Petition for Writ of Certiorari — Jasen Randhawa, Petitioner v. Wisconsin
Supreme Court briefJan 29, 2024
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No._______
In The
Supreme Court of the United States
JASEN RANDHAWA,
Petitioner,
vs.
STATE OF WISCONSIN,
Respondent.
On Petition for a Writ of Certiorari to
The Wisconsin Supreme Court
PETITION FOR A WRIT OF CERTIORARI
Dudley A. Williams
Counsel of Record
Jerome F. Buting
BUTING, WILLIAMS & STILLING, S.C.
7929 N. Port Washington Rd.
Suite B2
Glendale, WI 53217
(414) 247-8600
Email: dwilliams@bwslawfirm.com
QUESTIONS PRESENTED
I.
Does a court violate a defendant's right to due process when a lengthy
sentence is based upon mistaken information that a severe sentence will deter others
from committing similar crimes when the court is provided overwhelming evidence
that severe sentences do not deter others from committing those crimes?
II. Does due process prohibit a court from imposing a severe sentence that it
expressly states is intended to accomplish a purpose which social science establishes
cannot be achieved?
III. Does a court violate a defendant's right to due process when it imposes a
severe sentence expressly based on a general sentencing factor that is not relevant to
the particular offender or charges?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED
............................................i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR GRANTING THE PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II.
The Sentencing Court Violated Randhawa's Due Process Rights By
Relying on Inaccurate Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A.
Defendants have a due process right to be sentenced on the
basis of accurate information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B.
The court erroneously relied on general deterrence as a
primary reason for imposing the fifty-five year sentence,
wrongly assuming others will be deterred by the extreme
sentence it imposed... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C.
It is now widely accepted in social science that general
deterrence is not accomplished by long sentences and long
sentences do not make fewer crime victims by deterring
others from committing crime.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D.
While courts are directed to consider the protection of the
public in imposing a sentence along with other factors, it is
an abuse of discretion to rely on general deterrence in cases
where it has no chance to succeed. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
E.
This court needs to establish limits on a court’s ability to
impose a severe sentence based on a general sentencing
factor that the record of the case establishes is not relevant
to the particular offender or charges. . . . . . . . . . . . . . . . . . . . . . . . . . 24
F.
The findings of social science can be considered by courts
reviewing constitutional sentencing claims . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
APPENDICES
Order Dated October 30, 2023, from the Wisconsin Supreme Court
denying Petitioner’s Petition For Review of the Wisconsin Court of
Appeals decision dated July 5, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1
Decision of Wisconsin Court of Appeals, dated July 5, 2023, affirming
trial court’s denial of Petitioner’s Motion For Post Conviction Relief . . App.2
Decision of Milwaukee County Circuit Judge Mark Sanders,
Dated October 4, 2021, denying Petitioner’s Motion For Post Conviction
Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 13
Transcript of relevant portions of the sentencing hearing held on May 19,
2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 21
Affidavit of expert, Dr. Ashley Nellis, of the Sentencing Project, Dated
April 9, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 51
TABLE OF AUTHORITIES
Wisconsin Cases Cited
Bruneau v. State,
77 Wis.2d 166, 752 N.W.2d 347 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State v. Borrell,
167 Wis. 2d 749, 482 N.W.2d 883 (1992) . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 13
State v. Coffee,
2020 WI 1, 389 Wis.2d 627, 937 N.W.2d 579 . . . . . . . . . . . . . . . . . . . . . . . . 12
iii
State v. Dubose,
2005 WI 126, 285 Wis.2d 143, 699 N.W.2d 582 . . . . . . . . . . . . . . . . . . . . . . 29
State v. Gallion,
2004 WI 42, 270 Wis.2d 535, 678 N.W.2d 197 . . . . . . . . . . . . . . . 9, 12, 13, 21
State v. Krueger,
119 Wis.2d 327, 351 N.W.2d 738 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. McCleary,
49 Wis.2d 263, 182 N.W.2d 512 (1971) . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 21
State v. Spears,
227 Wis.2d 495, 596 N.W.2d 375 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Tiepelman,
2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1 . . . . . . . . . . . . . . . . . . . . 6, 10, 11
State v. Whitaker,
2022 WI 54, 402 Wis.2d 735, 976 N.W.2d 304 . . . . . . . . . . . . . . . . . . . . . . . 22
Other Cases Cited
Alaska v. Graham,
513 P.3d. 1046 (Alaska 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 28
Atkins v. Virginia,
536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Brown v. Board of Education,
347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Furman v. Georgia,
408 U.S. 238 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Gideon v. Wainwright,
372 U.S. 335 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Graham v. Alaska,
440 P. 3d 309 (Alaska App. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
iv
Hall v. Florida,
572 U.S. 701(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 28, 29
In re Oliver,
333 U.S. 257 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
King v. Hoke,
825 F.2d 720 (2d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Lawrence v. Texas,
539, U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Muller v. State of Oregon,
208 U.S. 412 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Pears v. State,
698 P.2 1198 (Alaska 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Pearson v. United States.
265 F.Supp.2d 973 (E.D.WI. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
People v. Suitte,
90 A.D.2d 80, 87, 455 N.Y.S.2d 675 (New York 1982) . . . . . . . . . . . . . . . . . 20
Powell v. Alabama,
287 U.S. 45 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Roper v. Simmons,
543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Townsend v. Burke,
334 U.S. 736 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10
Trop v. Dulles,
356 U.S. 86, 101(1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Adams,
873 F.3d 512 (6th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. v. Barker,
771 F.2d 1362 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24
v
United States v. Edwards,
595 F.3d 1004 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Foss,
501 F.2d 522 (1st Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
United States v. Howard,
28 F.4th 180, 209 (11th Cir. 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
United States v. Martin,
455 F.3d 1227 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Malcolm,
432 F.2d 809 (2d Cir.1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Phinazee,
515 F.3d 511 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Tucker,
404 U.S. 443 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Weems v. United States,
217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910) . . . . . . . . . . . . . . . . . . . . . 28
Constitutions and Statutes
8th Amendment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . 29
14th Amendment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . 1, 10
18 U.S.C. § 3553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
28 U.S.C. Sec. 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wis Stats Sec 304.06(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wis.Stats § 940.06(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wis. Stats. § 940.23(2)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
vi
Other Authorities
Daza, Palloni and Jones, The Consequences of Incarceration for Mortality
in the United States, , Center for Demography and Ecology,
University of Wisconsin-Madison, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Evans,W. N., D Neville, J D Graham, General
Deterrence of Drunk Driving: Evaluation of Recent American Policies . . . . . . . . . 16
Jacobs, J.J. Drunk Driving: An American Dilemma.
