduct charged, but they are explanations or excuses
  • Self-defense: Privilege to use or threaten force.
    • To prevent or terminate unlawful interference with personal safety (of self or other)
    • Limited to the force necessary to terminate or prevent the interference.
    • Reasonable belief that force is needed
    • If it's lethal force, the reasonable belief must be of immanent risk of death or great bodily harm
    • If the threat is provoked or induced by the person trying to defend one's self, there's a duty to retreat (normally there is no such duty) before using lethal force; or to withdraw if it's non-lethal force
    • Imperfect self defense: it can be a mitigating factor (taking first degreee intentional homicide down to second degree). Also known as unnecessary defensive force. Then it is based on an actual belief in the things necessary for perfect self defense, but one of those beliefs was unreasonable (the exploding girl scout scenario, or a misjudgment about what degree of force was needed).
    • Affirmative
  • Intoxication:
    • Addiction or dependency does not qualify someone for "involuntary." Involuntary intoxication requires that someone slips you a mickey, or you have a surprise reaction to medication or something like that.
    • Voluntary intoxication is raised to negate intent (or knowledge?); it doesn't count against recklessness (i.e. wouldn't get an instruction on intoxication in a charge of recklessness)
    • Need evidence not only of quantity of drinking, but also of incapacity to form intent because of the extent of intoxication
    • Negative
  • Mistake: an honest error of fact or law (but not of criminal law)
    • This is a defense only if it negates a state of mind (intent or knowledge; could possibly work on recklessness)
    • Mistakes of law are rarely successfully defended; these are narrow exceptions
    • Wisconsin follows the reasoning of Garnett regarding strict liability for mistake of age in sexual consent cases
    • Negative
  • Coercion: much like necessity
    • Reasonable belief that the act (which would otherwise be a criminal act) is the only way to avoid serious injury or harm to self or other
    • Note that disaster is not mentioned in the statute, but somehow it's in the jury instruction, so you could try arguing for it
    • This is a mitigator for first-degree intentional homicide; you might get sentencing leniency
    • Requires a threat from another person (not a co-conspirator)
    • Affirmative
  • Necessity: Much like coercion
    • Reasonable belief that the act (which would otherwise be a criminal act) is the only way to avoid serious injury or harm to self or other, or an immanent public disaster
    • This is a mitigator for first-degree intentional homicide; you might get sentencing leniency
    • Requires the pressure of natural forces
    • Affirmative
  • In WI, these are all statutory, although they are common law in some other jurisdictions. Procedurally, these are more or less identical in WI:
    • Defense has the burden of production (bears the risk of non-production)
    • The evidence has to be sufficient for a reasonable jury to find, construing the facts in the light most favorable to the defense, that the prosecution has not disproved the defense beyond a reasonable doubt.
    • The affirmative defenses confess the elements of the crime, but assert that the penalty should be avoided
    • The negative defenses negate an element of the crime
    • For affirmative defenses, it is constitutional for the government to put the burden of persuasion on the defendant. Patterson, for example.

