Legal News & Trends
Truth in Sentencing: Determinate Sentencing Begins Dec. 31,
1999
by Michael B. Brennan
In recent years, many citizens have become
cynical about the efficacy of the criminal justice system. They are
concerned that parole and other forms of early release have resulted in
a "revolving door" criminal justice system in which many offenders serve
less than one-half of their sentences. Truth-in-Sentencing as a whole
restores credibility to criminal sentencing and delivers greater public
safety to the state. Determinate sentencing under Act 283 is the first
step of a two-step process.
1997 Wis. Act 283: The Original Truth-in-Sentencing
Law. In June 1998, 1997 Wis. Act 283 became law. Now, and
before Act 283 goes into effect on Dec. 31, 1999, an offender in
Wisconsin receives an indeterminate sentence, in which the sentence
length imposed by a judge almost never is the sentence the offender
serves. Offenders serve a minimum of six months or 25 percent of the
court-imposed sentence, whichever is greater, before becoming eligible
for parole, a decision made by the Parole Commission. If parole is
granted, the offender is under the supervision of the Department of
Corrections (DOC) for a period not to exceed the court-imposed sentence,
less time already served.
Under 1997 Wis. Act 283, offenders will
receive a bifurcated determinate sentence that includes a term of
confinement in prison and a term of extended supervision in the
community. |
For offenses committed on and after Dec. 31, 1999, Wisconsin will
employ determinate sentencing. Parole is abolished, and an offender will
receive a bifurcated sentence. For each offender a judge will set a term
of confinement in prison, 100 percent of which the offender must serve,
as well as a term of community supervision, known as extended
supervision (ES), to be served following the prison term. Violation of
ES will subject the offender to return to prison. Under Act 283, the
total length of an offender's sentence is the confinement time plus
extended supervision.
Act 283 also establishes an informationally accurate system of
sentencing: A one-year sentence to prison means the offender will be
incarcerated for exactly 365 days. The Act expands penalty ranges for
all felonies to allow for ES, and mandates that the ES portion of the
bifurcated sentence equal at least 25 percent of the confinement term
imposed. The Act also eliminates intensive sanctions as an option for
the confinement portion of a bifurcated sentence and authorizes the
judge to impose conditions on the ES term.
Act 283 does not change many other areas of criminal sentencing law
in Wisconsin. It does not affect any crimes committed before Dec. 31,
1999. Offenders who commit such crimes will be sentenced under the
current law, and most will be eligible for parole. It does not alter
procedures for granting or revoking parole for those sentenced under
current law. Importantly, Act 283 does not affect probation as an option
for criminal offenses.
Act 283 also created the Criminal Penalties Study Committee (the
committee), an 18-person bipartisan group of judges, prosecutors,
criminal defense lawyers, legislators, academics, corrections and law
enforcement officials, and members of the public. The committee met from
August 1998 until August 1999, when it issued its final report along
with draft legislation to effectuate its recommendations. The
recommendations contained in the final report represent the second step
of Truth-in-Sentencing in Wisconsin, which is before the
Legislature.
Michael B. Brennan, Northwestern 1989,
is the staff counsel for the Criminal Penalties Study
Committee.
Court seeks input on bankruptcy judge
Bankruptcy Judge Thomas S. Utschig of the U.S. District Court,
Western District, seeks appointment to another 14-year term. Judge
Utschig's current term expires Sept. 30, 2000.
The court is accepting comments from attorneys and the public
regarding Judge Utschig's reappointment. Written comments can be sent by
Jan. 12, 1999 to: Collins T. Fitzpatrick, Circuit Executive, 219 S.
Dearborn St., Room 2780, Chicago, IL 60604.
Beware of flaw in Microsoft Word's word count tool
Many attorneys rely
upon the word count tool in their word processing programs to determine
if they meet or exceed the word limit for briefs.
