How Often do Criminals Get What they Deserve?

News stories about lenient sentences related to crimes can cause confusion, so here's some more-than-meets-the-eyes details behind sentencing in Wisconsin.

From time to time, fairly public stories come up discussing what a criminal defendant receives in sentencing. There are often a number of terms that come out in news stories that can get rather confusing.

News stories leave us wondering what, exactly, a withheld sentence means, why someone gets extended supervision and how a judge could impose only half of the available time against a defendant in prison, for instance.

Sentencing terminology is again being thrown about the news with Milwaukee Sheriff David Clarke's criticism of the sentence given an immigrant drunk driver. Locally, there was some confusion about convicted of in August.

In all cases, judges are instructed to consider the minimum sentence necessary to complete the goals of the justice system. Specifically, the judge must consider probation unless jail or prison time is warranted. In all cases, the judge must weigh the following factors: the gravity of the offense; the character or rehabilitative needs of the offender; and the need to protect the public. The judge is instructed to discuss these factors and their connection to the facts of the case in determining a sentence.

When it comes to sentencing, judges have a range of options and broad discretion to use them. Although some criminal charges (including OWI-related offenses) carry a minimum fine and minimum amount of jail time, in most cases, a judge is free to allow the defendant to walk out of the court room without additional punishment beyond a conviction to that person's name.

At the low end, however, convicted defendants often expect no less than a sentence of a fine or probation. Most of us should be familiar with the way fines operate, and the level of crime determines the maximum possible fine (for example, a class C misdemeanor carries a maximum fine of $500, whereas a class C felony carries a maximum $100,000 fine), but probation can get somewhat complicated.

Probation is, essentially, supervision by the Department of Corrections, under a number of court-imposed conditions. These conditions frequently are established by a probation agent, and are generally related to the criminal history of the particular defendant. If a defendant fails on his probation, he could be revoked and face jail or prison time as punishment for the underlying crime.

Interestingly, and somewhat confusingly, when ordering probation, judges have the option of imposing jail time as a condition. In other words, a judge may order that a defendant serve one year of probation, but serve 30 days of condition time. Effectively, that means that the defendant will not have completed his probation unless he has gone to jail for the full 30 days.

Judges are only somewhat limited in ordering probation. The conditions are to have a relationship to the criminal conduct — in other words, a judge should not be ordering a defendant to avoid a spouse or other person if the crime is something that has to do with driving without a valid license.

Depending on the nature and number of charges, a judge is limited in the amount of probation time he can issue. Typically, with only one misdemeanor charge the judge is limited to ordering up to one year of probation. With up to four misdemeanor charges, the judge may usually order up to two years of probation. With felonies, a defendant will typically face up to the maximum amount of penalty time as probation. In other words, a felony that provides for up to six years in prison gives the judge the freedom to impose up to six years of probation. That probation time can increase with additional charges against a defendant.

At the time of sentencing, the judge may order a "withheld" sentence or "impose and stay" a sentence. On both cases, the defendant is released, subject to any condition time.

The difference in terminology refers to what will happen to a defendant if he is revoked on his probation. Where the sentence is withheld, the defendant will return before the judge and the judge will order a new sentence — usually consisting of jail or prison time. Where a sentence is "imposed and stayed," the defendant will automatically begin that sentence if his probation is revoked.

In other words, if a judge orders a defendant to one year of probation, with one year in the county jail imposed and stayed, the defendant will not serve that year of jail unless he is revoked. If, however, he is revoked, he automatically begins the one-year jail sentence.

If a judge is not comfortable that probation is in the best interests of the sentencing factors, he may order a defendant to serve jail or prison time. In most cases, any single sentence of less than one year will be served in the county jail, while any sentence of more than one year will be served in the Wisconsin State Prison system. A misdemeanor, by definition, carries with it a sentence of no more than one year, and is therefore served in the county jail (with certain rare exceptions). The distinction is important because any jail term usually gives the defendant the opportunity for work release.

When a judge orders prison time, he must consider the limits imposed by "truth-in-sentencing" laws. Although it has been modified and re-modified with exceptions that have come and gone, truth in sentencing at its most basic means that a convicted felon going to prison will not have the opportunity to get out early for good behavior. At the time of sentencing, a judge will order the defendant to a term of imprisonment, followed by extended supervision. The total of the two must not exceed the maximum penalty allowed, and the term of imprisonment is limited by statute (usually an amount that is between one-half and three-quarters of the maximum penalty).

Once a defendant has completed his prison term, he will be released on extended supervision. This functions similar to probation, in that the defendant is monitored by the Department of Corrections and given conditions to follow. That defendant, if he fails on his extended supervision, may be ordered to return to jail for anything up to the amount remaining under the maximum time in his sentence.

As an example, a judge convicting a defendant of a class G felony, which carries a maximum term of ten years of imprisonment, may order a defendant to prison. The judge can order a maximum prison term of five years, followed by five years of extended supervision. If the defendant fails on his extended supervision — even if he has gone four years and eleven months according to the rules — he can be ordered to go back to prison for the remaining five years.

Sentencing is both limited and tricky to follow in Wisconsin. At times judges ordering a maximum penalty against a defendant may sound as if they are being far more lenient than they really are. Probation may not mean that a defendant is released without jail time. And a short-sounding jail sentence may include a very lengthy probation period afterwards. These fine details are very easy to lose, and, in the media, the details are usually glossed over.

WIRSOL October 12, 2011 at 06:41 PM
"As an example, a judge convicting a defendant of a class G felony, which carries a maximum term of ten years of imprisonment, may order a defendant to prison. The judge can order a maximum prison term of five years, followed by five years of extended supervision. If the defendant fails on his extended supervision — even if he has gone four years and eleven months according to the rules — he can be ordered to go back to prison for the remaining five years." According to which rules? Are they in the Supervision Manual? Statutes? Because my understanding of what happens to someone that was given a 10 year bifurcated sentence of 5 years incarceration and 5 years extended supervision is that if they served their incarceration and then subsequently 4 years and 11 months that they would only be going back for 1 month. So where in the rules or statues is this information? I am curious.
Rik Kluessendorf October 13, 2011 at 05:44 PM
Wirsol, Extended Supervision time is not incarceration time and therefore does not count against the maximum penalty. This is per Wisconsin Statute (see Wis. Stat. 302.113(9)(am)): "If the extended supervision of the person is revoked, the reviewing authority shall order the person to return to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub(2) and less all time served in confinement for previous revocations of extended supervision under the sentence. In other words, in my example, defendant has a full bifurcated sentence of 10 years. He goes in for five years and is released on extended supervision. After 59 months, his extended supervision is revoked. The time remaining on the bifurcated sentence is still five years (because the 4 years and 11 months on extended supervision were not in confinement). The reviewing authority may return that person to prison for up to five years.


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