The University of Chicago Press: Chicago, IL, 1989 . . . . . . . . . . . . . . . . . . . . . . . . 18
Mauer, Marc, Long-term sentences: Time to Consider The Scale of Punishment,
The Sentencing Project (November 5, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20
Nagin, Daniel S., Deterrence in the Twenty-First Century:
A Review of the Evidence, 42 CRIME & JUST. 199, 207 (2013) . . . . . . . . . . . . . . . 16
NHTSA, Creating Impaired Driving General Deterrence:
Eight Case Studies of Sustained High-Visibility Enforcement, 2006) . . . . . . . . . . 18
Patterson, E. and Wildeman, C., Mass Imprisonment and the Life Course
Revisited: Cumulative Years Lost to Incarceration for Working-Age White and
Black Men, 53 Social Science Research 325 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Ross HL, Deterring the Drinking Driver: Legal Policy and Social
Control. 2nd ed. Lexington, MA: Lexington Books; 1984) . . . . . . . . . . . . . . . . . . . 18
Vas, Robert B, P.H.D. and James C. Fell, M.S.,
Preventing Impaired Driving Opportunities and Problems,
Alcohol Res Health. 2011; 34(2): 225B235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
vii
OPINIONS BELOW
The order of the Supreme Court of Wisconsin denying review appears at page
20 of the Appendix. The order was unpublished and not reported.
The opinion of the Wisconsin Court of Appeals appears at pages 1-11 of the
Appendix. The opinion was ordered unpublished and reported at, 2023 WI APP 44, 995
N.W.2d 488.
The opinion of Milwaukee County Circuit Court Judge Mark A. Sanders appears
at pages 12-19 of the Appendix.
JURISDICTION
The Wisconsin Supreme Court denied Randhawa’s petition for review on
October 30, 2023. This court has jurisdiction to decide the constitutional due process
issues presented by this case pursuant to 28 U.S.C. § 1257.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Over seventy five years ago, this Court in Townsend v. Burke, 334 U.S. 736,
740-41 (1948), held that a sentence predicated on misinformation violated the due
process clause of the 14th Amendment to the United States Constitution. Section 1 of
the 14th Amendment states in part:
... No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
1
Randhawa was convicted of three counts of 2nd Degree Reckless Homicide,
violations of Wis.Stats § 940.06(1), and one count of Second Degree Reckless Injury,
a violation of Wis. Stats. § 940.23(2)(e). R.48.
STATEMENT OF THE CASE
The criminal complaint against Randhawa in State of Wisconsin vs. Jasen
Randhawa, Case No. 2016CF4787, alleged that at approximately 2:34 am on October
23, 2016, the defendant's vehicle ran a red light and crashed into the driver's side of
an Uber vehicle while it traveled southbound on North 2nd St. at W. Clybourn St. in
the City of Milwaukee, Wisconsin. Defendant's vehicle crash data recorder indicated
he was traveling as fast as 63 mph prior to the crash and at 47 mph at the moment of
collision. R.67: 69-70. Three young women were killed in the accident - all were
unbelted passengers in the back seat of the Uber vehicle. The Uber driver was
hospitalized for injures suffered in the accident but had recovered by the date of
sentencing in the case. Id. at 56.
Randhawa fled the scene of the accident on foot following his passenger,
unaware that there was anyone in the back seat of the Uber vehicle that had been
fatally injured. Id. at 71-72, 123. The defendant was captured on two different videos
taken during cab rides in the hours after the accident discussing ways that he could
avoid responsibility for the accident. Id. at 72-78. However, the next day he learned
that three women had died in the accident and shortly thereafter contacted an attorney
2
who made arrangements for Randhawa to immediately turn himself in to authorities.
Id. at 79, 121-122.
Randhawa was twenty three years old at the time of the offense and had no
prior criminal record. Id. at 116. He had one prior civil OWI conviction which occurred
fourteen months prior to this offense, Id. at 64-65, and his license had not been
reinstated at the time of the offense. He comes from a supportive, hard working and
law abiding family. Id. at 149-151; App. 34-37.
The defendant accepted responsibility expeditiously without putting the State
or the victims' families through any unnecessary litigation. As Assistant District
Attorney Grant Huebner advised the court at sentencing:
My understanding is the defendant was going to accept responsibility
almost from the get-go and that is not something we see that often, and
he did so knowing that the State's recommendation was probably going
to be... the most strict sentence I have recommended on a traffic homicide
in my career.
Id. at 80.
Sentencing was held on May 19, 2017, before Milwaukee County Circuit Court
Judge Mark A. Sanders. The court heard statements from several family members of
the victims and relatives of Randhawa. R.67: 9-88, 93-109. Randhawa’s counsel
provided the court with a summary of sentences imposed in similar cases which the
court did not review. R.67: 82-83.1 The court imposed a determinate sentence of 39
1
The summary included a compilation of CCAP records and a chart relating to sentences imposed in
other hit and run, reckless and OWI homicide cases in Wisconsin. R.73, 75, 125. No sentence in the 30
cases documented came close to the 39 years of initial confinement ordered here.
3
years of initial confinement followed by 16 years of extended supervision for an
aggregate sentence of 55 years. Under Wisconsin law, Randhawa will serve the first
39 years in prison with no chance of parole. Judge Sanders made it very clear that he
was imposing the 55 year sentence he gave Randhawa in large part for purposes of
general deterrence because “it was the only way” to deter other potential offenders and
make “fewer crime victims”. Id. at 159-160; App. 44-45.
A motion for post conviction relief was filed on April 12, 2021. R.153,154. The
motion argued in part that the court relied on inaccurate and false assumptions when
it imposed the severe sentence because it is the clear understanding of social scientists
today that severe sentences do not deter others from committing crimes – especially
non-intentional ones. The defendant provided the affidavit of an internationally
renowned expert on severe sentences, Dr. Ashley Nellis of the Sentencing Project in
Washington, D.C., who offered her opinion that the reasons Judge Sanders articulated
for giving the severe sentence were erroneous. R.154; App. 51-56.
In addition to the statements Judge Sanders made at sentencing, the record of
the post conviction proceeding established that Judge Sanders had increased
Randhawa’s sentence significantly for the purpose of general deterrence. Randhawa’s
motion argued that a sentence of only 19 years that Judge Sanders imposed in another
similar multiple count reckless homicide case with two deaths and one serious injury
which had more aggravated facts just five months after Randhawa’s sentencing
4
highlighted Judge Sanders’ improper application of general deterrence to increase
Randhawa’s sentence.2 R.153:15-20.
