On Point

COA, bound by precedent, rejects constitutional challenge involving mandatory minimum CSA charges

State v. Keith Kenyon, 2022AP2228-CR, 9/16/25, District I (recommended for publication); case activity

Although COA is surprisingly candid in acknowledging some of the injustices present in this appeal, the Court ultimately concludes that Kenyon’s constitutional challenge is foreclosed by existing precedent.

Acting on a report from an eight-year old relative, the State charged Kenyon with sexual intercourse with a child under the age of 12 contrary to § 948.02(1)(b). (¶1). That charge carries a twenty-five year mandatory minimum prison sentence. (Id.). Kenyon moved to dismiss, arguing that the statutory scheme is unconstitutional as applied. (¶5). Here, Kenyon’s conduct is also covered by another statute, § 948.02(1)(e), which punishes intercourse with a child under 13. (¶1). That statute does not entail a mandatory minimum. (Id.). Kenyon argued: (1) “the statutory scheme violated his due process right to be sentenced by a neutral magistrate because the statutory scheme amounted to ‘sentencing by prosecutor'”, (2) “the statutes were unconstitutionally vague because there was no guidance in the statutory scheme that would prevent a prosecutor’s arbitrary and discriminatory enforcement of one subsection versus the other” and (3) “the statutory scheme violated the separation of powers doctrine under the Wisconsin constitution.” (¶¶5-7). To support his motion, Kenyon included CCAP data showing that his conduct was comparatively less aggravated than other cases involving this mandatory minimum offense and that “no rational basis exists to explain why Kenyon is being charged inconsistently as compared to the other cases.” (¶10).

The circuit court granted the motion, finding that it gave the State “unfettered discretion” and resulted “in an arbitrary charging standard and deprives the court of its discretionary authority to consider mitigating factors and impose a sentence of less than 25 years of imprisonment.” (¶11). The circuit court was openly critical of the Milwaukee County District Attorney’s Office’s charging decision, as it noted that the State had at one point “offered to recommend a sentence of five-to-seven years of initial confinement if Kenyon agreed to forego his right to a trial and plead guilty to a charge under § 948.02(1)(e).” (¶12). The court believed the mandatory minimum charge was being used as a “bargaining chip” to induce pleas and avoid trials. (Id.). The State appealed.

COA clarifies the issue presented as follows: “whether the legislature can create two or more criminal statutes that prohibit the same conduct but only one of which carries a mandatory minimum penalty, and if so, what guidelines (if any) must the legislature include to limit a prosecutor’s discretion to charge a violation of one statute as opposed to the other.” (¶14). After reviewing binding case law, COA ultimately upholds the statutory scheme and reverses the circuit court’s order for dismissal.

COA begins its analysis with United States v. Batchelder, a US Supreme Court decision involving “overlapping” statutes. (¶15). “Although not identical in every respect, both provisions prohibited convicted felons from receiving firearms, but one provision carried a maximum sentence of two years of imprisonment while the other carried a maximum sentence of five years of imprisonment.” (Id.). The Court rejected due process, equal protection, and vagueness challenges. While the Court acknowledged that a vague statutory scheme can create constitutional questions, “so long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” (¶16). There is also a long-standing principle that the Government has discretion to elect the method of charging, so long as that charging decision “does not discriminate against any class of defendants.” (¶17). Moreover, this statutory scheme did not grant prosecutors the power to “predetermine ultimate criminal sanctions” as the choice in charging merely increased the maximum potential penalty from two to five years, with the sentencing court still empowered to issue a sentence of less than five years. (Id.). There was also no impermissible delegation of legislative authority to the executive branch, as the prosecutor was still following the statutory scheme set forth by Congress. (¶18).

According to COA, “Wisconsin courts have both followed Batchelder and expanded it.” (¶19). COA identifies three relevant cases:

• In State v. Karpinski, the Wisconsin Supreme Court approved, with citation to Batchelder, “a statutory scheme where the same conduct was prohibited under both a state criminal statute and a civil municipal ordinance.” (¶19). This case reaffirmed the well-settled rule “that when an act violates overlapping, but not identical, criminal statutes the government may prosecute under either criminal statute so long as there is no discriminatory prosecution” and specifically relied on § 939.65. (Id.).
• In State v. Cissell, the Wisconsin Supreme Court “expanded the analysis in Batchelder to situations in which the criminal statutes are identical, not just overlapping, and concluded that the reasoning in Batchelder applied to the Wisconsin Constitution as well as the United States Constitution. (¶20). As COA highlights in a suggestively lengthy footnote, the holding of Cissell faced a harsh dissent from Justice Abrahamson, who acknowledged what she believed to be obvious due process and unlawful delegation issues. (Id.).
• Finally, in State v. Lindsay, COA rejected a challenge to Wisconsin’s persistent repeater statute, holding that the repeater statute did not create a separation of powers issue and, even though that statutory scheme gave the prosecutor broad authority to invoke this harsh penalty, did not create any equal protection issue, either. (¶¶22-23).

Thus, COA is bound by precedent; “all of Kenyon’s arguments have been previously considered and rejected in functionally identical contexts.” (¶25). Specifically:

WISCONSIN STAT. § 948.02(1) cannot be unconstitutionally vague because it “clearly define[s] the conduct prohibited and the punishment authorized[.]” Batchelder, 442 U.S. at 123. “Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments.” Id. Section 948.02(1) cannot be held unconstitutional for violating the separation of powers doctrine when, in Lindsey, we acknowledged that the legislature is allowed to eliminate entirely a circuit court’s sentencing discretion by setting forth a fixed punishment for a crime. Id., 203 Wis. 2d at 441. Cissell and Batchelder likewise prohibit the conclusion that § 948.02(1) constitutes an unconstitutional delegation of legislative power to the executive branch because “‘there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements.’” Cissell, 127 Wis. 2d at 217 (quoting Batchelder, 442 U.S. at 125).

(Id.).

As to Kenyon’s equal protection argument involving his chart of similarly-charged defendants in Milwaukee County, the claim fails because “Kenyon does not argue that the charging decision was made based on a suspect classification.” (¶28). Instead, he “argues that the Milwaukee County District Attorney’s Office is using the discretion granted to it by the statutory scheme in order to impose ‘trial penalties’ on defendants like Kenyon who refuse to plead guilty and instead choose to exercise their constitutional rights.” (¶29). Notably, this is precisely what the circuit court concluded, given that the State at one point offered to amend the charge and recommend a substantially reduced period of incarceration if only Kenyon would waive those rights. (¶12).

However, the only law on point governs a presumption of prosecutorial vindictiveness which attaches following appeal; COA finds no authority for the proposition that there is anything constitutionally flawed when a prosecutor uses its charging discretion to impose a trial tax on defendants who refuse to plead guilty. (¶31). COA is openly troubled by this, as “It is difficult to understand why such a presumption would attach after a defendant’s successful appeal and not during pretrial plea negotiations. […] In both instances, it appears that the prosecutor penalizes a defendant by filing charges authorizing harsher punishment in direct response to a defendant exercising a constitutional right.” (Id.). Although COA finds the state of the law unsatisfactory on this point, it is bound by precedent and therefore reverses the circuit court’s order dismissing the charge against Kenyon. (¶32).