LRB-4663/1
PJH:nwn:jf
2009 - 2010 LEGISLATURE
April 16, 2010 - Introduced by Senators S. Fitzgerald, Leibham, Lazich, Darling,
Hopper, A. Lasee, Kedzie and Harsdorf, cosponsored 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.
Referred to Committee on Judiciary, Corrections, Insurance, Campaign
Finance Reform, and Housing.
SB697,2,9
1An Act to repeal 20.410 (1) (ds), 301.068, 302.042, 302.045 (3m) (d), 302.05 (3)
2(c) 3., 302.113 (2) (b), 302.113 (2) (c), 302.113 (3) (e), 302.113 (9h), 302.1135,
3304.06 (1) (bg), 304.06 (1) (bk), 304.06 (1) (bn), 304.06 (1) (br), 973.01 (3d),
4973.01 (4m), 973.031, 973.09 (3) (d) and 973.195 (1r) (j);
to renumber and
5amend 302.05 (1) and 302.113 (2) (a);
to amend 15.01 (2), 15.06 (6), 15.145 (1),
617.07 (3m), 20.410 (2) (title), 20.410 (2) (a), 20.923 (4) (b) 6., 230.08 (2) (pd),
7301.03 (3), 301.048 (2) (am) 3., 301.21 (1m) (c), 301.21 (2m) (c), 302.045 (1),
8302.045 (3), 302.05 (title), 302.05 (2), 302.05 (3) (b), 302.05 (3) (c) 1., 302.05 (3)
9(c) 2. (intro.), 302.05 (3) (d), 302.11 (1g) (b) (intro.), 302.11 (1g) (b) 2., 302.11 (1g)
10(c), 302.11 (1g) (d), 302.11 (1m), 302.11 (7) (c), 302.113 (1), 302.113 (3) (d),
11302.113 (7), 302.113 (9) (am), 302.113 (9) (b), 302.113 (9) (c), 302.114 (9) (am),
12302.114 (9) (c), 304.01 (title), 304.01 (1), 304.01 (2) (intro.), 304.01 (2) (b), 304.01
13(2) (c), 304.01 (2) (d), 304.06 (title), 304.06 (1) (b), 304.06 (1) (c) (intro.), 304.06
14(1) (d) 1., 304.06 (1) (d) 2., 304.06 (1) (d) 3m., 304.06 (1) (d) 4., 304.06 (1) (e),
1304.06 (1) (eg), 304.06 (1) (em), 304.06 (1) (f), 304.06 (1) (g), 304.06 (1m) (intro.),
2304.06 (1q) (b), 304.06 (1q) (c), 304.06 (1x), 304.06 (2m) (d), 304.06 (3), 304.06
3(3e), 304.06 (3m), 304.071 (1), 801.50 (5), 809.30 (1) (c), 911.01 (4) (c), 950.04 (1v)
4(f), 950.04 (1v) (g), 950.04 (1v) (gm), 950.04 (1v) (nt), 973.01 (4), 973.01 (7),
5973.195 (1r) (a), 974.07 (4) (b), 976.03 (23) (c) and 977.05 (4) (jm);
to repeal and
6recreate 302.045 (2) (d); and
to create 302.05 (1) (am) 1., 302.05 (1) (am) 2.,
7302.05 (1)
(b), 302.113 (9) (at) and 302.113 (9g) of the statutes;
relating to:
8sentencing, revocation of parole or extended supervision, and requiring the
9exercise 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:
SB697,4,113
15.01
(2) "Commission" means a 3-member governing body in charge of a
4department or independent agency or of a division or other subunit within a
5department, except for the Wisconsin waterways commission which shall consist of
65 members and the
earned release review parole commission which shall consist of
78 members. A Wisconsin group created for participation in a continuing interstate
8body, or the interstate body itself, shall be known as a "commission", but is not a
9commission for purposes of s. 15.06. The
earned release review parole commission
10created under s. 15.145 (1) shall be known as a "commission", but is not a commission
11for purposes of s. 15.06.
SB697,4,1714
15.06
(6) Quorum. A majority of the membership of a commission constitutes
15a quorum to do business, except that vacancies shall not prevent a commission from
16doing business. This subsection does not apply to the
earned release review parole 17commission.
SB697,5,7
115.145
(1) Earned release review Parole commission. There is created in the
2department of corrections
an earned release review
a parole commission consisting
3of 8 members. Members shall have knowledge of or experience in corrections or
4criminal justice. The members shall include a chairperson who is nominated by the
5governor, and with the advice and consent of the senate appointed, for a 2-year term
6expiring March 1 of the odd-numbered years, subject to removal under s. 17.07 (3m),
7and the remaining members in the classified service appointed by the chairperson.