On October 4, 2021, Judge Sanders denied the defendant’s motion on briefs
without a hearing. The court found that Randhawa failed to allege an “objective fact”
that was inaccurate that warranted resentencing, that he did not rely on improper
factors and that the sentence imposed was not unduly harsh. Judge Sanders found
that his assumption that the 55 year sentence would “make fewer crime victims” was
a “fundamentally subjective judgment” and not an “objective fact” that is “capable of
being true or untrue”. App. 16. Neither the district attorney in their briefing nor
Judge Sanders in his decision addressed or challenged the underlying premise of
Randhawa’s argument that severe sentences do not deter others from committing nonintentional crimes. R.180; App. 13-20.
A notice of appeal was filed on October 18, 2021, R. 137. The Court of Appeals
issued a per curiam decision on July 5, 2023, affirming the conviction and denying all
claims of error argued by Petitioner. State of Wisconsin vs. Jasen Randhawa, Case No.
2021AP1818, App. 2-12. The Court of Appeals found that Judge Sanders did not give
2
In State v. Lontrell L. Lee, Milwaukee County Circuit Court Case No. 2017CF426, R.192; App. 203204, Lee was convicted of two counts of second degree reckless homicide and one count of fleeing an
officer causing injury. Lee’s case had many of the same aggravating factors as Randhawa’s case: driving
at high speeds on city streets, disregarding traffic controls, leaving the scene of the fatal accident, and
a prior OWI offense. Lee had also carjacked the vehicle he drove at gunpoint and led police on a high
speed chase. He fled the scene after crashing the vehicle without checking on his deceased passengers
and was not arrested until months later. He showed no remorse, had a prior gun and auto theft
convictions, was unemployed and smoked marijuana daily. Judge Sanders discounted the applicability
of general deterrence in his case “because young people that are fleeing from the police don't
necessarily believe that anything bad is going to happen” and ultimately sentenced Lee to 19 years of
initial confinement, 20 years less than he gave Randhawa. R.192: 40.
5
undue weight to improper factors even though the sentence was at odds with sentences
imposed in other vehicular homicide cases.3 App. 9-11. The Court of Appeals held that
“[d]iffering opinions about the circuit court’s sentencing objective of general deterrence
does not constitute inaccurate information so as to allow for resentencing under
Tiepelman.” App. 9. The Court of Appeals agreed with the circuit court’s holding that
“[the] differing view of an expert does not render the court’s determination inaccurate”
and held that “an expert’s opinion and citations to journal articles cannot define the
bounds of a constitutionally appropriate sentence.” App. 8-9. Again, neither the State
in their brief nor the Court of Appeals in its decision addressed the underlying premise
of Randhawa’s due process challenge that severe sentences do not deter others from
committing non-intentional crimes.
Randhawa filed a Petition for Review of the Court of Appeals decision with the
Wisconsin Supreme Court on August 4, 2023. State of Wisconsin vs. Jasen Randhawa,
Case No. 2021AP1818. The Wisconsin Supreme Court issued a summary order denying
Randhawa’s Petition for Review on October 30, 2023. App. 1. The State in its briefing
in the Supreme Court continued to avoid addressing the underlying premise of
Randhawa’s due process challenge that severe sentences do not deter others from
committing non-intentional crimes.
This petition for a writ of certiorari follows.
3
Prior to sentencing, Randhawa’s trial counsel provided Judge Sanders with a compilation of CCAP
records and a chart relating to sentences imposed in other hit and run, reckless and OWI homicide
cases in Wisconsin. R.73, 75, 125. No sentence in the 30 cases documented came close to the 39 years
of initial confinement ordered here.
6
REASONS FOR GRANTING THE PETITION
I.
Introduction
This case involves
real and significant questions of state and federal
constitutional law. The Court of Appeals of Wisconsin issued a decision that highlights
an important question of federal and state law that has not been, but should be, settled
by this Court. Defendants have a constitutional right to be sentenced on accurate
information and assumptions. Randhawa’s constitutional due process right to be
sentenced on accurate information was violated when decades of imprisonment were
added to his sentence based upon a mistaken belief and inaccurate information that
a severe sentence would serve to deter others from committing non-intentional crimes.
While virtually all states and federal law require courts to consider a number of factors
at sentencing, including general deterrence, the decision of the Court of Appeals here
gives judges the license to impose severe sentences by mechanistically citing general
sentencing factors whether relevant or not given the particulars of the case.
A sentencing court should not be permitted to impose a severe sentence merely
by mechanistically referencing a standard sentencing factor when common sense and
social science evidence clearly establish is not relevant or efficacious given the crimes
charged. The decision of the Wisconsin Court of Appeals allows a trial court to sentence
a defendant to decades in prison based on an unreasonable and uninformed subjective
opinion and for a stated purpose that will never be achieved. At stake here is the
balance between individualized sentencing and sentencing used as an instrument of
7
a social policy. Randhawa was given decades longer in prison for a purpose which all
available evidence and virtually every social science expert establish will never be
realized. This Court should assure that no citizen is deprived of their right to be
sentenced only upon facts and assumptions that are accurate and relevant. Judge
Sanders had an obligation to scrutinize the evidence provided him in the post
conviction proceeding that established severe sentences do not deter others from non
intentional crimes. Instead,
he ignored that evidence and reasserted his own
“subjective judgment” which is in conflict with all experts studying the issue.
The record of this case clearly establishes the court’s reasons for imposing the
virtual life sentence4 it gave Randhawa and therefore presents a unique opportunity
for this Court to protect a defendant’s due process rights by mandating meaningful
restraints on a sentencing court’s discretion to impose a sentence based on
unreasonable assumptions and for an inefficacious purpose.
4
Confining Mr. Randhawa from age of 23 without the possibility of parole until he is 63 years old, then
supervising him until the age of seventy eight with the sanction of re-imprisonment for an additional
15 years, is the equivalent of a life sentence. Life expectancy in the United States is age 76 for males,
yet both findings of scientific studies and common sense dictate that the life expectancy of Mr.
Randhawa will be considerably lower given that he will spend his entire adult life in prison before his
release in 2055. Researchers have identified a linear relationship between incarceration and life
expectancy. One researcher found that for each year lived behind bars, using an average sentence in
criminal cases of five and one half years, a person can expect to lose two years off their life expectancy.
Mass Imprisonment and the Life Course Revisited: Cumulative Years Lost to Incarceration for
Working-Age White and Black Men, Patterson, E. and Wildeman, C., 53 Social Science Research 325
(2015). Another recent study found that incarceration translates into a 13 percent loss of life
expectancy at age 45. The Consequences of Incarceration for Mortality in the United States, Sebastian
Daza, Alberto Palloni and Jerrett Jones, Center for Demography and Ecology, University of
Wisconsin-Madison, p. 21, September 20, 2019. Inferior health services, environmental conditions,
crimonogenic conditions, stress and violence all contribute to make the sentence imposed a virtual life
sentence for the then 23 year old Jasen Randhawa.
