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Mandatory Minimum Sentencing Reform Desperately Needed

Posted on in Criminal Defense

Milwaukee criminal defense lawyers, mandatory minimum sentencing, mandatory minimum sentencing laws, Wisconsin’s prisons, prison sentenceby Ray Dall’Osto and Brianna Meyer

We live in an age of ever-increasing mass incarceration, both in the United States and in Wisconsin. While only 4.4 percent of the world’s population lives in America, our country accounts for 22 percent of the world’s prisoners (an incarceration rate of 716 per 100,000). In the 40 years that I have been practicing law and doing criminal defense work in this state, the rates of incarceration have skyrocketed, at great cost to those who are inhumanely warehoused, to their families, communities and state and federal government budgets. All of us taxpayers have been and continue to be scammed by the Truth-In-Sentencing “no parole” scheme (TIS) that became effective in Wisconsin 1999, and the proliferation of mandatory minimum sentence laws.


Since 1978, there has been a 500% increase nationally of the number of people in the nation’s prisons and jails. There are 2.2 million persons incarcerated now, and changes in law and policy, not changes in crime rates, explain most of this increase. In the same time period, Wisconsin’s the number of people incarcerated rose from 3400 persons in our state’s prison in 1978 to 23,000 by 2013. Wisconsin is on-track to have a record number of persons incarcerated by 2019. Yet crime rates have gone down in the corresponding period. As the criminal justice system strains to accommodate the costs of incarcerating these prisoners, it is clear that major reform is needed now.

Mandatory Minimum Sentencing

Many legal experts point to the introduction of mandatory minimum sentences in the 1970’s and 80’s, as marking the beginning of the massive, accelerated increase in incarceration rates, starting with the so-called Rockefeller laws in New York. As the “War on Drugs” proceeded over the ensuing decades, discretion at sentencing was taken away from judges with the enactment of “three strikes” laws, the federal Sentencing Reform Act in 1987, and so-called “truth in sentencing” laws at the state level, which require longer prison sentences in more cases with much greater frequency, and take away the possibility of parole and credit for good behavior. Wisconsin’s prisons are now busting at the seams and the situation is getting worse. (See Taking-the-Long-View-Wis.-Law-Journal.pdf)

Mandatory minimum sentencing laws force a judge to hand down a minimum, usually very long prison sentence based on a prosecutor's choice of which charges to bring, and under which statute, against a defendant. These laws take away from a judge, when deciding on an appropriate sentence and the type and degree of punishment, all traditional authority and discretion to take into consideration and formulate a sentence based the actual circumstances of the crime and the individual defendant (the McCleary/Gallion factors in state court and the section 3553 factors in federal court).

Federal mandatory minimum laws in drug cases, enacted in 1986, carry very long maximum sentences—5 years up to 40 years, and 10 years up to life imprisonment. Mandatory minimums are now imposed in many types of crimes in Wisconsin as well, including drug crimes, repeat driving while intoxicated charges, child sexual assault and possession of child pornography. Possession of one image will get you at least three years in prison. A District Attorney can charge a serious sex assault of a similarly-situated child either under sec. 948.02(1)(b), Wis. Stats., which carries no mandatory minimum, or under (1)(e), which carries a 25 year mandatory minimum prison sentence. All discretion is now in the hands of the prosecutor rather than the judge. These “lock ‘em up and throw away the key” statutes, that render the judicial branch powerless and meaningless, are not what our Founding Fathers envisioned and are unconstitutional, in the authors’ view.

Changes to Wisconsin Law Needed

While a trend has started nationally to begin to move away from mandatory minimum sentencing in recent years, Wisconsin is moving in the other direction. A number of laws were recently introduced in the state legislature, including a measure which would require a three-year sentence for illegal possession of a firearm, a proposal requiring a four-year sentence for someone who illegally possesses or uses a firearm if he or she had previously been convicted of three misdemeanors or one felony, and a bill requiring a five-year prison sentence for crimes such as carjacking, and child trafficking. Advocates for these laws don’t care what it costs the taxpayer, and don’t care that they have virtually no effect on reducing the crime rate. This is not responsible legislation and is a waste of hard-earned taxpayer money.

Voters should demand legislative reform of these inhumane, budget-busting sentencing laws. Get informed, get involved, and check out Families Against Mandatory Minimums. (http://famm.org/ ; https://www.sentencingproject.org/)

Contact a Milwaukee, WI, Criminal Defense Lawyer

The authors and GRGB have challenged and will continue to challenge these unconstitutional mandatory minimum laws in trial courts and on appeal, because they violate the Bill of Rights protections of our clients charged with crimes. If you or persons you know are facing criminal charges, whether they carry a mandatory minimum sentence or not, it is essential to have a skilled criminal defense attorney on your side. The experienced attorneys at Gimbel, Reilly, Guerin & Brown, LLP will work to vigorously protect your rights and freedom and provide you with the representation you need in your defense. Contact our Milwaukee criminal defense lawyers at 414-271-1440. 







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