302.11(1g)(am)
(am) The mandatory release date established in
sub. (1) is a presumptive mandatory release date for an inmate who is serving a sentence for a serious felony committed on or after April 21, 1994, but before December 31, 1999.
302.11(1g)(b)
(b) Before an incarcerated inmate with a presumptive mandatory release date reaches the presumptive mandatory release date specified under
par. (am), the parole commission shall proceed under
s. 304.06 (1) to consider whether to deny presumptive mandatory release to the inmate. If the parole commission does not deny presumptive mandatory release, the inmate shall be released on parole. The parole commission may deny presumptive mandatory release to an inmate only on one or more of the following grounds:
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 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.
302.11(1g)(c)
(c) If the parole commission denies presumptive mandatory release to an inmate under
par. (b), the parole 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 parole 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 parole 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(6m)
(6m) A person released under this section, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of parole. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department.
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 parole 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 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;
2011 a. 38;
2013 a. 79,
334.
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. McDonnell,
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 sub. (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
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 sub. (7) (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
Treating all sentences as one as required by ss. 302.11 (3) and 302.113 (4) simply means that a defendant must serve all of his or her initial confinement at once, and must then serve all of the extended supervision at once. State v. Polar,
2014 WI App 15,
352 Wis. 2d 452,
842 N.W.2d 531,
13-1433.
302.11 Annotation
Presentence credit granted while an offender is reincarcerated for a parole violation does not reduce the reincarceration term, but rather reduces the parole time remaining on the sentence until its maximum discharge date. Under sub. (7) (am), the parolee may be reincarcerated for a period up to the remainder of the sentence. If the sentence credit were applied to the term of reincarceration, instead of to the remaining period of parole, the parolee would not be incarcerated for that entire period. Such an application of the sentence credit would violate sub. (7) (b). State v. Obriecht,
2014 WI App 42,
247 Wis. 2d 989,
635 N.W.2d 26,
13-1345.
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.
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 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(4)
(4) All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. The person shall serve any term of extended supervision after serving all terms of confinement in prison.
302.113(5)
(5) An inmate may waive entitlement to release to extended supervision if the department agrees to the waiver.
302.113(6)
(6) Before a person is released to extended supervision under this section, the department shall 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.
302.113(7)
(7) Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision until the expiration of the term of extended supervision portion of the bifurcated sentence. The department may set conditions of extended supervision in addition to any conditions of extended supervision required under
s. 302.116, if applicable, or set by the court under
sub. (7m) or
s. 973.01 (5) if the conditions set by the department do not conflict with the court's conditions.
302.113(7m)(a)(a) Except as provided in
par. (e), a person subject to this section or the department may petition the sentencing court to modify any conditions of extended supervision set by the court.
302.113(7m)(b)
(b) If the department files a petition under this subsection, it shall serve a copy of the petition on the person who is the subject of the petition and, if the person is represented by an attorney, on the person's attorney. If a person who is subject to this section or his or her attorney files a petition under this subsection, the person or his or her attorney shall serve a copy of the petition on the department. The court shall serve a copy of a petition filed under this section on the district attorney. The court may direct the clerk of the court to provide notice of the petition to a victim of a crime committed by the person who is the subject of the petition.
302.113(7m)(c)
(c) The court may conduct a hearing to consider the petition. The court may grant the petition in full or in part if it determines that the modification would meet the needs of the department and the public and would be consistent with the objectives of the person's sentence.
302.113(7m)(d)
(d) A person subject to this section or the department may appeal an order entered by the court under this subsection. The appellate court may reverse the order only if it determines that the sentencing court erroneously exercised its discretion in granting or denying the petition.
302.113(7m)(e)1.1. An inmate may not petition the court to modify the conditions of extended supervision earlier than one year before the date of the inmate's scheduled date of release to extended supervision or more than once before the inmate's release to extended supervision.
302.113(7m)(e)2.
2. A person subject to this section may not petition the court to modify the conditions of extended supervision within one year after the inmate's release to extended supervision. If a person subject to this section files a petition authorized by this subsection after his or her release from confinement, the person may not file another petition until one year after the date of filing the former petition.
302.113(7r)
(7r) A person released under this section, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of release to extended supervision. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department.
302.113(8)
(8) Releases to extended supervision from prison shall be on the Tuesday or Wednesday preceding the date on which he or she completes the term of imprisonment.
302.113(8m)(a)(a) Every person released to extended supervision under this section remains in the legal custody of the department. If the department alleges that any condition or rule of extended supervision has been violated by the person, the department may take physical custody of the person for the investigation of the alleged violation.
302.113(8m)(b)
(b) If a person released to extended supervision under this section signs a statement admitting a violation of a condition or rule of extended supervision, the department may, as a sanction for the violation, confine the person for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the person in a county jail under this paragraph, the department shall reimburse the county for its actual costs in confining the person from the appropriations under
s. 20.410 (1) (ab) and
(b). Notwithstanding
s. 302.43, the person is not eligible to earn good time credit on any period of confinement imposed under this subsection.
302.113(9)(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 person on extended supervision waives a hearing.
302.113(9)(am)
(am) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the reviewing authority shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under
sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The order returning a person to prison under this paragraph shall provide the person whose extended supervision was revoked with credit in accordance with
ss. 304.072 and
973.155.
302.113(9)(b)
(b) A person who is returned to prison after revocation of extended supervision shall be incarcerated for the entire period of time specified by the order under
par. (am). The period of time specified under
par. (am) may be extended in accordance with
sub. (3). If a person is returned to prison under
par. (am) for a period of time that is less than the time remaining on the bifurcated sentence, the person shall be released to extended supervision after he or she has served the period of time specified by the order under
par. (am) and any periods of extension imposed in accordance with
sub. (3).
302.113(9)(c)
(c) A person who is subsequently released to extended supervision after service of the period of time specified by the order under
par. (am) is subject to all conditions and rules under
sub. (7) and, if applicable,
sub. (7m) until the expiration of the remaining extended supervision portion of the bifurcated sentence. The remaining extended supervision portion of the bifurcated sentence is the total length of the bifurcated sentence, less the time served by the person in confinement under the bifurcated sentence before release to extended supervision under
sub. (2) and less all time served in confinement for previous revocations of extended supervision under the bifurcated sentence.
