Day, J. (concurring). Justice Louis J. Ceci joins this Concurring opinion. Beilfuss, C. J., Heffernan, J. and Abrahamson, J. (dissenting).
The opinion of the court was delivered by: Per Curiam
The court is asked to mandate, by rule, the use of the felony sentencing guidelines developed by the Advisory Committee for the Wisconsin Felony Sentencing Guidelines Project in all state trial courts for an 18-month period, beginning July 1, 1983. During that period, it is proposed that Judges presiding at the sentencing in all cases covered by the guidelines, as part of the sentencing process and before sentence is pronounced, shall require the completion and verification of the information sections of the standard sentencing guidelines form for the applicable offense published by the Director of State Courts and shall indicate on the record whether or not the sentence imposed is consistent with the guidelines and, if it is not, the reason for departure from the guidelines. Further, the presiding Judge is to ensure that the standard sentencing guidelines forms used in the sentencing process are completed in full and returned to the Director of State Courts Office, which shall monitor and periodically report on the use of the guidelines.
While the information contained in the sentencing guidelines forms may be of value to the trial Judges of this state, we conclude, for the following reasons, that it is inappropriate for this court to prescribe, by order, the use of the felony sentencing guidelines. No need has been satisfactorily established to justify the court's requiring the statewide use of the felony sentencing guidelines; our imposition of the guidelines on the trial Judges throughout the state would constitute an unwarranted intrusion into the authority and discretion of the sentencing Judges; prescribing penalties for criminal offenses is a matter of legislative, not judicial, policy; our promulgation of the guidelines and our order that they be used by all Judges in the state would suggest that the court is prescribing presumptively appropriate sentences, which we are not prepared to do; the proposed guidelines are nothing more than a compilation of the average felony sentencing experience in the state since 1977. Therefore, the petition for an order requiring their use by the state's trial Judges is denied. However, we believe it appropriate, and so direct, that statistical information on felony sentencing in Wisconsin be collected by the Office of the Director of State Courts and disseminated periodically to the trial Judges.
In May, 1980, the Section of the Judicial Conference recommended that a study committee be formed to examine the concepts of sentencing guidelines and determinate sentencing. After the Administrative Committee of the Courts obtained federal funding to conduct such a study, a committee was appointed. That committee, the advisory committee, developed a set of recommended ranges of sentence for four felonies, robbery, armed robbery, burglary and first degree sexual assault. These recommended ranges were originally based on empirical research of sentences pronounced in cases in Wisconsin's trial courts involving the four named felonies for the period January 1, 1977 through June 30, 1980. Information in those cases was collected concerning the personal background of the offender, the offender's criminal history and the severity of the crime of which the offender was convicted. Guideline matrices were then constructed for each of the four felonies, reflecting legal factors discovered to have been consistently and measurably related to those sentencing decisions and, in a limited number of instances, including legal factors that had not been found to be consistently related to sentencing but were, in the advisory committee's opinion, of such importance that they should be made a part of the system.
The felony sentencing guidelines consist of a form for each of the four felonies on which there is to be entered specific information concerning the offender's criminal history and the severity of the offense of which the offender was convicted, with points being given on the basis of such information. Those points are then to be totaled and applied on two scales, one for offense severity and one for offender criminal history, yielding a result which indicates the type of sentence, i.e., probation or incarceration, by giving the percentage of offenders convicted of the same felony who were incarcerated by Wisconsin Judges during the period studied, and specifies a range of sentence, for example, 42-60 months, which represents the average length of the sentences imposed in Wisconsin for that offense during that same period. The sentencing Judge is then to indicate on the guideline form the sentence actually imposed and whether that sentence fits within the guidelines set forth on the applicable matrix. In the event the Judge sentences outside the guidelines, he or she is to indicate on the form the aggravating or mitigating circumstances listed on the form which served as the basis for the sentencing decision and to identify any other factors which served as the reasons for the sentencing decision. An example of the felony sentencing guidelines is set forth in the appendix to this opinion.
