Eric Litke

USA TODAY NETWORK-Wisconsin

The definition of justice — and the severity of punishment — varies dramatically between Wisconsin courtrooms.

The state has no sentencing guidelines to narrow the range of potential sentences and no reporting system for judges to see what others have imposed for similar crimes, making it fertile ground for extremes.

Judge James Bolgert in Sheboygan County was one such example.

Bolgert ranked among the most lenient judges in the state and often rankled prosecutors with sentences a fraction of their recommendations — and far below what other county judges imposed. Just this summer he sentenced a two-time sex offender to two months behind bars when prosecutors sought 10 years.

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It created an unbalanced legal system in Sheboygan County, skewing plea negotiations and judicial substitutions, and even causing law enforcement to manipulate the timing of cases to avoid his courtroom. And it made Bolgert’s courtroom the place defendants wanted to be.

“There was definitely a big push right before (Bolgert) left the bench to resolve cases, because defendants knew once he left the bench that they wouldn’t get anywhere near as lenient a sentence with any other judge in the county,” said one criminal attorney, speaking on condition of anonymity.

One defendant facing a felony charge even attempted against their attorney’s advice to enter a no contest plea at the initial appearance — a drastic shortcut of the typical judicial process — in an attempt to have the sentencing before Bolgert retired.

But nary a critical word was said publicly.

The wide discretion given to judges means they have any number of ways to inflict retribution on attorneys who might otherwise speak up, so silence is the norm when it comes to judicial extremes. But the concurrent retirements of Bolgert and longtime Sheboygan County District Attorney Joe DeCecco afford a rare glimpse behind the curtain at the authority given to judges and the impact of one judge who is not like the others.

Bolgert retired July 30 after 22 years on the bench.

Mindset shaped by Avery case?

Bolgert, the son of a judge, began his legal career as a defense attorney in 1980, most famously representing Steven Avery when he was convicted of a 1985 rape for which he was later exonerated. Bolgert was elected judge in 1994 and — like most judges — ran unopposed in the elections that followed (80 percent of judicial elections have been uncontested in the last decade).

DeCecco, who isn’t running for re-election in November, recalled an early harbinger that Bolgert was a different kind of judge.

“One of the first times I was in his courtroom when he became judge, he said to me words to the effect of, ‘Mr. DeCecco, I am here to protect innocent people from your office and the police department,’” DeCecco recalled. “I didn’t know how to take that. … At the time I thought it was at the very least inappropriate if it was a joke, because you don’t know me that well to joke about that, and if that’s what he actually meant it indicated to me that this wasn’t a judge who could be unbiased.”

Bolgert said in an email he has no recollection of saying that. He said such comments “do not and never did reflect my philosophy.”

But DeCecco sees a connection to the Avery case, which left Bolgert “grief stricken” according to a book on the subject, “The Innocent Killer.” The author said Bolgert testified in a deposition that he approached the Manitowoc County district attorney in 2000 to say they had to do something about Avery, calling it a “travesty” that he lost sleep over.

Avery spent 20 years in prison before his conviction was overturned, a term that stretched nearly a decade into Bolgert’s tenure as a judge.

“I think that affected him deeply, and that may even be why he said that first thing to me,” DeCecco said. “I think he was really trying to do the right thing, but I think his perspective on justice, per se, was tempered by his former services as a defense attorney, specifically with the Steven Avery case. … I think he was really trying to give people, whether they deserved it or not … a second chance.”

Bolgert declined to directly answer questions on how the Avery case affected his judicial mindset.

“Wrongful convictions, though rare, remind us of our imperfections,” Bolgert replied in an email. “I am mindful of the effect on people’s lives of what we do in court, in all types of cases.”

But his sentences made clear Bolgert was an unusually strong believer in second chances.

The 2012 sentencing of Jenny Dahlke was a particularly unusual case. Bolgert sentenced the 35-year-old to 2½ years in prison for providing heroin that led to a man’s death. But three days later he called a new hearing and reduced the prison sentence by a year, saying he hadn’t originally given enough consideration to positive character traits like raising three children and holding down a steady job despite her drug use.

DeCecco said he’s never heard of another judge reducing a sentence in such a manner.

Bolgert was also unusual in his light treatment of probation violators, DeCecco said. Offenders on probation are brought in for re-sentencing if officials deem a violation of probation rules sufficiently serious, and they are generally jailed in the time between the violation and the new sentencing.

DeCecco said Bolgert routinely sentenced those people to time served, meaning the time they were jailed awaiting sentence was deemed sufficient and they were then released.

“The other judges view it as, OK, we gave you a chance on probation, you screwed it up, and now you have to pay the piper,” DeCecco said. “It just seemed to me they weren’t being punished. They’re given a chance to not get into trouble. … If you don’t, though, there should be a penalty for that.”

Bolgert among most lenient

Bolgert’s sentences were unusually light defendants’ first time around as well.

USA TODAY NETWORK-Wisconsin analyzed sentencing late last year for 12 of the most common felonies from 2005-14 and identified Bolgert as the second-most lenient judge in the state, among judges with enough cases to be part of the analysis. The only judge ahead of him was Milwaukee County’s Carl Ashley, whose caseload drastically skewed his numbers because his only criminal cases were those involving deferred prosecution agreements or a drug court that focused on treatment in favor of incarceration.

Bolgert’s sentences averaged 28 percent less time behind bars than other judges in Sheboygan County, and 40 percent below the state averages. He was particularly lenient on drug offenders, as sentences for two cocaine delivery charges and one drug possession charge were about 60 percent of what other judges in the county imposed for the same crimes.

