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Enhancer — § 939.62(2m)(a), Persistent Repeater — Validity – Due Process

State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate

Issue/Holding:

¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.

¶7. We conclude, as did the court of appeals, that the defendant’s constitutional challenge to the “two strikes” law fails. The legislature’s interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B non-fatal child sexual assault than on an offender convicted of a second Class A homicide offense.

Note that the court rejects on the merits Radke’s argument, not his methodology. The court, that is, cites with approval State v. Asfoor, 74 Wis. 2d 411, 249 N.W.2d 529 (1977) as “addressing a constitutional challenge to a statute based on its relationship to another statute.” ¶5 n. 5. The court does reject the broad “proposition that it is always irrational to make a non-fatal crime of a certain type of culpable conduct punishable by a more serious penalty than a crime of the same type of culpable conduct that results in death.” ¶33. But that shouldn’t detract from higher principle that sentencing-scheme disparities are subject to analytical scrutiny.

Asfoor, interestingly, involved an equal protection challenge; it’s now in effect been extended to substantive due process. The court goes on to engage in a lengthy analysis that acknowledges the “first blush” strength of Radke’s position; “further analysis” shows that the asymmetry between 1st- and 2nd- strike enhancers is rational. ¶19. In other words, the holding may be relatively limited, as suggested in the concluding paragraph:

¶36. For the reasons set forth above, we conclude that the legislature’s interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B non-fatal child sexual assault than on an offender convicted of a second Class A felony homicide offense. We therefore hold that the defendant’s constitutional challenge to the “two strikes” law fails.

The court’s analysis also effectively rejects an equal protection argument, albeit under the rubric of substantive due process. And, for whatever it’s worth, this is a pre-TIS case.

Life without parole under three-strikes provision, § 939.62(2m)(b) (1993-94), upheld against cruel-and-unusual, due process, and equal protection arguments, in State v. James C. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996).

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