304.06(1)(bg)2.b.
b. 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).
304.06(1)(bg)2.c.
c. 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).
304.06(1)(bg)3.
3. A person sentenced under
s. 973.01 for a misdemeanor or for a Class F to Class I felony committed prior to October 1, 2009, and who has not petitioned a sentencing court for a sentence adjustment under
s. 973.195 (1r) for any offense for which he or she is incarcerated may apply for release to extended supervision when he or she has served at least 75 percent of the term of confinement 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. This subdivision does not apply to 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.
304.06(1)(bg)4.
4. A person sentenced under
s. 973.01 for a Class C to Class E felony committed prior to October 1, 2009, and who has not petitioned a sentencing court for a sentence adjustment under
s. 973.195 (1r) for any offense for which he or she is incarcerated may apply for release to extended supervision when he or she has served at least 85 percent of the term of confinement 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.
304.06(1)(bk)1.1. When an inmate is within 90 days of release to extended supervision under
par. (bg), the earned release review committee [earned release review commission] shall notify the sentencing court that it intends to modify the inmate's sentence and release the inmate to extended supervision under
par. (bg), 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 earned release review committee [earned release review commission] may proceed under
par. (bg).
304.06 Note
NOTE: The correct term is shown in brackets. Corrective legislation is pending.
304.06(1)(bk)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.
304.06(1)(bk)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 earned release review committee's [earned release review commission's] determination that the inmate has earned positive adjustment time under
par. (bg), reject the earned release review committee's [earned release review commission's] determination that the inmate has earned positive adjustment time under
par. (bg), 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.
304.06 Note
NOTE: The correct term is shown in brackets. Corrective legislation is pending.
304.06(1)(bn)
(bn) The earned release review commission may consider any of the following as a ground for a petition under
par. (bg) for release to extended supervision:
304.06(1)(bn)1.
1. The inmate's conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced.
304.06(1)(bn)2.
2. The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.
304.06(1)(bn)3.
3. Sentence adjustment is otherwise in the interests of justice.
304.06(1)(br)
(br) The earned release review commission may reduce the term of confinement of a person who petitions under
par. (bg) only as follows:
304.06(1)(br)1.
1. If the inmate is serving the term of confinement in prison portion of the sentence, a reduction in the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and a corresponding increase in the term of extended supervision.
304.06(1)(br)2.
2. If the inmate is confined in prison upon revocation of extended supervision, a reduction in the amount of time remaining in the period of confinement in prison imposed upon revocation, less up to 30 days, and a corresponding increase in the term of extended supervision.
304.06(1)(c)
(c) If an inmate applies for parole or release to extended supervision under this subsection, the earned release review commission shall make a reasonable attempt to notify the following, if they can be found, in accordance with
par. (d):
304.06(1)(c)1.
1. The office of the court that participated in the trial or that accepted the inmate's plea of guilty or no contest, whichever is applicable.
304.06(1)(c)2.
2. The office of the district attorney that participated in the trial of the inmate or that prepared for proceedings under
s. 971.08 regarding the inmate's plea of guilty or no contest, whichever is applicable.
304.06(1)(c)3.
3. The victim of the crime committed by the inmate or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian, upon submission of a card under
par. (f) requesting notification.
304.06(1)(d)1.1. The notice under
par. (c) shall inform the offices and persons under
par. (c) 1. to
3. of the manner in which they may provide written statements under this subsection, shall inform persons under
par. (c) 3. of the manner in which they may attend interviews or hearings and make statements under
par. (eg) and shall inform persons under
par. (c) 3. who are victims, or family members of victims, of crimes specified in
s. 940.01,
940.03,
940.05,
940.225 (1),
(2), or
(3),
948.02 (1) or
(2),
948.025,
948.06 or
948.07 of the manner in which they may have direct input in the decision-making process under
par. (em) for parole or release to extended supervision. The earned release review commission shall provide notice under this paragraph for an inmate's first application for parole or release to extended supervision and, upon request, for subsequent applications for parole or release to extended supervision.
304.06(1)(d)2.
2. The notice shall be by 1st class mail to an office's or a person's last-known address sent at least 3 weeks before the interview or hearing upon the application for parole or release to extended supervision.
304.06(1)(d)3.
3. The notice shall state the name of the inmate, the date and term of the sentence and the date when the written statement must be received in order to be considered. If the notice is to an office under
par. (c) 1. or
2., the notice shall also state the crime of which the inmate was convicted.
304.06(1)(d)3g.
