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Sentencing Review – Factors – Minimum Custody

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


¶23. McCleary further recognized that “[t]he sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” Id. at 276. …

¶25. Likewise, not new to our sentencing jurisprudence is the concept that probation should be considered as the first alternative. In Bastian v. State, 54 Wis. 2d 240, 248-49, n.1, 194 N.W.2d 687 (1972), this court expressly adopted Standard 1.3 of the ABA Standards Relating to Probation. That standard provides in part that, “Probation should be the sentence unless the sentencing court finds that:

(i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed.”

This requirement is consistent with the McCleary standard calling for the minimum amount of custody or confinement.

Also see State v. Nathan T. Hall, 2002 WI App 108, ¶8, to the effect that the sentence should be the minimum “in situations where the sentencing court has the ability to stack sentences consecutively, ad mortem.” The principle recognized in Gallion – revivified McCleary, more accurately – is an important generalization of this idea.

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