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Sentencing Review – Factors – TIS

State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School

Issue/Holding:

¶28. With the advent of truth-in-sentencing, we recognize a greater need to articulate on the record the reasons for the particular sentence imposed. Under the old, indeterminate system, sentencing discretion was shared among all three branches of government. The legislature set the maximum penalty and the manner of its enforcement; the courts imposed an indeterminate term; and the executive branch, through the parole board, determined how much of that term was going to be served. See Borrell, 167 Wis. 2d at 767 (citation omitted). Under truth-in-sentencing legislation, the executive role has been diminished with the elimination of parole. The legislative role is limited to setting the parameters of the penalty. As a result, the judiciary’s responsibility for ensuring a fair and just sentence has significantly increased.…

¶31. Likewise, we agree with the Criminal Penalties Study Committee that the judiciary must address the increased responsibility placed upon the sentencing court in light of truth-in-sentencing. As the Committee observed, truth-in-sentencing legislation caused a “shift of more complete–and informationally accurate–sentencing decisionmaking to the judiciary.” …

¶34. Now judges have an enhanced need for more complete information upfront, at the time of sentencing. Judges would be assisted in knowing about a defendant’s propensity for causing harm, the circumstances likely to precipitate the harm (e.g., alcoholic beverages, proximity to school children, etc.), and the connection between the elements of the sentence recommended and the objectives of sentencing. To this end, we encourage judges to request more complete presentence reports.

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