Criminal : Week of November 27

27 November

Patrick Fiedler: Truth in Sentencing

• Circuit Ct. Judge in Dane County since 1993. Former prosecutor, Sec DOC. ; teaches evidence and sentencing hearings at the judicial college.
• What is important to a judge @ the sentencing hearing? Credibility, which means preparation, and knowledge of the TIS guidelines. He keeps the TIS chart on the bench, and advocates should present reasonable options. If an attorney suggests doing something not authorized by law, that is bad (e.g., excessive probation). Be prepared to cite authority (not "inherent authority").
• Sentencing handout: prepping for the hearing. For lots of things, not much prep is needed-- everything is stipulated. But remember that everything lawyers do is important to the litigants.
• Don't be afraid of soliciting advice: it's a sign of strength, not weakness.
• Homicide by drunk driving is the hardest. It's not an intentional crime, the defendant rarely has prior record. Also stepfather- stepdaughter sexual assault. These are areas where there's a lot of attention and focus, and where the judge will pay attention as long as you are credible and helpful. He has not made up his mind @ the start of the hearing-- he wants to have an option he can live with. The contested sentencing hearing is really important: present a package.
• Sentencing guidelines are a waste of time, he thinks. TIS isn't the problem, but the guidelines do not assist the judge. Basically all parties just reference that they've considered them, but the guidelines don't really help, because Gallion is the law.
• Question 1: is this probation or prison? After that, we're talking numbers.
• Not everybody gets dealt the same hand: what have they done with what they've been given? Very few criminals, by the way, are successful their entire careers. Has someone got a job? Have they sought treatment on their own initiative? He wants sentences to succeed, not set people up for failure.
• 80% of incarcerated people have some substance abuse problem. A serious percentage are below 8th-grade literacy. Probation will get people better treatment sooner-- there's no guarantee they'll get it in prison: they might, but you can't take it into account @ sentencing, because you can't count on what is going on.
• Don't gloss over the seriousness of the defendant's crime. It may still not be necessary to incarcerate, but understand how serious it is.
• The judge will confirm sentencing parameters with both sides-- this will be done in light of the sentences that have been overturned in WI. Sentences generally only get overturned if the judge made a misstatement of law. So work out the penalty options in advance.
• Know your judge's procedure-- they'll have an order in which they like to do something. Submit sentencing memos well in advance, not at the start of the hearing. They'll be read at least twice (you'll cc: opposing counsel, so it's not ex parte). But this is your chance to propose something ahead of time. Keep it short: 2.5 pages is a good limit. Your judge has maybe 20 minutes to read your brief. Summarize the aggravating and mitigating factors, and say what you want the judge to do, and why. Gallion factors: walk through all those that apply. Include criminal history (what was the crime, what was the sentence, was probation revoked, etc.).
• Ann Sayles: prosecutor specializing in sophisticated white collar crimes.
• Judges know that with each decision, one side will think they are geniuses and the other side will think they are idiots. That comes with the territory. Note that winning may not mean avoiding prison altogether. Also note that advocacy isn't about just the one case you've got: it's a marathon, and you'll be practicing in front of the same judges for years if you are good. So doing it in a way that gives the judge confidence that you know what you're doing, and provides what is needed, you will make sure that the judge listens well to you. Don't ask for unrealistic things. Organization, preparation, and knowing the law are key. Advocacy isn't getting what you want all the time-- it's establishing a track record.
• The problem with sentence length is in violent personal crimes. They tend to get more incarceration. Now there's no mandatory release, so sentences have basically gone up.
• Note that lengthy extended supervision isn't much of a bargain if your client is likely to get revoked. Lengthy extended supervision is a nice thing for child molesters, etc., because we want to guard against recurring. Child support can be a factor, but so is whether or not the defendant has been taking care of the family all along.
• Sometimes petitions for sentence adjustment are granted: the record includes diplomas for classes passed, etc. The judge wants to have comfort that there will be better future behavior.
• >22K people in prison in WI, and 70K on parole/extended supervision, etc. TIS has not affected the programs available in prison at all.
• Due process rights include being sentenced on true and correct information. Pending charges, inferences, other counts not convicted, etc., should not be considered (turns out they can be, but he does not consider them).

