302.11(1g)(b)2.
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 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.
302.11(1g)(c)
(c) If the earned release review commission denies presumptive mandatory release to an inmate under
par. (b), the earned release review commission shall schedule regular reviews of the inmate's case to consider whether to parole the inmate under
s. 304.06 (1).
302.11(1g)(d)
(d) An inmate may seek review of a decision by the earned release review commission relating to the denial of presumptive mandatory release only by the common law writ of certiorari.
302.11(1i)
(1i) Except as provided in
sub. (1z), an inmate serving a sentence to the intensive sanctions program is entitled to mandatory release. The mandatory release date under
sub. (1) is established at two-thirds of the sentence under
s. 973.032 (3) (a).
302.11(1m)
(1m) An inmate serving a life term is not entitled to mandatory release. Except as provided in
ss. 939.62 (2m) (c) and
973.014, the earned release review commission may parole the inmate as specified in
s. 304.06 (1).
302.11(1p)
(1p) An inmate serving a term subject to s.
961.49 (2), 1999 stats., for a crime committed before December 31, 1999, is entitled to mandatory release, except the inmate may not be released before he or she has complied with s.
961.49 (2), 1999 stats.
302.11(1q)(a)(a) An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which
s. 807.15 applies shall have his or her mandatory release date extended by the number of days specified in the court order prepared under
s. 807.15 (3).
302.11(1q)(b)
(b) Upon receiving a court order issued under
s. 807.15, the department shall recalculate the mandatory release date of the inmate to whom the order applies and shall inform the inmate of his or her new mandatory release date.
302.11(1z)
(1z) An inmate who is sentenced to a term of confinement in prison under
s. 973.01 for a felony that is committed on or after December 31, 1999, is not entitled under this section to mandatory release on parole under that sentence.
302.11(2)(a)(a) Any inmate who violates any regulation of the prison or refuses or neglects to perform required or assigned duties is subject to extension of the mandatory release date as follows: 10 days for the first offense, 20 days for the 2nd offense and 40 days for the 3rd or each subsequent offense.
302.11(2)(b)
(b) In addition to the sanctions under
par. (a), any inmate who is placed in adjustment, program or controlled segregation status shall have his or her mandatory release date extended by a number of days equal to 50% of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.
302.11(2)(c)
(c) No extension under this subsection may require the inmate to serve more days in prison than provided for under the sentence.
302.11(3)
(3) All consecutive sentences imposed for crimes committed before December 31, 1999, shall be computed as one continuous sentence.
302.11(4)
(4) An inmate may waive entitlement to mandatory release if the department agrees to the waiver.
302.11 Note
NOTE: 1985 Wis. Act 27 s.
1, which amended sub. (4), explains the effect of the amendment in sections 2 and 3 of the act.
302.11(4m)
(4m) An inmate paroled under this section is subject to the restriction under
s. 304.06 (2m), if applicable, relating to the counties to which inmates may be paroled.
302.11(5)
(5) Before a person is released on parole under this section, the department shall so notify the municipal police department and the county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department a written statement waiving the right to be notified. If applicable, the department shall also comply with
s. 304.063.
302.11(6)
(6) Any inmate released on parole under
sub. (1) or
(1g) (b) or
s. 304.02 or
304.06 (1) is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department. Except as provided in
ch. 304, releases from prison shall be on the Tuesday or Wednesday preceding the release date. The department may discharge a parolee on or after his or her mandatory release date or after 2 years of supervision. Any inmate sentenced to the intensive sanctions program who is released on parole under
sub. (1) or
s. 304.02 or
304.06 (1) remains in the program unless discharged by the department under
s. 301.048 (6) (a).
302.11(7)(ag)(ag) In this subsection "reviewing authority" means the division of hearings and appeals in the department of administration, upon proper notice and hearing, or the department of corrections, if the parolee waives a hearing.
302.11(7)(am)
(am) The reviewing authority may return a parolee released under
sub. (1) or
(1g) (b) or
s. 304.02 or
304.06 (1) to prison for a period up to the remainder of the sentence for a violation of the conditions of parole. The remainder of the sentence is the entire sentence, less time served in custody prior to parole. The revocation order shall provide the parolee with credit in accordance with
ss. 304.072 and
973.155.
