Vol. 75, No. 11, November
Fully Implementing Truth-in-Sentencing
The changes in Wisconsin sentencing laws are substantial and were a
long time in coming. With the passage of 2001 Wis. Act 109, the pieces
are in place for the full implementation of truth-in-sentencing as
originally envisioned by Wisconsin lawmakers.
by Michael B. Brennan, Thomas J. Hammer
& Donald V. Latorraca
In Feb. 1, 2003 the second wave of truth-in-sentencing legislation
will hit Wisconsin's shores. This follows a long, hard-fought political
battle over the full implementation of truth-in-sentencing that has been
waged over the last four years. This article previews the most
significant aspects of the new legislation, which is known as 2001
Wisconsin Act 109 (Act 109).
Identifying the initial applicability and effective dates of the new
law's many provisions requires caution. While the new crime
classification system and other substantive law changes described below
apply only to offenses committed on and after Feb. 1, 2003, some of the
new bill's procedural changes take effect on that date but are not
limited in application to offenses committed on and after it.1 Still other procedural changes took effect in July
2002 on the day after Act 109 was published. These timing issues are
addressed as they arise in the discussion that follows.
Truth-in-Sentencing Part I
In June 1998 the Wisconsin Legislature enacted 1997 Wisconsin Act 283
(Act 283). With this landmark piece of legislation, the state's
indeterminate sentencing system was abandoned in favor of a newly minted
truth-in-sentencing regime.2 The new law was
to apply for the first time to felonies committed on and after Dec. 31,
Act 283 may be fairly characterized as establishing the
infrastructure for truth-in-sentencing in Wisconsin. Its provisions
effectuated the break from the old indeterminate model and created a new
bifurcated structure for prison sentences: a term of confinement in
prison followed by a term of extended supervision in the community.
Although Act 283 speaks in some detail about the new type of sentence,
it is evident that the legislature did not envision the law going into
effect without considerable supplementation. This is obvious from
language in the bill delaying its effective date from June 1998 (the
time of passage) to December 1999 and creating a Criminal Penalties
Study Committee (CPSC) with numerous responsibilities to be completed in
the interim. These included: 1) developing supplementary legislation to
create a uniform classification system for all felonies, including those
found outside the Wisconsin Criminal Code; 2) making recommendations for
the classification of each felony and Class A misdemeanor in the new
system in a manner that places crimes of similar severity into the same
class; 3) drafting temporary advisory sentencing guidelines; 4)
suggesting rules to improve the process of revoking extended
supervision; and 5) designing a sentencing commission to monitor
sentencing practices and provide information on sentencing practices to
governmental entities and the public.3
The CPSC responded to these legislative mandates in August 1999 with
a lengthy report and statutory proposals for full implementation of
truth-in-sentencing.4 It was anticipated
that these proposals would be enacted prior to Dec. 31, 1999, when the
new sentencing policy would go into effect. However, that did not occur.
The state assembly promptly considered and passed the CPSC's proposals
(with a few minor changes), but the bill stalled in the state senate.
Accordingly, Act 283 went into effect without the additional
During the next two and one-half years, the assembly and senate each
passed bills that largely tracked the CPSC's recommendations, but
differences between those bills were never reconciled. Finally, during a
special session called by Gov. McCallum in 2002 to deal with Wisconsin's
budget crisis, both legislative houses agreed on budget adjustment
legislation that included nearly all of the CPSC's proposals. On July
26, 2002, the governor signed that bill into law. It is known as 2001
Wis. Act 109.
A New Felony Classification System
As the CPSC undertook its charge of classifying the nearly 500
felonies that exist in the Criminal Code, the Uniform Controlled
Substances Act, the Vehicle Code, and elsewhere throughout the Wisconsin
Statutes, it readily determined that preserving the existing system of
six felony classes (A, B, BC, C, D, and E), which is used only for
Criminal Code offenses, was unworkable. With so many felonies to place
in so few categories, it would be impossible to answer the legislative
mandate of classifying crimes of similar severity in the same felony
class. Accordingly, the CPSC proposed expanding the felony
classification system from six to nine classes. The legislature agreed,
and the new nine-class system will go into effect for crimes committed
on and after Feb. 1, 2003. See Figure 1.
Act 109: The New A-I Felony Classification
(applicable to felonies committed on and after Feb. 1,
In the terminology of 1997 Act 283 and 2001 Act 109, the term of
confinement plus the term of extended supervision equals the term of
imprisonment. The maximum term of probation for Class B-H felonies
equals the maximum initial term of confinement for those crimes. For
Class I felonies, the maximum term of probation is three years.
|Max. Initial Term of Confinement
||Max. Initial Term of Extended
||Max. Term of Imprisonment
The CPSC initially placed crimes in the new A-I classification system
by using for each crime the mandatory release (MR) date under pre-Act
283 law when a court imposed the maximum sentence for committing the
crime. As a general rule, MR in the old indeterminate world was
statutorily fixed at two-thirds of the sentence actually imposed.5 For the offender given a maximum sentence, MR was
at two-thirds of that maximum. Service of the sentence to the MR date
reflected the longest period the defendant could be held in prison
before being mandatorily paroled.6
The CPSC concluded that the maximum initial term of confinement for
each crime in the new truth-in-sentencing system ought to roughly
parallel the maximum the person could serve in prison before reaching MR
under the indeterminate sentencing law that preceded Act 283. Use of MR
dates from prior law to classify crimes in the new A-I classification
system would accomplish this. To allow for the worst case scenario of a
prisoner who, under the old law, was given a maximum sentence and held
to the MR date, the committee applied the two-thirds "MR converter" to
the maximum possible sentence under pre-Act 283 law to initially place
each crime in the new classification system.
