(concurring). I concur in the majority opinion that the so-called sentencing guidelines not be made mandatory.
In addition to the cogent reasons set forth in the majority opinion, I am persuaded that the issue of sentencing is too important to be treated as a public relations job.
First of all the “guidelines,” as we were repeatedly informed at the hearing, do not represent “ideal” or “correct” sentences for particular crimes but merely average ranges within which sentences have been imposed by judges in the past.
If they are not the sentences which should be imposed then what possible logic is there in requiring a sentencing judge to explain why he hasn’t followed them?
The matter of proper sentencing and consistent sentencing is important and the danger is that if this Court were to adopt these guidelines, the public, the media and the legislature would be lulled into believing that “something has been done” when actually little or nothing would have been done either about appropriateness of sentences for particular crimes or uniformity.
The statistics cited by the proponents of the mandatory use of the guidelines point out that in those counties where the guidelines were used forty-five percent of the sentencing j udges didn’t follow the guidelines! What one has a right to wonder is: Why did fifty-five percent use them? Especially since the “guidelines” don’t even pretend to be the “appropriate” sentence!
What these questions point up is the need for the legislature to act after public hearings on the issue. Experts of all persuasions could testify as well as law enforcement people, public defenders, crime victims and interested members of the public.
Then the legislature could determine either by guidelines or by determinate sentencing, what the penalties should be for various crimes. Only to state what should be done to arrive at a solution to the sentencing problem *709is to show how ill equipped this Court is to make such determinations. It is obviously a legislative function— not a judicial one.
No discussion of sentencing guidelines is complete unless the role of the parole system is understood and evaluated.
We were reminded by Mr. Hinickle, Chairman of the State Parole Board, that a trial judge only imposes a sentence of “up to” a certain number of years and that it is for the chairman of the parole board to decide (after receiving recommendations from the remainder of the board) as to how much of the sentence is to be served!
Thus though 190 trial judges impose sentences for crime based on their perception of what amount of time a criminal should be incarcerated — one man, the Chairman of the Parole Board decides how much of that sentence will be served!
At the hearing, the example was given of a person sentenced to twenty years for first-degree sexual assault or second-degree murder. First of all, under the “good time” credit established by the legislature, such a criminal is going to serve something over nine years — less than half the sentence the judge imposed! This is referred to as the “mandatory release date.” So unless a prisoner loses part of his “good time” through some infraction of the prison rules, he’s “out on the street” in less than half the time of his sentence.
But Mr. Hinickle informed us, the head of the Department of Health and Social Services has delegated to him and him alone the authority to decide if a prisoner should be let out before the mandatory release date. He then informed us that more than fifty percent of the prisoners are released before the mandatory release date.
What possible value are even mandatory guidelines establishing “ideal” sentences if a non-elected chairman *710of a Parole Board, which is made up of people under civil service, can overrule 190 trial judges?
Again, this is a problem the legislature should face and resolve.
The legislature has many options open to it. It could look at legislation such as that sponsored by United States Senator Edward Kennedy of Massachusetts in this session of the Congress which calls for guidelines created by a Sentencing Commission.1 Under such a system the judge is expected to follow the guidelines, if he sentences outside the guidelines he must explain his reason. If he sentences below the guidelines the state may appeal. If he sentences above the guidelines the defendant may appeal.
On June 27, 1983, the local press carried a story of a man accused of committing rape in Dane county in 1982. He was arrested in California, charged with a rape committed there recently. In 1974, that man had been sentenced in Milwaukee to ten years for a rape committed there. But he was released on parole after serving only two years of that ten year sentence! No amount of “sentencing guidelines” can change a system where the judges are second guessed by the chairman of the parole board.
*711The legislature is the one branch of our tripartite system of government that can begin to cope with the problems we all face with trying to make sense out of sentencing.
As Senator Kennedy pointed out in referring to the need for sentencing reform:
“National security begins at home. It will do no good to arm America to the teeth against enemies abroad while losing the war at home against enemies within.” (Release of March 18,1983).
Change is long over due.
I am authorized to state that Justice Louis J. Ceci joins this concurring opinion.
As Senator Kennedy pointed out:
“Under this bill, determinate sentences, announced at the outset will tell the offender and society the actual prison time that will be served.
“With fixed sentences the current system of parole release will be eliminated. . . .
“The reforms needed to achieve a workable, rational sentencing system are neither too complicated to legislate, nor too difficult to implement.
“The legislation . . . clearly articulates the purpose of sentencing, establishes a sentencing commission to develop guidelines for sentencing, abolishes parole and provides for appellate review of sentences which are outside the guidelines . . .” (Release dated March 3, 1983) (Emphasis added.)