302.11(7)(b)
(b) A parolee returned to prison for violation of the conditions of parole shall be incarcerated for the entire period of time determined by the reviewing authority unless paroled earlier under
par. (c). The parolee is not subject to mandatory release under
sub. (1) or presumptive mandatory release under
sub. (1g). The period of time determined under
par. (am) may be extended in accordance with
subs. (1q) and
(2).
302.11(7)(c)
(c) The earned release review commission may subsequently parole, under
s. 304.06 (1), and the department may subsequently parole, under
s. 304.02, a parolee who is returned to prison for violation of a condition of parole.
302.11(7)(d)
(d) A parolee who is subsequently released either after service of the period of time determined by the reviewing authority or by a grant of parole under
par. (c) is subject to all conditions and rules of parole until expiration of sentence or discharge by the department.
302.11(7)(e)
(e) A reviewing authority may consolidate proceedings before it under
par. (am) with other proceedings before that reviewing authority under
par. (am) or
s. 302.113 (9) (am) or
302.114 (9) (am) if all of the proceedings relate to the parole or extended supervision of the same person.
302.11(8)
(8) The department may promulgate rules under
ch. 227 establishing guidelines and criteria for the exercise of discretion under this section.
302.11(10)
(10) An inmate subject to an order under
s. 48.366 is not entitled to mandatory release and may be released or discharged only as provided under
s. 48.366.
302.11 History
History: 1977 c. 266,
353;
1979 c. 221;
1981 c. 266;
1983 a. 66,
528;
1985 a. 27;
1985 a. 332 s.
251 (1);
1987 a. 27,
412;
1989 a. 31 ss.
1629,
1630; Stats. s. 302.11;
1989 a. 107;
1991 a. 39;
1993 a. 79,
97,
194,
289,
483;
1995 a. 77,
448;
1997 a. 133,
275,
283,
284,
295,
326;
1999 a. 188;
2001 a. 16,
109;
2005 a. 344;
2009 a. 28.
302.11 Cross-reference
Cross-reference: See also ss.
DOC 302.21 and
302.30, Wis. adm. code.
302.11 Annotation
The department cannot delegate to a review board the authority to forfeit good time; it cannot affirm the decision of such a board. State ex rel. Farrell v. Schubert,
52 Wis. 2d 351,
190 N.W.2d 529 (1971).
302.11 Annotation
A due process hearing is required for a revocation of a prisoner's good time. The inmate must be given: 1) written notice of the charges; 2) a written statement by the factfinder of the evidence relied on as reasons for the disciplinary action; and 3) an opportunity to call witnesses and present evidence. Steele v. Gray,
64 Wis. 2d 422,
219 N.W.2d 312 (1974).
302.11 Annotation
A defendant convicted of a sex crime who was committed to the department of health and social services for a mandatory examination not to exceed 60 days to determine whether he was in need of specialized treatment was not entitled to credit therefor against a maximum sentence thereafter imposed. Mitchell v. State,
69 Wis. 2d 695,
230 N.W.2d 884 (1975).
302.11 Annotation
Subsequent to the revocation of parole, a mandatory release parolee, or a discretionary parolee whose mandatory release has occurred during parole, is entitled at the discretionary determination of how much good time will be forfeited to at least those due process procedures presently available to a discretionary parole violator in the same situation. Putnam v. McCauley,
70 Wis. 2d 256,
234 N.W.2d 75 (1975).
302.11 Annotation
Due process for disciplinary hearings requires a record sufficient for judicial review. A major change in conditions of confinement gives rise to minimum due process requirements under Wolff v. McDonald,
418 U.S. 539. State ex rel. Irby v. Israel,
95 Wis. 2d 697,
291 N.W.2d 643 (Ct. App. 1980).
302.11 Annotation
A person serving consecutive sentences is subject to revocation and reincarceration for the remainder of both sentences if a parole violation is committed prior to discharge of the first sentence. Ashford v. Division of Hearings and Appeals,
177 Wis. 2d 34,
501 N.W.2d 824 (Ct. App. 1993).
302.11 Annotation
The calculation of mandatory release dates for pre-June 1, 1994 crimes is discussed. State ex. rel. Parker v. Sullivan,
184 Wis. 2d 668,
517 N.W.2d 449 (1994).
302.11 Annotation
An inmate has a constitutionally protected liberty interest in not having a mandatory release date extended. Santiago v. Ware,
205 Wis. 2d 295,
556 N.W.2d 356 (Ct. App. 1996),
95-0079.