Procedural Requirements of Sentencing

• Defendant has a due process right to be sentenced on accurate information (but will not complain about favorable false information)... That's why judges go so far beyond just the bare bones due process.
• We have a great deal of discretion in WI. Sentence can be imposed based on extra facts (i.e., 10 counts charged in a criminal complaint, probable cause for each, plead to 3). Acquittal just means that a thing has not been proved beyond a reasonable doubt (it's not a factual finding that the person didn't do something), so the judge can take unproved offences into account. There's some exposure (they'd be insane to say they were doing it, in case the defendant later proved one of the counts was a clear not guilty), but it can affect sentencing amounts. The upper bound is controlled by the maximum penalty for the conviction, of course, but lots of other things can be considered. So other crimes, character evidence, etc., is a huge factor when a judge can go all the way from a fine to a big prison term.
• The prosecution has the duty to provide notice of a sentencing hearing to the victim, etc., so they have the chance to speak about the crime's impact on them. The prosecutor may be bound by an agreement to make a recommendation, but the victim might come in and make a very eloquent argument for a larger penalty. The prosecutor can't write the argument for them, of course. So there's benefit to the defense reaching out to the victim to explain the rationale for a plea agreement.
• Law enforcement is considered part of the prosecution team. So even if they are the victim, they can't make suggestions to the judge about sentencing.
• The defendant has the right to address the court personally. Generally, attorneys will be better prepared and more persuasive, but the court will ask if the defendant wishes to address the court personally. Showing remorse is a good idea, and to show commitment to whatever treatment, restitution, etc. Defendants who can't resist blaming the victim, second-guessing the jury, etc., should consider waiving this right.
• Hermann shows us that there can be enhancers. If they increase the maximum sentences, they must be proved beyond reasonable doubt.
• Overturning is rare-- the trial court's discretion is almost always upheld. Counter-examples: sentence in excess of the maximum, too much extended supervision, etc. Sentences for discriminatory reasons, etc., are prohibited. Age is an interesting factor: it strongly correlates with reduced risk, but it will rarely be cited explicitly, because it is a suspicious factor in other areas of the law. It can cut both ways: "my client is young and naive" vs "your client is just entering his prime crime-committing years."
• TIS arises out of a federal revenue-sharing incentive encouraging states to force convicts to serve at least 85% of their sentence. WI decided that 85% truthfulness was just not enough.
• TIS also increases some pressure on judges to make appropriate determinations about both incarceration and ES. In spite of all the truth, there are some little falsehoods:
  • CIP (Boot Camp): this was there prior to TIS, and it never went away. Eligibility for "challenge incarceration program" has recently been expanded, actually. It has a lot of discipline. There may be actually three of these (one coed) nowadays. 6 month program, pretty harsh.
  • ERP (Earned Release Program): at first only for male inmates, but there are still only a limited number of beds. Also a 6-month program, but not military-like. AODA: Alcohol or Other Drug Abuse. Treatment here. This is a growing program.
  • Geriatric/terminal: 6 months to live or 60 years old and 10 years in/65 and 5 in. Basically DOC doesn't want to pay healthcare costs here; feds will pay if they're elegible. You can think of this as compassionate if you want. You're out, but the un-served part of your sentence is on ES. This doesn't apply to life sentences, by the way.
  • 75%-85% adjust: not available to Class A or Class B. C-I are eligible. F-I get 75%. 85% is C-E. Used to be that the DA had to agree to it (this was unconstitutional under separation of powers). Basically, you just ask for this. Not that many get granted, but you might as well apply. Note that basically judges are now acting as parole boards as a result.
  Still, overall, they're not sending a lot of people home early.
• Defense attorneys don't seem to negotiate aggressively about the length of ES. Clients generally don't worry about this and take their chances. Also, the trade-off is prison. Hard thing to argue: are you claiming your client can't make it on ES? Same with bail conditions (e.g., a no- drinking provision, or not harrassing the victim provision).

