AB879: Bill Text

2009 - 2010 LEGISLATURE

2009 Assembly BILL 879

March 23, 2010 - Introduced by Representatives Suder, Ripp, J. Fitzgerald, Gottlieb, Kleefisch, Strachota, Knodl, Montgomery, Davis, Zipperer, Roth, Mursau, Petersen, Petrowski, Ziegelbauer, Townsend, Vos, Pridemore, Rhoades, Brooks, Huebsch, Spanbauer, LeMahieu, M. Williams, Gunderson, Kramer, Nygren, Stone, Nerison, Meyer, Ballweg, Bies, Nass, Honadel, Murtha, J. Ott and Lothian, cosponsored by Senators Leibham, Lazich, Darling, S. Fitzgerald, Hopper, A. Lasee, Kedzie and Harsdorf. Referred to Committee on Corrections and the Courts.

AB879,2,9 An Act to repeal 20.410 (1) (ds), 301.068, 302.042, 302.045 (3m) (d), 302.05 (3) (c) 3., 302.113 (2) (b), 302.113 (2) (c), 302.113 (3) (e), 302.113 (9h), 302.1135, 304.06 (1) (bg), 304.06 (1) (bk), 304.06 (1) (bn), 304.06 (1) (br), 973.01 (3d), 973.01 (4m), 973.031, 973.09 (3) (d) and 973.195 (1r) (j); to renumber and amend 302.05 (1) and 302.113 (2) (a); to amend 15.01 (2), 15.06 (6), 15.145 (1), 17.07 (3m), 20.410 (2) (title), 20.410 (2) (a), 20.923 (4) (b) 6., 230.08 (2) (pd), 301.03 (3), 301.048 (2) (am) 3., 301.21 (1m) (c), 301.21 (2m) (c), 302.045 (1), 302.045 (3), 302.05 (title), 302.05 (2), 302.05 (3) (b), 302.05 (3) (c) 1., 302.05 (3) (c) 2. (intro.), 302.05 (3) (d), 302.11 (1g) (b) (intro.), 302.11 (1g) (b) 2., 302.11 (1g) (c), 302.11 (1g) (d), 302.11 (1m), 302.11 (7) (c), 302.113 (1), 302.113 (3) (d), 302.113 (7), 302.113 (9) (am), 302.113 (9) (b), 302.113 (9) (c), 302.114 (9) (am), 302.114 (9) (c), 304.01 (title), 304.01 (1), 304.01 (2) (intro.), 304.01 (2) (b), 304.01 (2) (c), 304.01 (2) (d), 304.06 (title), 304.06 (1) (b), 304.06 (1) (c) (intro.), 304.06 (1) (d) 1., 304.06 (1) (d) 2., 304.06 (1) (d) 3m., 304.06 (1) (d) 4., 304.06 (1) (e), 304.06 (1) (eg), 304.06 (1) (em), 304.06 (1) (f), 304.06 (1) (g), 304.06 (1m) (intro.), 304.06 (1q) (b), 304.06 (1q) (c), 304.06 (1x), 304.06 (2m) (d), 304.06 (3), 304.06 (3e), 304.06 (3m), 304.071 (1), 801.50 (5), 809.30 (1) (c), 911.01 (4) (c), 950.04 (1v) (f), 950.04 (1v) (g), 950.04 (1v) (gm), 950.04 (1v) (nt), 973.01 (4), 973.01 (7), 973.195 (1r) (a), 974.07 (4) (b), 976.03 (23) (c) and 977.05 (4) (jm); to repeal and recreate 302.045 (2) (d); and to create 302.05 (1) (am) 1., 302.05 (1) (am) 2., 302.05 (1) (b), 302.113 (9) (at) and 302.113 (9g) of the statutes; relating to: sentencing, revocation of parole or extended supervision, and requiring the exercise of rule-making authority.

Analysis by the Legislative Reference Bureau

2009 Wisconsin Act 28 (the Act) made several changes to the adult correctional system, most of which took effect on October 1, 2009. Prior to the effective date of the provisions relating to the adult correctional system (pre-Act), a person who was imprisoned for a felony he or she committed prior to December 31, 1999, was allowed to petition the Parole Commission in the Department of Corrections (DOC) to be released to parole after the person served 25 percent of his or her sentence, or six months, whichever was greater. The Parole Commission determined whether, and under what conditions, the person should be released to parole. A person who committed a felony on or after December 31, 1999, is sentenced to a bifurcated sentence, with the first portion of the sentence served in confinement and the second portion served under extended supervision in the community.

Pre-Act, a person who was serving a bifurcated sentence was, with few exceptions, required to serve the entire confinement portion of his or her sentence before being released to extended supervision. A person's confinement portion could have been extended if he or she violated a prison regulation. If a person's confinement portion was extended for such a violation, the law pre-Act required his or her extended supervision portion to be reduced so that the total length of the person's sentence remained unchanged.

