The state is appealing a judge's declaring as unconstitutional the statutory scheme that allowed a prosecutor to issue a criminal charge carrying a 25-year minimum prison term when she could have issued a very similar charge carrying no minimum penalty.
Milwaukee County Circuit Judge David Borowski said the dueling statutes violate due process and are unconstitutionally vague because they provide "no perceptible constraints on arbitrary and discriminatory enforcement by the prosecution in deciding" which statute to use, the state said in a brief by Assistant Attorney General Jacob J. Wittwer.
Defendant Keith Kenyon, who had no criminal history, was charged with one count of first degree sexual assault of a child under the age of 12 for allegedly sexually touching his 10-year-old niece with his tongue. That act is considered intercourse under state law.
The statute the prosecutor used says, “Whoever has sexual i
ntercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.”
The alternative statute says, “Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony.”
Both carry maximum penalties of 60 years in prison. The former charge, though, also carries a 25-year minimum penalty while the latter does not carry a mandatory minimum.
After it issued the harsher charge, the Milwaukee County District Attorney's Office offered Kenyon a plea deal under which the DA's office would recommend Kenyon serve five to seven years in prison, according to the state's brief.
Issuing the harsher charge appears to be a "tactical measure to strong-arm the defendant into accepting a plea to the lesser offense in order to avoid a wholly disproportionate mandatory minimum penalty." -- Milwaukee County Circuit Judge David Borowski
Kenyon's lawyers moved to have the case dismissed, alleging the statutory arrangement violated Kenyon's right to due process, was too vague, and violated separation of powers by “ 'abdicating to the executive branch, the prosecution, the legislature’s constitutional role of establishing the penalty for proscribed conduct' and 'by invading the power of the judicial branch by giving the prosecution . . . the ability to preordain the sentence of a defendant,' ” Wittwer said.
In requesting the case be dismissed, Kenyon provided documentation showing that the DA's office issued the harsher charge in 34 cases since January 2018 and “[i]n virtually every case .. including this case, the state agreed to amend the charge to another sex offense without the 25 year minimum penalty.”
Borowski ruled in favor of the defense and dismissed the case, Wittwer said. The judge found that the statutory scheme was unconstitutional because the charge harsher charge amounted to “sentencing by charging.”
"The court appeared to conclude that this defect denied Kenyon his right to be sentenced by a neutral tribunal and prevented the court from considering mitigating factors that might warrant imposing less than 25 years of confinement in Kenyon’s case," Wittwer wrote.
Borowski also found that the statute violated the separation of powers doctrine.
“The legislature has created a statutory scheme,” the judge said, according to the brief, “whereby the scope of the court’s sentencing authority is a function of the prosecution’s charging decision ... despite significant and (multiple) mitigating factors” in the case.
Issuing the harsher charge appears to be a "tactical measure to strong-arm the defendant into accepting a plea to the lesser offense in order to avoid a wholly disproportionate mandatory minimum penalty," Borowski said. "The court cannot sanction this practice when it is based upon an arbitrary enforcement of the law, strips the court of its authority to consider mitigating factors, and places sentencing decisions in the hands of the prosecution."
The state, in its appeal, said that Kenyon cannot prove the harsher statute is unconstitutional.
"In Wisconsin, it is well established that a prosecutor enjoys 'broad discretion in determining whether to charge an accused, which offenses to charge [and] under which statute to charge,' ” Wittwer said.
The U.S. Supreme Court has unanimously ruled, in an opinion by Justice Thurgood Marshall, that prosecutors generally have the right to decide which charge to use when charges overlap, he wrote.
The charging decision also did not violate Kenyon's right to be sentenced by a neutral tribunal, he said.
"Neither Kenyon nor the circuit court cite any authority, and the state is aware of none, for the novel proposition that charging an offense carrying a lengthy mandatory minimum sentence upon conviction violates a defendant’s due process right to be sentenced by a neutral tribunal and amounts to 'sentencing by charging' or 'sentencing by prosecutor,'” Wittwer wrote.
Borowski also erred when he said the sentencing scheme violated the separation of powers doctrine, he said.
"The Wisconsin Supreme Court made clear that, while courts have the discretion to fashion criminal sentences, the Legislature ultimately determines the scope of that discretion," Wittwer wrote.
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