8
A decision by this Court would promote the goal of individualized sentencing by
requiring judges to make sentencing decisions based only on relevant considerations,
rather than mechanistically applying general recognized factors to a given category
of crime. Review by this Court would assure that citizens who are convicted of crimes
are not used as mere instruments of social policy and only serve the minimum period
of confinement necessary given the gravity of the offense, the needs of the public, the
rehabilitative needs of the defendant and all other relevant considerations.
II.
The Sentencing Court Violated Randhawa's Due Process Rights By
Relying on Inaccurate Information.
A.
Defendants have a due process right to be sentenced on the
basis of accurate information
Trial courts in both the federal and state system have very broad discretion in
imposing a sentence within the confines of any mandatory minimum or maximum
sentence prescribed for an offense. That discretion is not limitless and the sentence
imposed in each case should call for the minimum amount of custody or confinement
which is consistent with the protection of the public, the gravity of the offense and the
rehabilitative needs of the defendant. State v. McCleary, 49 Wis.2d 263, 276; 182
N.W.2d 512 (1971); State v. Setagord, 211 Wis.2d 397, 416, 565 N.W.2d 506 (1997);
State v. Borrell, 167 Wis.2d 749,764, 482 N.W.2d 883 (1992); State v. Krueger, 119
Wis.2d 327, 336–37, 351 N.W.2d 738 (1984); State v. Gallion, 2004 WI 42, ¶ 23, 270
Wis. 2d 535, 678 N.W.2d 197. The court in McCleary stated:
9
It is thus apparent that the legislature vested a discretion in the
sentencing judge, which must be exercised on a rational and explainable
basis. It files in the face of reason and logic, as well as the basic precepts
of our American ideals, to conclude that the legislature vested unbridled
authority in the judiciary when it so carefully spelled out the duties and
obligations of the judges in all other aspects of criminal proceedings. Just
because the legislature provides a range of ten years, it would be
nonsense to conclude that, in a particular case, it would make no
difference in terms of legislative intent whether the sentence was for one
year or ten.
State v. McCLeary, 49 Wis.2d at 276.
The due process clause of the Fourteenth Amendment to the United States
Constitution restrains a trial court's discretion at sentencing by conferring on the
defendant the right to be sentenced only on true and correct information. Townsend
v. Burke, 334 U.S. at 740-41; State v. Tiepelman, 2006 WI 66, ¶42; State v. Borrell,
167 Wis. 2d at 772. The foundation of that right is the due process protection against
arbitrary government decisions. Any sentencing process must conform with
"fundamental principles of liberty and justice which lie at the base of all our civil and
political institutions," Gideon v. Wainwright, 372 U.S. 335, 343-344 (1963); In re
Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Powell v. Alabama, 287
U.S. 45, 67, 53 S.Ct. 55, 77 L.Ed. 158 (1932). A convicted offender has a right to a fair
sentencing process - one in which the court goes through a rational procedure of
selecting a sentence based on relevant considerations and accurate information. If a
trial court relies on inaccurate information in sentencing, it errs in the exercise of its
discretion. Townsend v. Burke, 334 U.S. at 740-41; Bruneau v. State, 77 Wis. 2d 166,
10
175, 752 N.W.2d 347 (1977); State v. Spears, 227 Wis. 2d 495, 508, 596 N.W.2d 375
(1999).
The due process right to be sentenced on accurate information “is not limited to
information solely about the defendant’s actions and criminal history.” United States
v. Adams, 873 F.3d 512, 518 (6th Cir. 2017). A court violates due process when it
imposes a sentence based on “materially false assumptions relevant to any material
facts at sentencing”. King v. Hoke, 825 F.2d 720, 724 (2d Cir. 1987) citing United
States v. Malcolm, 432 F.2d 809, 816 (2d Cir.1970). In Adams the sentencing court’s
assumption that it takes at least 18 months to rehabilitate a drug addict was
“unreliable” and violated the defendant’s due process rights. United States v. Adams,
873 F.3d at 518. See also: Pearson v. United States. 265 F.Supp.2d 973, 980 (E.D.WI.
2003) (inaccurate understanding as to where the defendant would serve her sentence
and her ability to be allowed family care release privileges to care for her elderly
parents).
A defendant who is sentenced based on inaccurate information is entitled to
re-sentencing. United States v. Tucker, 404 U.S. at 446 (1972); State v. Tiepelman,
2006 WI at ¶27. The Wisconsin Supreme Court just a few years ago quoted from
Tucker to reiterate the constitutional importance of a fair sentencing process:
When a circuit court relies on inaccurate information, we are dealing not
with a sentence imposed in the informed discretion of a trial judge, but
with a sentence founded at least in part upon misinformation of a
constitutional magnitude. A criminal sentence based upon materially
untrue information, whether caused by carelessness or design, is
11
inconsistent with due process of law and cannot stand.(quotations
omitted).
State v. Coffee, 2020 WI 1, ¶37, 389 Wis. 2d 627, 937 N.W.2d 579.
The issue presented here is whether a due process violation occurs when a court
imposes a severe sentence for a stated purpose and based upon an assumption and
belief that a general sentencing factor is relevant in that case when common sense and
virtually every social science expert examining the issue concludes the factor is not
relevant to the offense and the court’s purpose will never be realized.
B.
The court erroneously relied on general
deterrence as a primary reason for imposing
the fifty-five year sentence, wrongly assuming
others will be deterred by the extreme sentence
it imposed.
Almost 25 years ago, Wisconsin adopted Truth In Sentencing whereby the
sentencing judge imposes the amount of time a defendant serves both in confinement
and on supervision upon release. The structure of the 55 year sentence imposed by
Judge Sanders requires Randhawa to serve 39 years of confinement in prison followed
by 16 years of extended supervision. Randhawa has no opportunity for parole or any
other kind of early release prior to serving every day of the 39 years in prison.
With the advent of Truth in Sentencing in 2004, the opportunity to review and
correct an unreasonable period of confinement was the focal point of the Wisconsin
Supreme Court’s decision in Gallion. In Gallion, the court recognized the need to
require courts to articulate on the record the reasoning behind a sentence so that a
reviewing court has a meaningful opportunity to determine whether the circuit court
12
properly exercised its discretion on a “rational and explainable basis.” State v. Gallion,
49 Wis.2d at 276. The court in Gallion recognized that Truth in Sentencing meant
there was no longer a parole system to remedy an abuse of discretion which led to an
unduly long sentence. The court in Gallion stated:
With the advent of truth-in-sentencing, we recognize a greater need to
articulate on the record the reasons for the particular sentence imposed.
