Excessive Sentencing Project - Wisconsin

Policies and rulings on lengthy imprisonment terms in Wisconsin.

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  • Wisconsin abolished parole in 2000. Wisconsin does not have the death penalty.
  • Wisconsin allows for discretionary LWOP and JLWOP. Wis. Stat. § 973.014 (2012).
  • Juveniles may be transferred to criminal court at age 10.
State Constitution

Wis. Const. Art. I,§ 6 (2012)

Section 6. Excessive bail; cruel punishments.

Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.

NOTE: Article I, Section 6, is interpreted as the equivalent of the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System –
    • Wisconsin has sentencing guidelines for select crimes. While these guidelines must be considered when applicable, they are advisory in nature and a departure from the guidelines does not constitute grounds for an appeal. See http://www.wicourts.gov/services/judge/truth.htm
  • Habitual Offender Statutes –
    • Wis. Stat. § 973.12 (2012)
      • 973.12. Sentence of a repeater or persistent repeater.
Case Law

General  

A trial judge has discretion to sentence within the statutory range and any “review of a sentence of a lower court is guided by a strong policy against interference with the lower court's discretion.” Hanson v. State, 48 Wis. 2d 203, 207 (Wis. 1970); State v. Mariani, 165 Wis. 2d 513 (Wis. Ct. App. 1991.

State Constitution & Proportionality 

The language of Article I, Section 6 of the Wisconsin Constitution is nearly identical to the language of the Eighth Amendment. In general, the Wisconsin Supreme Court interprets “provisions of the Wisconsin Constitution consistent with the Supreme Court's interpretation of parallel provisions of the federal constitution.” State v. Ninham, 2011 WI 33, NaN-P45 (Wis. 2011) (citing State v. Jennings, 2002 WI 44, ¶39 (Wis. 2002)). The parallel provisions should consistent particularly when “the text of the provision in our state constitution is virtually identical to its federal counterpart, and no intended difference can be discerned.” State v. Ninham, 2011 WI 33, NaN-P45 (Wis. 2011). An analysis of Article I, Section 6, should be guided by the Supreme Court’s Eighth Amendment jurisprudence. State v. Ninham, 2011 WI 33, NaN-P45 (Wis. 2011).

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The primary purpose of the cruel and unusual punishment clauses are “to be directed at the method or kind of punishment imposed for the violation of criminal statutes; the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed.” Steeno v. State, 85 Wis. 2d 663, 669-670 (Wis. 1978).

The concept of cruel and unusual punishment, the dignity of man, is continually evolving. While the standard remains the same, the applicability of the cruel and unusual punishment clause “must change as the basic mores of society change.'" State v. Ninham, 2011 WI 33, NaN-P49 (Wis. 2011) (citing Kennedy v. Louisiana, 554 U.S. 407, 419 (2008), which quotes Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C.J., dissenting)).

When reviewing old sentences, the court should not apply current standards of what constitutes cruel and unusual punishment. State ex rel. Warren v. County Court, 54 Wis. 2d 613 (Wis. 1972).

"The test for whether a sentence violates the Eighth Amendment and whether a sentence was excessive are virtually identical." State v. Davis, 2005 WI App 98, P21 (Wis. Ct. App. 2005); State v. Moua, 2009 WI App 41 (Wis. Ct. App. 2009).

A sentence violates the Wisconsin Constitution if it is “. . . so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances."Steeno v. State, 85 Wis. 2d 663, 669 (Wis. 1978) (quoting State v. Pratt, 36 Wis.2d 312, 322 (Wis. 1967));State v. Ninham, 797 N.W.2d 451, 474-475 (Wis. 2011); Ocanas v. State, 70 Wis. 2d 179, 185 (Wis. 1975); Whitmore v. State, 56 Wis. 2d 706, 715-716 (Wis. 1973); State v. Morales, 51 Wis. 2d 650, 657 Wis. 1971); Mallon v. State, 49 Wis. 2d 185, 192 (Wis. 1970); State v. Mariani, 165 Wis. 2d 513 (Wis. Ct. App. 1991); State v. Bansley, 149 Wis. 2d 398 (Wis. Ct. App. 1989).

A sentence that falls within the statutory range may constitute cruel and unusual punishment if it is clearly disproportionate. State v. Pratt, 36 Wis. 2d 312, 321-23 (Wis. 1967); State v. Draskovich, 173 Wis. 2d 306 (Wis. Ct. App. 1992). Generally, however, “[a] sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." State v. Moua, 2009 WI App 41 (Wis. Ct. App. 2009) (quoting State v. Daniels, 117 Wis. 2d 9, 22 (Wis. Ct. App. 1983)).

In cases which implicate the Eighth Amendment’s categorical rules, courts should engage in a two-step analysis. First, the court should consider "objective indicia of society's standards, as expressed in legislative enactments and state practice' to determine whether there is a national consensus against the sentencing practice at issue." State v. Ninham, 2011 WI 33, NaN-P50 (Wis. 2011) (quoting Graham, 130 S. Ct. at 2022)).  Next, “notwithstanding the objective evidence of society's standards, the Supreme Court ‘determine[s] in the exercise of its own independent judgment whether the punishment in question violates the Constitution.’” State v. Ninham, 2011 WI 33, NaN-P50 (Wis. 2011) (quoting Graham, 130 S. Ct. at 2022)). 

The Wisconsin Supreme Court has recognized that “punishment imposed under statutes providing for increased penalties for habitual criminals or subsequent offenders does not in itself constitute cruel and unusual punishment.” State v. Lindsey, 203 Wis. 2d 423, 437-438 (Wis. Ct. App. 1996) (citing Hanson v. State, 48 Wis. 2d 203, 206 (Wis. 1970)); State v. Griffin, 176 Wis. 2d 513 (Wis. Ct. App. 1993). 

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A sentence is not per se excessive because it is substantially harsher than the sentence received by a codefendant. State v. Studler, 61 Wis. 2d 537 (Wis. 1973).

 Leading Court Discussions of Graham and Miller 

 State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451 (May 20, 2011) (sentencing a 14–year–old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional; juveniles 14 years old and younger are not a distinct group of juveniles such that a different constitutional analysis applies; Graham does not apply to homicide cases.) (Dissent: juvenile under 14 years old cannot be sentenced to LWOP for homicide.)