One law said that Waukesha County Circuit Judge Jennifer Dorow had no choice but to sentence John R. Brott to at least three years in prison for possession of child pornography.
Another law appeared to give the judge the ability to impose a lighter sentence.
Some judges around the state have done just that, giving breaks to defendants who violated the same kind of laws that Brott broke. The differences mean that sentences for the same crimes differ greatly depending on where the defendants are prosecuted.
Since the three-year mandatory minimum was adopted in 2012, "31 defendants over the age of 18 – including 26 defendants over the age of 22 and four over the age of 60 – were either placed on probation or were sentenced to less than three years of prison for violations" of the state's prohibition on possessing child pornography, attorneys Jason Luczak and Jorge Fragoso wrote in asking the state Supreme Court to review Brott's case.
Dorow did not necessarily think the 65-year-old Brott needed three years as punishment for his first-ever criminal conviction.
At sentencing, the judge spoke of Brott's otherwise "very solid moral character" and the "25 pages of letters" submitted on Brott's behalf, the lawyers wrote. Dorow noted that Brott "worked a very full career."
But then there was the mandatory-minimum law.
"The legislature has curbed my discretion, has told me I must impose a bifurcated sentence with an initial term of confinement, the minimum of 3 years," Dorow said.
That law, indeed, says a judge, with a few exceptions, must impose a mandatory-minimum three years initial incarceration for certain child sex crimes, as provided in another statute.
And Brott's lawyers are depending on that second statute to make their case because that law, the one against possessing child pornography, says a defendant may be sentenced to a bifurcated sentence.
"The term 'may' is permissive rather than mandatory, and ... the court is given the discretion to impose a bifurcated sentence" and do not have to impose a prison term, they said.
In addition, they said, imposing a mandatory prison term does not prohibit probation
"because an imposed sentence can be stayed."
Currently, some counties apply the mandatory prison sentence without the option of probation and some do not, they wrote. A Supreme Court decision would help clarify the law.
"The geographical discrepancy is seldom tied to the location of the actual victims," the two wrote. "Unlike many other types of criminal acts, the venue of a child pornography possession case is almost never the location where the child victim was assaulted during the making of the audio-visual depiction. Instead, the venue of prosecution in these matters is where a particular defendant viewed or possessed the images that were created elsewhere – which is most often within the county where the defendant resides. Thus, the discrepancies in sentencing and prosecution of these offenses are based on one arbitrary and irrelevant factor: the jurisdiction in which the defendant resides."
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