Under the old, indeterminate system, sentencing discretion was shared
among all three branches of government. The legislature set the
maximum penalty and the manner of its enforcement; the courts imposed
an indeterminate term; and the executive branch, through the parole
board, determined how much of that term was going to be served. See
Borrell, 167 Wis.2d at 767, 482 N.W.2d 883 (citation omitted). Under
truth-in-sentencing legislation, the executive role has been diminished
with the elimination of parole. The legislative role is limited to setting
the parameters of the penalty. As a result, the judiciary's responsibility
for ensuring a fair and just sentence has significantly increased.
Id, at ¶28, 553.5
The record of the sentencing hearing clearly establishes that general deterrence
was an overriding reason for giving Randhawa the extreme sentence of 55 years with
39 years of initial confinement. Prior to imposing sentence, Judge Sanders advised
Randhawa that general deterrence was a particularly important factor he had to
consider in imposing a sentence in a case such as Randhawa’s:
In fact, a significant aspect of protection of the public is general
deterrence, and that's a particularly important aspect in cases like this...
because many times these people that commit drunk driving offenses are
more like you than they are like the other people that sit in that chair
sometimes.
5
Under prior Wisconsin law, an inmate was eligible for parole after serving just 25% of their sentence.
Wis Stats Sec 304.06(2)(b). State v. Borrell, 167 Wis. 2d at 772.
13
App. 44. Judge Sanders told Randhawa why he was going to impose an extreme
sentence in his case:
The only way I can protect the public fully is by crafting a sentence in
this case that is sufficient to cause other people to be aware of the
consequences of drunk driving more fully so that they know and that
they may think when they're at a bar with some friends, you know, I'm
just going to drive home, the hope is that there that it will go through
their heads, well, damn, that Randhawa-- that Randhawa guy, he killed
some pokes -- some folks, that was terrible and then he went to prison for
a long time, I'm not gonna do that. That's how public protection can be
achieved. The hope is that there will be fewer crime victims in the future.
App. 43-44. The court then stated that the need for public protection, together with the
aggravated nature of the offense, “almost completely overcome the good aspects of
[Randhawa’s] character” and were “the most significant aspects of this case that the
court has to take into consideration.” App. 45. Judge Sanders made it even clearer
that general deterrence was a primary motivation for the fifty-five year sentence he
imposed when he stated it was the “only way” to cause other people to be aware of the
consequences of drunk driving and make “fewer crime victims.” App. 43-44.
In the post-conviction proceeding, Judge Sanders refused to even consider the
social science evidence or the expert affidavit of Dr. Ashley Nellis submitted by
Randhawa and doubled down on general deterrence justifying his sentence in his
post- conviction decision denying resentencing. App. 13-20.
14
C.
It is now widely accepted in social science that general
deterrence is not accomplished by long sentences and long
sentences do not make fewer crime victims by deterring
others from committing crime.
The court in imposing its sentence on Randhawa relied on inaccurate
information and a mistaken assumption that led him to “hope” that imposing an
extremely long sentence would make “fewer crime victims in the future.” App. 44. It
is now widely accepted in social science that individual severe sentences do not deter
crime. The court gave Randhawa an extreme 55 years sentence based upon a “hope”
and for a stated purpose that is certain to be completely ineffective.
In support of his motion for post conviction relief, the defendant filed the
Affidavit of Dr. Ashley Nellis, associated with the Sentencing Project in Washington
D.C. App. 51-56. Dr. Nellis' affidavit establishes that she is an internationally
recognized expert on long term imprisonment and its effect on public safety in the
United States. Dr. Nellis was retained to offer her expert opinion on whether the 55
year sentence imposed in Randhawa's case will act as a general deterrent to others the purpose articulated by Judge Sanders. Dr. Nellis’ affidavit reviews the research
and identifies the reasons underlying the results. Dr. Nellis' conclusion is consistent
with the findings of virtually every researcher studying the issue. It is Dr. Nellis'
expert opinion that the 55 year sentence imposed in this case will not deter others from
committing reckless or impaired driving offenses as intended by Judge Sanders. App.
56.
15
As Dr. Nellis recognized, for several decades researchers have concluded that
individual sentences in OWI related cases have no general deterrent effect. In their
1991 study, Evans, Neville and Graham found no conclusive evidence that any specific
form of punitive legislation is having a measurable effect on motor vehicle fatalities.
Their report found evidence that multiple laws designed to increase the certainty of
punishment (e.g., sobriety checkpoints and preliminary breath tests) have had a
synergistic deterrent effect but found that other policies aimed at general deterrence
were not effective. W. N. Evans, D Neville, J D Graham General Deterrence of Drunk
Driving: Evaluation of Recent American Policies.6
Carnegie Mellon University Professor Daniel Nagin, considered the leading
deterrence scholar in the United States, concluded that “[t]he evidence in support of
the deterrent effect of the certainty of punishment is far more consistent and
convincing than for the severity of punishment and that the effect of certainty rather
than severity of punishment reflect[s] a response to the certainty of apprehension.” See,
Daniel S. Nagin, Deterrence in the Twenty-First Century: A Review of the Evidence, 42
CRIME & JUST. 199, 207 (2013)(emphasis added)7. Another prominent scholar
concluded that Nagin's conclusions make intuitive sense:
[O]ffenders are not planning on being apprehended and unlikely to be
thinking about the risk of being caught, let alone know how much prison
time they may face.
6
See Abstract: https://doi.org/10.1111/j.1539-6924.1991.tb00604.x (last visited January 23, 2024).
7
See Abstract: https://kilthub.cmu.edu/articles/journal_contribution/Deterrence_in_the_Twentyfirst_Century_A_Review_of_the_Evidence/6471200/1 (last visited January 23, 2024).
16
Marc Mauer, Long-term sentences: Time to Consider The Scale of Punishment, The
Sentencing Project (November 5, 2018).8
At the foundation of a general deterrence strategy is the assumption that the
person one hopes to deter will process information rationally and conclude it is in
his/her interest not to commit the crime. Researchers have recognized a number of
reasons why a general deterrence strategy is even more unlikely to be effective for
non-intentional conduct than for calculated and intentional crimes. One obvious
problem with applying a general deterrence strategy to the imposition of a sentence
in non-intentional types of reckless conduct cases, especially where the perpetrator
is under the influence of drugs or alcohol at the time of their offense, is that the
impaired capacity of the targeted offenders leads to a failure to consider the
consequences of their actions. This Court in Hall v. Florida recognized this same
underlying consideration in finding those with intellectual disability are “likely unable
to make the calculated judgments that are the premise for the deterrence rationale.”
Hall v. Florida, 572 U.S. 701, 709 (2014).
For some, driving while impaired is an infrequent or aberrational act performed
in response to situational conditions or stressors. Public policy and special enforcement
are unlikely to eliminate individuals' infrequent or aberrational behavior. Conversely,
for some individuals driving while impaired is habitual, even a way of life. A general
deterrence approach might increase the perceived risk of arrest but is unlikely to deter
8
https://www.sentencingproject.org/publications/long-term-sentences-time-reconsider-scale-punishment
(last visited January 23, 2024).
