Wisconsin Legislature: Text

NOTICE IS HEREBY GIVEN that pursuant to section 227.11 (2), Stats., the Department of Corrections will hold public hearings to consider an emergency rule and proposed permanent rule revising Chapter DOC 302, relating to changes in various statutory provisions relating to sentence calculations and prison release and to an administrative review of inmate classification decisions.

Hearing information

Date and Time Location

February 25, 2010 Conference Room 116
10:00 a.m. State Office Building
819 North 6th Street
Milwaukee, Wisconsin

February 25, 2010 St. Croix Conference Rm., 1st Floor
2:30 p.m. Department of Administration
101 East Wilson Street
Madison, Wisconsin

The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact Kathryn Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, email kathryn.anderson@ wisconsin.gov, telephone (608) 240-5049 by February 18, 2010.

Appearances at the Hearing and Submission of Written Comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Friday, March 5, 2010. Written comments should be addressed to: Kathryn R. Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, or by email kathryn.anderson@ wisconsin.gov.

Analysis Prepared by Department of Corrections

Statutes interpreted

Sections 302.045 and 302.05, Stats., respectively, as amended by 2009 Wis. Act 28, ss. 2700 – 2712, § 302.113 (9g), as renumbered and amended by 2009 Wis. Act 28, ss. 2729j through 2738, 302.113 (2) (b), 304.06 (1) (bg) 1. and 2., as created by 2009 Wis. Act 28, ss. 2722 and 2751, s. 302.113 (9h), as created by 2009 Wis. Act 28, § 2739, § 973.031, as created by 2009 Wis. Act 28, § 3387t, § 302.042, as created by 2009 Wis. Act 28, s. 2699m, and s. 304.06 (1) (bg) 3. and 4., as created by 2009 Wis. Act 28, § 2751, and s. 301.03 (2), Stats.

Statutory authority

Section 227.11 (2), 301.02, 301.03 (2), and 302.07, Stats.

Explanation of agency authority

The Department of Corrections is responsible for supervision of inmates sentenced to Wisconsin prisons, including sentence calculations. Under 2009 Wisconsin Act 28, the legislature created several statutory provisions which affect the calculation of sentences. The Department is promulgating rules to address these changes. In addition, under s. 301.03, Stats., the Department is responsible for the supervision of inmates. As part of that supervision, the Department reviews inmates for appropriate custody level, facility placement, program needs, and education needs.

Related statute or rule

Sections 302.045 and 302.05, Stats., respectively, as amended by 2009 Wis. Act 28, ss. 2700 – 2712, s. 302.113 (9g), as renumbered and amended by 2009 Wis. Act 28, ss. 2729j through 2738, 302.113 (2) (b), 304.06 (1) (bg) 1. and 2., as created by 2009 Wis. Act 28, ss. 2722 and 2751, s. 302.113 (9h), as created by 2009 Wis. Act 28, § 2739, s. 973.031, as created by 2009 Wis. Act 28, s. 3387t, s. 302.042, as created by 2009 Wis. Act 28, s. 2699m, and s. 304.06 (1) (bg) 3. and 4., as created by 2009 Wis. Act 28, s. 2751

Chapter PAC 1, Wisconsin Administrative Code, which addresses release procedures for inmates, including those under 2009 Wisconsin Act 28.

Plain language analysis

The emergency rule and the proposed permanent rule amend chapter DOC 302 to bring it into compliance with significant changes made in sentence calculations and releases from prison under 2009 Wis. Act 28, including:

1. Creating definitions for the following terms: administrator, agent, assaultive activity, certain early release, detainer, extended supervision, positive adjustment time, projected extended supervision date, risk eligibility date, social worker, and victim.

2. Creating DOC 302.33, DOC 302.34, and DOC 302.35, relating to positive adjustment time under 302.113 (2) (b), 304.06 (1) (bg) 1. and 2., as created by 2009 Wis. Act 28, ss. 2722 and 2751. Under these sections, an inmate may earn positive adjustment time (PAT) at three rates (1 for 2, 1 for 3, or 1 for 5.7) depending on the offense of which the inmate was convicted. The inmate may be eligible for PAT, which may result in modification of the term of confinement of the inmate's bifurcated sentence if the department determines that the inmate is not at a high risk of reoffending, the inmate has not received a major penalty under s. DOC 303.68 (1), and the inmate has not neglected or refused to perform required or assigned duties. The inmate's term of extended supervision is extended by the PAT which results in early release. Thus, the overall length of the inmate's sentence is not changed.

