¶3 We agree with the State and reject the reasonable observer test created by the court of appeals. Sentencing decisions are afforded a presumption of reasonability consistent with Wisconsin’s strong public policy against interference with a circuit court’s discretion. Our review of sentencing decisions is therefore limited to determining whether the circuit court erroneously exercised its discretion. Discretion is erroneously exercised when a sentencing court actually relies on clearly irrelevant or improper factors, and the defendant bears the burden of proving such reliance by clear and convincing evidence. It is beyond dispute that race and gender are improper factors; they may not be relied upon——at all——in the imposition of a sentence.
¶4 After reviewing the sentencing transcript in context and as a whole, we conclude that Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on race or gender. The circuit court considered the proper factors——it evaluated the gravity of the offense, Harris’s character, and the public’s need for protection. The circuit court thoroughly explained its reasons for the sentence it imposed, and all of the potentially offensive comments flagged by both Harris and the court of appeals bear a reasonable nexus to proper sentencing factors. Because Harris has not shown that the circuit court erroneously exercised its discretion, we reverse the decision of the court of appeals.
The court thus delivers its opinion in the infamous “baby mama” case, which turns out to be yet another front in unceasing recusal wars. But first, the dry methodology: how the court tests for reliance on inadmissible factors such as race or gender.
¶31 The question in this case is how a defendant must meet the heavy burden of showing that the sentence was based on improper factors. Or more to the point, how should a reviewing court determine when a circuit court has actually relied on race and gender in imposing its sentence, and therefore erroneously exercised its discretion?
Easy, says the court, you just recur to inaccurate-information caselaw, ¶¶32-33. Inaccurate datapoints, judicial bias — why, they’re virtual peas in a pod, the “well-settled law” established in the former having “straightforward” application to the latter. If you’re looking for analytical support for the proposition, look no farther than the court’s observation that each defect raises a due process problem — because you won’t find anything else. Ah, you might be tempted to say, that’s awfully concrete; you’ve got “fouls” in soccer and in basketball, let’s use the same test for calling both. And your reaction would be just about right.
This would leave the litigant with an impossible task, proving by a high burden that the judge was actually biased. Shorter version: good luck, goodbye, and don’t let the door hit you on your way out of the courtroom. And yet, and yet … there’s a bit more here than first meets the eye. After stressing the need for actual reliance, proven by clear and convincing evidence, the court’s conclusion takes a sharp, unexpected turn:
¶35 Harris must therefore provide evidence indicating that it is “highly probable or reasonably certain” that the circuit court actually relied on race or gender when imposing its sentence. Black’s Law Dictionary 577 (7th ed. 1999) (defining “clear and convincing evidence”).
Highly probable or reasonably certain. Significant embellishment of “actual relied on,” no? Indeed, there is little if any daylight between that embellishment and the concurrence’s, “A sentencing court has erroneously exercised its discretion when the defendant demonstrates that the court actually relied, or there is a great risk that the court actually relied, on an improper factor, racial or gender stereotypes, when imposing sentence,” ¶100. (Eagle-eyed Tom Foley immediately picked up on this apparent agreement between majority and concurrence.)
With no difference between the two sides, why, then, the obvious heat generated by the concurrence? (“Justice Bradley wants this case to be something it is not. It is all about ‘appearance of bias’ she tells us. See concurrence, ¶¶68-70. She is wrong,” ¶25 n. 7.) It is highly probable or reasonably certain that the majority chafes at the concurrence’s reliance on recusal caselaw as a source of analyzing judicial bias, ¶¶88-93. As the concurrence matter-of-factly puts it, “Since we accepted this case for review, this court has been faced with questions related to the appearance of bias in two other contexts, motions for recusal and amendments to the code of judicial ethics. Both of these questions have been difficult for the court,” ¶69. The concurrence has the better analogy (judicial bias vs. inaccurate information), but in the end it is of little consequence: both end up in about the same place. It is just that this is a rift that will not end any time soon, and even a matter-of-fact reference is tantamount to rubbing salt in this open sore.
Anticlimactic: sentencing judge’s reference to “baby mama” didn’t introduce race into sentencing calculus.
¶55 At best, this term reflects popular slang, referring to a mother who is not married to and may or may not have a continuing relationship with the father of the child or children. Even Harris acknowledges this phrase is sometimes used with reference to non-African Americans. It also appears that both parties agree the phrase, at a minimum, can be offensive depending on the context of its use.
¶56 Looking at the hearing transcript as a whole, we do not believe that the circuit court’s use of the phrase “baby mama” makes it highly probable or reasonably certain that the circuit court actually relied on race when imposing its sentence.
Concurrence, it should be noted, cites United States v. Schneider, 910 F.2d 1569, 1571 (7th Cir. 1990), for the idea that “use of slang in discharging the awesome duty of sentencing is regrettable,” ¶111. Slang “diminish(es) the proper decorum of the courtroom,” and its use “should be guarded against because it may be subject to unintended interpretations.”