Bolgert said he believes "the benefits of incarceration are overestimated," noting the state prison population has tripled since he took the bench in 1994. He said he believes a combination of punishment and treatment is the best way to reduce crime.

"I always tried to sentence to a purpose. I imposed the amount of time necessary to that purpose, and not more. The law requires that a sentence be the minimum amount of time consistent with the gravity of the offense, the defendant’s rehabilitation and protection of the public," the judge said in an email. "Many criminal defendants want to do better. If I can construct a sentence that does that, I think that serves the interests of our community."

Richard Hahn, a longtime Sheboygan defense attorney, described Bolgert as “fiercely independent and very compassionate,” though he acknowledged the perception that he sentenced more leniently.

“He has a very religious background, and I think he tended to be forgiving, and that might have reflected itself in some of his sentences,” Hahn said.

Plea negotiations are a cornerstone of the criminal justice system, a process by which the prosecution and defense work out an agreement on which charges to keep and what sentence to recommend in exchange for a guilty or no contest plea. But those negotiations were dramatically different in cases before Bolgert, knowing he would almost certainly sentence well below the prosecutor’s recommendation, the unnamed attorney said.

“A lot of the other judges will follow pretty closely the prosecutor’s recommendation, especially when they know there’s been some intense plea negotiations beforehand,” the attorney said. “With Judge Bolgert, he would usually start with the defense attorney’s recommendation and oftentimes even undercut both parties, sentencing a defendant to costs only or even remitting the costs.”

DeCecco said sentencing is a chance to impose justice and create a deterrent by showing sex crimes and other major offenses are taken seriously.

“I’m not saying (Bolgert) didn’t take them seriously, but you know, that’s kind of the impression you’re left when you get two months instead of 10 years,” DeCecco said.

He was referencing the sentencing of Adrian Reinwand, a 20-year-old Sheboygan man who came before Bolgert in June. He was convicted of first-degree sexual assault, which carries a 40-year maximum sentence, for sexually assaulting a young girl repeatedly over a six-year span, beginning when he was about 11.

Reinwand came to court as a convicted sex offender from an incident when he was 17. Prosecutors asked for a 10-year prison term, but Bolgert imposed only two months in jail.

Prosecutors, defendants agree on Bolgert

The five Sheboygan County judges take turns on intake — where all new cases are assigned to the same judge — and DeCecco said officials sometimes rushed or delayed cases to get charges filed before a judge other than Bolgert.

“Certainly, I’ve had officers come in, detectives, and say, ‘We’re thinking about making an arrest on this. Who’s on intake?’” the DA recalled. “When I tell them (Bolgert) is the intake judge, they’ll say … ‘Well, maybe it can wait a couple days.’”

Prosecutors would make similar moves late in Bolgert’s cycle as well, “to try to get that person incarcerated so they’d be in the next branch’s intake,” DeCecco said.

Michael O’Hear, a professor at Marquette University Law School, said such actions are part of the problem created by extreme judges.

“That’s one concern about having an outlier judge is that it invites manipulation of the system,” O’Hear said. “That undermines the perceived fairness of the system.”

Defendants can also affect the system through judicial substitutions, the opportunity given them once per case to demand a different judge chosen by the court system. It’s generally used to avoid judges perceived as harsh sentencers.

» SEARCH judicial substitutions for felony cases statewide

From 2010 to 2014, Bolgert had only two defendants file substitution requests in felony cases, according to the state Office of Court Operations. One other Sheboygan County judge had seven, but the rest had 75 or more, led by Judge Angela Sutkiewicz whose tally of 359 felony substitution requests was fourth-most in the state.

Sheboygan police Capt. James Veeser said Bolgert’s low number of substitutions is “very telling.” He otherwise declined to address police perception of Bolgert.

Repeat offenders familiar with the local justice system hope to land in Bolgert’s courtroom, said defense attorney Barb Kirchner, but she attributed that to Bolgert’s fairness.

“While his sentences may appear to be lighter or more lenient than those given by other judges, Judge Bolgert would base his sentencing upon the facts of the case and could always explain his rationale for the sentence he gave,” said Kirchner, who started her law career in Sheboygan the same year Bolgert took the bench. “The proverbial frequent fliers would want to be in front of judge Bolgert, maybe not because he was a ‘light sentencing judge,’ but because they felt they were getting a fair shake.”

DeCecco said he was willing to discuss Bolgert not to lob parting shots or label him a bad person. He praised Bolgert for always being willing to delay a case if an element of the prosecution wasn’t ready to proceed, and he described Bolgert as courteous and fair to both prosecuting and defense attorneys.

Bolgert listed among his proudest accomplishments many elements of the job not related to sentencing. He helped establish a mortgage foreclosure program after the Great Recession, helped launch a day-reporting program (that allows defendants on small cash bonds to be released on a monitoring bracelet) and for the last 15 years ran the annual Law Day to give local 5th graders an inside look at the judicial system.

But insight from DeCecco and others shows one judge with an abnormal approach to sentencing caused ripples throughout the justice system, tilting the definition of justice and leading to dramatically different outcomes for offenders and victims when cases ended up before Bolgert.

“You’re always going to have members of the criminal justice system — whether they’re prosecutors, whether they’re defense attorneys, whether they’re judges — operate within the system in a manner that doesn’t appear to be in the best interests of the system, but that’s what their discretion has allowed them to do,” DeCecco said. “That’s just the way it is.”