An example of the MR conversion process may be helpful. Consider the
crime of burglary, which under current law is a Class C felony. Prior to
Dec. 31, 1999, the maximum indeterminate term of imprisonment for this
offense was 10 years. If the judge sentenced an offender to a full
10-year prison term, and the offender were held in custody until the MR
date, release to parole would occur after six and two-thirds years.
Using that figure as the MR converter, the closest felony class in the
new A-I system would be Class F, for which the maximum initial term of
confinement is seven and one-half years. See Figure 1.
Accordingly, burglary initially would be categorized as a Class F
After applying the MR converter to move hundreds of felonies into the
new classification system, the CPSC next considered whether an
adjustment to a different class was necessary so that crimes of similar
severity would be classified together. The committee's final
recommendations for classifying offenses were adopted by the legislature
in Act 109 (with but a few changes) and will apply to crimes that are
committed on and after Feb. 1, 2003. The new classifications for many
routinely prosecuted felonies are presented in Figure 2. The classification of controlled
substance offenses is shown in Figure
A few offenses remain unclassified, even after Act 109, due to
oversight or the vagaries of the legislative process. These include
operating an automobile while intoxicated with a minor passenger (third
or fourth offense)7 and the felony
enhancement for committing domestic abuse during the 72-hour period
following a domestic abuse incident.8 Absent
classification of these unclassified offenses through trailer
legislation, Act 283 rules regarding unclassified offenses will apply;
for example, the term of initial confinement to prison may not exceed 75
percent of the term of imprisonment imposed.
Michael B. Brennan,
Northwestern 1989, is the judge for Branch 15 of the Milwaukee County
Circuit Court. He was the staff counsel for the Criminal Penalties Study
Thomas J. Hammer, Marquette 1975, is an associate
professor of law at Marquette University Law School. He was the reporter
for and a member of the Criminal Penalties Study Committee.
Donald V. Latorraca, Washington University in St.
Louis School of Law 1985, is an assistant attorney general for the
Wisconsin Department of Justice. The comments in this article are the
authors' and do not necessarily reflect the opinions of the Wisconsin
Attorney General or the Wisconsin Department of Justice.
New Limits on Extended Supervision Terms
Act 109 differs from Act 283 as to the manner by which the maximum
term of extended supervision (ES) that may be imposed at the time of
sentencing is determined. Under Act 283, the maximum ES available at the
time of sentencing was the difference between the maximum term of
imprisonment for the crime of conviction and the initial term of
confinement actually imposed. Act 283 thus could be read to allow for
very long periods of extended supervision. For example, a person
convicted of a Class B felony, which under Act 283 carries a maximum
term of imprisonment of 60 years and a maximum term of initial
confinement of 40 years, theoretically could be sentenced to one year in
confinement followed by 59 years of extended supervision.
Act 109 caps the maximum ES available at the time of sentencing for
classified felonies pursuant to a statutory schedule. See Figure 1. The CPSC proposed and the legislature agreed
that the purposes of ES could realistically be accomplished within these
limits without excessively consuming future resources.
These limits on extended supervision are not absolute. In some
circumstances the amount of time an offender actually spends on ES could
be longer than that ordered by the judge at sentencing; it could even be
longer than the maximum periods of ES shown in Figure
1. This could happen if the offender completes the initial term of
confinement and then goes on ES, only to have ES revoked at some point.
Suppose, for example, that a person is convicted of a new Class G felony
(for which the maximum initial term of confinement is five years and the
maximum initial term of ES is five years) and that the judge imposes the
maximum penalties. Assume that after serving five years in prison and
four years on extended supervision, the ES is revoked. Upon the
offender's return to court for sentencing after revocation,9 the judge has the full length of the original ES
term (five years) to work with in fashioning a remedy.10 The court might decide that the offender must be
confined for two of those five years. When those two years have been
served, the defendant returns to ES status for what Act 109 calls "the
remaining extended supervision portion of the bifurcated
sentence."11 This phrase means the total
length of the bifurcated sentence (10 years in the example) minus time
already spent in confinement (seven years in the example) for a total
remaining ES portion of three years. If the defendant serves out this
disposition without additional revocation problems, the defendant will
have spent a total of seven years in confinement and seven years on ES
before being discharged.
While fines play a limited role in the disposition of most felony
cases, Act 109 nonetheless addresses them in the new A-I classification
system for crimes committed on and after Feb. 1, 2003. See Figure 1. The new fine schedule acknowledges the
differing severity of crimes. It also addresses the concern that the
$10,000 maximum fine used in the current A-E classification system would
be inappropriately low for certain more serious crimes. Act 109 does not
disturb the very high fines for certain felonies codified outside the
Criminal Code, which, in the opinion of the CPSC, ought to be retained
at present levels.12
Current law provides that the original term of probation for a person
convicted of a felony shall be for not less than one year nor more than
either the statutory maximum term of imprisonment for the crime
or three years, whichever is greater.13 If
the defendant should be convicted at the same time of two or more
crimes, including at least one felony, the maximum original term of
probation may be increased by one year for each felony conviction.14 There is also a specific statutory schedule
of original terms of probation for people convicted of one or more
Problems with the New Truth-in-Sentencing Law
Act 283 did not amend the statutes regulating maximum original terms
of probation. The CPSC recommended that the maximum original term of
probation for Class B-H felonies16 be
linked to the maximum term of confinement for crimes in those
classes, rather than the maximum term of imprisonment. The
committee believed that the dual objectives of probation -
rehabilitation of the offender and protection of the state and community
interest17 - could be achieved within these
time periods. The legislature adopted the CPSC's recommendations.
The maximum term of probation for each felony class is listed in Figure 1. Note that the maximum original term of
probation for Class I felonies is three years.18 The minimum term of probation in a felony case
remains at one year.
