Vol. 75, No. 11, November 2002

• Fully Implementing Truth-in-Sentencing

Problems with the New Truth-in-Sentencing Law

by John A. Birdsall & Raymond M. Dall'Osto

The enactment of the second half of truth-in-sentencing (TIS) legislation in 2001 Wis. Act 109 has been a long time coming. What ultimately was included in Act 109 does not include many of the changes and reforms proposed by the State Bar Criminal Law Section. The section's proposals would have addressed problems with Wisconsin's "no parole regime," helped control the increasing prison population, and provided more resources for rehabilitation of incarcerated persons.

While Wisconsin has become a national leader in incarcerating more and more people, many other states facing similar substantial budget deficits are reviewing and changing costly prison and sentencing policies.

A February 2002 report publicized by the Justice Policy Institute in Washington, D.C., details a variety of responses by other states to the nationwide prison budget crunch, including reversal of mandatory and no parole sentencing laws, early release of nonviolent offenders, and diverting nonviolent drug offenders to alternative treatment programs. The report is available online at www.justicepolicy.org and at www.sentencingproject.org.

The technical application of the new TIS legislation is covered well in the main article accompanying this sidebar. The charts are particularly helpful to practitioners in comprehending the new system.

One of the centerpieces of the second phase of TIS was the creation of a sentencing commission, which was envisioned as being a neutral monitor and advisor to state government, not beholden to any specific interest group. A veto of funding for staff positions for the sentencing commission, however, will hamper the commission's ability to be an effective advisor on state sentencing policies. Also vetoed was a provision that would have set standards for allowing greater appellate review of sentencing decisions if the circuit court erroneously exercised its discretion or if there was insufficient evidence in the record to support the sentence.

Act 109 allows inmates to petition for sentence adjustment under certain circumstances. The Criminal Law Section proposed and strongly supported a sentence adjustment provision under which an incarcerated person or the Department of Corrections could petition the court for adjustment of the confinement portion of the bifurcated sentence based on any of the following: 1) a new factor; 2) a person's significant efforts and good conduct in prison, including treatment, rehabilitation, education, and so on; 3) the lack of appropriate education, treatment, or rehabilitation programs in prison that would have effectuated the judge's original sentence; 4) a disabling medical condition; 5) a change in sentencing law or procedure since the original sentence was imposed; and 6) the need to allow the prisoner to serve an out-of-state or federal sentence or to allow a noncitizen to be deported.

In the course of developing the budget repair bill that became Act 109, the state senate adopted a sentence adjustment provision, similar to the Criminal Law Section's proposal, that also would have allowed adjustment after a person served 25 percent of his or her prison sentence. The assembly version was silent on any adjustment provision. The ultimate product of the conference committee was the creation of Wis. Stat. section 973.195, which applies to only some classes of felonies, requires service of 75 to 85 percent of the sentence before filing a petition, limits the grounds for the petition (excluding numbers 1, 3, and 4 cited above), and gives the district attorney (and in some cases the crime victim) absolute veto power. These restrictions on the ability to petition severely limit the utility of this provision.

As to whether the new statute will apply to prisoners sentenced for crimes occurring between Dec. 31, 1999, and Feb. 1, 2003, the Criminal Law Section's proposal provided grounds for a petition in light of a change in the law. This was precisely the group of persons that this provision was meant to include.

The pre-TIS caselaw on what constitutes a "new factor" will have to be revisited in sentence modification motions when parole is not available. Motions to modify sentences are not limited to just the section 973.195 adjustment petition language. In the authors' view, the scope of a "new factor" will necessarily have to be interpreted more broadly, as the ABA Criminal Justice Standards intended, in the absence of parole consideration in TIS sentences.

Wisconsin Lawyer