3g. If applicable, the notice shall state the date of the interview or hearing that the person may attend.
304.06(1)(d)3m.
3m. If applicable, the notice shall state the manner in which the person may have direct input in the decision-making process for parole or release to extended supervision.
304.06(1)(d)4.
4. If the notice is for a first application for parole or release to extended supervision, the notice shall inform the offices and persons under
par. (c) 1. to
3. that notification of subsequent applications for parole or release to extended supervision will be provided only upon request.
304.06(1)(e)
(e) The earned release review commission shall permit any office or person under
par. (c) 1. to
3. to provide written statements. The earned release review commission shall give consideration to any written statements provided by any such office or person and received on or before the date specified in the notice. This paragraph does not limit the authority of the earned release review commission to consider other statements or information that it receives in a timely fashion.
304.06(1)(eg)
(eg) The earned release review commission shall permit any person under
par. (c) 3. to attend any interview or hearing on the application for parole or release to extended supervision of an applicable inmate and to make a statement at that interview or hearing.
304.06(1)(em)
(em) The earned release review commission shall promulgate rules that provide a procedure to allow any person who is a victim, or a family member of a victim, of a crime specified in
s. 940.01,
940.03,
940.05,
940.225 (1),
(2), or
(3),
948.02 (1) or
(2),
948.025,
948.06 or
948.07 to have direct input in the decision-making process for parole or release to extended supervision.
304.06(1)(f)
(f) The earned release review commission shall design and prepare cards for persons specified in
par. (c) 3. to send to the commission. The cards shall have space for these persons to provide their names and addresses, the name of the applicable prisoner and any other information the earned release review commission determines is necessary. The earned release review commission shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in
par. (c) 3. These persons may send completed cards to the earned release review commission. All commission records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under
s. 19.35 (1). Before any written statement of a person specified in
par. (c) 3. is made a part of the documentary record considered in connection with a hearing for parole, or release to extended supervision under this section, the earned release review commission shall obliterate from the statement all references to the mailing addresses of the person. A person specified in
par. (c) 3. who attends an interview or hearing under
par. (eg) may not be required to disclose at the interview or hearing his or her mailing addresses.
304.06(1)(g)
(g) Before a person is released on parole or released to extended supervision under this subsection, the earned release review commission shall so notify the municipal police department and the county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the earned release review commission a written statement waiving the right to be notified. If applicable, the department shall also comply with
s. 304.063.
304.06(1m)
(1m) The earned release review commission may waive the 25% or 6-month service of sentence requirement under
sub. (1) (b) under any of the following circumstances:
304.06(1m)(a)
(a) If it determines that extraordinary circumstances warrant an early release and the sentencing court has been notified and permitted to comment upon the proposed recommendation.
304.06(1m)(b)
(b) If the department recommends that the person be placed on parole that includes the condition under
sub. (1x) and the commission orders that condition.
304.06(1q)(a)(a) In this subsection, "serious child sex offender" means a person who has been convicted of committing a crime specified in
s. 948.02 (1) or
(2) or
948.025 (1) against a child who had not attained the age of 13 years.
304.06(1q)(b)
(b) The earned release review commission or the department may require as a condition of parole that a serious child sex offender undergo pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. This paragraph does not prohibit the department from requiring pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen as a condition of probation.
304.06(1q)(c)
(c) In deciding whether to grant a serious child sex offender release on parole under this subsection, the earned release review commission may not consider, as a factor in making its decision, that the offender is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or that the offender is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.
304.06(1x)
(1x) The earned release review commission may require as a condition of parole that the person is placed in the intensive sanctions program under
s. 301.048. In that case, the person is in the legal custody of the department under that section and is subject to revocation of parole under
sub. (3).
304.06(1y)
(1y) If a person is sentenced under
s. 973.032, he or she is eligible for a release to parole supervision under this section and remains in the intensive sanctions program unless discharged by the department under
s. 301.048 (6) (a).
304.06(2)
(2) No prisoner under
sub. (1) may be paroled until the parole commission is satisfied that the prisoner has adequate plans for suitable employment or to otherwise sustain himself or herself. The paroled prisoner shall report to the department in such manner and at such times as it requires.
304.06(2m)(b)
(b) Except as provided in
par. (c), no prisoner who is serving a sentence for a serious sex offense may be paroled to any county where there is a correctional institution that has a specialized sex offender treatment program.
304.06(2m)(c)
(c) A prisoner serving a sentence for a serious sex offense may be paroled to a county where there is a correctional institution that has a specialized sex offender treatment program if that county is also the prisoner's county of residence.