Substantive Criminal Law Changes
Acting on the recommendations of the Criminal Penalties Study
Committee, the legislature included within Act 109 numerous changes to
the substantive criminal law, the most significant of which are
summarized in this section. These changes take effect on Feb. 1, 2003,
and apply to offenses committed on and after that date.
Battery. While classifying the various permutations
of the basic battery offense, the CPSC noted how confusing Wis. Stat.
section 940.19 had become with the adoption of various amendments over
time. The battery statute has been revised to return simplicity and
straightforwardness to the law of battery. Preserved are traditional
forms of misdemeanor battery (causing bodily harm with intent to cause
bodily harm) and felony aggravated battery (causing great bodily harm
with intent to cause great bodily harm). Also maintained are
intermediate offenses of causing great bodily harm19 or substantial bodily harm20 by an act done with intent to cause bodily harm.
Finally, the section of the statute that classifies as more serious
batteries committed against victims who are 62 years of age or older and
victims with a physical disability is preserved without change. See Figure 4. The provision making it a battery to cause
substantial bodily harm with intent to cause substantial bodily harm is
Act 109: Battery (Wis. Stat. § 940.19)
|Class E felony
||Intent to Cause Great Bodily Harm
||Great Bodily Harm
|Class H felony
||Intent to Cause Bodily Harm
||Great Bodily Harm
|Class I felony
||Intent to Cause Bodily Harm
||Substantial Bodily Harm
|Class A misdemeanor
||Intent to Cause Bodily Harm
Felony Murder. Act 109 amends the felony murder
statute to provide that the maximum term of imprisonment for the
underlying offense may be increased by not more than 15 years.22 This is a reduction from the 20-year increase
that is provided for under current law and which has its origins in the
days of the old indeterminate sentencing system.
Carjacking. Act 109 makes certain modifications to
the carjacking statute. The provision increasing the penalty for causing
death by carjacking is repealed, but carjacking is added as a predicate
offense for a felony murder charge. This leaves carjacking as a Class C
Possession of a Firearm by a Felon. Act 109
classifies the crime of possession of a firearm by a felon as a Class G
felony with a maximum initial term of confinement of five years followed
by a maximum initial ES term of five years.24 Provisions in the current statute for increased
penalties for repeat offenders are repealed under the reasoning that the
Class G penalties are stringent enough to deal with even repeat
violators of this law.
Operating Vehicle Without Owner's Consent. The
operating vehicle without owner's consent statute prohibits taking and
driving any vehicle without the consent of the owner. Act 109 classifies
this as a Class H felony.25 The less
serious offense of driving or operating any vehicle without the consent
of the owner is classified as a Class I felony.26 Under Act 109 either of these offenses may be
mitigated to a Class A misdemeanor if the defendant proves by a
preponderance of the evidence that he or she abandoned the vehicle
without damage within 24 hours after the vehicle originally was taken
from the owner's possession.27
Fleeing an Officer. Act 109 restructures the
penalties for the various fleeing felonies; the restructured penalties
are shown in Figure 5. These changes are designed to
better stratify offense severity according to the harm caused by the
actor. Act 109 also creates a new misdemeanor fleeing offense, which
reads as follows: "No operator of a vehicle, after having received a
visual or audible signal to stop his or her vehicle from a traffic
officer, or marked police vehicle, shall knowingly resist the traffic
officer by failing to stop his or her vehicle as promptly as safety
reasonably permits."28 A new statutory
subsection specifically provides that misdemeanor fleeing is not a
lesser included offense of felony fleeing; it also prohibits conviction
for both offenses for acts arising out of the same incident or
Act 109: Fleeing an Officer (Wis. Stat. § 346.04(3))
||Max. Initial Term of
||Max. Initial Term of
|No Bodily Harm; No Property
|Bodily Harm or Damage to property of
|Great Bodily Harm to Another
|Death of Another
Depiction of Certain Controlled Substances Offenses with Stratified
Penalties in the A-I Classification System
Controlled Substances. Act 109 makes important
changes in the controlled substances statutes. In addition to
classifying drug offenses in the new A-I classification system, it
specifies penalties for new crimes of delivery of, and possession of
with intent to deliver, less than 1 gram of cocaine and less than 200
grams of marijuana. The creation of the new crimes responds to the
number of cases involving those amounts and judges' sentencing practices
in those cases. Another important change is the classification of first
offense possession of methamphetamine as a misdemeanor. These and other
controlled substance penalties are shown in Figure 3.
Property Crimes. Act 109 amends the dollar amounts
used for distinguishing various property crimes, the severity of which
is linked to the value of the property stolen, damaged, and so
on. For these offenses the Act establishes the cut-off between
misdemeanors and felonies at $2,500. Further, it classifies felony
property offenses at three levels based upon value as follows: $2,500,
$5,000, and $10,000.
Current Wisconsin statutes contain a plethora of penalty enhancement
statutes that have been enacted over the course of the last 20 years.
Chapter 939 alone contains at least a dozen enhancement provisions. The
CPSC considered the amount of actual incarceration time available to
judges in the new A-I classification system, and whether it provides
sufficient exposure to appropriately sentence an offender who has
committed the most aggravated form of an underlying offense. It also
considered the extent to which certain penalty enhancers actually are
used and the experience of states that have adopted determinate
sentencing and decreased the number of such enhancers. As a result of
this analysis, the CPSC recommended retaining certain enhancers and
repealing others, with many of the latter recharacterized as sentencing
aggravators in an omnibus sentencing statute. Act 109 codifies these
In the wake of Act 109 the following enhancers codified in chapter
939 are retained: use of a dangerous weapon;30 violent crime in a school zone;31 increased penalty for certain domestic abuse
offenses;32 and "hate crimes."33 Other chapter 939 enhancers have been repealed
as enhancers but identified as aggravating factors that the judge must
consider at sentencing.34 These sentencing
aggravators may convince the judge to impose a longer sentence, but they
do not affect the maximum possible sentence.
