Sentencing Commission findings underscore the need to continue working toward fully equal treatment of all Wisconsin residents

Tom Basting, President
State Bar of Wisconsin
August 2007

All of us cherish our heritage as a free society built on a foundation of equal treatment under the law. None of us would tolerate disparate treatment of a family member or friend from our justice system. Yet a report released this week by the Wisconsin Sentencing Commission offers a disturbing reminder that some of us may still face unequal treatment from the very institutions created to safeguard our freedoms.

The panel, which was created by statute to study “whether race is a basis for imposing sentences in criminal cases,” made several key findings, including:

  • For certain crimes, Black and Hispanic defendants are more likely to draw a prison sentence (rather than probation) than a White defendant;
  • The less serious a crime is, the more likely it is that racial disparities will be found in sentence type (prison versus probation). As the severity of the crime increases, the racial disparity decreases.
  • Across the board, in drug cases Black defendants are more likely than Whites to receive prison sentences rather than probation. As with other crimes, this disparity tends to decrease as the seriousness of the offense increases.

While the commission did not find evidence of racial disparity in the length of prison sentences (i.e., only in whether a defendant received a prison sentence or was placed on probation), unequal treatment based on race is simply unacceptable in any form.

The report found that racial disparities in Wisconsin’s criminal justice system are most likely the result of institutionalized defects, rather than malicious intent. That distinction, however, matters little to the affected individuals. To effectively address these disparities, commission members concluded that we need better and more complete data on the effect of race on sentencing in Wisconsin. As the report points out, disparities in sentencing may be due to multiple issues, some of which – such as criminal record, employment history, and educational background – can also be correlated with race.

The commission proposes that the state improve its collection of race-specific information at all stages of the criminal justice process, including “calls for police service, arrest, prosecution and sentencing.” This same theme was sounded by Governor Jim Doyle when he created a Governor's Commission on Reducing Racial Disparity in Wisconsin's Criminal Justice System in March to determine "if discrimination is built into Wisconsin’s criminal justice system and develop strategies aimed at reducing racial disparities at each stage of the state’s justice system – from arrest of new suspects to parole of convicted felons." All of us should embrace this ongoing effort to identify the root causes of disparate treatment in Wisconsin’s justice system and, more importantly, to craft a response that will move us toward our shared vision of equal treatment under the law.