State v. Windom

FINÉ, J.

(concurring). Lance D. Windom's contentions on this appeal reflect the Alice-In-Wonderland nature of the plea-bargaining process that pollutes our criminal justice system.1 As the majority points out, Windom received probation for his burglary. As a condition of his probation, Windom was ordered to serve thirty days in the Milwaukee House of Correction on work-release. That was on March 12, 1990. On April 19, 1990, he committed an armed robbery. As a result, Windom's probation was revoked. At the sentencing-after-revocation hearing for the burglary, the State recommended that the trial court impose a sentence consecutive to the five-year sentence imposed on the armed-*353robbery conviction. The trial court followed the State's recommendation.

Windom complains that the State's recommendation at the sentencing-after-revocation hearing violated the State's original plea-bargaining commitment to make "no specific recommendation but leaving sentencing up to the court."2 His complaint borders on chutzpah.3 As the Court of Appeals of California elo*354quently put it:

A consummated plea bargain does not insulate a defendant from the consequences of his future misconduct. A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever.

People v. Jones, 180 Cal. Rptr. 228, 233 (Ct. App. 1982). For the foregoing reasons, I join in the majority's decision.

As I have explained extensively elsewhere, "plea bargaining" is the expediency-based practice where a prosecutor offers an inducement not warranted by the facts in order to persuade a defendant either to plead guilty or otherwise accept conviction. R.A. Fine, Escape of the Guilty (1986); Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. Rev. 616 (1987). See also Alschuler, Plea Bargaining and its History, 79 Col. L. Rev. 1 (1979). Although the practice "can tend to subvert the ends of justice rather than to advance them," Pontow v. State, 58 Wis. 2d 135, 142, 205 N.W.2d 775, 779 (1973), it nevertheless flourishes in most — but not all — jurisdictions because it appears to be necessary "to speed litigation" in our criminal courts, Armstrong v. State, 55 Wis. 2d 282, 287, 198 N.W.2d 357, 359 (1972). In reality, however, by weakening deterrence, the practice encourages criminality and, accordingly, contributes to the influx of criminals that clog our courts.

Despite the inference to the contrary in the bargain between Windom and the State, and the unfortunate practice by some judges, see, e.g., State v. Brown, 150 Wis. 2d 636, 638-639, 443 N.W.2d 19, 20 (Ct. App. 1989) (colloquy by trial judge rubber-stamping plea-bargained sentence recommendation*), sentencing is exclusively the trial court's responsibility subject to appropriate appellate review. Trial judges may not involve themselves in the plea-bargaining process, Rahhal v. State, 52 Wis. 2d 144, 150, 187 N.W.2d 800, 804 (1971), and are not bound by any plea-bargained deals that may be presented to them, State v. McQuay, 154 Wis. 2d 116, 128, 452 N.W.2d 377, 382 (1990).

The trial-court colloquy in Brown was as follows:

THE COURT: ... It's my understanding the sentence is four years in the Wisconsin State Prison System with credit for 14 days served. Did I write that down correctly?
MS. SAYLES [the prosecutor]: Yes.
THE COURT: Mr. Lubarsky [defense counsel], that's your understanding?
MR. LUBARSKY: Yes.
THE COURT: Mr. Brown, is that your understanding?
MR. BROWN.: Yes, sir.
THE COURT: Is there anything you would like to say today?
MR. BROWN: No, sir.
THE COURT: Okay. The sentence will be then as stated on the record .... We are adjourned. Thank you.

Brown, 150 Wis. 2d at 638-639, 443 N.W.2d at 20.

The Yiddish word chutzpah is colorfully defined by the classic example of the gall displayed by the young man who, after he is convicted of murdering his parents, seeks leniency because he is *354an orphan. See L. Rosten, The JOYS OF Yiddish 93 (Pocket Book 1970).