Act 109 preserves the habitual criminality enhancer. However, it
applies the MR converter to the statutory provisions that specify the
amount by which terms of imprisonment may be increased.35
Act 109 also affects controlled substance penalty enhancers. The
penalty doubler for second and subsequent offenses is recast to resemble
the general habitual criminality statute.36
If a defendant is a second or subsequent drug offender, the maximum term
of imprisonment may be increased by four years if the new offense is a
Class E-I felony, and six years if a Class C or D felony. The penalty
enhancer for distributing or possessing with intent to deliver a
controlled substance within 1,000 feet of a school, youth center, park,
correctional facility, and so on is set at five years, but the minimum
term of imprisonment previously required by this enhancer has been
repealed.37 Act 109 retains the enhancer
for distribution of controlled substances to individuals under age
To maximize the judge's sentencing discretion, Act 109 repeals most
mandatory and presumptive minimum sentences, including the presumptive
minimum prison terms for felony drug offenses and for committing a crime
while armed with a dangerous weapon. However, it retains those minimum
penalties that exist within the complex penalty structure for the
offense of operating while under the influence of an intoxicant.39 And, contrary to the recommendation of the CPSC,
Act 109 retains the seldom used statutes requiring bifurcated sentences
and minimum terms of incarceration for repeat sex offenders40 and repeat serious violent offenders.41
Act 283 mandated bifurcated sentences for defendants sentenced to
prison for felonies committed on and after Dec. 31, 1999. It did not
authorize bifurcated sentences for those sentenced to prison upon
conviction for enhanced misdemeanors. The CPSC concluded that a
misdemeanant who is dangerous enough or has committed offenses serious
enough to warrant incarceration in prison42
also should receive a bifurcated sentence. The legislature agreed and
Act 109 amends the relevant sentencing statutes accordingly.43
When sentencing a person to prison upon conviction of an enhanced
misdemeanor, the court must bifurcate the sentence into confinement and
extended supervision terms. The confinement term must be for at least
one year44 and may not exceed 75 percent of
the total length of the bifurcated sentence.45 Further, the term of extended supervision may
not be less than 25 percent of the length of the confinement
Wisconsin law has long provided that, as a general proposition, a
person who attempts to commit a felony may be imprisoned for a term not
to exceed one-half the maximum penalty for the completed offense.47 The simplicity of this approach has been
confounded by Act 283, which brought truth-in-sentencing to attempted
felonies but did not specify the procedure for determining the maximum
initial term of confinement for them. This has led to ambiguity in
calculating the maximum initial term of confinement and the term of
extended supervision in the attempt context.
Act 109 preserves the traditional rule that attempts are punishable
at one-half the maximum penalty for the completed crime, but it does so
with language that removes the ambiguity just described. The following
propositions, which are derived from Act 109 and are subject to certain
exceptions spelled out in the attempt statute, depict the calculation of
attempt penalties under the Act:48
- Maximum term of imprisonment for an attempt = one-half the maximum
term of imprisonment for the completed offense.
- Maximum initial term of confinement for an attempt = one-half the
maximum initial term of confinement for the completed offense.
- Maximum initial term of extended supervision for an attempt =
one-half the maximum initial term of extended supervision for the
- Maximum fine for an attempt = one-half the maximum fine for the
An attempt to commit a life imprisonment felony is punishable as a
Class B felony.49 An attempt to commit a
Class I felony is punishable as a Class A misdemeanor.50 Act 109 also includes numerous provisions
describing how attempt penalties are calculated when penalty enhancement
statutes are involved.51
Not Guilty by Reason of Mental Disease or
Under present law the maximum term of institutionalization for
persons found not guilty by reason of mental disease or defect (NGI
acquittees) is set at two-thirds of the maximum sentence for the
underlying offense (including any penalty enhancers).52 If the underlying offense is punishable by life
imprisonment, institutionalization may be for life, subject to
termination as provided for by statute.53
The two-thirds formula applicable to most crimes is a carryover from the
days of indeterminate sentencing and thus sets a maximum term of
institutionalization at the same point in time as mandatory release on
parole. Act 283 did not make any adjustments to the two-thirds
The CPSC recommended that the NGI statutes be amended to tie maximum
institutionalization for felony offenses to the maximum initial term of
confinement in prison for those crimes. This would maintain the approach
of prior law that maximum institutionalization ought to equal the
maximum amount of time that a defendant could serve in prison prior to
first release. The legislature adopted this recommendation in Act 109,
which specifies that the maximum commitment term for a person found not
guilty by reason of mental disease or defect may not exceed the maximum
initial term of confinement for a felony offense plus any additional
imprisonment authorized by any applicable penalty enhancers.54 For life imprisonment crimes, the maximum
institutionalization may be for life.55 For
misdemeanors, a court may commit a person found not guilty by reason of
mental disease or defect to a term not exceeding two-thirds of the
maximum term of imprisonment, including any additional imprisonment
authorized by any applicable penalty enhancement statutes.56
Sentencing Guidelines and Notes
For crimes committed on and after Feb. 1, 2003, sentencing courts
will be required to use sentencing guidelines, where applicable.57 Until the new sentencing commission develops
these guidelines, trial courts should apply the temporary advisory
sentencing guidelines drafted by the CPSC.