304.06(2m)(d)
(d) The earned release review commission or the department shall determine a prisoner's county of residence for the purposes of this subsection by doing all of the following:
304.06(2m)(d)1.
1. The earned release review commission or the department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
304.06(2m)(d)2.
2. The earned release review commission or the department shall apply the criteria for consideration of residence and physical presence under
subd. 1. to the facts that existed on the date that the prisoner committed the serious sex offense that resulted in the sentence the prisoner is serving.
304.06(3)
(3) Every prisoner paroled or released to extended supervision remains in the legal custody of the department unless otherwise provided by the department. If the department alleges that any condition or rule of parole or extended supervision has been violated by the prisoner, the department may take physical custody of the prisoner for the investigation of the alleged violation. If the department is satisfied that any condition or rule of parole or extended supervision has been violated it shall afford the prisoner such administrative hearings as are required by law. Unless waived by the parolee or person on extended supervision, the final administrative hearing shall be held before a hearing examiner from the division of hearings and appeals in the department of administration who is licensed to practice law in this state. The hearing examiner shall enter an order revoking or not revoking parole or extended supervision. Upon request by either party, the administrator of the division of hearings and appeals shall review the order. The hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under
s. 967.04 (7) to
(10). If the parolee or person on extended supervision waives the final administrative hearing, the secretary of corrections shall enter an order revoking or not revoking parole or extended supervision. If the examiner, the administrator upon review, or the secretary in the case of a waiver finds that the prisoner has violated the rules or conditions of parole or extended supervision, the examiner, the administrator upon review, or the secretary in the case of a waiver, may order the prisoner returned to prison to continue serving his or her sentence, or to continue on parole or extended supervision. If the prisoner claims or appears to be indigent, the department shall refer the prisoner to the authority for indigency determinations specified under
s. 977.07 (1).
304.06(3d)
(3d) Upon demand prior to a revocation hearing under
sub. (3), the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under
s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.
304.06(3e)
(3e) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each parole or extended supervision revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
304.06(3m)
(3m) If the convicting court is informed by the department that a prisoner on parole or extended supervision has absconded and that the prisoner's whereabouts are unknown, the court may issue a capias for execution by the sheriff.
304.06(4)(a)(a) If any person convicted of a misdemeanor or traffic offense, any person convicted of a criminal offense and sentenced to 2 years or less in a house of correction or any person committed to a house of correction for treatment and rehabilitation for addiction to a controlled substance or controlled substance analog under
ch. 961, during the period of confinement or treatment appears to have been rehabilitated or cured to the extent, in the opinion of the superintendent of the house of correction or the person in charge of treatment and rehabilitation of a prisoner at that institution, that the prisoner may be released, the prisoner may be released upon conditional parole. Before a person is released on conditional parole under this paragraph, the superintendent or person in charge of treatment and rehabilitation shall so notify the municipal police department and 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.
304.06(4)(b)
(b) Application for such conditional parole shall be made in writing by the superintendent of the house of correction to the court of commitment stating the facts justifying the application. The court shall proceed to take testimony in support of the application. If the judge is satisfied from the evidence that there is good reason to believe that the prisoner has been rehabilitated or cured to the extent that he or she may be released and that proper provision for employment and residence has been made for the prisoner, the judge may order the prisoner's release on parole to the superintendent of the house of correction, on such conditions to be stated in the order of release as the judge determines. In the event of violation of any such conditions by the prisoner, he or she shall be returned to the court and may be recommitted to the house of correction to serve the remainder of his or her sentence or for further treatment.
304.06 History
History: 1971 c. 125,
219;
1973 c. 90,
198,
333;
1975 c. 156,
199;
1977 c. 29,
353,
418,
449;
1979 c. 356;
1981 c. 266;
1983 a. 27,
64,
197,
528,
538;
1985 a. 262 s.
8;
1987 a. 244 ss.
1 to
3,
7;
1987 a. 412;
1989 a. 31 ss.
1699 to
1700p; Stats. 1989 s. 304.06;
1989 a. 107,
122;
1991 a. 39;
1993 a. 79,
89,
97,
178,
194,
227,
289,
377,
479,
491;
1995 a. 27,
77,
352,
387,
444,
448;
1997 a. 133,
181,
237,
275,
283,
284,
326;
1999 a. 32;
2001 a. 109;
2003 a. 33;
2005 a. 42;
2009 a. 28,
276.
304.06 Cross-reference
Cross-reference: See also ch.
PAC 1 and ss.