3. Creating DOC 302.36 and DOC 302.37, relating to sentence calculations under s. 304.06 (1) (bg) 3. and 4., as created by 2009 Wis. Act 28, § 2751, for an inmate who has been convicted under s. 973.01, Stats., following the inmate's having served at least 75% or 85% of the confinement time of a bifurcated sentence, depending on the classification of the crime. The inmate may petition the Earned Release Review Commission for release to extended supervision under this provision.

4. Creating DOC 302.38 and DOC 302.39, relating to the challenge incarceration program and the earned release program under ss. 302.045 and 302.05, Stats., respectively, as amended by 2009 Wis. Act 28, ss. 2700 – 2712. The department had not previously had a rule provision addressing either of these two programs. The rule creates provisions which codifies the department's implementation of the programs and also update the provisions to reflect the legislative change which allows inmates who do not have AODA needs to participate.

5. Creating DOC 302.40, relating to the risk assessment program under s. 302.042, as created by 2009 Wis. Act 28, s. 2699m. A Court may impose a risk reduction sentence if the offender agrees to participate in the risk reduction plan established by the department. The department is required to establish the plan, monitor the inmate's progress and participation in the plan, and evaluate the inmate's institutional conduct. If the department determines that the plan has been completed, the department will notify the sentencing court and the office of victim services. The department will release the inmate to extended supervision on or after the inmate's risk eligibility date when the inmate has completed the plan.

6. Creating DOC 302.41, relating to the early release of certain inmates within 12 months of their release under s. 302.113 (9h), as created by 2009 Wis. Act 28, s. 2739. Eligible inmates may be released to extended supervision not more then 12 months before the extended supervision eligibility date.

7. Repealing and recreating DOC 302.18, relating the inmate requests for review of Department decisions concerning custody, institution placement, program needs, or treatment needs. The revised section clarifies the process for review of the decisions relating to classification.

Comparison with federal regulations

There are no federal regulations that regulate the activities addressed by the proposed rule.

Comparison of similar rules in adjacent states

Illinois:

Under 730 ILCS 5/3-6-3, the state of Illinois has provided for the early release of inmates on account of good conduct. Inmates are able to earn good conduct credit at the rate of 4.5 days of credit or 7.5 days of credit for each month of his sentence of imprisonment for certain very serious crimes. (For example, 1 for 4.5 crimes include: home invasion, armed robbery, and aggravated vehicular hijacking. 1 for 7.5 crimes include: gunrunning, narcotics racketeering, and drug-induced homicide.) For all other offenses, inmates are able to earn one day of good conduct credit for each day of the inmate's sentence of imprisonment. Good conduct credit may be revoked or lost following a due process determination by the Prisoner Review Board which is a citizen member board and which is independent of the IL DOC. Under 730 ILCS 5/5-8-1.1, Illinois has an Impact Incarceration Program which is similar to the Challenge Incarceration Program. It is not limited to individuals who have AODA needs but involves rigorous physical elements.

Iowa:

Under ICA s. 903A.2, each inmate is eligible to earn a reduction of sentence by the accumulation of “earned time." Inmates who receive category A sentences are able to earn credit at the rate of 1.2 days of credit for each day the inmate demonstrates good conduct and satisfactory participation in programs or placement. An inmate may be eligible for an additional reduction of sentence of up to 365 days of the full term of the sentence for exemplary acts. Inmates who receive category B sentences may receive 15/85 of a day for each day of good conduct. Under IA ADC s. 201.-20.18(904), Iowa has established a rigorous program called “violator/shock probation programs" which are aimed at individuals who are on community supervision and who have violated the conditions of supervision. The goal is avoid lengthy periods of incarceration.

Michigan:

Under MCLA 800.33, each inmate shall receive a reduction from his or her sentence. The rate of reduction depends on when the crime was committed (there is a statutory change in the rate for crimes which occurred prior 4/1/87) and what the crime was. An inmate may be eligible for good time credit, disciplinary credit, or special disciplinary credit. Special disciplinary credit is additional credit which an inmate may earn if the inmate has not had a major conduct violation and upon the recommendation of the institution disciplinary credit committee. If the credit is lost, it cannot be restored. An inmate cannot earn any of the three types of credit during a month during which the inmate incurred a major conduct report.

Minnesota:

Under Minnesota law, inmates convicted on or after August 1, 1993 are not eligible to earn good time sentence reduction credit. Under s. 244.171, MN Stats., the commissioner of corrections shall establish a challenge incarceration program.