Perhaps the greatest challenge the CPSC faced was its statutory
charge to create such guidelines. Ultimately, the CPSC adopted a format
with two parts: 1) a two-page worksheet for the 11 offenses that
implicate approximately three-quarters of the state's prison resources,
and 2) sentencing notes to be used with the worksheets. The worksheets
and sentencing notes are published in the CPSC Final Report.58
The sentencing worksheet guides the judge first, in assessing the
severity of the offense, and second, in assessing the offender's risk to
the community. The judge then consults a graph to determine where these
two assessments intersect, which gives the judge an advisory starting
point from which to begin when deciding the length of the sentence. The
sentencing notes explain many of the considerations and concepts
underlying the questions posed on the sentencing worksheet.
While the court must consider any applicable guideline when
fashioning a sentence, Act 109 does not obligate the judge to make a
sentencing decision within any range or recommendations specified in the
guidelines.59 Further, the defendant does
not have a right to appeal a sentencing decision on the basis that the
court departed in any way from any guideline.60
At one point the budget adjustment bill that became Act 109 contained
language that could have altered the standard of appellate review of
criminal sentences. There also was a provision to require judges to make
"findings of fact as to the elements of the sentence." Such language was
eliminated in joint conference and later by the line-item veto. However,
Act 109 does require a court at sentencing to "state the reasons for its
sentencing decision ... in open court and on the record," or to state
those reasons in writing "if the court determines that it is not in the
interest of the defendant for it to state the reasons for its sentencing
decision in the defendant's presence."61
Extended Supervision and Its Revocation
The CPSC envisioned a format for ES that would consist of differing
levels of supervision based on an offender's behavior. Thus far, because
of cost constraints, that vision has not been realized and ES has taken
on a strong resemblance to parole.
Act 109 enacted several ES-related changes recommended by the CPSC. A
new statute allows the Department of Corrections (DOC), as a sanction
for a violation of ES, to confine an offender who admits the violation
in writing for up to 90 days in a regional detention facility or, with
the approval of the sheriff, in a county jail.62 The 90-day sanction provides the DOC with an
alternative to revoking the offender's extended supervision. The option
became available on July 30, 2002 (the day following publication of Act
As to the process of revoking extended supervision, the CPSC
concluded that the current revocation system in which administrative law
judges (ALJs) make the revocation decisions works well. Hundreds of
cases are adjudicated each year in the administrative forum, thus
relieving circuit courts of that burden. While the CPSC made certain
recommendations to shorten the revocation process, the current system in
which an ALJ conducts the revocation hearing and makes the revocation
decision will continue. However, Act 109 significantly departs from the
current practice in which the ALJ (or the DOC if the defendant waives a
hearing) determines the amount of time to be served after revocation of
ES. If the ALJ decides that ES should be revoked (or if that decision is
made by the DOC in the case of a defendant who waives a revocation
hearing), the revoking authority must make a recommendation to the
circuit court for the county in which the defendant was convicted
concerning the length of time for which he or she should be returned to
prison. The amount of reincarceration time is then to be decided by the
Act 109 provides that, after ES has been revoked, the court "shall
order the person to be returned to prison for any specified period of
time that does not exceed the time remaining on the bifurcated sentence.
The time remaining on the bifurcated sentence is the total length of the
bifurcated sentence, less time served by the person in confinement under
the sentence before release to extended supervision ... and less all
time served in confinement for previous revocations of extended
supervision under the sentence."63 If the
court orders the person returned to prison for less than the entire time
remaining on the bifurcated sentence, the offender serves the prison
time and then returns to ES status for what Act 109 calls "the remaining
extended supervision portion of the bifurcated sentence." This term
means the total length of the bifurcated sentence minus all time already
spent in confinement serving the sentence.64
These new extended supervision revocation procedures apply to persons
who are the subjects of ES revocation proceedings commenced by the DOC
on and after Feb. 1, 2003.
A Wisconsin circuit court possesses the inherent authority to modify
a previously imposed sentence based on either new factors or a
conclusion that the original sentence was "unduly harsh or
unconscionable."65 Act 109 does not alter
an offender's right to seek sentence modification on these grounds. It
does, however, create additional procedures for modifying a bifurcated
Modification of Conditions of Extended Supervision.
Effective Feb. 1, 2003, either the DOC or a defendant may petition a
sentencing court to modify any judicially imposed conditions of
ES.66 An offender may not petition to
modify ES conditions earlier than one year before, or more than once
before, he or she is released to ES. Once the defendant is released to
ES, he or she must wait one year before petitioning the court for ES
Upon receiving the petition, the court must serve the district
attorney. Additionally, it may direct the clerk to provide notice to
victims against whom the defendant committed the crime.68 The court may conduct a hearing on the petition.
The court may modify the conditions only if it determines that the
petition meets both the DOC's and the public's needs and the
modification is consistent with the objectives of the defendant's
sentence69 Both the DOC and the defendant
have the right to appeal an order modifying or denying a petition to
modify ES conditions. Reversal is appropriate only if the sentencing
court erroneously exercised its discretion in granting or denying the
These provisions of Act 109 take effect on Feb. 1, 2003.71 However, they are not limited to persons serving
sentences for offenses committed after that date72 and therefore would be available to those
sentenced under Act 283.