302.11 Annotation
Time served on parole does not constitute custody for purposes of determining sentence credit under sub. (7) (a) [now (7) (am)]. Section 304.072 addresses the tolling of time served between an alleged violation and revocation and s. 973.155 addresses credit for days incarcerated; neither requires sentence credit under sub. (7) (a) for probation served. State ex rel. Ludtke v. DOC,
215 Wis. 2d 1,
572 N.W.2d 864 (Ct. App. 1997),
96-1745.
302.11 Annotation
Whether or not a residence has been found for an inmate, he or she must be released on his or her mandatory release date. State ex rel. Olson v. Litscher, 2000 WI App 61,
233 Wis. 2d 685,
608 N.W.2d 425,
99-1082.
302.11 Annotation
The presumptive mandatory release scheme under sub. (1g) does not create a protectible liberty interest in parole. The parole commission may deny mandatory release to otherwise eligible prisoners when, in its discretion, the prisoner either poses a risk to the public or refuses to participate in necessary counseling and treatment. Because a prisoner is not entitled to release on the presumptive mandatory release date, he or she is not entitled to any due process protections. State ex rel. Gendrich v. Litscher, 2001 WI App 163,
246 Wis. 2d 814,
632 N.W.2d 878,
00-3527.
302.11 Annotation
Sub. (7) (am) [formerly (a)] does not distinguish between the portion of an original sentence for felony offenses and the portion of an original sentence for misdemeanor offenses. Darby v. Litscher, 2002 WI App 258,
258 Wis. 2d 270,
655 N.W.2d 129,
02-1018.
302.11 Annotation
Incarcerating a person beyond the termination of his or her sentence without penological justification violates the 8th amendment prohibition against cruel and unusual punishment when it is the product of deliberate indifference. To comply with due process, prison officials cannot ignore an inmate's request to recalculate his or her sentence and must place some procedure in place to address such requests. Russell v. Lazar,
300 F. Supp 2d 316 (2004).
302.11 Annotation
The department is not at this time required by law to restore forfeited good time allowances or immediately to release anyone committed under the sex crimes act whose maximum term of commitment including forfeited good time has not expired. 61 Atty. Gen. 77.
302.11 Annotation
A mandatory release parolee has a protectible interest, including a conditional liberty interest, in being free from involuntary use of psychotropic drugs; Wisconsin procedure imposing administration of these drugs as a parole condition is unconstitutional. Felce v. Feidler,
974 F.2d 1484 (1992).
302.11 Annotation
In the absence of a showing of an abuse of discretion by the department, a prisoner released on parole is not entitled to an absolute discharge because it was granted to other prisoners. Hansen v. Schmidt,
329 F. Supp. 141 (1971).
302.11 Annotation
A prisoner is not entitled to counsel at a hearing at which good time is forfeited for a parole violation. Sanchez v. Schmidt,
352 F. Supp. 628 (1973).
302.11 Annotation
A prisoner whose parole was revoked in May, 1970 was entitled to a hearing prior to revocation of good time credits. Sillman v. Schmidt,
394 F. Supp. 1370 (1975).
302.113
302.113
Release to extended supervision for felony offenders not serving life sentences. 302.113(1)
(1) An inmate is subject to this section if he or she is serving a bifurcated sentence imposed under
s. 973.01. An inmate convicted of a misdemeanor or of a Class F to Class I felony that is not a violent offense, as defined in
s. 301.048 (2) (bm) 1., and who is eligible for positive adjustment time under
sub. (2) (b) pursuant to
s. 973.01 (3d) (b) may be released to extended supervision under
sub. (2) (b) or
(9h). An inmate convicted of a Class C to Class E felony or a Class F to Class I felony that is a violent offense, as defined in
s. 301.048 (2) (bm) 1., or a Class F to Class I felony that is not a violent offense, as defined under
s. 301.048 (2) (bm) 1., but who is ineligible for positive adjustment time under
sub. (2) (b) pursuant to
s. 973.01 (3d) (b) may be released to extended supervision only under
sub. (2) (a) or
(9h) or
s. 304.06.