The sentencing guidelines formulated by the advisory committee for the four named felonies were implemented on a voluntary basis by circuit Judges in four counties, Dane, La Crosse, Milwaukee, and Waushara, commencing July 15, 1981. On January 1, 1982, circuit Judges in Eau Claire, Marathon and Winnebago counties voluntarily agreed to use the guidelines experimentally, and on August 23, 1982, circuit Judges in Racine county did likewise. On February 11, 1983, the advisory committee filed a petition with the court requesting that we order the use of the felony sentencing guidelines as developed by the advisory committee not just for the felonies *fn1 which had been the subject of the voluntary pilot program in eight counties, but for additional felonies, namely, felony theft, auto theft, forgery, second-degree sexual assault and violations of the Wisconsin Uniform Substances Act, as to which research of the sentencing practices of Wisconsin circuit Judges during the period January 1, 1977 through June 30, 1981, were studied and which are continuing to be tested in the eight counties.
Our concern with the proposal, which amounts to a request that the court fund the continuation of the sentencing study originally financed with federal funds obtained through the Wisconsin Council on Criminal Justice, is that the need for felony sentencing guidelines in Wisconsin has not been satisfactorily established. Three principal reasons for the promulgation of statewide felony sentencing guidelines by this court have been advanced by the advisory committee and others: it will remedy an unjustifiable disparity of sentences imposed by Wisconsin trial Judges for like offenses, it will correct the public's perception that there is such disparity and it will neutralize the perceived threat that if sentencing guidelines are not developed and promulgated by the court system, the Wisconsin legislature will enact a set of "determinate" sentences, with the result that the discretion of the sentencing Judge will be severely restricted, if not eliminated.
The January 31, 1983, report of the advisory committee, which is appended to the instant petition, states that there is no unjustified disparity in sentencing in Wisconsin courts. It reports the results of a felony sentencing study conducted from late 1977 to early 1979:
"Felony sentencing in Wisconsin -- both as to type and length of sentence imposed -- appears in most instances to be appropriately related to considerations of the criminal history of the offender and the relative severity of the offense. There are exceptions to that generalization: some Judges do appear to be sentencing in the extreme (both high and low) in their handling of certain specific felony offenses. But, for the most part, allegations that felony sentencing in Wisconsin is unpredictably variable and thereby unjustifiably disparate were not borne out by the evidence." Study, at 16.
At the June 7, 1983, hearing, a representative of the advisory committee stated that it remains true that there is no significant disparity in felony sentencing in Wisconsin. Whether or not the general public has the impression that Wisconsin Judges vary too greatly in their sentencing of convicted felons does not appear to justify our imposing the use of the felony sentencing guidelines on trial Judges throughout the state. If there is no significant sentencing disparity, but only an alleged public perception of disparity, we find this to be insufficient justification for imposing the financial and administrative burden incident to sentencing guidelines on the state. The public's perception, if accurate, should be corrected by the dissemination of documented factual information as to felony sentencing in the state. *fn2
The third argument for the need to implement felony sentencing guidelines involves the respective roles of the judiciary and the legislature in the area of sentencing reform. We are told that if we do not mandate the use of felony sentencing guidelines statewide, the Wisconsin legislature will enact determinate sentencing legislation which will establish by law minimum sentences for specified offenses, as well as maximum sentences, which are now set by statute. Determinate sentencing, it is argued, will sharply reduce and perhaps even eliminate the exercise of discretion now within the authority and responsibility of the sentencing Judge. *fn3 While the sentencing Judge is in the best position to evaluate the circumstances of each case in order to determine what is an appropriate sentence for the offense, sentencing itself is a matter of legislative policy. "It is the function of the legislature to prescribe the penalty and the manner of its enforcement; the function of the court to impose the penalty; while it is the function of the executive to grant paroles and pardons." Drewniak v. State ex rel. Jacquest, 239 Wis. 475, 488, 1 N.W.2d 899 (1942).
