Inside Track: Criminal sentencing provisions could change under Gov. Walker's proposed budget bill:

State Bar of Wisconsin

Sign In

Top Link Bar may be unavailable on February 21 starting at 5 p.m. until 9 p.m. for system maintenance.​​​​​​

  • InsideTrackInsideTrack

News & Pubs Search

  • Criminal sentencing provisions could change under Gov. Walker's proposed budget bill

    Gov. Scott Walker's biennial budget proposes to repeal early-release mechanisms, such as positive adjustment time and the earned-release program, which eased rules established by truth-in-sentencing. This article summarizes the major changes proposed.

    Joe Forward

    Share This:
    Criminal sentencing provisions could change under Gov. 
Walker's proposed budget bill

    March 16, 2011 – Gov. Scott Walker’s 2011-13 biennial budget, as currently proposed, changes the sentencing laws that allow some prison inmates to trim prison terms and repeals the Department of Corrections’ (DOC) power to release prison inmates early.

    Specifically, Assembly Bill 40 and Senate Bill 27 dumps the earned-release program, creates a substance abuse treatment program, and repeals positive adjustment time for good behavior, among other changes.

    The provisions repeal expanded early-release provisions implemented by former Gov. James Doyle under 2009 Wis. Act 28 (effective Oct. 1, 2009), which provides early-release options to those sentenced to prison under Wisconsin’s truth-in-sentencing laws.

    Gov. Tommy Thompson passed the truth-in-sentencing laws under 1997 Wis. Act 283, which applies to crimes committed after 1999. Under the law, any person sentenced to prison receives a “bifurcated sentence” – a term of confinement and a term of extended supervision.

    According to a recent blog post by Marquette University Law Professor Michael O’Hear, at least 36 states have passed legislation for expanded early-release programs in the last decade.

    “Much of the new legislation is designed to encourage and reward inmates for participating in prison-based programming, which seems to reflect a renewed confidence in the capacity of offenders to achieve rehabilitation under the guidance of corrections officials,” O’Hear writes.

    O’Hear also explains that early-release measures probably reflect states’ “short-term fiscal pressures and the need to reduce bloated corrections budgets.” However, Walker recommends repealing certain laws established by 2009 Wis. Act 28 to “ensure public safety by eliminating early release mechanisms and restoring truth in sentencing.”

    The following discusses some of the more important changes that could, if made law, impact criminal lawyers, the courts, and those convicted of crimes.

    No positive adjustment credit

    Walker’s proposal eliminates the ability of inmates to shave time off their terms of confinement – and be released early to extended supervision – through good conduct and clean prison records, otherwise known as positive adjustment time.

    Under current law, inmates serving sentences for nonviolent misdemeanors or for Class F-I felonies can earn one day of positive adjustment time for every two days served.

    Others can earn one day for every three days served. A person sentenced under Class C-E felonies can earn one day of positive adjustment time for every 5.7 days served.

    Positive adjustment time does not apply to sex offenders, persons sentenced for offenses against elderly or vulnerable people, and other specifically enumerated offenses. Inmates are also subject to confinement extensions for bad behavior.

    Under Walker’s proposal, inmates could not accrue positive adjustment time. However, inmates could apply for positive adjustment time credit for time served prior to the effective date of the bill, if made law.

    Challenge incarceration for substance abusers only

    Walker’s proposal restricts participation in the challenge incarceration program to those with identifiable substance abuse problems.

    Under current law, the department must provide a challenge incarceration program for those inmates the court decides are eligible to participate. Substance abuse is not currently a condition of eligibility. Those without substance abuse problems are eligible.

    The challenge incarceration program provides participants with manual labor, military drilling, strenuous physical exercise as well as substance abuse treatment, education, counseling, employment readiness training, and other treatment options that are directly related to the participant’s criminal behavior.

    Upon successful completion, the inmate is eligible to be paroled, regardless of the time the inmate has served. When parole is granted, the parolee must participate in an intensive supervision program appropriate to the parolee's rehabilitation needs.

    Under Walker’s plan, a successful parolee is required to participate in an intensive supervision program for substance abusers.

    Earned-release program would end

    Walker’s current proposal dismantles the earned-release program, a general rehabilitation program that allows for early release to extended supervision upon successful completion. However, Walker’s proposal creates a substance abuse treatment program instead.

    As part of imposing a bifurcated sentence under current law, the court also decides whether a person is eligible to participate in the earned-release program, an intensive six-month rehabilitation program designed to reduce an inmates’ risk of reoffending upon release.

    If serving a bifurcated sentence, the DOC informs the sentencing court that the inmate has completed a rehabilitation program, and the inmate becomes eligible for release to extended supervision within 30 days. The extended supervision period is then increased.

    Walker’s proposal essentially restricts participation to those inmates with identified substance abuse problems by creating a substance abuse treatment program.

    Substance abuse program would be created

    Walker’s plan establishes a substance abuse program in place of the earned-release program. Under the plan, the DOC and the Department of Health Services could designate a section of a mental health institute as a correctional treatment facility for the treatment of substance abuse of inmates transferred from Wisconsin state prisons.

    If an eligible inmate serving a sentence other than a bifurcated sentence (pre-2000 for felonies and pre-Feb. 1, 2003, for misdemeanors) has completed a substance abuse treatment program, the inmate is paroled, regardless of the time the inmate has served, but must participate in an intensive supervision program for drug abusers upon release.

    If serving a bifurcated sentence, the court must modify the bifurcated sentence to allow for release to extended supervision within 30 days of completing substance abuse treatment. The sentencing court then lengthens the period of extended supervision.

    Other possible changes

    When the sentencing court imposes a bifurcated sentence, the court may order the person it sentences to serve a risk-reduction sentence if appropriate. The person must agree to cooperate to assess the risk of reoffending and participate in programming or treatment.

    Under the current risk-reduction program, the department can release an inmate who is serving a risk-reduction sentence to extended supervision when he or she serves not less than 75 percent of the term of confinement, has completed the programming or treatment developed by the department, and has maintained a good conduct record.

    Walker’s proposal would not change an inmate’s ability to be released early to extended supervision under a risk-reduction sentence. But the proposal would repeal the DOC’s current discretion to release other inmates who are not serving a risk-reduction sentence.

    Currently, inmates serving sentences for misdemeanors or Class F-I felonies committed prior to Oct. 1, 2009, may apply for release to extended supervision when they serve at least 75 percent of the confinement term of a bifurcated sentence, or 85 percent for Class C-E felonies.

    Under Walker’s plan, an inmate could still petition the sentencing court to adjust the sentence if the inmate has served at least the applicable percentage of the term of confinement in prison, which is allowed under current law.

    In addition, the proposal still allows a prison term reduction, after a hearing before the sentencing court, based on an inmate’s extraordinary health condition, or based on age and confinement length if the inmate is 60 years of age or older.

    But Walker’s plan eliminates the DOC’s current discretion to release nonviolent offenders who are eligible for release to extended supervision within 12 months. The proposal also eliminates the DOC’s ability to discharge an inmate who has served two years of extended supervision and meets all conditions, which is allowed under current law.


    Walker’s proposed budget is currently being reviewed by the nonpartisan Legislative Fiscal Bureau. It is anticipated that the Legislature’s Joint Finance Committee will begin statewide public hearings on the budget in early April with voting to be held soon after.

    Legislative leaders have indicated the intent to vote on the $59 billion budget before the start of the next fiscal cycle of July 1, 2011.

     By Joe Forward, Legal Writer, State Bar of Wisconsin

    Related articles