Vol. 73, No. 5, May
2000
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
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
Before 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
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.
|
|
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 Committee, which was charged with implementing
truth-in-sentencing in Wisconsin.
Donald 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.
Wisconsin
Lawyer