It is the legislature which determines what is and what is not a crime in Wisconsin. It also determines the degrees of seriousness of crimes by classifying felonies and misdemeanors and establishing maximum penalties for each class. At the present time, the sentencing Judge has the duty, as well as the authority, to exercise discretion in imposing penalties up to the maximum set by statute. It is for the legislature, however, to decide whether that discretion should be more closely circumscribed. We are not convinced that our requiring the use of felony sentencing guidelines throughout the state is appropriate or, for that matter, could even be effective to prevent the legislature from enacting determinate sentencing legislation.
As to the content of the proposed felony sentencing guidelines, we are in full agreement with the advisory committee that the sentence ranges contained in the matrices for the named felonies, determined as they are by the actual experience of sentencing in Wisconsin trial courts, constitute a valuable "information tool," especially for those Judges new to the trial court or felony sentencing bench. Such information can be helpful to a Judge at the starting point of the exercise of his or her discretion in determining an appropriate sentence for a particular offender. Since its inception by order of this court in 1977, 73 Wis. 2d xxvii, we have supported continuing education for Wisconsin's judiciary, and, as part of that education, information on statewide sentencing of convicted felons should be collected and disseminated to members of the judiciary.
We are unwilling, however, to order the use of that information in sentencing as proposed for the reason that we are not in a position to prescribe at this time an "appropriate" type of sentence, that is, probation or incarceration, or an "appropriate" range of sentence where incarceration is imposed for persons convicted of specified felonies. That, in effect, is what we would be doing if we were to order that all trial court Judges in the state employ the felony sentencing guidelines for the 18-month period. Certainly, the advisory committee expects that Judges will sentence within the matrix ranges, absent any aggravating or mitigating circumstances, for it says in its Statement of Policy Underlying Sentencing Guidelines:
"The Wisconsin Felony Sentencing Guidelines System is designed to allow the exercise of judicial discretion while reducing variance by providing guideline sentences for similar offenders who commit similar offenses. These guidelines reflect previous sentencing practices in Wisconsin, and are a starting point for the exercise of judicial discretion in a particular case. Room is left for unique defendants or circumstances by providing the Judge an opportunity to articulate reasons when she or he sentences outside the guidelines.
"The ultimate responsibility in imposing sentence must and should remain with the sentencing Judge. The Judge must weigh, consider and apply competing values in circumstances as diverse and complex as each individual defendant. To dispel any perception of unequal treatment in sentencing, these guidelines have been developed to assist the sentencing Judge charged with that difficult duty."
The advisory committee could hardly expect the use of sentencing guidelines to reduce variance and dispel any perception of unequal treatment in sentencing if it did not intend that Judges follow the guidelines and impose sentence within the guideline matrix ranges, except in cases where aggravating or mitigating circumstances dictate otherwise.
The proponents of the mandatory use of the felony sentencing guidelines insist that use of the guidelines does not require a sentencing Judge to impose upon a person convicted of a specified felony a sentence which falls within the range set forth in the applicable matrix, only that it requires that a sentencing Judge indicate on the record whether or not the sentence imposed is consistent with the guidelines and, if it is not, state the reasons for "departure." The training manual prepared for the sentencing guidelines cautions that the requirement for explanation when an imposed sentence departs from the guideline matrix "is solely for purposes of updating and revising the guidelines, and is not intended as a check on judicial discretion." Be that as it may, the effect is to suggest that a sentence within the range set forth in the matrix needs no explanation, that is, that it is appropriate.
The very requirement of explaining "departure" from the guidelines creates a presumption that a sentence within the range set forth in the matrix for the particular offense/offender categories is appropriate, for it places the burden of showing the appropriateness of a sentence outside the matrix range on the sentencing Judge. This, we believe, amounts to our prescribing "appropriate" types and lengths of sentences ...