302.113(2)(b)
(b) An inmate sentenced under
s. 973.01 for a misdemeanor or for a Class F to Class I felony that is not a violent offense, as defined in
s. 301.048 (2) (bm) 1., may earn one day of positive adjustment time for every 2 days served that he or she does not violate any regulation of the prison or does not refuse or neglect to perform required or assigned duties. An inmate convicted of a misdemeanor or a Class F to Class I felony that is not a violent offense, as defined in
s. 301.048 (2) (bm) 1., shall be released to extended supervision when he or she has served the term of confinement in prison portion of his or her bifurcated sentence, as modified by the sentencing court under
s. 302.045 (3m) (b) 1. or
302.05 (3) (c) 2. a., if applicable, less positive adjustment time he or she has earned. This paragraph does not apply to any of the following:
302.113(2)(b)2.
2. A person who has, in his or her lifetime, been convicted of or found not guilty by reason of mental disease or defect of a sex offense, as defined in
s. 301.45 (1d) (b).
302.113(2)(b)3.
3. A person who has, in his or her lifetime, been found to have committed a sex offense in another jurisdiction, as defined in
s. 301.45 (1d) (am).
302.113(2)(b)5.
5. A person who has, in his or her lifetime, been committed under
ch. 975.
302.113(2)(b)7.
7. A person who is serving, begins to serve, or who has served during his or her current period of confinement, a sentence for a Class F to Class I felony that is a violent offense, as defined in
s. 301.048 (2) (bm) 1.
302.113(2)(b)8.
8. A person who is serving, begins to serve, or who has served during his or her current period of confinement, a sentence for a Class C to Class E felony.
302.113(2)(b)10.
10. A person who is serving a sentence for an offense against an elderly or vulnerable person, as defined in
s. 939.22 (20d).
302.113(2)(c)1.1. When an inmate is within 90 days of release to extended supervision under
par. (b), the department shall notify the sentencing court that it intends to modify the inmate's sentence and release the inmate to extended supervision under
par. (b), and the court may hold a review hearing. If the court does not schedule a review hearing within 30 days after notification under this subsection, the department may proceed under
par. (b).
302.113(2)(c)2.a.a. If the sentencing court opts to conduct a review, it shall hold the hearing and issue an order relating to the inmate's sentence modification and release to extended supervision within 60 days of its notification under
subd. 1.
302.113(2)(c)2.b.
b. At the hearing, the court may consider the inmate's conduct in prison, his or her level of risk of reoffending, based on a verified, objective instrument, and the nature of the offense committed by the inmate. The court may accept the department's determination that the inmate has earned positive adjustment time under
par. (b), reject the department's determination that the inmate has earned positive adjustment time under
par. (b), or order the inmate to remain in prison for a period that does not exceed the time remaining on the inmate's term of confinement.
302.113(3)(a)(a) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If an inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the term of confinement in prison portion of the inmate's bifurcated sentence as follows:
302.113(3)(b)
(b) In addition to the sanctions under
par. (a), if an inmate subject to this section is placed in adjustment, program or controlled segregation status, the department may extend his or her term of confinement in prison portion of the bifurcated sentence by a number of days equal to 50% of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.
302.113(3)(bm)
(bm) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which
s. 807.15 applies shall have his or her term of confinement extended by the number of days specified in the court order prepared under
s. 807.15 (3). Upon receiving a court order issued under
s. 807.15, the department shall recalculate the date on which the inmate to whom the order applies will be entitled to release to extended supervision and shall inform the inmate of that date.
302.113(3)(c)
(c) No extension of a term of confinement in prison under this subsection may require an inmate to serve more days in prison than the total length of the bifurcated sentence imposed under
s. 973.01.
302.113(3)(d)
(d) If the term of confinement in prison portion of a bifurcated sentence for a Class B felony is increased under this subsection, the term of extended supervision is reduced so that the total length of the bifurcated sentence does not change.
302.113(3)(e)
(e) If an inmate is released to extended supervision under
sub. (2) (b) after he or she has served less than his or her entire confinement in prison portion of the sentence imposed under
s. 973.01, the term of extended supervision is increased so that the total length of the bifurcated sentence does not change.