DOC 330.02 and
331.01, Wis. adm. code.
304.06 Annotation
The amendment of s. 57.06 (1) [now s. 304.06 (1)] by ch. 90, laws of 1973, did not restore the right of the trial court to fix minimum sentences. Ch. 90 did not remove the 1 yr. period under ss. 973.02 and 973.15. Edelman v. State,
62 Wis. 2d 613,
215 N.W.2d 386 (1974).
304.06 Annotation
A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS,
64 Wis. 2d 367,
219 N.W.2d 267 (1974).
304.06 Annotation
Refusal by the parole board to grant discretionary parole is subject to judicial review. Failure to notify the prisoner of the standards and criteria applied to a parole application constituted a denial of due process. State ex rel. Tyznik v. DHSS,
71 Wis. 2d 169,
238 N.W.2d 66 (1976).
304.06 Annotation
Every violation of probation or parole does not result in automatic revocation. Snajder v. State,
74 Wis. 2d 303,
246 N.W.2d 665 (1976).
304.06 Annotation
A parole revocation hearing is not part of a criminal prosecution. Thus the full panoply of rights, including Miranda warnings and the exclusionary rule, are not applicable. State ex rel. Struzik v. DHSS,
77 Wis. 2d 216,
252 N.W.2d 660 (1977).
304.06 Annotation
Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds that the parolee's conduct related to an alleged crime for which the parolee was charged and acquitted. State ex rel. Flowers v. DHSS,
81 Wis. 2d 376,
260 N.W.2d 727 (1978).
304.06 Annotation
Presentence incarceration due to indigency must be credited to a life sentence for the purpose of determining eligibility for parole. Wilson v. State,
82 Wis. 2d 657,
264 N.W.2d 234.
304.06 Annotation
A parole agent's failure to act on knowledge of similar prior violations did not preclude revocation. Van Ermen v. DHSS,
84 Wis. 2d 57,
267 N.W.2d 17 (1978).
304.06 Annotation
Prison inmates subject to parole rescission are entitled to Morrissey-Gagnon due process. State ex rel. Klinke v. H&SS Dept.
87 Wis. 2d 110,
273 N.W.2d 379 (Ct. App. 1978).
304.06 Annotation
The secretary's authority to revoke under s. 57.06 (3), 1987 stats. [now s. 304.06 (3)] cannot be bound by an agent's representations. State ex rel. Lewis v. H&SS Dept.
89 Wis. 2d 220,
278 N.W.2d 232 (Ct. App. 1979).
304.06 Annotation
A parole violation may not be proved entirely by unsubstantiated hearsay testimony. State ex rel. Henschel v. H&SS Dept.
91 Wis. 2d 268,
280 N.W.2d 785 (Ct. App. 1979).
304.06 Annotation
Equal protection does not require symmetry in probation and parole systems. State v. Aderhold,
91 Wis. 2d 306,
284 N.W.2d 108 (Ct. App. 1979).
304.06 Annotation
A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter,
91 Wis. 2d 329,
283 N.W.2d 408 (Ct. App. 1979).
304.06 Annotation
An inmate who entered into Mutual Agreement Program (MAP) "contract" for discretionary parole may not bring a civil action for breach of contract. Coleman v. Percy,
96 Wis. 2d 578,
292 N.W.2d 615 (1980).
304.06 Annotation
A mandatory release parole violator may be required to serve beyond the final discharge date originally set by the trial court. State ex rel. Bieser v. Percy,
97 Wis. 2d 702,
295 N.W.2d 179 (Ct. App. 1980).
304.06 Annotation
Because courts have exclusive criminal jurisdiction, criminal charges against a defendant were not collaterally estopped even though a parole revocation hearing examiner concluded that the defendant's acts did not merit parole revocation. State v. Spanbauer,
108 Wis. 2d 548,
322 N.W.2d 511 (Ct. App. 1982).
304.06 Annotation
Due process was not violated by holding two revocation hearings dealing with the same conduct when the first hearing was based on facts and the second hearing was based on a conviction. State ex rel. Leroy v. DHSS,
110 Wis. 2d 291,
329 N.W.2d 229 (Ct. App. 1982).
304.06 Annotation
Sub. (1r) creates a presumption for parole for inmates who obtain a high school equivalency diploma that does not otherwise apply; to give effect to that presumption, a substantively different standard must be applied than in ordinary parole cases under sub. (1) (b). Hansen v. Dane County Circuit Ct.
181 Wis. 2d 993,
513 N.W.2d 139 (Ct. App. 1994).