Summary of the factual data and analytical methodologies

The Department of Corrections has determined that the rule will not have a significant economic impact on a substantial number of small businesses since the rule does not regulate small businesses as that term is defined in s. 227.114, Stats.

Analysis and supporting documents that were used to determine effect on small business

Not applicable.

Small Business Impact

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

Positive Adjustment Time (PAT)

This rule implements 2009 Wisconsin ACT 28 language that allows a new mechanism for release of inmates sentenced under bifurcated sentences from confinement to extended supervision (ES). The statutory language created Positive Adjustment Time (PAT) which measures the period of time in days that can be earned to reduce an inmate's period of confinement. PAT has three separate release tracks depending on eligibility as follows:

1. Inmates may be eligible to earn 1 day for every 2 days of confinement towards early release under the following provisions:

a. The inmate must have a non-violent misdemeanor conviction or a non-violent Class F-I felony conviction.

b. The Department has determined the inmate is “not" high risk for reoffending in the community.

c. The inmate must follow established prison rules and not refuse or neglect to perform assigned duties while confined.

d. The inmate has not received a major penalty while confined.

When an inmate has earned early release under this new PAT provision, DOC will notify the court within 90 days of release that the inmate qualifies for early release to ES and provide the court with a copy of the objective risk assessment and the inmates conduct report. The court has 30 days to schedule a hearing to determine release, deny release or change the release date to a date not longer then the original confinement portion on the bifurcated sentence. If the 30 days passes without the court scheduling a hearing, the inmate will be released to ES.

If the court decides to review the inmate for early release, a hearing will be scheduled and an order issued within 60 days. At the hearing the court has three options; 1) reject PAT and return the inmate to prison to serve the remaining confinement portion of the sentence before release to ES, 2) release the inmate to ES, or 3) order the inmate to begin serving the next sentence.

2. Inmates may be eligible to earn 1 day for every 3 days of confinement towards early release under the following provisions:

a. Inmates convicted of non-violent misdemeanor's or non-violent Class F-I felonies will not be eligible to earn PAT on the first track (1 day for every 2 days), if the Department has determined these inmates are at high risk of reoffending in the community. Instead these inmates will be eligible to earn PAT on the second track (1 day for every 3 days).

b. The inmate has a violent Class F-I felony conviction.

c. The inmate must follow established prison rules and not refuse or neglect to perform assigned duties while confined.

d. The inmate has not received a major penalty while confined.

3. Inmates may be eligible to earn 1 day for every 5.7 days of confinement towards early release under the following provisions:

a. The conviction must be a Class C-E felony.

b. The inmate must follow established prison rules and not refuse or neglect to perform assigned duties while confined.

c. The inmate has not received a major penalty while confined.

When an inmate has earned early release under the 1 day for every 3 days or the 1 day for every 5.7 days, the inmate has only one opportunity to be seen by the Earned Release Review Commission, (ERRC) formerly the Parole Commission. The inmate must request to be seen by the ERRC and if ERRC recommends release, ERRC must notify the court of the release and the court has the opportunity to schedule a hearing within 30 days. If the court holds a hearing the judge has the option to affirm, deny or change the release date to a date not longer than the original confinement portion. Release is not automatic even if the inmate has achieved his or her goals. The ERRC may or may not recommend early release, and the Court may or may not approve early release.

The Department anticipates that incarcerated inmates will be released early to extended supervision under the new legislation for a PAT. However, the Department is not able to estimate the number of inmates that may be released under PAT and therefore is unable to estimate a state fiscal impact or any savings that may result from early release.

The Department anticipates an increase in workload for Social Workers, Supervising Staff, the Records Office, Bureau of Classification and Movement (BOCM) and probation & parole agents. However, a fiscal impact cannot be estimated for the increased workload.

Bifurcated Sentence Modification for TIS1 & TIS2

Under 2009 Wisconsin ACT 28, two early release options were established for inmates currently serving the confinement portion of a bifurcated sentence under TIS1 or TIS2. Inmates may petition the Earned Release Review Commission (ERRC) under the following two options.

1. The inmate has served 75% of his or her sentence, the crime was a misdemeanor violation or a Class F to I felony, the crime was committed prior to October 1, 2009 and the inmate has not petitioned the sentencing court for early release to ES.

2. The inmate has served 85% of his or her sentence, the crime was a Class C to E felony, the crime was committed prior to October 1, 2009 and the inmate had not petitioned the sentencing court for early release to ES.