Extended Supervision

• Like probation/parole: release to the community in some sort of supervised housing, etc. Need to report, need to be employed/in school, there are monthly fees. You need permission to do most things. There are standard sets of rules for different classes of offenders.
• DOC has quite broad leeway with these rules, although they have to be reasonably related to the goals of supervision.
• ES time does not count as credit for any incarceration imposed. This is important for revocation purposes.

  So let's say I'm convicted of forgery: 5 year sentence (two years initial confinement, 3 years ES). So I do my 2 years, I'm out for a month on ES, and I violate my rules in a serious way. I've served 2 years, and now the judge can give me all or part of the three years I have not served.

  What if I was out on ES for 2 years, eleven months? Well, I can still get 3 years.

  So note that given the rates of revocation, clients are often agreeing to prison sentences longer than they expect.

• Another scenario. If I'm released on ES, and I violate, my agent will put me in jail, and decide whether or not to revoke my ES. The agent will weigh whether this is a good idea. They can also give a penalty time-out of up to 90 days. There can be alternatives to revocation: enrollment in a program, for example.
• Revocation proceedings: a hearing before an ALJ. They need to show that there's been a violation. Defendants have a right to counsel. Counsel can challenge the evidence of the violation, or the decision to revoke. Counsel can also propose alternatives to revocation. Generally, though, you're going to get revoked.
• Once you are revocated, then you get returned to the court that sentenced you, where DOC will make a recommendation regarding the amount of time that you shoulbe returned to prison. This can be any amount of time up to the total remaining on the total bifurcated sentence. (so: total time - time served in prison - all time spent in jail for revocation proceedings).
• If you are revocated, there's also no ES credit (i.e., you will do the additional time in prison, and then the remainder of your ES awaits you).
• There can be little add-ons, also, for discipline problems. These add-ons go to your incarceration time before you get ES. There can be bad time nowadays for frivolous law suits, perhaps.
• Some life sentences can get ES (not under 3-strikes, or under 2-strikes child sex offense, or if sentence is life without possibility of ES). If it's just regular old 1st degree intentional homicide, ES comes after 20 years. The judge can set it to be longer than 20 (not shorter). You apply, the victim (or family) is notified, and the court can decide whether to have a hearing at which the defendant can prove by clear and convincing evidence that he's no longer a danger to society.
• This gets ludicrously complex when there are multiple counts in multiple jurisdictions. Say one forgery in Dane County (5 year sentence: 2 years in, 3 years ES). Then one in Rock County (2 years in, 3 years ES, consecutive). You need an accountant to figure out whether the waiting in jail time for your revocation history counts against one sentence or another, etc.

November 29

Writing Assignments

• Suggestion: use headings to help with organization. Then subheadings. This is a way to form a detailed outline. These remind you that you need to complete one topic before you go to the next.
• Be sure you follow the call of the question: answer the one that was asked. This doesn't mean to constrain yourself just to the statutory language referenced in the question: i.e. the difference between "sexual intercourse" and "sexual contact." That would have been a strong point.
• Remember not to slip into advocacy: there are always factors that can go either way. Many arguments will break down if taken to an extreme.
• The MPC is a good thing to talk about if you have nothing else to talk about... sort of a last resort.
• Keep in mind the burdens of production and persuasion with respect to evaluating defenses.

Sentence Credit

• §973.155: sentence credit for time in custody is mandatory. You only get credit if you are ultimately convicted and sentenced to jail: if you are acquitted, you just lose that time. Fortunately, most everyone is convicted, so they get credit for the time served while waiting for trial. A few substance abuse programs also count for credit-- these are enumerated in the statute. Partly this is to provide additional incentive for people to stay in the program
• State v. Magnuson (2000)
  Commentary in class
  Two issues: what is "custody" for the purposes of sentence credit, and does Magnuson's home detention qualify?