17
these chronic offenders from driving while impaired by alcohol. See Jacobs, J.J., Drunk
Driving: An American Dilemma (University of Chicago Press 1989) (quoted in
NHTSA’s, Creating Impaired Driving General Deterrence: Eight Case Studies of
Sustained High-Visibility Enforcement, (2006).9
The current effort in the United States to deter impaired driving reflects an
understanding that severe sentences do not deter other potential offenders. Two
strategies unrelated to severity of sentences have been employed: enforcing existing
impaired-driving laws and enacting high-visibility enforcement programs that attract
public attention. These strategies recognize that effective deterrence is based on the
perception of the probability of apprehension and sanctioning and not on the actual
numbers of citations and individual penalties imposed. Preventing Impaired Driving
Opportunities and Problems, Robert B. Vas, Ph.D. and James C. Fell, M.S. Alcohol Res
Health. 2011; 34(2): 225B235.10(Citing Ross HL. Deterring the Drinking Driver: Legal
Policy and Social Control. 2nd ed. Lexington, MA: Lexington Books; 1984). In 93% of
fatal crashes caused by alcohol the driver did not have a prior OWI conviction.11 The
CDC has identified numerous strategies that have been effective in reducing OWI
related offenses - imposing severe sentences is not even mentioned.12
9
https://www.nhtsa.gov/sites/nhtsa.gov/files/809950.pdf (Last visited January 23, 2024)
10
See Abstract: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3629952 (last visited January 23, 2024).
11
https://www.responsibility.org/wp-content/uploads/2020/02/FAAR_3974_State-of-Drunk-DrivingFatalities_Shareable_JPGS-V2-Pg18.jpg (last visited January 23, 2024)
12
https://www.cdc.gov/vitalsigns/drinkinganddriving/ (Last visited April 2, 2022)
18
Furthermore, there is no empirical evidence that Randhawa’s extreme sentence
served to reduce the number of victims in OWI or reckless homicide cases in the two
years following the sentencing. According to NHTSA statistics, there were 193
fatalities in Wisconsin in accidents involving an impaired driver in 2016, the year of
the offense at issue here. There were 199 alcohol related traffic deaths in Wisconsin
in 2017, the year of Randhawa's sentencing, and the same number in 2018, the year
following Randhawa's sentencing.13 There were approximately 1,000 more alcohol
related crashes in Wisconsin each successive year from 2016 to 2018.14
No study or research supports the court’s assumption here that the years added
to the severe sentence given to Randhawa will deter other drunk drivers or spare the
life of another victim as Judge Sanders intended - let alone that the 55 year sentence
with 39 years in prison without the possibility of parole would be more of a deterrent
than a shorter sentence. As one of the leading experts on sentencing recognized:
The limited impact of extending sentence length becomes even more
attenuated for long term incarceration. [F]ew would-be-robbers
undeterred by the prospect of only a twenty year sentence would balk at
an additional five years.
13
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812630 (2017)(Last visited January 23,
2024).
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812864 (2018)(last visited January 23,
2924.
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812450 (2016)(Last visited January 23,
2024).
14
https://wisconsindot.gov/Pages/about-wisdot/newsroom/statistics/final.aspx (last visited January 23,
2024).
19
Marc Mauer, Supra: Long-term sentences: Time to Consider The Scale of Punishment,
at 123. Accordingly, the Supreme Court of New York has recognized that general
deterrence may be satisfied through “relatively short but substantially inexorable
sentences to prison”. People v. Suitte, 90 A.D.2d 80, 87, 455 N.Y.S.2d 675 (NY
1982)(Citing Frankel, Criminal Sentences, p. 110) .
Federal courts have also recognized that incarceration is not the only aspect of
a criminal prosecution and sentence that will act as a general deterrent, finding that
§3553(a) "does not require the goal of general deterrence be met through a period of
incarceration.” U.S. v. Edwards, 595 F.3d 1004, 1017 (9th Cir. 2010). The fact that a
tragic accident happened, the offender is apprehended, jailed, convicted and sentenced
in line with the history of preceding cases in the jurisdiction will all serve to
accomplish the goal of general deterrence. Social science experts know that a virtual
life sentence will provide no additional deterrent effect. In fact, scholars have
recognized that severe sentences inconsistent with similar cases designed to make an
example of an offender and thereby promote general deterrence can backfire by
undermining the justice system's reputation for fairness and consistency.15
15
See Abstract:
https://www.researchgate.net/publication/284266868_The_Role_of_Deterrence_in_the_Formulation_
of_Criminal_Law_Rules_At_Its_Worst_When_Doing_Its_Best, Paul Robinson and John Darley
20
D.
While courts are directed to consider the protection of the
public in imposing a sentence, it violates due process to
rely on general deterrence in cases where it has no chance
to succeed.
The State throughout this appeal, Judge Sanders in his post-conviction decision
and the Court of Appeals all believed that, because general deterrence was a factor
generally recognized by case law, it was not a violation of due process to utilize it to
give Randhawa a decades longer sentence even given the scientific evidence it would
not be effective in his case. Neither the State, Judge Sanders or the Court of Appeals
believed it was necessary to confront the evidence provided by Randhawa as to
inefficacy of a general deterrence strategy in non-intentional crimes. All avoided the
issue by relying on the fact that Wisconsin case law has directed that it is one of the
general factors a court should consider in sentencing. See: State v. Gallion, supra.
Both the Wisconsin Supreme Court in Gallion and McCleary, and the U.S.
Congress in the Federal Sentencing Guidelines, codified in 18 U.S.C. §3553, recognize
that general deterrence is a factor a court should consider in sentencing. However, due
process requires that the use of the general deterrence rationale in a given case be
tethered to factually accurate information and relied upon to support a sentence only
when it will in fact have a chance to, as Judge Sanders stated here, cause “fewer crime
victims.” For example, the legislative history of the inclusion of general deterrence as
a factor in 18 U.S.C. §3553 reveals Congress was aware that there were certain classes
of cases where general deterrence may be particularly effective. The legislative history
of 18 U.S.C. §3553 reveals that Congress was concerned with planned and deliberate
21
criminal conduct, particularly in the area of white collar crime, at a time when major
white collar criminals often were sentenced to “small fines and little or no
imprisonment that could be written off as a cost of doing business”. United States v.
Martin, 455 F.3d 1227, 1240 (11th Cir. 2006). See also, United States v. Phinazee, 515
F.3d 511, 516 (6th Cir. 2008) (noting drug dealing was lucrative intentional conduct
that needed to be deterred). Federal courts have recognized that “economic and
fraud-based crimes are more rational, cool and calculated than sudden crimes of
passion or opportunity,” which make them “prime candidates for general deterrence.”