Petition for Release from Initial Confinement Based on Age or
Terminal Illness. Act 109 creates a statutory procedure for
inmates to obtain early release from a term of confinement based on
their age or a terminal condition.73 This
provision applies to offenders serving a bifurcated sentence for a crime
other than a Class B felony. The offender may petition the DOC program
review committee (PRC) for release from confinement if he or she: is at
least 65 years old and has served at least five years of confinement; is
at least 60 years old and has served at least 10 years of confinement;
or has a terminal condition. A terminal condition is defined as an
"incurable condition resulting in a medical prognosis of a life
expectancy of six months or less."74 The
inmate has a statutory right to counsel and, if indigent, the public
defender shall provide representation.75
The PRC must determine whether modification is in the public
interest. The PRC may deny the petition if it is not in the public
interest. If the PRC finds that the petition serves the public interest,
then the DOC must refer the petition to the sentencing court. The
sentencing court must conduct a hearing at which the offender, the
district attorney, and the victim have the right to be present. At such
a hearing the offender must demonstrate by a preponderance of the
evidence that the modification is in the public interest. If the court
finds that modification is in the public interest and grants the
petition, then it may order release of the offender to ES and convert
the unserved confinement portion of the sentence to ES. The total length
of the term of imprisonment remains unchanged.76
An offender has the right to appeal the sentencing court's denial of
the petition, while the district attorney may appeal the sentencing
court's decision to grant the petition. On review, the appellate court
applies an erroneous exercise of discretion standard.77 Once the PRC or a court denies an offender's
petition, the offender is precluded from filing another petition for one
year following the date of the petition's denial.78
These provisions of Act 109 took effect on July 30, 2002 (the day
after publication of the Act). The section of Act 109 establishing a
Feb. 1, 2003, effective date for most truth-in-sentencing changes does
not apply to modifications based on age or terminal illness.79
Petition for Sentence Adjustment. As part of the
legislative compromise to incorporate the CPSC recommendations into the
budget adjustment bill, a mechanism was inserted by which an offender
may petition the sentencing court to adjust a sentence.80 New Wis. Stat. section 973.195 provides that an
offender serving a bifurcated sentence on a Class C, D, or E felony may
petition the sentencing court to adjust the sentence if the inmate has
served 85 percent of the term of confinement in prison. An offender
serving a bifurcated sentence on a Class F, G, H, or I felony may
petition the sentencing court to adjust the sentence if the inmate has
served 75 percent of the term of confinement in prison. Offenders
serving bifurcated sentences for Class B felonies may not petition for
The petition for sentence adjustment must be based upon specific
statutory grounds. These include: 1) progress in conduct,
rehabilitation, treatment, education, or other correctional programming;
2) a change in the law related to sentencing or ES revocation that would
have resulted in a shorter period of confinement at the time of the
original sentencing or revocation; 3) the offender is subject to a
sentence in another state or the offender is an illegal alien subject to
deportation; and 4) adjustment is in the interests of justice.82 Wis. Stat. section 973.195 does not provide an
offender with a statutory right to counsel when filing such a
Upon receipt of the petition, the court may summarily deny it. If the
court holds the petition for consideration, it must notify the district
attorney. If the district attorney objects, the court shall deny the
offender's petition. If the district attorney does not object, the
district attorney shall notify the victim if the underlying conviction
is for soliciting a child for prostitution and certain sexual assault
offenses. If the victim objects, the court shall deny the
If the court receives no objection from the district attorney or the
victim, the court may adjust the offender's sentence if it finds
adjustment is in the public interest and articulates its reasoning in
writing. If the court reduces the remaining portion of the offender's
confinement term, it must increase the ES so that the total term of
imprisonment remains unchanged.84 But if a
subsequent change in the penalties for the offense has resulted in a
decrease in the maximum sentence or extended supervision, the court may
reduce the total period of imprisonment or ES to the maximum allowed
under the new law had it been in effect at the time of the original
An offender is limited to one petition for sentence adjustment for
each bifurcated sentence.86 There is no
statutory right of appeal to the inmate if the court denies the petition
or to the state if the court grants the petition.
These provisions of Act 109 take effect on Feb. 1, 2003,87 and clearly apply to offenders who commit their
crimes on and after that date. But how do they affect those sentenced
under Act 283 for crimes committed between Dec. 31, 1999, and Feb. 1,
2003? For such offenders, the answer is unclear. On the one hand, it
could be argued that the legislature intended to make sentence
adjustment available to them because the relevant initial applicability
section of Act 109 does not limit the new section 973.195 to offenses
committed on and after Feb. 1, 2003.88
Further, at least some Act 283 offenders would be able to assert that
one of the grounds upon which a section 973.195 petition may be brought
applies to their situation: a change in the law related to sentencing or
ES revocation that would have resulted in a shorter period of
confinement at the time of the original sentencing or revocation.89
On the other hand, one could reasonably contend that the legislature
could not have intended the new section 973.195 to apply to crimes
committed before Feb. 1, 2003, because the "applicable percentage" of
the sentence that must be completed before a petition for sentence
adjustment may be made is described in Act 109 by referring to the new
A-I classification system that applies for the first time to crimes
committed on and after Feb. 1, 2003.90
Further, the statute is completely silent about how to determine the
"applicable percentage" for those serving Act 283 sentences for
unclassified crimes like drug offenses.
The absence of a clear resolution of this dilemma means that either
trailer legislation or court decisions will be needed to resolve the
fate of Act 283 offenders who seek adjustment of their sentences.