The law pre-Act allowed a person who is sentenced to a bifurcated sentence for a Class C to Class I felony to petition the sentencing court to adjust his or her sentence and release the person from prison to extended supervision if he or she has served 85 percent (for Class C to Class E felonies) or 75 percent (for Class F to Class I felonies) of the confinement portion of the sentence. If a person's confinement portion was reduced by the sentencing court, the law pre-Act required his or her extended supervision portion to be extended so that the total length of the person's sentence remained unchanged. Pre-Act, a person who was released to extended supervision was required to serve his or her entire sentence before extended supervision terminated.

The Act eliminates the role of the sentencing court in adjusting sentences and renamed the Parole Commission the "Earned Release Review Commission" (ERRC). The Act allows most persons who are incarcerated for a Class C to Class I felony to earn "positive adjustment time" toward early release from confinement. Under the Act, the amount of positive adjustment time a person can earn varies depending on the classification of the felony, the person's history and likelihood of reoffending, and other factors determined by DOC.

The Act requires DOC to release the person to extended supervision when he or she serves his entire period of confinement, minus positive adjustment time earned. Under the Act, if a person's period of confinement is reduced by positive adjustment time, his or her period of extended supervision is increased so that the length of the sentence does not change. The Act requires the ERRC to perform the duties previously performed by the Parole Commission and to review petitions for early release from confinement.

Pre-Act, persons who had committed most felonies were allowed to petition the sentencing court for release to extended supervision for the remaining term of his or her sentence if the person had a terminal condition, reached age 65 after serving at least five years of his or her term of confinement portion, or reached age 60 after serving at least ten years of his or her term of confinement portion.

Under the Act, the petition may also be filed by a person with any serious health condition and must be submitted to ERRC instead of to the sentencing court. In addition, under the Act, DOC may release to extended supervision any person serving the confinement portion of a bifurcated sentence if the person is not confined following a violent offense, the person is believed to be able to live in the community without assaulting another, and the release will not be more than 12 months before the date that the person otherwise would be eligible for release to extended supervision. If DOC releases a person, his or her term of extended supervision must be extended by the length of time he or she was originally sentenced to confinement so that the total length of the sentence does not change.

Pre-Act, if a person sentenced to a bifurcated sentence violated any condition of his or her release to extended supervision, the person's extended supervision was revoked, he or she was returned to prison, and the Division of Hearings and Appeals within the Department of Administration or DOC (reviewing authority) made a recommendation to the court that convicted the person as to how long the person should remain in prison. After it received the reviewing authority's recommendation, the court was allowed to order the person to remain in prison for a period of time that did not exceed the time remaining on his or her bifurcated sentence.

Under the Act, the reviewing authority determines how long to imprison the person whose extended supervision is revoked and enters its own order for the person to remain in prison for a period of time that does not exceed the time remaining on his or her bifurcated sentence.

This bill eliminates positive adjustment time, restores the Parole Commission, eliminates the ERRC, and returns the sentencing provisions, the provisions relating to early release from confinement, and the provisions relating to review of revocation of release to pre-Act law.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB879, s. 1 Section 1. 15.01 (2) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,4,11 15.01 (2) "Commission" means a 3-member governing body in charge of a department or independent agency or of a division or other subunit within a department, except for the Wisconsin waterways commission which shall consist of 5 members and the earned release review parole commission which shall consist of 8 members. A Wisconsin group created for participation in a continuing interstate body, or the interstate body itself, shall be known as a "commission", but is not a commission for purposes of s. 15.06. The earned release review parole commission created under s. 15.145 (1) shall be known as a "commission", but is not a commission for purposes of s. 15.06.

AB879, s. 2 Section 2. 15.06 (6) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,4,17 15.06 (6) Quorum. A majority of the membership of a commission constitutes a quorum to do business, except that vacancies shall not prevent a commission from doing business. This subsection does not apply to the earned release review parole commission.

AB879, s. 3 Section 3. 15.145 (1) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,5,7 15.145 (1) Earned release review Parole commission. There is created in the department of corrections an earned release review a parole commission consisting of 8 members. Members shall have knowledge of or experience in corrections or criminal justice. The members shall include a chairperson who is nominated by the governor, and with the advice and consent of the senate appointed, for a 2-year term expiring March 1 of the odd-numbered years, subject to removal under s. 17.07 (3m), and the remaining members in the classified service appointed by the chairperson.

AB879, s. 4 Section 4. 17.07 (3m) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,5,11 17.07 (3m) Notwithstanding sub. (3), the earned release review parole commission chairperson may be removed by the governor, at pleasure.

