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THE DARK SIDE: Judicial substitution reduces sentence disparity

Many years ago, I walked into a courtroom while court was in session and took a seat in back. A little while later, the then-chief judge of the felony division strolled in and took a seat beside me.

The presiding judge was really lighting into the defendant as he was sentencing him.

“This sounds pretty serious,” the chief judge said to me. “What’s the case?”

“Garage burglary; no prior record,” I replied.

“Oh, for Pete’s sake,” said the chief judge, not in those words, of course. Within a week, the chief judge had managed to engineer a transfer of the judge to a division where he wouldn’t be able to do so much damage.

I remembered this incident recently, as I do whenever some legislator introduces a bill to eliminate criminal defendants’ right to judicial substitution.

The judge in the incident above was a frequent target of substitution motions until his transfer out of felony court, and with good reason. The defendant in that case received the maximum sentence of 10 years, even though the prosecutor recommended probation. It was, as I noted, not a home invasion, but a garage burglary, and the defendant had no prior criminal record.

Even if you believe that all burglars should receive 10 years in prison, that’s not how sentencing in Wisconsin works. The court must consider, among other factors, the severity of the offense, and the character of the defendant. Under our system, maximum sentences should be reserved for recidivists.

And when the charge is burglary, it should generally be given only in the case of a home burglary, not a garage burglary.

When one particular judge indiscriminately sentences everyone to the maximum, as the judge mentioned above used to do, without applying the relevant sentencing factors, it is an obligation on the defense attorney to file a motion for substitution. And it is not just for the benefit of the defendant but for the justice system as a whole. Whether any given defendant receives probation or 10 years in prison should not be determined solely by which judge is randomly assigned the case.

For 20 years, we had mandatory sentencing guidelines in federal court, because the public found it unjust that federal sentences were determined so much by the sentencing proclivities of the assigned judge, rather than the nature of the offense.

I realize that the substitution statute causes logistical problems in small counties up north that only have one judge, and I am sympathetic. But I’m sure there are judges in those parts who well deserve their substitution motions.

I’ve never been in a courtroom north of Calumet County, but I used to hear stories about one particular judge up north before whom no one wanted to appear. Plaintiff or defense, civil or criminal, every attorney I talked to would use the same expression to describe his court: “alternative legal universe.”

From my own experience, calculating the reversals of circuit court judges in the court of appeals every year for the last decade, I don’t doubt their judgment.

So, as burdensome as the substitution law can be for the court systems in those one-judge counties, it serves not just a valid purpose, but a purpose essential to the administration of justice in a system in which judges can sometimes obtain office through political connections, rather than legal expertise.

And in counties such as Milwaukee, with a lot of branches, the mere availability of substitution can operate as a governor that limits disparity in sentences between them.

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One comment

  1. This is why we have “judges.” The judge is supposed to be a man (or woman) who can make decisions. Deciding to give the max to everyone does not require wisdom and intelligence. King David was a man of wisdom. King Herod was not.

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