¶ 16. (concurring). Although I agree with the majority opinion, I write separately to decry what I see as the unfairness of a system of justice that is essentially random, and to suggest a possible solution. Wisconsin's Code of Judicial Conduct recognizes that judges have special responsibilities to help make the law more fair and more consistent: "As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice." SCR 60.05(2), Comment. This case is a prime example of inconsistency and unfairness. And it is not because the Honorable Daniel L. Konkol is "tougher" than the Honorable David A. Hansher. Au contraire.
¶ 17. First, the facts of this case. As the majority recounts, Danny A. Reynolds was convicted of touching *811the penis and nipples of a thirteen-year-old boy through the boy's clothing. According to the State's evidence, after the boy indicated that he wanted Reynolds to stop, Reynolds never touched the boy indecently again. Reynolds denied the accusation, and the pastor of the church that both Reynolds and the boy attended testified that the boy told him that " 'nothing happened'" when he was asked about the incident.
¶ 18. Following Reynolds's conviction by a jury, Judge Hansher pointed out during the sentencing hearing that there can be "various degrees of sexual assault":
There's cases that are outrageous. There are cases that are less outrageous. I'll put this, I agree, on the lower end of considering how outrageous it is. It involved the touching of the victim's nipples and also rubbing his penis over his clothing.
As the majority recounts, Reynolds's probation was revoked because he did not maintain contact with his probation agent. Reynolds was not revoked because he committed a new crime — either of a sexual nature or otherwise. Yet, Judge Konkol sentenced Reynolds to ten years in the Wisconsin State prisons.
¶ 19. At first blush, it might appear that the randomness about which I complain is the disparity in sentencing that one might expect from different judges applying the same criteria, but viewing the facts through their own lenses of experience and philosophy. In any system other than one vesting sentencing decisions in a machine or, as in the federal system, in machine-like sentencing guidelines, such disparity is expected. The only safeguard we have is careful appellate review to ensure that sentencing courts consider the appropriate factors. But, of course, mere application of the appropriate factors does not guarantee equality *812of result; almost any sentencing that is within the statutory range will be upheld as a permissible exercise of the sentencing judge's discretion as long as he or she applies the appropriate factors in an appropriate way.
¶ 20. Our system also permits disparate treatment of different defendants when they appear before the same judge. In my view, this case and State v. Ascher, No. 00-0426-CR, unpublished slip op. (Wis. Ct. App. May 8, 2001), http://www.courts.state.wi.us/html/ ca/00/00-0426.htm, which I describe below, are textbook examples of what is wrong with our criminal-justice system. They also light a path for reform.
¶ 21. In Ascher, the defendant was sentenced by Judge Konkol to two years in prison for the brutal beating, disfigurement, and rape of the defendant's wife. The following are excerpts from my concurring opinion in that case, where we upheld Judge Konkol's sentence, against the defendant's challenge that the two-year sentence was "too harsh":
According to a criminal complaint filed against Ascher by the Milwaukee County District Attorney, the victim was married to Ascher, and wanted to leave him but was afraid that he would beat her if she tried. Indeed, according to the criminal complaint, Ascher had beaten his wife brutally and often. He had also used a razor blade to carve his initials on one of her breasts, because, according to what he told her, he owned her and could kill her anytime he wanted.
The criminal complaint recites that one day in March, 1998, as she was making dinner, Ascher came up behind her and indicated that he wanted to have sex with her. When she demurred, he returned with a rope, tied her to a chair, yelled at her that he owned her, took her into their bedroom, tied her hands behind her back, and raped her. Afterwards, according to the criminal *813complaint, he "untied her and threw her naked into the garage and locked the door." She spent the night in the car.
Some two weeks later, again according to the criminal complaint, Ascher, angry at his wife for studying, "took a 3-pound hand weight and hit her in the lower back area which caused her legs to go numb and caused her to fall to her knees, at which point [Ascher] took the weight and hit her left ribs and hip." Several weeks later, he cut his initials into her breast while she was showering. Still later, over the Easter weekend, he hit her, kicked her, and threw her against a dresser because he was angry that she was studying.
The criminal complaint charged Ascher with false imprisonment, a Class E felony punishable by a maximum of two years imprisonment, see Wis. Stat. §§ 940.30 & 939.50(3) (e) (1997-98), and mayhem, a Class B felony punishable by a maximum of forty years imprisonment, see Wis. Stat. §§ 940.21 & 939.50(3)(b) (1997-98). The complaint did not charge any degree of sexual assault or battery.
On May 4,1998, Ascher's wife testified at a preliminary examination. An information was filed on May 7, 1998, and again charged Ascher with false imprisonment and mayhem. On March 3, 1999, the case was plea bargained.
In reciting the terms of the plea bargain, the prosecutor said that Ascher would plead "no contest" to the two-year felony of false imprisonment, and that the prosecutor would ask the trial court to dismiss the mayhem charge, the forty-year felony. He told the trial court that the victim, who was no longer married to Ascher, had "no objection" to the deal. The prosecutor explained that "this whole process had made [the victim] - she's very fearful of the process," explaining that circumventing the need for her to testify would "sav[e] *814her a lot of pain, both emotional pain and pain in having to relive what happened here." The prosecutor represented to the trial court that plea-bargaining the case was in the victim's "best interest."
The prosecutor also explained that in his view "the charge on count one is adequate to protect the interest of the community in that it is a felony," noting that despite all of the things Ascher did to his former wife, the prosecutor did not believe that Ascher was "a danger to anyone else in the community." He also explained that a defense-retained polygraph examiner had concluded that Ascher was telling the truth when he denied cutting his wife, although he conceded that polygraph evidence was not admissible in .Wisconsin courts.