As governed by Circuit Rules 32(d)(2)(a) and (b) of the U.S. Court of
Appeals for the Seventh Circuit, a principal brief can contain no more
than 14,000 words, and a reply brief may contain no more than half that,
or 7,000 words. The corporate disclosure statement, table of citations,
oral argument statement, table of contents, addenda, and certificates of
counsel are not considered part of the word limit, but footnotes
are.
Attorneys who use Microsoft Word 97® or 2000 may not realize
that a flaw in those programs could give them an inaccurate word count.
When text is highlighted to be counted, Word does not include footnotes
as part of that word count. In fact, when text is highlighted, the
option to "include footnotes and endnotes" is dimmed and unavailable in
the "word count" box.
This flaw, and lack of awareness of it, has led to at least one U.S.
Court of Appeals case (Nos. 97-1754 and 97-1769). The U.S. Court of
Appeals did not impose sanctions on the attorneys whose brief extended
the word limit due to the flaw, but did decide that briefs prepared
using Microsoft Word would be checked and noncomplying briefs
returned.
To correct this flaw in Microsoft Word at the program level, go
online. You will find a downloadable feature that will give you the
option of counting the words in footnotes and endnotes for highlighted
text that contains footnote or endnote references.
New trial court publicity rules ease restrictions
on attorney comment
A Wisconsin Supreme Court rule change has made it easier for
attorneys to respond to unfavorable publicity about their clients.
Amended SCR
20:3.6, which becomes effective Jan. 1, 2000, loosens the
restrictions, under specific circumstances, on what attorneys involved
in a case can say outside the courtroom about that case.
"Before the rule change, if you responded to negative comments about
your client, you could face discipline for violating ethics rules," says
David Lasker, chair of the State Bar Individual Rights and
Responsibilities Section. While extrajudicial comments generally still
are prohibited under the new rule, "attorneys now have the right to
rebut prejudicial statements made about their clients," Lasker says.
The rule change also lifts restrictions on comments from attorneys
not involved in a particular case, in effect allowing lawyers to serve
as legal commentators for the media. In its commentary, the court
recognized "that the public value of informed commentary is great and
the likelihood of prejudice to a proceeding by the commentary of a
lawyer who is not involved in the proceeding is small."
"The new rules," says Lasker, "make clear restrictions that were
vague. Now, only lawyers involved in the particular litigation have
restrictions; others have the full protection of their First Amendment
rights."
The State Bar Ethics Committee opposed the rule change, however. Mel
Johnson, of the U.S. Attorneys Office in Milwaukee, testified at the
public hearing on behalf of the Ethics Committee. "The committee
believes," said Johnson, "that the proposed rule change encourages the
generation of publicity that will affect pending cases, and that the
reasons for the change are inadequate."
"The new rule may create a ping-pong effect. Attorneys will make
public statements, reacting to some perceived unfavorable publicity. If
there is a concern about one side generating publicity or making
disparaging statements, the court should be discouraging that sort of
behavior, not encouraging the other side to rebut."
For more information on the new rule, see the full text of the supreme
court order.
U.S. Supreme Court considering proposed changes to Federal Rules of
Evidence
The Judicial Conference of the United States has approved and
forwarded to the U.S. Supreme Court amendments to the Federal Rules,
including provisions covering expert and lay opinion testimony in the
Federal Rules of Evidence. If the Supreme Court approves the changes,
they likely will be transmitted to Congress by May 1, 2000. Absent
Congressional action, the rule changes would take effect Dec. 1,
2000.
Briefly, the seven proposed amendments to the Evidence Rules
include:
![Figuratively Speaking](/SiteCollectionImages/WisconsinLawyer/fspeak.jpg)
Amount of the settlement paid by Swiss banks for claims made by
Holocaust victims and their heirs for assets seized by the banks during
WW II: $1.4 billion
Source: Columbia Journal of Law and Social Problems, Vol.
32, No. 1, Fall 1999
Rank given to sexual assault by the FBI in its list of the most
underreported violent crimes in America: 1
Source: International Journal of Therapy and Comparative
Criminology, Vol. 42, No. 3, Sept. 1999
|
Rule 103 - Rulings on Evidence. Purpose: To
resolve the dispute over whether it is necessary for a party to renew an
objection or offer of proof at trial, after the trial court has made an
advance ruling on the admissibility of proffered evidence.
