¶ 45. (dissenting). I conclude that Wis. Stat. § 346.65(2m)(a) is unconstitutional. The statute increases sentencing disparity for drunk driving offenses across the 10 judicial administrative districts of the state, and no rational basis exists for the legislature to treat offenders differently based upon the judicial district in which the offense was committed. Moreover, the legislature's delegation of authority to the chief judges of each judicial district to create OWI sentencing guidelines may violate the separation of powers doctrine.
I — I
¶ 46. Wisconsin Stat. § 346.65(2m)(a) directs the chief judge of "each judicial administrative district" to "adopt guidelines for the consideration of aggravating *185and mitigating factors" under the chief judge's authority to "adopt local rules under SCR 70.34."1 The legislature gives no direction that the guidelines be consistent across judicial districts or even that all judicial districts consider the same aggravating and mitigating factors.
¶ 47. Thus, the statute, on its face, envisions a sentencing guidelines scheme that varies from judicial district to judicial district. It creates a system in which sentences vary not because of any characteristic of the offender or the offense, but because of the geographic location in which the offense took place. As the court of appeals has noted, "the statute creates different classes of people. It makes persons convicted of driving while under the influence in one judicial district subject to potentially different sentencing standards from those in other districts."2
¶ 48. The majority opinion understates the sentencing disparity created by Wis. Stat. § 346.65(2m)(a) when it admits that "having different guidelines in the various judicial districts may lead to some disparity."3 The disparity in sentences between judicial districts as a result of § 346.65(2m)(a) is dramatic.4 In State v. *186Smart, 2002 WI App 240, ¶ 4, 257 Wis. 2d 713, 652 N.W.2d 429, the court of appeals explained that the maximum sentence for a defendant's third offense OWI conviction ranged from 45 days to 120 days, depending on the judicial district.5
¶ 49. The range of possible sentences across judicial districts for a defendant convicted of fourth offense OWI, like the defendant in the present case, is no less startling. One need only look at the guidelines created by the three districts I have attached hereto to see the disparity. These guidelines were presented by and discussed by the parties in this case.
¶ 50. In the Eighth Judicial District a person's fourth offense aggravated OWI conviction (with a blood alcohol level of .276 and resulting "accident") is subject to a flat 150-day sentence.6 The district guidelines provide no direction for a sentencing judge to consider additional aggravating or mitigating factors.
¶ 51. In the Fourth Judicial District, a person's fourth offense aggravated OWI conviction (with a .276 blood alcohol level and resulting "accident") is subject to a flat sentence of 105 days in jail, though the guidelines *187permit a court to consider as "mitigating factors" the defendant's ability to pay and conduct since the offense, the consequences to the defendant and victim, and whether there was cooperation by the defendant.
¶ 52. In the Fifth Judicial District (where the defendant was convicted), according to guidelines, the same person faces a possible sentence ranging from 90 days to one year. Despite the guidelines proposing this wide range, the Fifth Judicial District guidelines give no directions to the circuit court in deciding where to place a given defendant within this broad range.
¶ 53. The truth of the matter is that Wis. Stat. § 346.65(2m)(a) has, by design, created the potential for significant disparity in sentencing similarly situated offenders under similar circumstances who are similar threats to the public based solely upon geography, and the disparity from district to district and across the state has come to pass.
II
¶ 54. The majority opinion concludes that the legislature's decision to create disparate sentencing guidelines from judicial administrative district to judicial administrative district survives constitutional scrutiny by reframing the issue and focusing exclusively on the decreased disparity within each judicial district. The majority opinion contends that the disparity created by Wis. Stat. § 346.65(2m)(a) is constitutional because a rational basis for the disparity among judicial districts can be conceived, namely that the guidelines *188adopted under § 346.65(2m)(a) operate to reduce sentencing disparity within judicial districts.7
¶ 55. The purpose of the law at issue is to eliminate disparity in sentences. The objective of decreasing disparity is to ensure to the extent possible that similarly situated offenders will be sentenced similarly. Thus the imposition of a criminal sentence must be based on "the gravity of the offense, the character of the offender and the need for the protection of the public."8 "Sentencing disparities that are not justified by differences among offenses or offenders are unfair both to offenders and to the public. A sentence that is unjustifiably high compared to sentences for similarly situated offenders is clearly unfair to the offender; a sentence that is unjustifiably low is just as plainly unfair to the public."9
¶ 56. Sentencing guidelines are "designed to allow the exercise of judicial discretion to consider the offense, the offender and the public while reducing variance by providing guideline sentences for similar offenders who commit similar offenses."10 Sentencing guidelines do not achieve this goal when offenders who commit similar offenses under similar circumstances and .present similar dangers to the public are not sentenced similarly.
*189¶ 57. The question in this case is whether there is a rational basis for establishing a sentencing guideline system that treats criminal offenders in one judicial district different from similar offenders in a different judicial district. More specifically, the question is: How is authorizing different guidelines in each administrative district germane to the purpose of reducing disparity? "The classification adopted must be germane to the purpose of the law."11 The majority opinion concludes that reducing disparity within the general geographical locus of the offense has a rational relation to reducing disparity in sentencing in the state even though sentencing disparity is increased within the state as a whole.
