State v. Cissell
378 N.W.2d 691, 127 Wis.2d 205, 1985 Wisc. LEXIS 2752 (1985)
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Rule of Law:
The existence of two criminal statutes with identical substantive elements but different penalties does not violate a defendant's constitutional rights to due process or equal protection. Prosecutorial discretion to charge under the more severe statute is permissible so long as the charging decision is not based on an unjustifiable standard such as race or religion.
Facts:
- Ronnie D. Cissell was the father of a minor child for whom he was legally obligated to provide financial support.
- A court had previously ordered Cissell to make support payments for his child.
- From 1973 through 1979, Cissell did not pay any money for his child's support, accumulating an arrearage of $12,459.33.
- As a result of Cissell's failure to provide support, his minor child was left in what the state alleged were destitute and necessitous circumstances.
Procedural Posture:
- The State of Wisconsin charged Ronnie D. Cissell by criminal complaint in the Milwaukee circuit court with felony abandonment under sec. 52.05(1), Stats.
- Cissell filed a pretrial motion to reduce the charge to misdemeanor failure to support under sec. 52.055, Stats., arguing the felony statute was unconstitutional.
- The circuit court (trial court) granted the motion, finding the statutory scheme violated Cissell's due process and equal protection rights, and reduced the charge to a misdemeanor.
- The State, as appellant, appealed the trial court's order to the Wisconsin Court of Appeals.
- The court of appeals (intermediate appellate court) affirmed the circuit court's decision, holding the scheme violated equal protection.
- The State, as petitioner, sought and was granted review by the Supreme Court of Wisconsin.
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Issue:
Do statutes that criminalize identical conduct but impose different penalties violate a defendant's constitutional rights to due process and equal protection by granting prosecutors unfettered discretion to choose the charge?
Opinions:
Majority - Steinmetz, J.
No, statutes that criminalize identical conduct but impose different penalties do not violate a defendant's constitutional rights to due process or equal protection. The court first determined that the elements of felony abandonment (sec. 52.05) and misdemeanor failure to support (sec. 52.055) are substantively identical, finding that 'willful' in the felony statute is equivalent to 'intentional' in the misdemeanor statute, and that 'destitute or necessitous circumstances' does not require proof of greater deprivation than a general failure to support. Relying on the U.S. Supreme Court's reasoning in United States v. Batchelder, the court held that prosecutorial discretion to choose between two such statutes is constitutionally permissible. The court reasoned that this discretion is no different than the discretion exercised when choosing between statutes with different elements. Such a statutory scheme is not void for vagueness, as both statutes clearly define the prohibited conduct, and it does not represent an improper delegation of legislative authority because the legislature defined the penalties for each offense. The exercise of prosecutorial discretion is only unconstitutional if based on an unjustifiable standard like race or religion, which was not alleged here.
Dissenting - Abrahamson, J.
Yes, statutes that criminalize identical conduct but impose different penalties violate the separation of powers doctrine as well as a defendant's rights to due process and equal protection. By enacting two identical criminal statutes with different penalties, the legislature has abdicated its essential function of fixing a penalty for a crime and unlawfully delegated this legislative power to the executive branch (the prosecutor) without any standards to guide the choice. The majority's reliance on Batchelder is misplaced because that case involved overlapping, not identical, statutes; while overlapping statutes may be a practical necessity of legislative drafting, identical statutes are not. This scheme violates fundamental fairness because it allows two individuals who commit the exact same act to be subjected to vastly different penalties based on the arbitrary and unguided decision of a prosecutor, violating the core principles of equal protection.
Analysis:
This decision solidifies prosecutorial power in Wisconsin by aligning the state's constitutional interpretation with the federal standard set in United States v. Batchelder. It grants prosecutors significant leverage in charging and plea bargaining by allowing them to choose between a felony and a misdemeanor for the exact same conduct. The ruling establishes that as long as there is no evidence of selective enforcement based on impermissible classifications like race, the prosecutor's choice between identical statutes with disparate penalties is immune from constitutional challenge, effectively giving the executive branch control over the severity of the potential punishment.