The trial court accepted the plea bargain, took Ascher's no-contest plea to the false .imprisonment count, dismissed the mayhem charge, and ordered a presentence report, which the parties had jointly recommended. The presentence report is in the appellate record. It indicates that the person who wrote the presentence report "tried to contact [the victim], but calls were not returned." The report notes, however, that in one of her earlier statements the victim said that "she is fearful for her life, and afraid he will hurt her again," but that "she did not want anything bad to happen to her husband, she just wanted him to get some help."
The presentence writer reflected that she did not "get the impression that [Ascher] participated in the physical abuse" of his former wife, noting that the case seemed atypical of domestic abuse cases because "he did not appear to have any issues with power and control within the marriage" and because there were not the "numerous calls to police before charges are actually filed." Additionally, the writer noted that Ascher had, in the writer's word, "passed" the lie detector test, calling *815the lie-detector results "[o]ne of the most convincing facts" in support of her view that Ascher was not guilty.
The victim appeared at Ascher's sentencing. The prosecutor contradicted the implication in the presen-tence writer's report that the victim had failed to return her "calls":
I talked to [the victim] about that, and she said that sometime earlier this week, she received a voice message on her machine, at 9:45 a.m. from the presentence writer who said she needed to talk to [the victim] regarding this incident. But she needed to talk to her by two p.m. that day and that was the deadline.
Well, [the victim] works and goes to school and didn't get home until that evening, hours after apparently the deadline had passed. That's the only efforts the presentence writer made to contact her.
The prosecutor also explained to the trial court that the presentence writer never attempted to contact him, nor did she speak with any of the victim's friends or relatives who knew of the long history of abuse and had seen the bruises and scars. After reciting briefly what the victim had endured, the prosecutor opined that: "This is a case of an abused woman who fits the whole profile of an abused woman, especially a woman who is of a professional stature and is trying to keep up face in her profession, and at school and at work." The prosecutor also told the trial court that he believed that Ascher raped his wife and threw her naked into the garage, and that he had "no doubt that these incidents, as horrible as they were, actually did occur." He noted: "People don't treat animals that badly."
Although the prosecutor had told the trial court at the plea hearing that he had plea bargained the case in *816part because Ascher had done well on the defense-arranged he detector test, he now told the trial court that he believed that Ascher "has certain psychological aspects to his make up" that would enable him to "beat" a lie detector test.
The victim spoke to the trial court. I reprint her brief remarks in full:
Um, Your Honor, I'm not quite sure how to even go about starting there. Because I thought about talking about what had happened to me over the past year and a half and throughout my years of marriage and, um, you know, I look at it in the sense that if I say all the details and I say how it affected my life and I say how it affected my family, um, there's a self satisfaction that he gets.
And if I say I'm doing a great job working on a Ph.d. I'm teaching and I'm surviving, and it doesn't affect me, then it looks like, you know, whatever he did has no impact on my life and I just go on and walk away.
I lost a lot. I lost a man that I loved. A six year marriage. I've lost a second family. I've lost both people I considered dear friends to me because of him.
Um, I've lost self esteem, I've lost integrity. I have to explain scars to strangers, you know, renting an apartment, oh my gosh, what happened to your arms? Um, I have to, I mean I wanted children by the time I was thirty. I wanted a family. That was all something that I had hoped for.
Right now, one of my friends even said to me, how do you know after everything *817you've been through you can even have children? I don't know. Um, I didn't want to come forward. I didn't want anybody to know. Its embarrassing, its obscene. Its a reflection on me, um, its a reflection on his family. That's not fair to them.
Um, I don't think anything that happens today will make me feel better. I don't think there's anything I can recommend. I've been in counseling. It's going to take a lot for me to get my wits back about me. But all I can say is I don't want to see this happen to anybody else.
I don't want to see his family have to go through it again. And maybe some day he can make a better life for himself. That's all I have to say. Thank you.
Id. at 1122 (Fine, J., concurring). When Ascher addressed Judge Konkol before sentencing, Ascher denied the accusations and complained about the nightmare he had been through. Id. at 23.
¶ 22. Ascher was plea bargained. Judge Konkol dutifully accepted the prosecutors request that he dismiss the mayhem charge. This left Ascher with a maximum two years of prison exposure. Judge Konkol imposed the two years, but less than the maximum fine ($2,000 rather than $10,000) because he believed that Ascher does have some positive aspects in his life. Id. at 24. As noted, we upheld Ascher's sentence over his objection that it was unduly harsh.
¶ 23. The bottom line to all of this is that Judge Konkol gave Reynolds a ten-year sentence for transient touching over clothing, but gave Ascher two years for crimes that are so horrific that they are off the scale.
*818¶ 24. If we are to have a system of justice that is fair and not random we must, in my view and although I have not been a supporter of sentencing guidelines in the past, install some system that will result in similar sentences for defendants with similar levels of culpability and recidivism potential. Further, and most important in my view, and I have written about this many, many times, we must eliminate plea bargaining. Plea bargaining permits expediency to trump justice; plea bargaining tramples fairness for the victim and, often, for the defendant. Unless we do both of these things (any form of sentencing guidelines without the elimination of plea bargaining moves discretion from the judge to the lawyers), we will never even approach a system of justice that ensures both that guilt shall not escape or innocence suffer. See Berger v. United States, 295 U.S. 78, 88 (1935).