Wisconsin Lawyer: Wisconsin Lawyer May 2000: Truth-in-Sentencing:

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    Wisconsin Lawyer May 2000: Truth-in-Sentencing


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    Truth-in-Sentencing

    Each house of the Wisconsin Legislature has passed a version of legislation reclassifying crimes and otherwise implementing Truth-in-Sentencing, but those two versions have not been reconciled. 1 Until such a reconciled version becomes law, Wisconsin criminal sentencing law is as described in this article.

    by Michael B. Brennan & Donald V. Latorraca

    I n recent years many citizens have become concerned that parole and other forms of early release have resulted in a criminal justice system in which many offenders serve less than one-half of their sentences. To provide greater public safety and restore confidence in the criminal justice system the Wisconsin Legislature passed and the governor signed into law 1997 Wis. Act 283, which brought Truth-in-Sentencing to Wisconsin. Under Wisconsin's new determinate sentencing law - for crimes committed on or after Dec. 31, 1999 - offenders will receive a bifurcated sentence that includes a term of confinement in prison and a term of extended supervision in the community.

    Prior Law: Indeterminate Sentencing

    JailBefore the enactment of Act 283 a judge sentenced an offender to an indeterminate prison sentence. The offender rarely served the prison term actually imposed. An offender served six months or one-quarter of the court-imposed sentence, whichever was greater, before becoming eligible for parole, a decision made by the Parole Commission.2 Absent extenuating circumstances an offender was released after serving two-thirds of the court-imposed sentence, the mandatory release date.3 If parole was granted, the Department of Corrections (DOC) supervised the offender for a period not to exceed the court-imposed sentence, less time already served. This indeterminate sentencing scheme remains in effect for all offenses that occurred on or before Dec. 30, 1999.

    New Felony Sentence Structure

    Act 283 abolishes parole. It subjects offenders who commit felonies on and after Dec. 31, 1999, to determinate sentencing. For each offender whom a judge intends to imprison, the judge must impose a bifurcated sentence.4 A bifurcated sentence consists of two components: 1) an initial term of confinement in prison of at least one year; and 2) a term of extended supervision (ES). The offender must serve the entire initial term of confinement in prison.5 This term of confinement is followed by a term of extended supervision in the community subject to conditions set by the court and the DOC.6 Violation of ES subjects the offender to return to prison for a period not greater than the ES term.7 The confinement term plus extended supervision term comprises the total length of an offender's term of imprisonment under Act 283. For example, a court may sentence an offender to a four-year term of imprisonment, comprised of two years of confinement followed by two years of extended supervision. See Figure 1 - New Bifurcated Sentence.

    Figure 1
    New Bifurcated Sentence

    Term of confinement in prison
    +
    Term of extended supervision (ES)
    =
    Term of imprisonment

    ES term must = 25% of length of confinement term (not term
    of imprisonment)

    Act 283 establishes an informationally accurate system of sentencing. A sentence to one-year confinement in prison means the offender will be incarcerated for exactly 365 days before being released to a term of extended supervision.

    Act 283 also eliminates intensive sanctions as an option for the confinement portion of a bifurcated sentence.8

    Act 283 requires the judge, orally and in writing, to notify the offender of six facts at sentencing: 1) the total length of the bifurcated sentence; 2) the period the offender will serve in prison during the term of initial confinement; 3) the period the offender will spend on extended supervision; 4) that the initial period of confinement may be extended by "bad time" for misconduct while in prison; 5) that the offender will be subject to certain conditions while on release to extended supervision, and that violation of any of those conditions may result in the offender being returned to prison; and 6) that the judge has considered whether the offender is eligible for the challenge incarceration program (boot camp).9 A form has been developed for use in the circuit courts as the written explanation of these facts.10

    This sixth requirement has created some confusion. One possible interpretation of this requirement is that a judicial determination of boot camp eligibility should contain two components. First, the judge must determine whether the offender meets certain statutory criteria for participation related to the offender's age and the type of offense committed.11 Second, the judge then must exercise appropriate sentencing discretion based upon the severity of the offense, the offender's character, and other factors in assessing whether the offender is an appropriate candidate for boot camp. A judicial determination of boot camp eligibility does not guarantee an offender's placement in boot camp. The DOC retains the discretion to choose which "eligible" offenders will enroll in boot camp.

    If an offender successfully completes boot camp, the remaining portion of the confinement term is converted to extended supervision time, although the total length of that offender's bifurcated sentence does not change.12 For example, assume an offender receives a four-year bifurcated sentence comprised of two years confinement and two years ES, and the judge finds the defendant eligible and appropriate for boot camp. The DOC places the offender in boot camp. The offender successfully completes the six-month camp. The remaining portion of the offender's initial confinement term (1.5 years) would convert to ES, increasing the offender's ES term from two years to 3.5 years.