The review process begins when the records office creates a list of inmates that have served 75 or 85 percent of his or her bifurcated sentence and are eligible for review by ERRC. The records office forwards the eligibility list to institution social workers, agents and ERRC. The records office also notifies the inmate and the judge and District Attorney from the sentencing court of the upcoming review by ERRC. After ERRC interviews the inmate the results are forwarded to the records office for processing as follows; 1) inmate is denied, 2) the decision is deferred for further review, or 3) the inmate is recommended for release.

If the inmate is recommended for release, ERRC will notify the sentencing court of the inmates release to ES. The court has 30 days to schedule a hearing; if the court does not schedule a hearing within 30 days the inmate will be processed for release to ES.

Either ERRC or the sentencing court can deny release of the inmate or release the inmate to a consecutive sentence. If a consecutive sentence exists, the records office will recalculate the overall ES date. An additional a calculation may be required to determine a new Release Eligibility Date (RED) or Projected Extended Supervision Date (PESD).

At this time a fiscal impact cannot be estimated since the Department cannot predict how many inmates will be released from a TIS1 or TIS2 bifurcated sentence.

Earned Release Program (ERP) & Challenge Incarceration Program (CIP)

Under 2009 WI ACT 28, statutory language was enacted that expanded the early release sentencing option for the courts on bifurcated sentences. The language for the Earned Release Program (ERP) and the Challenge Incarceration Program (CIP) now includes offenders that do not have alcohol or drug treatment needs. The prior language required an AODA component to be eligible for either program. The new language refers to an early release rehabilitation program.

The sentencing court would continue to determine statutory eligibility for the offender to participate in ERP or CIP. However, the change in the language allows the Department to determine if an offender has treatment needs not related to AODA that are directly related to his or her criminal behavior and to develop the criterion for entry into non-AODA ERP or CIP.

The Department shall continue to notify the court when the offender has successfully completed ERP or CIP. The court has 30 days to modify the sentence by adding the remaining confinement portion onto the extended supervision (ES) portion. The length of the sentence does not change. The Department has six working days to release the offender after receiving the modified court order.

The Department anticipates incarcerated offenders will be released early to extended supervision under the new non-AODA ERP and CIP programs. However, the Department is not able to estimate the future number of offenders that may be released, but anticipates a reduction in incarceration costs and increased supervision costs since the remainder of the confinement time is added to the extended supervision time.

The Department anticipates increased work duties for Social Workers, the Bureau of Classification & Movement, Probation & Parole Agents and Supervisory Staff. At this time a fiscal impact cannot be estimated for the increased work duties or the number of staff needed to accomplish the additional duties related to the new non-AODA ERP/CIP programs as a result of this legislation.

Risk Reduction Sentence (RRS)

Under 2009 Wisconsin ACT 28, courts may impose another sentencing option called the Risk Reduction Sentence (RRS). The RRS gives the court the ability to sentence a convicted felon to serve 75% of confinement time of a bifurcated sentence if the offender agrees to the RRS rules at sentencing. Under the rules of RRS the inmate must agree to a risk assessment analysis, participate in recommended program/treatment needs and maintain good conduct while confined.

When the Department determines an inmate has maintained good conduct during confinement and has completed the recommended programs/treatment and has served 75% of his or her confinement time on a bifurcated sentence, the Department will send notice to the sentencing court and the Office of Victim Services (OVS) that the inmate is ready to be released to extended supervision (ES). However, if the offender has not satisfied the program plan at the completion of 75% of his or her confinement term, the offender may remain confined for a period of time not to exceed the original confinement term on the bifurcated sentence.

The Department anticipates incarcerated offenders will be released early to extended supervision under the new legislation for a RRS. However, the Department is not able to estimate the number of offenders that may be released under the new RRS rules. We anticipate a reduction in incarceration costs and a reduction in extended supervision costs since the remaining 25% on the confinement portion of the sentence dissolves and is not added to the extended supervision term on the bifurcated sentence.

It's possible the Department may see a reduction in workload for probation & parole agents over time, depending on how many inmates are released under a RRS sentence and an increased workload for prison staff to track incarcerated inmates. At this time a fiscal impact cannot be estimated since the Department cannot predict how many offenders will receive an RRS sentence and the affect on length of confinement.

Certain Early Releases (CER)

This rule implements 2009 WI ACT 28 language that allows the Department of Corrections to release certain offenders serving the confinement portion of a bifurcated sentence to extended supervision (ES), if the offender meets the following criteria:

1. The person is serving the confinement portion of a bifurcated sentence for a misdemeanor or a class F to I felony that is not a violent offense as defined in s. 301.048(2)(bm)1.