¶ 58. The majority opinion's "rational basis" is, in fact, irrational. It begs the question to conclude that the statute has a rational basis of reducing disparate sentencing in the State by reducing disparity within each judicial district. The issue of disparate sentencing is not about disparate treatment of similar offenders within different parts of the state but about disparate treatment of similar offenders across the state. The majority opinion never explains why the judicial district classification is germane to the purpose of eliminating disparity in sentencing.12
*190¶ 59. The geographical unit in which to determine disparity in sentencing for similar offenders is the state as a whole. The offenders have violated a state criminal statute describing an offense against the people of the State of Wisconsin, not an offense merely against the people of a particular county or administrative district. Yet the statute mandates a guideline system in which offenders who have similar characteristics are sentenced to the same state institutions but for different time periods, with the determinative issue not the characteristics of the offender and offense but geography (the administrative district in which the offense occurred).13
¶ 60. Although the majority opinion dismisses Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141, without a meaningful explanation, I find Nankin persuasive. In Nankin, the legislature provided different procedures for challenging property assessments depending on the population of the county in which the property was located, treating owners of property located in populous counties differently than owners of property located in other counties without a rational basis. The Nankin court concluded that no rational basis existed for treating taxpayers differently on the basis of the population of the county in which their property was located. No rational basis *191exists here either for treating offenders differently on the location of the county in a judicial administrative district.
¶ 61. The majority opinion's "rational" basis analysis is not saved by the declaration that this guideline system is merely an imperfect solution that is a "step in the right direction."14 Decreases in disparity within a judicial district cannot save the increase in disparate sentences for fourth offense OWI offenders across the state. A legislatively mandated program that fosters and creates disparate guidelines from one geographical area in the State to another cannot be viewed as a step in the right direction of eliminating disparity in sentencing in the State of Wisconsin.15
¶ 62. The majority opinion's "rational" basis is also not saved by asserting that the sentencing scheme created under Wis. Stat. § 346.65(2m)(a) orders judicial districts to establish "permissive guidelines," not mandatory guidelines. The argument might be made that because the guidelines are permissive a circuit court must examine each offender and the circumstances of the offense in addition to the suggested guidelines and accordingly there is uniformity across the state. This reasoning rests on the premise that the guidelines are basically irrelevant or of little relevance because each circuit court must ultimately exercise its discretion free of the guidelines.
¶ 63. If the majority opinion is resting on this reasoning, the majority's thinking squarely contradicts its own rational basis argument that the statute fosters *192the elimination of disparity within each district. The majority opinion cannot argue that Wis. Stat. § 346.65(2m)(a) is constitutional because the guidelines decrease disparity within each judicial district if it also is arguing that the statute's constitutionality rests on the fact that each circuit court has no obligation to follow the guidelines and is free to impose whatever sentence it concludes fits the offender, offense, and public safety.
¶ 64. Clearly the legislature (and the chief judges) intend circuit courts to adhere to the guidelines to the extent possible and want the guidelines to have an effect on sentencing. Otherwise the guidelines are an exercise in futility.16 Furthermore, our experience with guidelines demonstrates that they are very influential and that circuit courts ordinarily follow them or, at a minimum, use them as a starting point.
¶ 65. The OWI sentencing guidelines in place in the various districts do not reflect a movement towards greater statewide sentencing uniformity for similarly situated offenders who commit similar offenses and are similarly dangerous to the public. The guidelines reflect a movement towards greater sentencing disparity from district to district with differences in the guidelines based solely on geographical considerations. Because there is no rational basis for disparate sentences based *193upon the judicial district in which the offense occurred, I conclude that the statute is unconstitutional.
i — I I — I hH
¶ 66. Finally, the majority opinion completely ignores the possibility that Wis. Stat. § 346.65(2m)(a) is unconstitutional because it violates the separation of powers doctrine. Article VII, Section 3(1) of the Wisconsin Constitution states that "the supreme court shall have superintending and administrative authority over all courts."
¶ 67. Article VII, Section 3(1) makes it "incumbent on the legislature to exercise both deference and restraint when legislating in areas that impinge upon this [court's] authority."17 The enactment of Wis. Stat. § 346.65(2m)(a) demonstrates both a lack of deference and a lack of restraint on behalf of the legislature and arguably impinges on our authority to supervise and administer the circuit courts and chief judges of the state.
