Sept. 22, 2025 – Two state statutes that covered the same criminal act – one that required a mandatory minimum sentence – were not unconstitutional under federal and state precedent, the Wisconsin Court of Appeals, District I recently held in State v. Kenyon, No. 2022AP2228-CR (Sept. 16, 2025) (recommended for publication).

“[W]e find no case that stands for or even implicitly supports the proposition that a trial penalty is imposed when the State chooses to charge a defendant under the harsher of two identical or overlapping statutes prior to trial,” wrote Judge Sara J. Geenen for the unanimous panel that included Presiding Judge Pedro A. Colón and Deputy Chief Judge M. Joseph Donald.

‘Trial Penalty’?

Keith C. Kenyon was charged in Milwaukee County Circuit Court for sexual intercourse with a minor under Wis. Stat. section 948.02(1)(b) that requires a mandatory minimum sentence of 25 years of initial confinement under Wis. Stat. section 939.616(1r).

The same allegation, Kenyon argued, could fit within Wis. Stat. section 948.02(1)(e), which has no mandatory minimum.

Kenyon claimed the statutes as applied to him violate “due process, equal protection, and separation of powers because the statutes unconstitutionally allow prosecutors to determine the defendant’s sentence and enable the arbitrary enforcement of the law.”

The 34 cases charged in Milwaukee County Circuit Court under section 948.02(1)(b) between Jan. 1, 2018 and July 1, 2022, he argued, involved “significantly more aggravated” facts than his alleged crime.

As the circuit court saw “significant mitigating factors” in Kenyon’s case, “it took issue with the State’s” charging decision that it made knowing those mitigating factors.

The State had “offered to recommend a sentence of five-to-seven years” if Kenyon “agreed to forego his right to a trial and plead guilty to a charge under” section 948.02(1)(e), the circuit court explained.

The circuit court “agreed that the statutory scheme violated due process and separation of powers” and dismissed the case.

On appeal by the state, the Court of Appeals was concerned that the record supported “the circuit court’s conclusion that the decision to charge Kenyon … was made exclusively because Kenyon insisted on going to trial and was not motivated by legitimate concerns for the public welfare” – a “trial penalty.”

Batchelder and Wisconsin Progeny

As the state had argued before the circuit court – which distinguished the case because it evaluated a statute mandating maximum rather than minimum penalties – “[t]he seminal case on this issue is United States v. Batchelder,” 442 U.S. 114 (1979), the Court of Appeals said.

Batchelder challenged two overlapping statutes, one with a maximum penalty of two years of prison and the other with a maximum penalty of five years’ imprisonment.

Such a pair wasn’t void for vagueness, the U.S. Supreme Court said, because the charging uncertainty was no greater than “a single statute authorizing various alternative punishments.”

An equal protection claim would arise only if the government selectively enforced the laws “based upon an unjustifiable standard such as race, religion, or other arbitrary classification,” the Supreme Court explained.

Nor did the statutory twins unconstitutionally delegate to the executive branch the legislative duty to set criminal penalties because the statute provided a range of penalties offering “permissible punishment alternatives,” the Supreme Court said.

The Wisconsin Supreme Court applied Batchelder to two identical criminal statutes in State v. Cissell, 127 Wis. 2d 205 (1985), and found no problem.

But Justice Shirley Abrahamson dissented, the Court of Appeals noted, because, although prosecutorial discretion is a part of the criminal justice system, “the legislature’s adoption of criminal statutes identical except for penalty is an unlawful delegation of power to the executive branch.”

State v. Lindsey, 203 Wis. 2d 423 (Ct. App. 1996), addressed the persistent-repeater penalty enhancement and whether it violated separation of powers and equal protection.

The enhanced penalty was fine because the legislative power to grant discretion to courts also allowed declining to grant discretion, the Court of Appeals explained.

Lindsey, the Court of Appeals noted, remains in “tension” with Oehler v. State, 202 Wis. 530, 536 (1930), which “assert[ed] that the legislature cannot fully divest a court of its sentencing discretion.”

‘Very Little Controlling Authority’

“[A]ll of Kenyon’s arguments have been previously considered and rejected in functionally identical contexts,” the Court of Appeals decided, as the mandatory case law demonstrated.

But Kenyon’s point wasn’t that arbitrary classifications created his plight but that the violation arose from imposing on him a penalty for wanting a trial – the “trial penalty.”

Reviewing courts, including the Court of Appeals, have expressed due process concerns with the concept, but the panel could find “very little controlling authority.”

The Federal Kidnapping Act in United States v. Jackson, 390 U.S. 570, 581 (1968), imposed the death penalty only for defendants who had requested a jury trial, which, the Court explained, could discourage a defendant’s assertion of Fifth and Sixth Amendment rights.

As the Jackson court warned, “[i]f the provision has no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.”

The Wisconsin Statutes did not specify a trial penalty, the Court of Appeals distinguished.

Closer to the facts, the Court of Appeals explained, is State v. Edwardsen, 146 Wis. 2d 198, 203 (Ct. App. 1988), involving an additional charge if Edwardsen appealed and obtained a retrial.

“[T]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort,” the Edwardsen court advised in establishing “a presumption of vindictiveness … to a prosecutor who increases charges … following a defendant’s successful appeal.”

The Court of Appeals, noting that a similar principle should apply if such a prosecutorial threat happened before trial, nonetheless found no case even close to saying that.

Such a holding, the Court of Appeals concluded in reversing the circuit court, is contrary to “the overwhelming number of cases that hold that prosecutors have absolute discretion to decide what charge to bring when a defendant’s alleged conduct violates two or more identical or overlapping criminal statutes.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.