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Truth-in-Sentencing

The maximum length of confinement time that an administrative law judge (ALJ) may impose for violation of ES conditions is the maximum term of ES. ²⁴ Thus, if an offender is revoked while on ES, that offender could be returned to prison for a term not to exceed the total length of the bifurcated sentence originally imposed less time served in custody before release to ES. This would be the original ES term if the offender served the original confinement term. (But if violations of prison rules extended the original confinement term, that ES term would have been shortened commensurately.) An ALJ also may impose a period of confinement less than the total period of ES, and impose another period of ES to follow release from this second confinement stint.²⁵

Assume the disposition after revocation by the ALJ includes a portion of the ES term in confinement followed by a period of time back on ES. In such a case the offender may end up serving more time on ES than provided for in the original circuit court sentence. That is because Act 283 does not change statutory and administrative code sections which provide that an offender receives no "credit" for time not in confinement (also known as "street time").

For example, assume an offender receives a four-year term of imprisonment: two years of confinement in prison followed by two years of extended supervision. After serving the confinement term, the offender nearly completes the two-year ES term, but then violates ES conditions and is revoked. The ALJ (or DOC, if the offender waives) has two years of ES to use in any combination of confinement in prison and ES. The ALJ could order an additional one-year confinement in prison followed by one year on ES. If the offender serves the year in confinement and behaves while on ES until the final day of this second ES term, but then violates ES conditions and is revoked again, the ALJ could order an additional one-year confinement in prison. In this example the offender served the entire four-year term of imprisonment in confinement, but also spent three years on ES - one more year than the two-year ES term in the original circuit court sentence. Again, this is because the statutes and administrative code only grant credit for time spent in custody, and Act 283 does not alter those provisions.

Imposed and Stayed Prison Sentences

Although Act 283 does not expressly state, it is reasonable to conclude that if a sentencing court imposes but stays a prison sentence and places an offender on probation, the court must follow each of the requirements for imposing a bifurcated sentence of imprisonment.²⁶

Attempts

Act 283 does not change the attempt statute, which halves the maximum penalty (including the maximum term of imprisonment) for the completed crime.²⁷ But Act 283 does not specify how to calculate the maximum initial term of confinement available for attempted felonies. One interpretation is to halve the maximum initial term of confinement as one would halve the maximum term of imprisonment. An alternative interpretation is to apply the 75 percent rule for unclassified felonies to the halved maximum imprisonment term.

For example, an attempted Class C crime, which under Act 283 has a maximum term of imprisonment of 15 years, would have a maximum term of imprisonment of 7.5 years. Under the first interpretation, the maximum initial term of confinement is one-half the maximum initial term of confinement of 10 years, or five years. Under the second interpretation, the maximum initial term of confinement is 75 percent of the 7.5 year maximum imprisonment term, or 5.625 years.

Penalty Enhancers

Under determinate sentencing, if the prosecution pleads and proves a penalty enhancer, the maximum initial term of confinement increases by the length of the penalty enhancer, as does the maximum term of imprisonment.²⁸ Assume an offender is found guilty of committing a burglary, a Class C felony punishable by up to 10 years of initial confinement and 15 years maximum imprisonment, while armed with a dangerous weapon,²⁹ a five-year penalty enhancer on a Class C felony. Under Act 283 the maximum initial term of confinement increases from 10 to 15 years, and the maximum term of imprisonment increases from 15 to 20 years.

The penalty enhancer for habitual criminality works the same way. If an offender commits a Class C felony punishable by up to 10 years of initial confinement and 15 years maximum imprisonment, the maximum term of confinement increases by 10 years (because the underlying crime had a term of imprisonment [15 years] greater than 10 years).³⁰ Accordingly, the maximum term of initial confinement increases by 10 years to 20 years, and the maximum term of imprisonment increases by 10 years to 25 years.

Act 283 applies only to felony sentences, not a misdemeanor term of imprisonment that exceeds one year because of penalty enhancement.³¹ The judge may not impose a bifurcated sentence on misdemeanants. So, an offender convicted of misdemeanor retail theft who is a habitual criminal has a maximum exposure of three indeterminate years.

Felonies Punishable by Life Imprisonment

As with all other felonies, under Act 283 an offender sentenced to life imprisonment is not eligible for parole. Instead, a judge sentencing a life offender chooses one of three options. The offender: 1) is eligible for extended supervision after serving 20 years of the sentence; 2) is eligible for release to ES on a date set by the court after the minimum of 20 years; or 3) is not eligible for release.³² An offender sentenced to life in prison who is released to ES remains on ES for the rest of that offender's life. That ES may be revoked if the offender violates ES conditions. A life offender on ES who is revoked must serve at least five years of confinement in prison.

If a court provides that the offender is ES eligible, the offender may petition the sentencing court for release to ES on or after the ES eligibility date. The offender must show by clear and convincing evidence that he or she is not a danger to the public. The sentencing court may decide whether to grant or deny the petition with or without a hearing. Before deciding whether to grant or deny the offender's petition the court must allow a victim or family member of a homicide victim to make a statement concerning the release of the inmate to ES. If the court grants the offender's petition for release, the court may impose conditions on the ES term. If the court denies the offender's petition, it must specify the date on which the offender is permitted to file a subsequent petition. An offender may appeal an order denying a petition for release, but the appellate court is required to determine only whether the sentencing court properly exercised its discretion in denying the petition.³³

Not Guilty By Reason of Mental Disease or Defect (NGI)

Act 283 does not change the law as to the maximum period of time for which an offender found "NGI" may be committed. An offender found NGI may be committed for a period not to exceed two-thirds of the maximum term of imprisonment including penalty enhancers.³⁴ Note that this is two-thirds of the maximum term of imprisonment, not two-thirds of the maximum initial term of confinement.

