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SCOW to review sentencing decisions that consider defendant’s religion and impact of sentence on defendant’s religious community

State v. Westley D. Whitaker, 2020AP29-CR, petition for review of a published decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issues Presented (from the PFR and supreme court order granting review)

  1. Does it violate the First and Fourteenth Amendments and Article I, Section 18 of the Wisconsin Constitution to consider a defendant’s religious identity and impose a sentence intended to deter crime solely within his religious community?
  2. If a sentencing court may consider a defendant’s religious association to deter other members of a religious community, does the “reliable nexus” test of State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), and State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991), require congruity between the offense and the activity protected by the First Amendment?
  3. Does the sentencing factor/objective of “protection of the public” permit the sentencing court to increase the sentence imposed on the defendant to send a message to an identified set of third parties that they should alter their behavior in the future, apart from generally being deterred from committing offenses like those committed by the defendant? (Added by the supreme court.)

These interesting issues arise from a sentence imposed on a young Amish man who committed sexual assaults before he turned 18 and which were not reported till he was 25, after he had left the community. Our post on the court of appeals decision explains that Amish communities tend not to report acts of child sexual assault to the authorities, but handle them within the community. The sentencing court found that, based on his life since leaving the community, Whitaker wasn’t at risk to reoffend and didn’t need rehabilitation. But it imposed four years of imprisonment (2 in, 2 out) to “send a message” to the Amish community that child sexual assault is unlawful and needs to be reported.

In upholding this sentence, the court of appeals decided the circuit court’s reference to sending a message to the Amish community was simply a “mislabeling’ of its sentencing rationale, and that what the circuit court meant was that it was aiming to protect children. Further, even if the court was taking account of Whitaker’s religious beliefs or those of his community, there was a “reliable nexus” between those beliefs and Whitaker’s conduct that made the consideration of those beliefs appropriate.

That the supreme took the case and then added the third issue suggests that it might be inclined to take the circuit court at its word, and even if it doesn’t, that sending messages to third parties is not something sentences individualized to the specific defendant ought to do. And beyond addressing the question of considering a defendant’s religious beliefs at sentencing, the decision might say something about the limits of the “protection of the public” factor in other settings, too.

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