Following the CPSC's recommendations, Act 109 creates a sentencing
commission. It will include members appointed by the executive,
legislative, and judicial branches of government and the State Bar of
Wisconsin. The commission, which is attached to the Department of
Administration, consists of 18 voting and three nonvoting members and
has the authority to appoint an executive director and other staff to
assist it in performing its duties.91
The commission's primary responsibilities include monitoring and
compiling data on sentencing practices and developing advisory
sentencing guidelines. In addition, it will provide information to the
legislature, state agencies, and the public regarding the costs and
other needs that result from sentencing practices; inform judges and
lawyers about sentencing guidelines; assist the legislature in assessing
the costs of legislation; and study the role of racial bias in
sentencing. The commission is also to publish and distribute to all
circuit judges an annual report regarding its work, and study how
sentencing options affect various types of offenders and
The commission has the potential to guide the statewide development
of sentencing practices in a cost-effective manner without compromising
Joint Review Committee on Criminal Penalties
Act 109 creates a Joint Review Committee on Criminal Penalties that
includes members appointed by the executive, legislative, and judicial
branches.93 This committee's primary
function is to review legislative proposals creating new crimes or
revising penalties for existing crimes. In reviewing a bill, the
committee will consider the costs of the proposal to various branches of
government, consistency of the proposed penalties with current
penalties, the language necessary to conform proposed penalties with
existing criminal statutes, and whether other existing criminal statutes
already prohibit the conduct that is the subject of the proposed
The Joint Review Committee could serve a vital purpose in providing
the legislature with valuable information necessary to make informed
choices regarding the value and impact of proposed criminal justice
The changes in Wisconsin's sentencing laws discussed in this article
are indeed substantial. And they were a long time in coming. However,
with the passage of Act 109, the pieces are now in place for the full
implementation of truth-in-sentencing as originally envisioned by our
Wis. Act 109, §§ 9359, 9459.
description of the provisions of 1997 Wis. Act 283 may be found in
Michael B. Brennan and Donald V. Latorraca, "Truth-in Sentencing," Wis.
Lawyer, May 2000, at 14.
31997 Wis. Act 283
4The CPSC's Final
Report and Appendices may be found at
5Wis. Stat. §
302.11(1) (2001-2002). There is no mandatory release for persons
sentenced to life imprisonment. Wis. Stat. § 302.11(1m)
serious felonies mandatory release upon service of two-thirds of the
sentence was presumptive but could be denied by the Parole Commission.
See Wis. Stat. § 302.11(1g) (2001-2002).
7Wis. Stat. §
8Wis. Stat. §
9Under Act 109 a
person whose extended supervision has been revoked is returned to the
circuit court of the county of conviction, where the judge determines
how much additional confinement time must be served as a remedy. Wis.
Stat. § 302.113(9)(am) (2001-2002).
revocation of extended supervision, "the court shall order the person to
be returned to prison for any specified period of time that does not
exceed the time remaining on the bifurcated sentence. The time remaining
on the bifurcated sentence is the total length of the bifurcated
sentence, less time served by the person in confinement under the
sentence before release to extended supervision ... and less all time
served in confinement for previous revocations of extended supervision
under the sentence." Wis. Stat. § 302.113(9)(am) (2001-2002).
§ 302.113(9)(c) (2001-2002).
e.g., Wis. Stat. § 133.03(1), (2) (trusts and monopolies).
§ 973.09(2)(b)1. (1999-2000).
§ 973.09(2)(b)2. (1999-2000).
Wis. Stat. § 973.09(2)(a) (1999-2000).
not an option for Class A felonies. Wis. Stat. § 973.09(1)(c)
v. Miller, 175 Wis. 2d 204, 499 N.W.2d 215 (Ct. App. 1993).
recommendation is consistent with current law that provides that the
maximum original term of probation shall be for not more than the
maximum period of imprisonment for the crime of conviction or three
years, whichever is greater. See Wis. Stat. §
section 939.22(14) defines "great bodily harm" as "bodily injury which
creates a substantial risk of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss of
impairment of the function of any bodily member or organ or other
serious bodily injury."
section 939.22(38) defines "substantial bodily harm" as "bodily injury
that causes a laceration that requires stitches; any fracture of a bone;
a burn; a temporary loss of consciousness, sight or hearing; a
concussion; or a loss or fracture of a tooth."
section 940.19(3) (1999-2000) is repealed.
§ 940.03 (2001-2002).
§ 943.23 (2001-2002).
§ 941.29 (2001-2002).
§ 943.23(2) (2001-2002).
§ 943.23(3) (2001-2002).
Wis. Stat. § 943.23(3m) (2001-2002).
Wis. Stat. § 346.04(2t) (2001-2002).
Wis. Stat. § 346.04(4) (2001-2002).
§ 939.63 (2001-2002).
§ 939.632 (2001-2002).
§ 939.621 (2001-2002).
§ 939.645 (2001-2002).
Wis. Stat. § 973.017 (2001-2002). Examples of enhancers that have
been repealed and then incorporated into the omnibus sentencing statute
include commission of certain sex crimes while infected with acquired
immunodeficiency syndrome, HIV, or a sexually transmitted disease
(§ 939.622); gang crimes (§ 939.625); use of a bulletproof
garment (§ 939.64); concealing identity (§ 939.641); using the
sex offender registry in the course of committing a crime (§
939.646); crimes against the elderly (§ 939.647); and terrorism
Wis. Stat. § 939.62(1) (2001-2002).
§ 961.48 (2001-2002).
§ 961.49 (2001-2002).
§ 961.46 (2001-2002).
Wis. Stat. § 346.65(2) (2001-2002).
§ 939.623 (2001-2002).
§ 939.624 (2001-2002).
was specifically concerned with those offenders who face prison
sentences of more than one year because their misdemeanor crimes have
been enhanced by application of one or more penalty enhancer statutes,
including habitual criminality. It was not dealing with the situation in
which a defendant has been sentenced to prison for a felony and to the
county jail for a misdemeanor and who, by operation of law, will serve
both sentences (whether consecutive or concurrent) in the state prisons.
See Wis. Stat. § 973.03(2) (2001-2002).
Wis. Stat. § 973.01(1) (2001-2002).
§ 973.01(2)(b) (intro.) (2001-2002).
§ 973.01(2)(b)10. (intro.) (2001-2002).
§ 973.01(2)(d) (intro.) (2001-2002).
Wis. Stat. § 939.32(1) (2001-2002).
Wis. Stat. § 939.32(1g), (1m) (2001-2002).
§ 939.32(1)(a) (2001-2002).
§ 939.32(1)(bm) (2001-2002).