SB697,5,1110
17.07
(3m) Notwithstanding sub. (3), the
earned release review parole 11commission chairperson may be removed by the governor, at pleasure.
SB697,5,1616
20.410
(2) (title)
Earned release review Parole commission.
SB697,5,2019
20.410
(2) (a)
General program operations. The amounts in the schedule for
20the general program operations of the
earned release review parole commission.
SB697,5,2323
20.923
(4) (b) 6.
Earned release review Parole commission: chairperson.
SB697,6,2
1230.08
(2) (pd) The chairperson of the
earned release review parole 2commission.
SB697,6,185
301.03
(3) Administer parole, extended supervision, and probation matters,
6except that the decision to grant or deny parole
or to grant extended supervision
7under s. 304.06 (1) to inmates shall be made by the
earned release review parole 8commission and the decision to revoke probation, extended supervision or parole in
9cases in which there is no waiver of the right to a hearing shall be made by the
10division of hearings and appeals in the department of administration. The secretary
11may grant special action parole releases under s. 304.02.
The department may
12discharge inmates from extended supervision under s. 973.01 (4m) and may modify
13a bifurcated sentence under s. 302.113 (9h), and the earned release review 14commission may modify a sentence under s. 302.1135. The department shall
15promulgate rules establishing a drug testing program for probationers, parolees and
16persons placed on extended supervision. The rules shall provide for assessment of
17fees upon probationers, parolees and persons placed on extended supervision to
18partially offset the costs of the program.
SB697,6,2321
301.048
(2) (am) 3. The
earned release review parole commission grants him
22or her parole under s. 304.06 and requires his or her participation in the program as
23a condition of parole under s. 304.06 (1x).
SB697,7,63
301.21
(1m) (c) Any hearing to consider parole
or whether to grant extended
4supervision, if the inmate is sentenced under s. 973.01 to which an inmate confined
5under this contract may be entitled by the laws of Wisconsin will be conducted by the
6Wisconsin
earned release review parole commission under rules of the department.
SB697,7,139
301.21
(2m) (c) Any hearing to consider parole
or whether to grant extended
10supervision, if the prisoner is sentenced under s. 973.01 to which a prisoner confined
11under a contract under this subsection may be entitled by the laws of Wisconsin shall
12be conducted by the Wisconsin
earned release review
parole commission under rules
13of the department.
SB697,8,818
302.045
(1) Program. The department shall provide a challenge incarceration
19program for inmates selected to participate under sub. (2). The program shall
20provide participants with manual labor,
personal development counseling,
21substance abuse treatment and education, military drill and ceremony,
counseling, 22and strenuous physical exercise, for participants who have not attained the age of
2330 as of the date on which they begin participating in the program, or
24age-appropriate strenuous physical exercise, for all other participants, in
25preparation for release on parole or extended supervision.
The program shall
1provide, according to each participant's needs as assessed under sub. (2) (d),
2substance abuse treatment and education, including intensive intervention when
3indicated, personal development counseling, education, employment readiness
4training, and other treatment options that are directly related to the participant's
5criminal behavior. The department shall design the program to include not less than
650 participants at a time and so that a participant may complete the program in not
7more than 180 days. The department may restrict participant privileges as
8necessary to maintain discipline.
SB697,8,1211
302.045
(2) (d) The department determines, during assessment and
12evaluation, that the inmate has a substance abuse problem.
SB697,8,2215
302.045
(3) Parole eligibility. Except as provided in sub. (4), if the department
16determines that an inmate serving a sentence other than one imposed under s.
17973.01 has successfully completed the challenge incarceration program, the
earned
18release review parole commission shall parole the inmate for that sentence under s.
19304.06, regardless of the time the inmate has served. When the
earned release
20review parole commission grants parole under this subsection, it must require the
21parolee to participate in an intensive supervision program
appropriate to the
22parolee's rehabilitation needs for drug abusers as a condition of parole.
SB697,9,3
3302.05 (title)
Wisconsin earned release substance abuse program.
SB697,9,15
6302.05 Wisconsin earned release program. (1) (am) (intro.) The
7department of corrections
shall, at any correctional facility the department
8determines is appropriate, provide a rehabilitation program for inmates for the
9purposes of the earned release program described in sub. (3).
and the department of
10health services may designate a section of a mental health institute as a correctional
11treatment facility for the treatment of substance abuse of inmates transferred from
12Wisconsin state prisons. This section shall be administered by the department of
13corrections and shall be known as the Wisconsin substance abuse program. The
14department of corrections and the department of health services shall ensure that
15the residents at the institution and the residents in the substance abuse program:
SB697, s. 22
16Section
22. 302.05 (1) (am) 1. of the statutes is created to read: