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.

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