Concurrent and Consecutive Sentences

Act 283 does not alter a judge's statutory authority to impose concurrent or consecutive sentences. Two sentences will be presumed concurrent in the absence of statutory or judicial declaration to the contrary.³⁵

When considering how an offender serves more than one sentence, note that the confinement and ES terms of a bifurcated sentence are not separable. For example, if an offender receives two bifurcated sentences, the confinement terms of those two sentences cannot run consecutively while the ES terms run concurrently.

Under Act 283 all consecutive sentences are computed as a single sentence. The confinement terms of all sentences are served before ES terms begin.³⁶ This is similar to the treatment of multiple prison sentences and parole under current law.

Things Change; Things Remain the Same

Act 283 did not change many other areas of criminal sentencing law in Wisconsin. It did not affect any crimes committed before Dec. 31, 1999; offenders who commit such crimes will be sentenced under the current law, and most will be eligible for parole. Also, it did not alter procedures for granting or revoking parole for those offenders with indeterminate sentences.

No Effect on Probation, Fines, or County Jail Sentences

Act 283 does not affect probation as an option for criminal offenses. The maximum period of probation is calculated as it is under the old law: The maximum probationary term equals the maximum period of imprisonment, or three years, whichever is greater.³⁷

Act 283 does not alter the existing statutory fine amounts, and it does not affect costs or surcharges.

A sentence to the county jail is not a bifurcated sentence. Bifurcated sentences may not be imposed unless the offense is a felony and the place of confinement is the Wisconsin state prison.³⁸ "Good time" credit rules continue to apply to jail sentences in the "new world" of Truth-in-Sentencing.

The Criminal Penalties Study Committee and its Legislation

Act 283 also created the Criminal Penalties Study Committee, an 18-person bipartisan and diverse group of judges, prosecutors, criminal defense lawyers, legislators, academics, corrections and law enforcement officials, and members of the public. The committee met from August 1998 until August 1999, when it issued its final report along with draft legislation. The recommendations in the final report represent the second step of Truth-in-Sentencing in Wisconsin.³⁹ These include a new classification system for all felonies, advisory sentencing guidelines and notes, and a proposed procedure for extended supervision and its revocation. But until a version of this implementing legislation becomes law, Act 283 codifies Wisconsin's new criminal sentencing law.

Endnotes

¹ 1999 AB 465; 1999 SB 237.

² Wis. Stat. § 304.06(1)(b).

³ Wis. Stat. § 302.11.

⁴ Wis. Stat. § 973.01(1).

⁵ Wis. Stat. § 973.01(2)(b) & (4).

⁶ Wis. Stat. § 973.01(5).

⁷ Wis. Stat. §§ 973.01(8)(a)5, 302.113(9).

⁸ Wis. Stat. § 973.032(1).

⁹ Wis. Stat. § 973.01(8). Offenders of crimes in Wis. Stat. chapter 940 and many crimes in chapter 948 are not eligible for boot camp.

¹⁰ Wisconsin Supreme Court Form No. CR-234.

¹¹ See Wis. Stat. § 302.045(2).

¹² See Wis. Stat. § 302.045(3m)(b).

¹³ Wis. Stat. § 973.01(2)(b)6.

¹⁴ Wis. Stat. § 961.41(1m)(cm)1.

¹⁵ Wis. Stat. § 302.43.

¹⁶ Wis. Stat. §§ 302.113(3)(a), 302.114(3)(a).

¹⁷ Wis. Stat. §§ 302.113(3)(b), 302.114(3)(b).

¹⁸ Wis. Stat. §§ 302.113(3)(d), 302.114(3)(d).

¹⁹ Wis. Stat. § 939.50(2)(b).

²⁰ Wis. Stat. § 302.113(5).

²¹ Wis. Stat. § 973.01(5).

²² Wis. Stat. § 302.113(7).

²³ See Wis. Stat. § 302.113(9); for life sentences, see § 302.114.

²⁴ Wis. Stat. § 302.113(9).

²⁵ Wis. Stat. § 302.113(9)(c).

²⁶ See Wis. Stat. § 973.01(8).

²⁷ Wis. Stat. § 939.32.

²⁸ Wis. Stat. § 973.01(2)(c).

²⁹ Wis. Stat. § 939.63.

³⁰ See Wis. Stat. § 939.62(1).

³¹ Wis. Stat. § 939.62.

³² Wis. Stat. § 973.014(1g).

³³ Wis. Stat. § 302.114(5)(f).

³⁴ Wis. Stat. § 971.17(1).

³⁵ State v. Rohl, 160 Wis. 2d. 325, 466 N.W. 2d 208 (Ct. App. 1991).

³⁶ See Wis. Stat. § 302.113(4).

³⁷ Wis. Stat. § 973.09(2)(b).

³⁸ Wis. Stat. § 973.01(1).

³⁹ The committee's final report is available online.