302.08 Annotation
Lawfully incarcerated persons retain only a narrow range of protected liberty interests. Hewitt v. Helms,
459 U.S. 460 (1983).
302.09
302.09
Labor and communications. Inmates shall be employed as provided in
ch. 303. Communication shall not be allowed between inmates and any person outside the prison except as prescribed by the prison regulations.
302.09 History
History: 1989 a. 31 s.
1626; Stats. s. 302.09.
302.09 Cross-reference
Cross-reference: See also s.
DOC 313.02, Wis. adm. code.
302.09 Annotation
The department may be required to justify a refusal to allow a prisoner to write the Veterans Administration concerning the adequacy of his medical treatment. State ex rel. Thomas v. State,
55 Wis. 2d 343,
198 N.W.2d 675 (1972).
302.095
302.095
Delivering articles to inmate. 302.095(1)
(1) In this section, “jail" means any of the following:
302.095(2)
(2) Any officer or other person who delivers or procures to be delivered or has in his or her possession with intent to deliver to any inmate confined in a jail or state prison, or who deposits or conceals in or about a jail or prison, or the precincts of a jail or prison, or in any vehicle going into the premises belonging to a jail or prison, any article or thing whatever, with intent that any inmate confined in the jail or prison shall obtain or receive the same, or who receives from any inmate any article or thing whatever with intent to convey the same out of a jail or prison, contrary to the rules or regulations and without the knowledge or permission of the sheriff or other keeper of the jail, in the case of a jail, or of the warden or superintendent of the prison, in the case of a prison, is guilty of a Class I felony.
302.10
302.10
Solitary confinement. For violation of the rules of the prison an inmate may be confined to a solitary cell, under the care and advice of the physician.
302.10 History
History: 1989 a. 31 s.
1628; Stats. s. 302.10.
302.105
302.105
Notification prior to expiration of sentence. 302.105(1)(a)
(a) “Member of the family" means spouse, domestic partner under
ch. 770, child, sibling, parent or legal guardian.
302.105(1)(b)
(b) “Victim" means a person against whom a crime has been committed.
302.105(2)
(2) Before an inmate who is in a prison serving a sentence for a violation of
s. 940.01,
940.03,
940.05,
940.225 (1) or
(2),
948.02 (1) or
(2),
948.025,
948.06,
948.07, or
948.085 is released from imprisonment because he or she has reached the expiration date of his or her sentence, the department shall make a reasonable attempt to notify all of the following persons, if they can be found, in accordance with
sub. (3) and after receiving a completed card under
sub. (4):
302.105(2)(a)
(a) 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.
302.105(2)(b)
(b) Any witness who testified against the inmate in any court proceeding involving the offense.
302.105(3)
(3) The department shall make a reasonable effort to send the notice, postmarked at least 7 days before an inmate's sentence expires and he or she is released from imprisonment, to the last-known address of the persons under
sub. (2).
302.105(4)
(4) The department shall design and prepare cards for any person specified in
sub. (2) to send to the department. The cards shall have space for any such person to provide his or her name and address, the name of the applicable inmate and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in
sub. (2). These persons may send completed cards to the department. All department 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).
302.105 History
History: 1993 a. 479;
1997 a. 181;
2001 a. 16 s.
3385g; Stats. 2001 s. 302.105;
2005 a. 277;
2009 a. 28.
302.107
302.107
Notification upon revocation. 302.107(1)(a)
(a) “Inmate" means the person who was convicted of an offense against the victim.
302.107(2)
(2) Upon revocation of parole or extended supervision under
s. 302.11 (7),
302.113 (9),
302.114 (9), or
304.06 (3) or
(3g), the department shall make a reasonable effort to send a notice of the revocation to a victim of an offense committed by the inmate, if the victim can be found, in accordance with
sub. (3) and after receiving a completed card under
sub. (4).
302.107(3)
(3) The department shall make a reasonable effort to send the notice, postmarked not more than 10 days after the revocation, to the last-known address of the victim.
302.107(4)
(4) The department shall design and prepare cards for a victim of any crime for which the inmate is sentenced to confinement in prison to send to the department. The cards shall have space for any such person to provide his or her name and address, the name of the applicable inmate, and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to the victims, who may send completed cards to the department. All department 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).
302.107 History
History: 2015 a. 354.
302.11
302.11
Mandatory release. 302.11(1)
(1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in
subs. (1g),
(1m),
(1q),
(1z), and
(7), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or
sub. (1q) (b) or
(2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.
302.11(1g)(a)(a) In this subsection, “serious felony" means any of the following:
302.11(1g)(a)2.
2. Any felony under s.
940.09 (1), 1999 stats., s.
943.23 (1m), 1999 stats., s.
948.35 (1) (b) or
(c), 1999 stats., or s.
948.36, 1999 stats., or
s. 940.02,
940.03,
940.05,
940.09 (1c),
940.19 (5),
940.195 (5),
940.21,
940.225 (1) or
(2),
940.305 (2),
940.31 (1) or
(2) (b),
943.02,
943.10 (2),
943.23 (1g),
943.32 (2),
946.43 (1m),
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c) or
(5) (a) 1.,
2.,
3., or
4.,
948.05,
948.06,
948.07,
948.08, or
948.30 (2).
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 percent 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;
2015 a. 366.
302.11 Cross-reference
Cross-reference: See also ss.
DOC 302.21 and
302.30, Wis. adm. code.
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
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
Sub. (7) (b) first states the general rule that revoked parolees are not subject to early release; the next sentence provides a specific example that revoked parolees are not subject to mandatory release. It does not address the problem caused by custody incurred before sentencing that was not granted at sentencing. State v. Obriecht,
2015 WI 66,
363 Wis. 2d 816,
867 N.W.2d 387,
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
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).
