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SCOW okays sending message to Amish, notes sentencing law may need clarification

State v. Westley D. Whitaker, 2020AP29-CR, 2022WI 54, 7/5/22, affirming a publisher court of appeals opinion, 2021 WI App 17; case activity (including briefs)

As a teenager, Whitaker repeatedly sexually assaulted his sisters. Though aware of the assaults, neither his parents nor the Amish elders reported them to the authorities. Whitaker pleaded to one count of 1st-degree sexual assault of a child. On appeal, he argues that the circuit court improperly sentenced him by referencing his Amish faith and stating an intent to send a message to the Amish community. SCOW affirmed, but the majority and concurrences highlight concerns about how “improper sentencing factor” claims are evaluated.

As noted in our post on the court of appeals’ opinion, there’s been a lot of press on the Amish trying to address rape and incest within their community as opposed to reporting it to the police. See, for example, this NPR story.

In this case, six charges against Whitaker were dismissed and read in. During sentencing, the circuit court repeatedly addressed the need for the Amish to protect girls in the community from sexual abuse. Literally, the court said: “I’m hoping that this sentence deters, as I said, the community” and “a prison sentence is the only way to send the message to Mr. Whitaker and to the community that this is totally unacceptable behavior.” Opinion, ¶15. It gave Whitaker 2 years of initial confinement and 2 years of extended supervision.

Whitaker argued that the court’s references to the Amish faith and its goal of sending a message to the Amish community violated his 1st Amendment rights to religious liberty and association. SCOW rejected his arguments.

Justice Karofsky wrote the majority opinion. She noted that the factors a court should consider at sentencing are listed in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197 and Wis. Stat. § 973.017(2).  If the defendant contends that a court sentenced him based on an improper factor (like his religion) then he must show that the court “impose[d] ‘a harsher sentence solely because'” of the improper factor. State v. Williams, 2018 WI 59, ¶¶46, 53, 381 Wis. 2d 661, 912 N.W.2d 373
(quoting Buckner v. State, 56 Wis. 2d 539, 550, 202 N.W.2d 406 (1972)).

If a court’s reference to a challenged factor bears “a reasonable nexus” to a proper sentencing factor, then the court has not imposed a sentence based “solely” on an improper factor. Opinion, ¶13.

Karofsky held that even if SCOW assumed that the circuit court’s references to the Amish community were improper, it did not impose a sentence based “solely” on that factor. Indeed the references to the Amish community bore a “reasonable nexus” to proper sentencing factors under Gallion: general deterrence and protection of the public.

Thus, it was okay for the circuit court to choose a sentence aimed at deterring others in Whitaker’s community from committing sexual assaults and encouraging them to intervene and report these crimes. The circuit court could also strive to protect the community from Whitaker or those like him. Opinion, ¶18. 

In a footnote Karofsky says there’s some confusion over the test to use when evaluating constitutionally protected conduct considered at sentencing. Recently SCOW used the “reasonable nexus” test. See State v. Dodson, 2022 WI 5, ¶10, 400 Wis. 2d 313, 969 N.W.2d 225. Williams applied that test too but not in the same way. Earlier Wisconsin cases applied a “reliable nexus” test. Opinion, ¶8 n.6.

R.G. Bradley criticized the majority for writing “nothing in the transcript suggests the circuit court increased Whitaker’s sentence solely because of his religious beliefs or his association with the Amish community.” (Emphasis supplied) She argued that this implies that a court may consider religious beliefs at sentencing as long as it also considers other proper factors. She does not like the “solely because of” language and argues that an exercise of a constitutional right may not form even part of a basis for sentencing. R. G. Bradley ¶¶36-50.

Hagedorn argues that the court’s analytical framework for sentencing cases deserves a closer look.  Hagedorn, ¶51.  Bets are that SCOW is looking for a good case in which to clarify the law.

Roggensack (joined by Ziegler) wrote separately because she didn’t like the majority’s references to the Amish community. She stressed that Amish religious principles weren’t the problem; it was the community’s secretiveness. Roggensack, ¶¶22-35.

{ 3 comments… add one }
  • Wm. Tyroler July 13, 2022, 11:08 am

    Talk about sending a message: this result should generally deter one and all from coming forward well after the event and ‘fessing up.

  • Glenn Cushing July 13, 2022, 10:44 pm

    I join my honorable colleague in his analysis. The Court clearly doesn’t care if an Amish defendant gets more time in prison so some local judge can send a “message” to the Amish. Can’t wait for the “messages” our local courts can now apparently send to different “communities” by increasing the sentence of individual’s from those communities.

  • Angela Chodak July 28, 2022, 2:49 am

    This is an unusually light sentence for repeated sexual assault of a child, and it is very surprising that this was not referenced as showing that he did not get a higher sentence due to his religion.

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