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.

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.

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