AB879, s. 5 Section 5. 20.410 (1) (ds) of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

AB879, s. 6 Section 6. 20.410 (2) (title) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,5,16 20.410 (2) (title) Earned release review Parole commission.

AB879, s. 7 Section 7. 20.410 (2) (a) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,5,20 20.410 (2) (a) General program operations. The amounts in the schedule for the general program operations of the earned release review parole commission.

AB879, s. 8 Section 8. 20.923 (4) (b) 6. of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,5,23 20.923 (4) (b) 6. Earned release review Parole commission: chairperson.

AB879, s. 9 Section 9. 230.08 (2) (pd) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,6,2 230.08 (2) (pd) The chairperson of the earned release review parole commission.

AB879, s. 10 Section 10. 301.03 (3) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,6,18 301.03 (3) Administer parole, extended supervision, and probation matters, except that the decision to grant or deny parole or to grant extended supervision under s. 304.06 (1) to inmates shall be made by the earned release review parole commission and the decision to revoke probation, extended supervision or parole in cases in which there is no waiver of the right to a hearing shall be made by the division of hearings and appeals in the department of administration. The secretary may grant special action parole releases under s. 304.02. The department may discharge inmates from extended supervision under s. 973.01 (4m) and may modify a bifurcated sentence under s. 302.113 (9h), and the earned release review commission may modify a sentence under s. 302.1135. The department shall promulgate rules establishing a drug testing program for probationers, parolees and persons placed on extended supervision. The rules shall provide for assessment of fees upon probationers, parolees and persons placed on extended supervision to partially offset the costs of the program.

AB879, s. 11 Section 11. 301.048 (2) (am) 3. of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,6,23 301.048 (2) (am) 3. The earned release review parole commission grants him or her parole under s. 304.06 and requires his or her participation in the program as a condition of parole under s. 304.06 (1x).

AB879, s. 12 Section 12. 301.068 of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

AB879, s. 13 Section 13. 301.21 (1m) (c) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,7,6 301.21 (1m) (c) Any hearing to consider parole or whether to grant extended supervision, if the inmate is sentenced under s. 973.01 to which an inmate confined under this contract may be entitled by the laws of Wisconsin will be conducted by the Wisconsin earned release review parole commission under rules of the department.

AB879, s. 14 Section 14. 301.21 (2m) (c) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,7,13 301.21 (2m) (c) Any hearing to consider parole or whether to grant extended supervision, if the prisoner is sentenced under s. 973.01 to which a prisoner confined under a contract under this subsection may be entitled by the laws of Wisconsin shall be conducted by the Wisconsin earned release review parole commission under rules of the department.

AB879, s. 15 Section 15. 302.042 of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

AB879, s. 16 Section 16. 302.045 (1) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,8,8 302.045 (1) Program. The department shall provide a challenge incarceration program for inmates selected to participate under sub. (2). The program shall provide participants with manual labor, personal development counseling, substance abuse treatment and education, military drill and ceremony, counseling, and strenuous physical exercise, for participants who have not attained the age of 30 as of the date on which they begin participating in the program, or age-appropriate strenuous physical exercise, for all other participants, in preparation for release on parole or extended supervision. The program shall provide, according to each participant's needs as assessed under sub. (2) (d), substance abuse treatment and education, including intensive intervention when indicated, personal development counseling, education, employment readiness training, and other treatment options that are directly related to the participant's criminal behavior. The department shall design the program to include not less than 50 participants at a time and so that a participant may complete the program in not more than 180 days. The department may restrict participant privileges as necessary to maintain discipline.

AB879, s. 17 Section 17. 302.045 (2) (d) of the statutes, as affected by 2009 Wisconsin Act 28, is repealed and recreated to read:

AB879,8,12 302.045 (2) (d) The department determines, during assessment and evaluation, that the inmate has a substance abuse problem.

AB879, s. 18 Section 18. 302.045 (3) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,8,22 302.045 (3) Parole eligibility. Except as provided in sub. (4), if the department determines that an inmate serving a sentence other than one imposed under s. 973.01 has successfully completed the challenge incarceration program, the earned release review parole commission shall parole the inmate for that sentence under s. 304.06, regardless of the time the inmate has served. When the earned release review parole commission grants parole under this subsection, it must require the parolee to participate in an intensive supervision program appropriate to the parolee's rehabilitation needs for drug abusers as a condition of parole.

AB879, s. 19 Section 19. 302.045 (3m) (d) of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

AB879, s. 20 Section 20. 302.05 (title) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,9,3 302.05 (title) Wisconsin earned release substance abuse program.