    Expanded Penalty Ranges

    Act 283 expands the penalty ranges for all felonies to allow for a period of extended supervision. Currently, Wisconsin's statutes list 484 felonies, 264 of which are classified crimes within the criminal code, and 220 of which are unclassified crimes scattered throughout the state statutes.

    The penalty lengths for classified crimes were increased by 50 percent (although a Class E felony was increased from two years to five years). (Please compare Figure 2 with Figure 3.) Thus, for example, a Class B felony, formerly punishable by 40 years in prison, but under which an offender would be released at 26.8 years (two-thirds of the sentence, the mandatory release date), is now punishable by up to a 60-year term of imprisonment, including up to 40 actual years of initial confinement in prison before a 20-year term of extended supervision.

    The penalty ranges for unclassified felonies also were increased, by 50 percent or one year, whichever was greater. But no schedule sets the maximum initial terms of confinement for unclassified felonies. Therefore, Act 283 provides that the maximum initial term of confinement for an unclassified crime may not exceed 75 percent of the maximum term of imprisonment.13

    Accordingly, an unclassified crime such as possession with intent to deliver 5 grams or less of cocaine, previously punishable by up to 10 indeterminate years in prison, has a new maximum term of imprisonment of 15 years.14 This offense carries a maximum initial term of confinement of 75 percent of 15 years, or 11.25 years. An offender sentenced to the maximum initial term of confinement could serve no more than 3.75 years of ES, as the maximum term of imprisonment is 15 years.

    Prison Disciplinary Sanctions

    Indeterminate sentences in Wisconsin allow an offender to earn "good time" credit.15 Determinate sentences for offenses committed on and after Dec. 31, 1999, make no such allowance. Rather, an offender serves the entire term of confinement in prison before the extended supervision term begins. Also, an offender can be assessed "bad time" in the form of extra days in confinement before release to ES.

    Act 283 details punishment for violation of disciplinary rules in prison.

    An offender's confinement term may be increased 10 days for the first violation, 20 days for the second violation, and 40 days for the third and each subsequent violation.16 Also, if the offender is placed in adjustment, program, or controlled segregation status, the DOC may extend the confinement term by a number of days equal to 50 percent of the number of days spent in that status.17

    Extra confinement time for rules violations alter the ratio of confinement time to ES time in the original sentence. The total length of the bifurcated sentence does not change. So for each increase in the confinement term by a day, the ES term decreases by a day.18

    Extended Supervision and Its Revocation

    In addition to setting the initial term of confinement in prison the sentencing court also must impose a term of extended supervision. The ES portion of the bifurcated sentence must equal at least 25 percent of the term of confinement actually imposed. Act 283 did not specify maximum terms of ES available for specific classified and unclassified offenses. Rather, to calculate the maximum allowable term of ES, a sentencing judge subtracts the initial term of confinement actually imposed from the maximum term of imprisonment possible.

    For example, suppose that an offender is found guilty of a Class B felony, which carries the maximum term of imprisonment of 60 years.19 The judge imposes a one-year initial term of confinement, the minimum confinement term allowed for a bifurcated sentence under Act 283. Using the 25 percent rule, the minimum ES term that the court must impose is 25 percent of one year, or three months. The maximum ES time available to the sentencing court is the maximum term of imprisonment (60 years) less the initial term of confinement (one year). Conceivably, a court could sentence an offender convicted of a Class B felony to one year of confinement followed by 59 years of ES.

    Because ES is mandatory an offender has no right to refuse ES. However, once sentenced an offender may waive his or her right to release to ES, but only if the DOC agrees.20

    Act 283 also authorizes the judge to impose conditions on the ES term.21 The DOC also may impose additional ES conditions that do not conflict with those imposed by the judge.22

    If an offender violates one or more conditions of ES the revocation procedure is the same as the current procedure for revocation of an offender's parole.23 An offender shall be sentenced back to confinement in prison for the period specified by the DOC if the offender waives a hearing, or by the Department of Administration Division of Hearings and Appeals if the offender loses a contested hearing. The offender does not return to court for sentencing after revocation. Act 283 does not alter current alternatives to revocation or the offender's right to challenge revocation through a writ of certiorari.

    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

    JailAssume 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.

    BrennanMichael 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 Committee, which was charged with implementing truth-in-sentencing in Wisconsin.

    LatorracaDonald V. Latorraca , Washington University in St. Louis 1985, is an assistant attorney general with the Wisconsin Department of Justice. The comments in this article are the authors' and do not necessarily reflect the opinions of the attorney general or the Wisconsin Department of Justice.

    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.




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