At Issue - Rewriting the Crime Laws is a Precondition of 'Truth in Sentencing'

Recently Passed Legislation

Close scrutiny and appropriate revision of Wisconsin's criminal code are essential to the success of any truth in sentencing law.

By Sen. Lynn Adelman

What is the penalty for committing the crime of battery in Wisconsin? Twenty years ago this question was answered easily. There were two battery statutes; one covering simple battery, the other aggravated battery. The definitions of "battery" and "aggravated battery" were easily understood, and the penalties were clearly spelled out.

Unfortunately, the simplicity and clarity that once characterized Wisconsin's battery law no longer exists. Over the years, the Legislature has added so many new laws relating to battery that the law is unintelligible. Instead of two categories of battery there now are six. In addition to simple and aggravated battery, there now are different statutes for batteries causing substantial bodily harm with intent to cause bodily harm, causing substantial bodily harm with intent to cause substantial bodily harm, and intentionally causing bodily harm by conduct likely to cause great bodily harm. Lawyers and judges cannot easily discern the differences between these categories, much less the average citizen.

In addition, the Legislature has created 11 statutes providing enhanced penalties for "special circumstance" batteries. "Special circumstance" batteries are batteries committed against members of certain occupations that the Legislature has singled out for special treatment. For example, there now are special statutory penalties for batteries to technical college employees, public transit vehicle operators, firefighters, judges and employees of the department of revenue. These special circumstance batteries promote inequality under the law and make the criminal code complicated and unclear.

These 17 battery statutes are only the beginning of the complexity that now characterizes Wisconsin's criminal law. In recent years the Legislature has created several new crimes punishing behavior that already is criminal. For example, the Legislature has with much fanfare created new laws covering such activities as "carjacking" and "drive-by shootings." In both cases all of the conduct punished by the new laws already was illegal and punishable by severe penalties.

During the 1993-94 session alone, the Legislature passed 50 different laws affecting the state's criminal code. Some of these laws created various new "special circumstance" penalties or criminalized already illegal conduct. In other cases the new penalties were inconsistent with existing penalties for the same conduct or were greater than the penalties for other, more serious conduct. Few of these new laws made our streets safer; however, they did make our criminal code longer and less understandable.

A related problem in Wisconsin's criminal law is the absence of a mechanism for encouraging consistency in judges' sentencing patterns. Until recently the state had a Sentencing Commission that made data available to Wisconsin judges about sentencing patterns. This helped provide greater consistency in sentencing. Two years ago, however, the Legislature abolished the Sentencing Commission, and there now is evidence that large disparities in sentencing are creeping back into the system.

Sen. Lynn Adelman (Dem.) has represented the 28th Senate District since 1976.

If Wisconsin is to adopt a "truth in sentencing" law, it is essential that the criminal law makes sense. There must be rationality and clarity in the criminal code. Serious crimes must be punished more severely than less serious crimes. Gov. Thompson and Attorney General Doyle have suggested that a blue ribbon committee be created to revise the state's criminal code. This would be an excellent first step. The committee should include judges, legislators, district attorneys, lawyers, law professors and members of the public. It should be prepared to undertake a thorough review of our criminal law and make detailed recommendations to the Legislature. Close scrutiny and appropriate revision of Wisconsin's criminal code are essential to the success of any truth in sentencing law.

Wisconsin Lawyer