Wordplay

In Wisconsin, you could be a "domestic abuse repeater" if you have been convicted, "on 2 or more separate occasions," of domestic abuse crimes.  Yet prosecutors are branding defendants as repeaters, thus transforming misdemeanors into felonies and increasing jail sentences to prison sentences, whenever defendants have been convicted only on ONE prior occasion.  How is this possible?  Read my new article explaining this governmental wordplay, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Online 1 (2020).  Or read the abstract after the jump.

When a defendant is branded a domestic abuse repeater, subsequent criminal charges may be classified more severely and carry increased penalties. The meaning of the term is therefore critical. Domestic abuse repeater may be defined, for example, as a person who was previously “convicted on 2 or more separate occasions” of a domestic abuse crime. 

In order to expand the statute’s reach, prosecutors and judges often “interpret” the above definition to include any defendant with two such prior convictions—even when the convictions stem from the same incident, were charged in the same complaint, and were entered at the same court hearing. In other words, despite the statute’s plain language requiring separate occasions, a single occasion is used to establish repeater status. 

This Article exposes the governmental sleight of hand that prosecutors and judges use to transform the language “convicted on 2 or more separate occasions” into merely two or more prior convictions. This Article also provides defense counsel with two possible ways to combat this governmental abuse. 

First, when judges effectively rewrite the statute this way, they violate several basic canons of statutory construction. Second, this judicial rewrite actually produces absurd results with regard to which defendants are branded repeaters and which are not. This violates the absurdity doctrine—a legal principle adopted in all fifty states which prohibits courts from interpreting statutes in ways that produce absurd outcomes. 

Finally, because some judges may not be willing to correct their blunders of statutory interpretation, this Article also proposes two ways for the legislature to define domestic abuse repeater—and, more specifically, “occasions”—to restore intended meaning and protect defendants from excessive convictions and sentences.