AB879, s. 21 Section 21. 302.05 (1) of the statutes, as affected by 2009 Wisconsin Act 28, is renumbered 302.05 (1) (am) (intro.) and amended to read:

AB879,9,15 302.05 Wisconsin earned release program. (1) (am) (intro.) The department of corrections shall, at any correctional facility the department determines is appropriate, provide a rehabilitation program for inmates for the purposes of the earned release program described in sub. (3). and the department of health services may designate a section of a mental health institute as a correctional treatment facility for the treatment of substance abuse of inmates transferred from Wisconsin state prisons. This section shall be administered by the department of corrections and shall be known as the Wisconsin substance abuse program. The department of corrections and the department of health services shall ensure that the residents at the institution and the residents in the substance abuse program:

AB879, s. 22 Section 22. 302.05 (1) (am) 1. of the statutes is created to read:

AB879,9,19 302.05 (1) (am) 1. Have access to all facilities that are available at the institution and are necessary for the treatment programs designed by the departments.

AB879, s. 23 Section 23. 302.05 (1) (am) 2. of the statutes is created to read:

AB879,9,21 302.05 (1) (am) 2. Are housed on separate wards.

AB879, s. 24 Section 24. 302.05 (1) (b) of the statutes is created to read:

AB879,9,24 302.05 (1) (b) The department of corrections and the department of health services shall, at any correctional facility the departments determine is appropriate, provide a substance abuse treatment program for inmates for the purposes of the earned release program described in sub. (3).

AB879, s. 25 Section 25. 302.05 (2) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,10,7 302.05 (2) Transfer to a correctional treatment facility for participation in a program described in sub. (1) the treatment of substance abuse shall be considered a transfer under s. 302.18.

AB879, s. 26 Section 26. 302.05 (3) (b) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,10,17 302.05 (3) (b) Except as provided in par. (d), if the department determines that an eligible inmate serving a sentence other than one imposed under s. 973.01 has successfully completed a rehabilitation treatment program described in sub. (1), the earned release review parole commission shall parole the inmate for that sentence under s. 304.06, regardless of the time the inmate has served. If the earned release review parole commission grants parole under this paragraph, it shall require the parolee to participate in an intensive supervision program appropriate to the parolee's rehabilitation needs for drug abusers as a condition of parole.

AB879, s. 27 Section 27. 302.05 (3) (c) 1. of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,10,24 302.05 (3) (c) 1. Except as provided in par. (d), if the department determines that an eligible inmate serving the term of confinement in prison portion of a bifurcated sentence imposed under s. 973.01 has successfully completed a rehabilitation treatment program described in sub. (1), the department shall inform the court that sentenced the inmate.

AB879, s. 28 Section 28. 302.05 (3) (c) 2. (intro.) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,11,6 302.05 (3) (c) 2. (intro.) Upon being informed by the department under subd. 1. that an inmate whom the court sentenced under s. 973.01 has successfully completed a rehabilitation treatment program described in sub. (1), the court shall modify the inmate's bifurcated sentence as follows:

AB879, s. 29 Section 29. 302.05 (3) (c) 3. of the statutes is repealed.

AB879, s. 30 Section 30. 302.05 (3) (d) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,11,12 302.05 (3) (d) The department may place intensive sanctions program participants in a rehabilitation treatment program described in sub. (1), but pars. (b) and (c) do not apply to those participants.

AB879, s. 31 Section 31. 302.11 (1g) (b) (intro.) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,11,22 302.11 (1g) (b) (intro.) Before an incarcerated inmate with a presumptive mandatory release date reaches the presumptive mandatory release date specified under par. (am), the earned release review parole commission shall proceed under s. 304.06 (1) to consider whether to deny presumptive mandatory release to the inmate. If the earned release review parole commission does not deny presumptive mandatory release, the inmate shall be released on parole. The earned release review parole commission may deny presumptive mandatory release to an inmate only on one or more of the following grounds:

AB879, s. 32 Section 32. 302.11 (1g) (b) 2. of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,12,7 302.11 (1g) (b) 2. Refusal by the inmate to participate in counseling or treatment that the social service and clinical staff of the institution determines is necessary for the inmate, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the inmate is a serious child sex offender as defined in s. 304.06 (1q) (a). The earned release review parole commission may not deny presumptive mandatory release to an inmate because of the inmate's refusal to participate in a rehabilitation program under s. 301.047.

AB879, s. 33 Section 33. 302.11 (1g) (c) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,12,13 302.11 (1g) (c) If the earned release review parole commission denies presumptive mandatory release to an inmate under par. (b), the earned release review parole commission shall schedule regular reviews of the inmate's case to consider whether to parole the inmate under s. 304.06 (1).

AB879, s. 34 Section 34. 302.11 (1g) (d) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB879,12,18 302.11 (1g) (d) An inmate may seek review of a decision by the earned release review parole commission relating to the denial of presumptive mandatory release only by the common law writ of certiorari.