Amendment: If the advance ruling is definitive, a party need
not renew an objection or offer of proof at trial; otherwise renewal is
required.
Rule 404(a) - Character Evidence. Purpose:
To provide a more balanced presentation of character evidence when an
accused decides to attack the alleged victim's character.
Amendment: An attack on the alleged victim's character opens
the door to evidence of any same character traits of the accused that
the accused raised as to the victim.
Rule 701 - Opinion Testimony by Lay Witnesses.
Purpose: To prevent parties from proffering an expert as a lay
witness in an attempt to evade the gatekeeper and reliability
requirements of Rule 702. Amendment: Testimony cannot qualify
under Rule 701 if it is based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Rule 702 - Testimony by Experts. Purpose:
To resolve the conflict in the courts about the meaning of Daubert
v. Merrell Dow Pharmaceuticals Inc. and to provide guidance for
courts and litigants as to the factors to consider in determining
whether an expert's testimony is reliable. Amendment:
Specifically extends the trial court's Daubert gatekeeping
function to all expert testimony as affirmed by the Supreme Court in
Kumho Tire Co. v. Carmichael, requires a showing of reliable
methodology and sufficient basis, and provides that the expert's
methodology must be applied properly to the facts of the case.
Rule 703 - Bases of Opinion Testimony by Experts.
Purpose: To limit the disclosure to the jury of inadmissible
information that is used as the basis of an expert's opinion.
Amendment: The otherwise inadmissible information cannot be
disclosed to the jury unless the trial judge determines that its
probative value in assisting the jury to evaluate the expert's opinion
substantially outweighs the risk of prejudice resulting from the jury's
possible misuse of the evidence.
Rule 803(6) - Records of Regularly Conducted
Activity. Purpose: To provide for uniform treatment of
business records, and to save the parties the expense and inconvenience
of producing live witnesses for what is often perfunctory testimony.
Amendment: To permit a foundation for business records to be
made through certification. (This amendment is integrally related to the
amendment to Rule 902, below.)
Rule 902 - Self-authentication. Purpose: To
provide a procedure for self-authentication to certify business records.
Amendment: Sets forth the procedural requirements for preparing
a declaration of a custodian or other qualified witness that will
establish a sufficient foundation for the admissibility of business
records.
The Supreme Court review of these proposed amendments follows months
of study by the Judicial Conference Advisory Committee on Evidence Rules
and the Standing Committee on Rules of Practice and Procedure. The
public comment period for the rule change proposals was Aug. 1, 1998 to
Feb. 1, 1999, during which the Advisory Committee conducted two public
hearings and received written commentary.
The report of the Advisory Committee on Evidence Rules to the
Standing Committee (offering a synopsis of the rule changes and valuable
commentary) and the Proposed Amendments to the Federal Rules of Evidence
are available online.
To view and print the files, you will need Adobe Acrobat Reader.
![On the Web...](/SiteCollectionImages/WisconsinLawyer/ontheweb.gif)
Get the DIRT on developments in real estate law
For the scoop on real estate legal news and trends, check out DIRT, a
Web site for real estate
professionals. The site, which receives support from the ABA Real
Property, Probate, and Trust Law Section and the University of Missouri
- Kansas City School of Law, offers an email listserve, summaries of
recent cases and other legal developments, articles, and links to the
ABA and other real estate-related sites.
Mark C. Young, a real estate law practitioner with Trapp &
Hartman S.C., Brookfield, has dug DIRT for some time. "It's a handy
site," he says. "Real estate law varies greatly from state to state, and
DIRT is a good way to keep up-to-date on trends across the country and
developments that may make their way into Wisconsin.
"The discussions are lively and very informative. One listserve
subscriber posted a question on easements, and the site's webmaster
[Patrick Randolph, a law professor at the University of Missouri]
replied with a treatise he had written on easements. It was so helpful I
printed it out and kept it."
Wisconsin Lawyer