  The court finds that liability for being charged with "Excape" is the key factor. That statute &946.42 describes custody very nicely. There are two flavors: "actual custody" and "constructive custody."

  Actual custody is just what you'd think. Constructive custody is defined at length: supervisory releases and furloughs. They're usually authorized by the jailer or DOC.

  Gilbert relied on the statute, but was vague in the sense that it described the statutory definition as illustrative, not exhaustive. Collett defines a test: is the status in question the "functional equivalent" of confinement and/or equivalent to being "locked down for the night." This court finds both of these strategies lacking.

  The court here wants a bright-line rule for efficiency's sake. And also just for the sake of clarity so that people can advise their clients. Also, they want a way that's flexible enough to account for the fact that methods of custody will change.

  They admit that the conditions for Magnuson are very much like some of the other programs that would qualify, but there was no escape liability.

• An example:

  Day 1 - Arrested for retail theft, night in jail
  Day 2 - Out on signature bond
  [convicted, put on probation]
  Day 1 - Another retail theft arrest, agent puts a hold on him
  Day 3 - signature bond for second offense
  [83 days go by, hold is still in place]
  Pleads to second retail theft, convicted of first one.

  Scenario 1: for theft 1, he gets 90 days jail. For theft two, he gets 120 days jail consecutive. So we've got 3 days spent in jail already. Do they count?

  • Retail theft 1: 1 day + 83 days (probation holds qualify)
  • Retail theft 2: 0 (there's a no double-dipping rule)
  Scenario 2: 90 days for theft 1, 120 days for theft 2, but it's concurrent. So now what?
  • Retail theft 1: this is irrelevant, because the second sentence is longer
  • Retail theft 2: doesn't get the first day on this, so only 83 days off
  Scenario 3: We're about to have sentencing, and the bailiff comes up and says he's also sitting out a fine-- he has a fine pending from a few years ago, and it ran from days 25-55. So take 30 days off of whatever credit he was getting. Maybe you can talk to the DA about just blowing that off...
• There will not be insane sentence credit math on the final.
• Remember that the law is whatever happens in the trial court, unless someone appeals. A lot of times jail credit can be negotiated: if the DA can get 100 days in jail, that looks good, even if there are 70 days of credit, etc. Most judges won't dig deeper if both parties agree to the amount of credit due. In crowded times, you might only get a reservation for jail. If there's no room for you then, you secretly start to get some credit...

Justice Alternatives

• Other sanctions are being investigated, basically.
• Wisconsin has some guidelines, but they are just advisory, not mandatory. The sentencing commissions just never produced anything palatable.
• Even though sentences seem to be getting longer, there's also expansion in various problem-solving courts. There is always some recidivism, of course (and that's why the Department of Intensive Sanctions went away). It's also unfair to cherry-pick samples for measuring the effectiveness of these programs (i.e., force some eligible people into a control program for the sake of metrics).
• Once a defendant is designated as headed for treatment court, the judge, prosecutor, and defender all become part of the "treatment court team," in theory working to help the defendant.
• The system recognizes that addiction is a disease and part of the disease is relapse, so it tries not just to give up on treatment, so sanctions are graduated. Also, positive feedback means a lot to many defendants. It's actually pretty impressive to see the progress people make, says Prof. Smith.
• "Turning tax users into tax payers:" chronic repeat low-level offenders consume a lot of resources, and if you can help them, you save not only them, but also the resources.
• It's hard to quantify how many crimes are prevented, and how many potential victims are spared, although this is clearly a benefit to reformation, whereas incarceration provides only temporary relief.
• Collateral consequences: CCAP, for example, imposes a social sanction. Registry for sex offenders. Detection of aliens. There are a lot of things that affect people's lives in addition to prison. Defenders need (holistic representation) to take things like this into account, so they can advise their clients effectively about what will happen.

Exam

• One fact pattern (the major part). Some short answers (1 sentence).