  Sentencing

• Whether you have a trial or enter a plea, the vast majority of criminal cases (>90%) end up at a sentencing hearing. Sentencing law and practices have changed greatly in the recent past. Used to be that double-digit sentences were rare, but now they're pretty common.
• Wisconsin switched from indeterminate sentencing to determinate sentencing in 1999. Under the old scheme, a judge would sentence a person to a certain number of years in prison. Let's say 6 years. That person would be eligible to be considered for parole after 25% of that sentence (18 months). The parole board took into account the seriousness of the underlying crime, the conduct of the offender in the institution, efforts by the inmate to make him or herself ready for re-integration into the community. There was also "good time:" mandatory release date was 2/3 of the sentence (assuming no serious conduct violations). So 4 years, in that case. Then you'd be released on parole for the remainder of the sentence period.
• Under the current scheme, the defendant is given a sentence. The judge sets the initial period of incarceration, and then the balance is "extended supervision." The total sentence is the sum of those two. So if the judge sets the initial incarceration for 6 years, you're in for 6 years. That's the "truth" in Truth in Sentencing.
• The legislature apparently thought that judges would make the total sentences equal to the actual sentences under the old scheme. But judges are elected, and did not want to explain why they now give 4 years for a crime they used to give 6 for. So they didn't, and sentences got longer, and prisons got more crowded.
• Criminal complaints also have a penalty section ("...punishable by imprisonment for up to 10 years or a $10K fine, or both"). It turns out that there is a third choice: probation. You can get on probation if the judge withholds sentence (i.e., "I'm not sentencing you now"), but get put on probation with some conditions (30 days in jail, alcohol treatment, restitution, etc.). Or the judge can impose a sentence, but then stay it, and give probation. If you're successful on probation, it doesn't make a difference which alternative was selected. But a large percentage don't complete probation, so it becomes important. In the first case, you're returned to court for sentencing (up to the maximum). In the second case, the sentence that was imposed just goes into effect. Most judges prefer the withheld sentence: it gives them an opportunity to consider your screw-up on probation when they are sentencing you (i.e., maybe a slightly harsher sentence for having wasted your opportunity on probation).
• Sentencing hearings are a very important part of advocacy. Lots of agreements include agreements as to sentencing, but there are often still variables to be nailed down. The judge is trying to determine what is an appropriate sentence; you need to know what issues are important to the judge, for example, and what opportunities are available in the community for your client. You can talk about mitigating/explaining factors. You can show sincere remorse. You can talk about making restitution (which you can't really do if you're in jail). Note that the victims will also have a chance to speak.
• McCleary v. State
  Commentary in class
  A pre-sentence report is a document prepared by someone from DOC division of community corrections. They do a history check (social and criminal), weigh your needs, etc. Generally they conclude with a recommendation for a specific sentence, or short or long sentence.

  Because the legislature sets a range of sentences, then setting a specific sentence (or probation) is clearly a discretionary act by the court.

  Judges are required to demonstrate that they have weighed the evidence.

  Review of sentencing helps develop consistency and develop standards (also it might reduce appeals, because just reviewing sentences is cheaper and quicker and generally addresses one of the appellant's prime concerns).

  Upon review, the court can:

  • Affirm the sentence
  • Call for a new sentencing hearing
  • Modify the sentence imposed
• State v. Gallion: not briefed because there are no issues-- we just see a lecture. The results were not favorable to Gallion: they affirm his 21-year sentence. Gallion has three gripes:
  • The court gave no reasoning for the sentencing
  • The court placed too much emphasis on character of victim
  • The sentence was too harsh
  The court cites reasons for imposing incarceration (protection from other criminal activity, delivery of rehabilitative treatment, to avoid depreciating the seriousness of the offense... also deterrence of others).

  Those are the factors that the court should weigh when discretionizing about sentences.

  This is motivated because there has been so little review action on sentencing, courts are just following the form of reasoning but not doing it substantively, and with TIS, we no longer have parole as a mitigating factor.

  As a rule, judges are frustrated that they don't have more information at sentencing time (even pre-sentence reports don't always get done), and a lot of the time it's the DA who will recommend a sentence.

  This decision has had little substantive impact: people are still getting the heck sentenced out of them, without much consistency or reasoning. McCleary was the outlying case, really: it was amazing that the sentence got modified. We see sentences overturned, but often that's for a specific legal reason (e.g., wrong sentence imposed, wrong credit given for pre-trial incarceration, or something).

• Risk assessments are a growth industry for sentencing. There are competing risk instruments, actually. Risk of escape vs. risk of recidivism, for example. AIM is a new program (assess, inform, measure): trying to respond to judges wanting more information for sentencing.
• What is the WI sentencing policy? It's the aggregate of the 200 or so circuit court judges. There are regional variations (probation is used much more in Eau Claire than in Milwaukee). There's no overall guiding body of knowledge or objective.