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You are only Guilty if you are Convicted

3 Surprising Sentencing Factors Considered by Judges in Wisconsin

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Wisconsin court sentencing factorsWhen someone is found guilty of a crime, the next step is sentencing in court. Did you know that in Wisconsin all judges, before they sentence a defendant, must consider the same three factors? 

Whether you’re in Milwaukee or Waukesha County, it doesn’t matter if you're being sentenced for first degree intentional homicide or a second offense drunk driving: all judges must consider the same factors.

How does a judge determine my sentence?

The judge will decide on the defendant’s sentence after listening to the arguments of:

  1. The state
  2. The defense attorney
  3. The defendant speaking on his or her own behalf

Based on Truth in Sentencing guidelines, a judge will state on the record his or her reasons for the sentence, taking three factors (the “3 Cs”) into consideration:

  • The crime that was committed
  • The character of the defendant
  • The protection of the community

These factors may also be referred to as retribution, rehabilitation, and deterrence.

These are the three things you need to know.

Sentencing Factor 1: Crime/Retribution

The first “C” the judge looks at is the crime itself. The state will focus their sentencing argument on the crime. The judge will look at aggravating and mitigating factors in the case to help make the decision. Aggravating and mitigating factors can include things like:

  • Cooperation
  • Respect of police officers
  • Number of crimes committed

The judge can also look at the offense itself and determine how serious it is. For example, disorderly conduct is usually less serious than running away from police. The judge can look into many other details as well, such as the time of the day, who was around, the age of those involved, etc.

Just because someone did something wrong and was convicted of a crime does not mean they will be going to jail, but a judge must always consider punishment, or retribution, as part of the sentence. The idea is the defendant “owes a debt to society” that must be paid through punishment.

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Sentencing Factor 2: Character/Rehabilitation

The second "C" the judge must take into consideration is the character of the defendant. It is the job of the defense attorney and the defendant to paint a picture of who the defendant really is. For example:

  • Is the defendant a good person in general?
  • Do they have a stable job?
  • Are they in school?
  • Do they pay their taxes?
  • Do they have a clean prior record?

The defendant is not just a case number. It is important for the judge to know this crime does not define who the defendant is. A good defense attorney will give a summary of the defendant and talk about them in a positive light.

Once the defense attorney has made an argument, the defendant has the opportunity to make a statement on his or her own behalf. Many times the statement made by the defendant can sway a judge’s opinion. If the defendant becomes nervous easily, a defendant can write a letter to the judge and read it at the sentencing hearing.

The most overlooked aspect to any sentence is the character and rehabilitation needs of the defendant. Defendants may get some credit if this is the first time they have made a mistake. They likewise will be penalized more harshly if this is their tenth time being convicted of the same crime. The judge may also look to other factors, including treatment, family, and other things going on in the defendant’s life, both prior to and since the time of the offense. These factors are especially important, and a skilled defense attorney can use them to put a client in a more favorable light.

Sentencing Factor 3: Community/Deterrence

The final “C” in a judge’s decision making is the protection of the community. Deterrence has two parts: general deterrence and specific deterrence. General deterrence refers to the message this sentence will send to others who may commit the same crime. In other words, if the judge lets someone go from a murder conviction with nothing more than a $500 fine, it wouldn't exactly deter others from committing murder. Specific deterrence refers to preventing this defendant from re-offending in the future. The judge needs to send a message to both the defendant and to others in the community: this crime will not be tolerated.

When looking at the protection of the community from the defendant, the judge will take into account the steps the defendant has taken to ensure this never happens again. For example, if the defendant was convicted of Operating While Intoxicated (OWI), the judge will look into any treatment the defendant has undergone to ensure alcohol becomes less of an influence in the defendant’s life.

The judge will hand down a sentence he or she believes is appropriate after taking all these factors into account. For most defendants, sentencing is the most important part of their case. Before you get to that phase, make sure you choose an experienced attorney who understands the ins and outs of a sentencing hearing and any mitigating circumstances that can work in your favor. Call the attorneys at Grieve Law to request a free initial consultation.

While the best criminal defense attorney cannot change the facts of what happened, they can understand and apply the law to get the best possible outcome for their client. For a free consultation, contact Grieve Law.

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By: Attorney Tom Grieve on 03/06/2020

Tom Grieve is a former prosecutor who now runs a successful Wisconsin criminal defense law firm with offices in Milwaukee, Waukesha and Madison. If are facing new charges initial phone consultations are free: contact online or call 262-786-7100.

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