United States v. Howard, 28 F.4th 180, 209 (11th Cir. 2022).
Thus, the application of a general deterrence purpose in sentencing where the
offense involved intentional conduct and where deliberative repeated strategies are
involved may be effective. For instance, recently the Wisconsin Supreme Court upheld
a sentence ordered in a child sexual assault case that the sentencing court articulated
it was imposing in part as general deterrence to encourage adults to protect girls in the
Amish community. State v. Whitaker, 2022 WI 54, 402 Wis.2d 735, 976 N.W.2d 304.
The assault of the 5 year old victim at issue in the case was known to adults in that
Amish community but went unreported. The Wisconsin Supreme court found the
objective of protection of the public included the rights of children to be protected from
sexual assaults and upheld the sentencing judge's rationale that a short 2 year prison
sentence would create an additional incentive for
adults in the community to
intervene. Id. at ¶17. No such circumstances exist in Randhawa's case where the
underlying offense involved non-intentional conduct committed while he was allegedly
22
under the influence of alcohol. It is one thing to impose a short 2 year prison sentence
in a repeated child sexual assault case with a five year old victim and quite another
to impose one of the longest sentences in state history in a non-intentional vehicular
homicide case. Adding decades to Randhawa’s sentence for a speculative general
deterrence purpose that has no chance of being fulfilled violates due process.
Aside from the issue of the efficacy of general deterrence in non-intentional type
offenses, Courts have recognized that while general deterrence is a factor the court
should consider in some cases, a criminal sentence must reflect an individualized
assessment of a particular defendant's culpability rather than a mechanistic
application of any recognized factor to a given category of crime.
Courts must
understand that there must be limits on the arbitrary or automatic use of deterrence
for the purpose of enhancing sentences if the goal of individualized sentencing is to
be preserved. Examining just a three-year sentence for illegal distribution of cocaine,
the First Circuit in United States v. Foss, 501 F.2d 522 (1st Cir. 1974), ordered
resentencing after concluding the district court relied too mechanistically on general
deterrence and failed to “individualize” the sentence.
The court's duty to ‘individualize’ the sentence simply means that, whatever the
judge's thoughts as to the deterrent value of a jail sentence, he must in every
case reexamine and measure that view against the relevant facts and other
important goals such as the offender's rehabilitation”
Id. at 528. General deterrence can be legitimate aim, but it has never been the sole aim
in imposing sentence. U.S. v. Barker, 771 F.2d 1362 (9th Cir. 1985). The court in Barker
stated:
23
Central to our system of values and implicit in the requirement of
individualized sentencing is the categorical imperative that no person
may be used merely as an instrument of social policy, that human beings
are to be treated not simply as means to a social end like deterrence, but
also— and always—as ends in themselves. See, e.g., I. Kant, Groundwork
of the Metaphysic of Morals 66–67 (H.J. Paton trans. 2d ed. 1964) (“Act
in such a way that you always treat humanity, whether in your own
person or in the person of any other, never simply as a means, but always
at the same time as an end”16 ); see also I. Kant, Philosophy of Law 196
(W. Hastie trans.1887) ( “one man ought never to be dealt with merely as
a means subservient to the purposes of another”); accord United States
v. Barker, 514 F.2d 208, 231 (D.C.Cir.1975) (en banc) (Bazelon, J.,
concurring); L. Tribe, American Constitutional Law, 463 (1978); R.
Dworkin, Taking Rights Seriously 198 (1977). Deterrence is not
inconsistent with this principle, but the principle does demand that a
balance be struck between the goal of general deterrence and the
enlightened imperative of individualized sentencing. Cf. Golding, note 10,
supra, at 79 (distinguishing between deterrence as a legitimate purpose
of punishment and the “moral fit” nevertheless necessary between a
given offense/offender and the amount of punishment).
Id at 1368-9.
E.
This Court needs to establish limits on a court’s ability to
impose a severe sentence based on a general sentencing
factor that the record of the case establishes is not relevant
to the particular offender or charges.
The history of a case in Alaska demonstrates the need for this Court to establish
limits on the discretion of judges to impose severe sentences for a specific purpose
which the evidence in the case establishes will never be fulfilled. A decision by this
Court would require sentencing judges to apply general sentencing factors only when
the evidence available to the court establishes it is relevant and any intended affect
has a chance of being realized. This Court should make it clear that, just like any
other general sentencing factor, the fact that sentencing courts are directed by statute
24
or case law to consider general deterrence is not a license to apply it to add years to a
sentence in a case where all available evidence establishes it will not be efficacious.
The defendant in Alaska v. Graham was sentenced to 32 years of confinement
for an OWI homicide offense. Alaska v. Graham, 513 P.3d. 1046 (Alaska 2022). That
sentence was the longest sentence imposed in Alaska for an unintentional vehicular
homicide. The record at sentencing established that the sentencing judge imposed the
severe sentence in part to make an example of the defendant, i.e. general deterrence.
The Court of Appeals of Alaska had overturned the sentence and ordered re-sentencing
precisely because there is no evidence that severe sentences deter others from
engaging in crime:
This court is unaware that any particular type of criminal activity has
disappeared because... of the severity of the sentences it imposed for it.
And, ultimately, there is no practical way to know whether increasing the
penalty for a crime by 1 year or 5 years or 10 years will achieve any
further reduction in the incidence of that crime.
Graham v. Alaska, 440 P.3d 309, 325 (Alaska App. 2019). In ordering re-sentencing,
the Court of Appeals of Alaska adopted the finding that the Alaskan Supreme Court
had made in Pears v. State, 698 P.2d 1198 (Alaska 1985), three decades earlier:
The easy assumption that the benefits of deterrence will continue to
increase with the severity of a sentence is not necessarily true: Our
understanding of general deterrence is incomplete, but the fragmentary
evidence available tends not to conform to any simple model under which
sentences of high severity can always be justified on the grounds that
they yield greater preventive benefits.
Id. at 1205.
25
Three years later the Supreme Court of Alaska reversed the Court of Appeals
decision in Graham v. Alaska, concluding that general deterrence is a recognized
sentencing factor and, despite issues as to it’s efficacy in OWI related homicides, the
sentencing court did not abuse its discretion in imposing the sentence. Alaska v.
Graham, 513 P.3d. at 1062. The Alaska Supreme Court avoided the issue of the
efficacy of general deterrence in reckless homicide cases by relying on it being one of
the factors case law dictates should be considered by stating:
We acknowledge the debate about whether increased sentences actually
have a greater deterrent effect. But the legislature requires sentencing
courts to consider “the effect of the sentence imposed in deterring other
members of society from future criminal conduct” and our case law has
long viewed general deterrence as an especially important consideration
in drunk driving cases.