¶ 68. This conclusion becomes clear when the history of the adoption of sentencing guidelines is set forth. In 1983, this court expressly refused to adopt an 18-month pilot program requiring circuit courts to use, according to their discretion, felony sentencing guidelines developed by the Advisory Committee for the Wisconsin Felony Sentencing Guidelines Project.18 A goal of the sentencing guidelines was to "remedy an unjustifiable disparity of sentences imposed by Wiscon*194sin trial judges for like offenses,"19 but the court noted that the 1983 report of the advisory committee stated "that there is no unjustified disparity in sentencing in Wisconsin courts."20 The court concluded that an alleged public perception of sentencing disparity does not justify guidelines. The court further concluded that it is for the legislature, not the court, to "decide whether [judicial discretion] should be more closely circumscribed."21
¶ 69. One year later, the legislature enacted a statute giving this court the express authority to promulgate rules for sentencing guidelines to be used by Wisconsin courts.22 This court refused to act, however, and according to the statute the authority to promulgate sentencing guidelines passed to a sentencing commission attached to the Wisconsin Department of Administration. The court explained its refusal this time by stating that the existing sentencing system was accomplishing the goal of consistency and that it was for the legislative branch, not the judicial branch, to decide the extent to which sentencing discretion should be limited to accomplish the goal of consistency in criminal sentencing:
The legislature considers it most appropriate that this court promulgate rules for sentencing guidelines because it sees a direct relation between the establishment of the guidelines and the exercise of judicial discretion. We disagree; it is precisely because the determination of what constitutes an appropriate sentence in a particular case involves the exercise of *195judicial discretion that we decline to promulgate guidelines and thereby encroach on that discretion.23
¶ 70. By enacting Wis. Stat. § 346.65(2m)(a), the legislature circumvents this court's decision not to adopt sentencing guidelines. The legislature requires circuit court judges (whom this court has appointed as chief judges of judicial districts) to do on a district-by-district level what this court has already refused to do on a statewide scale, because adopting sentencing guidelines is a legislative, not a judicial, function.
¶ 71. For the foregoing reasons, I dissent.
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Wis. Stat. § 346.65(2m)(a) (emphasis added). SCR 70.34 provides: "The director of state courts shall develop uniform rules for trial court administration. Each chief judge may adopt additional local rules not in conflict with the uniform judicial administrative rules." No one argues that the guidelines are not local judicial administrative rules under 70.34, but it seems arguable that they are not.
State v. Smart, 2002 WI App 240, ¶ 6, 257 Wis. 2d 713, 652 N.W.2d 429.
Majority op., ¶ 39.
Indeed, it is arguable that the multiple guidelines create huge disparity where none existed before. A Judicial Conference *186committee concluded in a 1983 report that there was no unjustified disparity in sentencing in Wisconsin courts. Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 693, 335 N.W.2d 868 (1983).
Smart, 257 Wis. 2d 713, ¶ 4:
[T]he ninth district's jail time guideline for [the defendant's] offense is 120 days, except between January 2001 and August 2001, when it was ten months. Had he been convicted of the same crime in other judicial districts, [the defendant] would have likely received a much shorter jail term. In the tenth district, the guideline is 110 days; in the eighth, seventy-five days; and in the fourth, forty-five days.
The defendant would also face a $1654.00 fine and have his or her license revoked for 36 months.
Majority op., ¶ 40 ("we accept that these guidelines fulfill the rational basis test by reducing sentencing disparity within judicial districts").
State v. Ogden, 199 Wis. 2d 566, 571, 544 N.W.2d 574 (1996) (citations omitted).
United States v. Chapman, 500 U.S. 453, 473 n.10 (1991) (citing S. Rep. No. 98-225, at 45-46 (1983); 1984 U.S.C.C.A.N. (98 Stat.) 3228-29.).
State v. Speer, 176 Wis. 2d 1101, 1124, 501 N.W.2d 429 (1993)
Nankin v. Village of Shorewood, 2001 WI 92, ¶ 39, 245 Wis. 2d 86, 630 N.W.2d 141 (quoting Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶ 58, 237 Wis. 2d 99, 613 N.W.2d 849).
I am also attaching a map showing the judicial administrative districts. The map shows that while these districts might make sense for purposes of trial court administration they do not necessarily make sense for purposes of differences in OWI sentencing.
If the legislature or a statewide sentencing commission adopted different sentencing guidelines for each judicial district, it is hard to believe that this court would conclude that there is a rational basis for disparate sentencing across geographical lines. Yet as a result of the majority opinion it seems to me that such a sentencing structure would now be valid. Clearly the constitutionality of the guidelines does not depend on whether the legislature promulgates the guidelines or delegates the authority to the chief judges of each judicial district.
Majority op., ¶ 39.
The judges in a county or district might adopt countywide permissive guidelines. This is different from legislatively mandated district guidelines.
As this court explained: "The advisory committee could hardly expect the use of sentencing guidelines to reduce variance and dispel any perception of unequal treatment in sentencing if it did not intend that judges follow the guidelines and impose sentence within the guideline matrix ranges, except in cases where aggravating or mitigating circumstances dictate otherwise." Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d at 697.
State v. Holmes, 106 Wis. 2d 31, 75-76, 315 N.W.2d 703 (1982) (Coffey, J., concurring).
Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d at 690.
Id. at 693.
Id.
Id. at 695.
In the Matter of Jud. Admin. Felony Sentencing Guidelines, 120 Wis. 2d 198, 353 N.W.2d 793 (1984).
Id. at 203-04.