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Vol. 72, No. 12, December
1999 |
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](/wislawmag/grafix/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...](/wislawmag/grafix/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."
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