Wis. Stat. § 939.32(1g), (1m) (2001-2002).
§ 971.17(1) (1999-2000).
§ 971.17(1) (1999-2000).
§ 971.17(1)(b) (2001-2002)
§ 971.17(1)(c) (2001-2002).
§ 971.17(1)(d) (2001-2002).
§ 973.017(2)(a) (2001-2002).
§ 973.017(10) (2001-2002).
§ 973.017(10m)(a), (b) (2001-2002).
§ 302.113(8m)(b) (2001-2002).
§ 302.113(9)(am) (2001-2002).
§ 302.113(9)(c) (2001-2002).
State v. Grindemann, 2002 WI App 106, ¶21, ___ Wis.2d ___, 648
§ 302.113(7m)(e)1., 2. (2001-2002).
§ 302.113(7m)(e)2. (2001-2002).
§ 302.113(7m)(b) (2001-2002).
§ 302.113(7m)(c) (2001-2002).
§ 302.113(7m)(d) (2001-2002).
2001 Wis. Act 109, § 9459(1).
2001 Wis. Act 109, § 9359(3).
§ 302.113(9g) (2001-2002).
§ 302.113(9g)(a), (b) (2001-2002).
§ 302.113(9g)(j) (2001-2002).
§ 302.113(9g)(f) (2001-2002).
§ 302.113(9g)(h) (2001-2002).
§ 302.113(9g)(i) (2001-2002).
2001 Wis. Act 109, § 9459(1).
Penalties Study Committee did not propose the sentence adjustment
procedure discussed in this section. Rather, it was devised by senate
and assembly budget negotiators during the final stages of the 2002
special session of the legislature. Act 109 is the product of that
serving a bifurcated sentence for an enhanced misdemeanor apparently may
petition for a sentence adjustment, the statute does not specify the
applicable percentage of time that they must serve before petitioning
and obtaining release.
§ 973.195(1r)(b) (2001-2002).
§ 973.195(1r)(c)-(f) (2001-2002).
§ 973.195(1r)(g) (2001-2002).
§ 973.195(1r)(h) (2001-2002).
§ 973.195(1r)(i) (2001-2002).
2001 Wis. Act 109, § 9459(1).
2001 Wis. Act 109, § 9359(3).
§ 973.195(1r)(b)3. (2001-2002).
Wis. Stat. § 973.195(1g) (2001-2002).
§§ 15.105(27), 973.30 (2001-2002).
§ 973.30 (2001-2002).
§ 13.525 (2001-2002).
The Classification of Routinely Prosecuted
1st Degree Intentional Homicide
Attempted 1st Degree
1st Degree Reckless Homicide1
2nd Degree Intentional Homicide
1st Degree Sexual Assault
1st Degree Sexual Assault of a Child
Arson of Building
2nd Degree Sexual Assault
2nd Degree Sexual Assault of a Child
Homicide by Intox. Use of Vehicle (with prior OWI-type conviction)
2nd Degree Reckless Homicide
1st Degree Reckless Injury
Homicide by Intox. Use of Vehicle
(no prior OWI-type convictions)
2nd Degree Reckless Injury 1st Degree Recklessly Endangering
Injury by Intox.Use of Vehicle
3rd Degree Sexual Assault
2nd Degree Recklessly Endangering Safety
Felon in Possession of Firearm
Theft (> $10,000)
Receiving Stolen Property (> $10,000)
Theft from Person
Battery to Law Enforcement Officer
Operating Vehicle w/o Owner's Consent ("take & drive")
Felony Bail Jumping
Theft (> $5,000 but < $10,000)
Receiving Stolen Property
(> $5,000 but < $10,000)
Arson of Property other than a Building
Possession of Burglarious Tools
Operating Vehicle w/o Owner's Consent ("drive/operate")
Theft (> $2,500 but < $ 5,000)2
Receiving Stolen Property
(> $2,500 but < $ 5,000)3
Failure to Support (more than 120 days)
Possession of Firearm in School Zone
1Wis. Stat. § 940.02(1). The
"Len Bias" form of reckless homicide is a Class C felony in the new
2If the value of the property taken
does not exceed $2,500, the theft is a Class A misdemeanor.
3If the value of the stolen
property does not exceed $2,500, the crime is a Class A misdemeanor.
Depiction of Certain Controlled Substances Offenses
with Stratified Penalties in the A-I Classification
System The crimes depicted in this figure involve delivery of
and possession of with intent to deliver controlled substances.
Coke = Cocaine
LSD = Lysergic Acid Diethylamide
Heroin = Heroin
THC = Tetrahydrocannabinols (Marijuana)
METH = Methamphetimine Amphetamine, Phencyclidine (PCP)
KET = Ketamine Psilocin = Psilocin and
Psilocybin FLU = Flunitrazepam
Coke > 40 g
Psilocin >500 g
Coke > 15 g but < 40 g
Psilocin > 100 g but < 500 g
Heroin > 50 g
Coke > 5 g but < 15 g
Psilocin < 100 g
> 10 g but
< 50 g
Coke > 1 g but < 5 g
Heroin > 3 g but < 10 g
Coke < 1 g
Heroin < 3 g
> 50 g
THC > 10,000g
FLU > 50 g
> 10 g but < 50 g
THC > 2,500 g but < 10,000g
FLU > 10 g but < 50g
METH > 3 g but < 10 g
THC > 1,000 g but < 2,500 g
KET > 50 g
FLU < 3 g but < 10 g
METH < 3 g
THC >200 g but < 1,000 g
KET > 10 g but < 50 g
LSD > 5 g
FLU < 3 g
THC < 200 g
KET > 3 g but < 10 g
LSD > 1g but < 5 g
KET < 3 g
LSD < 1 g