Alaska v. Graham, 513 P.3d. at 1063.
The Wisconsin Court of Appeals here completely ignored “the debate about
whether increased sentences actually have a greater deterrent effect” which was at
least recognized by the Alaska Supreme Court. The Court of Appeals here refused to
even acknowledge the issue of whether the decades added to Randhawa’s sentence for
the purpose of deterring others was likely to deter anyone even though the record
before it established that virtually every social science expert studying the issue has
concluded severe sentences do not deter others from committing non-intentional
crimes. Instead, the court reasoned that “established precedent accepts general
deterrence as a valid sentencing objective for cases involving defendants who commit
drunk driving offenses” App. 9. This Court needs to grant certiorari to direct courts to
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consider all available evidence regarding the relevancy of a particular sentencing
factor to the charge or offender before applying it to significantly enhance a sentence.
Judge Sanders characterized his “hope” that the severe sentence he gave
Randhawa will make fewer crime victims as a “subjective judgment” - “not an
objective fact capable of being true or untrue”. App. 16. The Court of Appeals agreed
with Judge Sanders’ charecterization and held that “[the] differing view of an expert
does not render the court’s determination inaccurate”. App. 9. The point is that courts
should not be adding decades to a prison sentence based on a misinformed personal
judgment - especially when that personal belief is contradicted by the scientific
evidence in the case which the court here refused to even consider.
This Court should make it clear that while legislatures and case law provide that
there are a number of factors a court should consider in sentencing, the factors a court
relies on must be relevant to the case before it for a sentence to be constitutional. A court
cannot disregard overwhelming evidence that a sentencing factor is irrelevant to a case
or offender and then rely on a “hope” the evidence is wrong and cite the factor as a basis
to add decades to a sentence. It is not enough that a sentencing factor has been generally
recognized and may be relevant in other cases. This Court must make it clear to
sentencing courts that when the overwhelming consensus of social scientists establishes
a factor is not relevant to a given case, it is a violation of that defendant’s due process
rights to rely on that factor to add multiple years to a sentence.
Instead of providing any scientific evidence, expert opinions or even common
sense arguments establishing that general deterrence may be effective, courts dealing
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with this issue often rely on hope and hunches to justify lengthy prison terms. The
district attorney here argued in his brief in the post conviction case that “even if only
one person is deterred by the defendant’s sentence from committing a repeated drunk
driving, then the Court’s objectives will have been met.” R. 73: 9. Judge Sanders
advised Randhawa that he was giving him the 55 year sentence because “the hope is
that there will be fewer crime victims in the future”. App. 44. The Supreme Court in
Graham noted the sentencing court’s justification for imposing its severe sentence: “we
never get the deterrent effect we hope to get but any deterrent effect is an
improvement over the situation, and we're likely to get some”. Alaska v. Graham, 513
P.3d at 1063. This Court should require that any sentencing consideration relied on
be relevant to the defendant and case and have some chance of being realized or
fulfilled rather than be based on an uninformed hope or hunch.
F.
The findings of social science can be considered by courts
reviewing constitutional sentencing claims.
The Court of Appeals held that “an expert’s opinion” and “citations to journal
articles” cannot define the “bounds of a constitutionally appropriate sentence”. App.
8-9. That holding is both erroneous and unsettling. The United States Supreme Court
has recognized that the law “is not fastened to the obsolete but may acquire meaning
as public opinion becomes enlightened by a humane justice." Weems v. United States,
217 U.S. 349, 378, 30 S. Ct. 544, 54 L. Ed. 793 (1910), Furman v. Georgia, 408 U.S.
238, 92 S.Ct.272, 633L.Ed. 2d 346 (1972). And in Hall, this Court recognized that in
pursuit of enforcing the Constitution's protection of human dignity, this Court looks
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to the “evolving standards of decency that mark the progress of a maturing society.”
Hall v. Florida, 572 U.S. at 708, citing Trop v. Dulles, 356 U.S. 86, 101(1958).
Accordingly, appellate courts, including the Wisconsin Supreme Court and this
Court, have approved the use of social science research to inform on a question of law.
Brown v. Board of Education, 347 U.S. 483 (1954) (segregation in education); Muller
v. State of Oregon, 208 U.S. 412 (1908) (women's working hours); Lawrence v. Texas,
539 U.S. 558 (2003)(criminalization of sodomy); Atkins v. Virginia, 536 U.S. 304
(2002); Roper v. Simmons, 543 U.S. 551; Hall v. Florida, supra. (death penalty on the
mentally ill and juveniles); State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d
582 (impermissively suggestive show-ups)(reversed on grounds that original social
science disputed by additional social science research).
In Hall, this Court ruled that a state law which established a level of intellectual
disability sufficient to allow the death penalty was based upon outdated criteria and “goes
against the unanimous professional consensus” regarding measuring the level of mental
disability. Hall v. Florida, 572 U.S. at 722. A decade ago in Miller vs. Alabama, 567 U.S.
460 (2012), this Court recognized social science as the basis for its decisions in prior 8th
Amendment sentencing decisions involving the death penalty;
Our decisions rested not only on common sense—on what “any parent
knows”—but on science and social science as well. Id., at 569, 125 S.Ct.
1183. In Roper, we cited studies showing that “ ‘[o]nly a relatively small
proportion of adolescents' ” who engage in illegal activity “ ‘develop
entrenched patterns of problem behavior.’ ” Id., at 570, 125 S.Ct. 1183
(quoting Steinberg & Scott, Less Guilty by Reason of Adolescence:
Developmental Immaturity, Diminished Responsibility, and the Juvenile
Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)). And in Graham,
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we noted that “developments in psychology and brain science continue to
show fundamental differences between juvenile and adult minds”—for
example, in “parts of the brain involved in behavior control.” 560 U.S., at
68, 130 S.Ct., at 2026.5
Id. at 471.
The uncontroverted findings of social scientists that severe sentences do not
deter crime cannot be ignored. When any part of sentence is imposed for a specific
purpose, that purpose must have at least a reasonable chance of being achieved and/or
some evidence that its purpose will be fulfilled to satisfy due process. This Court
cannot condone the addition of decades to a sentence in a particular case based on an
irrelevant consideration and inaccurate assumptions that are in conflict with the
consensus of social scientists worldwide. Otherwise, sentencing courts will be left to
employ “obsolete” motivations that are not reflective of the “evolving standards of
decency” of a “maturing society”.
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted,
/s/ Dudley A. Williams
Dudley A. Williams
Jerome F. Buting
BUTING, WILLIAMS, & STILLING, S.C.
Counsel for Petitioner Jasen Randhawa
Address:
7929 N. Port Washington Rd. Suite B2
Glendale, WI 53217
(262) 821-0999
dwilliams@bwslawfirm.com
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.