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.
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