Information Memorandum 98-11*

Wisconsin Legislative Council Staff June 24, 1998 Information Memorandum 98-11* NEW LAW RELATING TO TRUTH IN SENTENCING: SENTENCE STRUCTURE FOR FELONY OFFENSES, EXTENDED SUPERVISION, CRIMINAL PENALTIES STUDY COMMITTEE AND INCREASED PENALTIES FOR FELONY OFFENSES (1997 WISCONSIN ACT 283) INTRODUCTION This Information Memorandum describes 1997 Wisconsin Act 283, which: a. Creates a new bifurcated sentencing structure for felony offenses in the statutes under which the offender will serve 100% of the confinement in prison portion of his or her sentence (as ordered by the judge) and a term of extended supervision equal to at least 25% of the length of the term of confinement in prison. The current parole system and Parole Commission is abolished. Act 283 has separate new provisions relating to offenses punishable by life imprisonment. b. Increases penalties for all felonies in the statutes by increasing the maximum imprisonment time that may be imposed (in general, by 50% or one year, whichever is greater). c. Creates a Criminal Penalties Study Committee to study, and make recommendations concerning, the classification of criminal offenses in the Criminal Code, the penalties for all felonies and Class A misdemeanors and the creation of a sentencing commission to promulgate advisory sentencing guidelines for use by judges. The committee is to submit its findings and recommendations to the Legislature and the Governor by April 30, 1999. d. Requires the Department of Health and Family Services to submit, as part of its biennial budget request, a request for child abuse prevention efforts in an amount equal to or greater than 1% of the total proposed budget of the Department of Corrections (DOC) for the same biennium, as indicated by an estimate provided by DOC. 1997 Wisconsin Act 283 has a general effective date of (and applies to offenses committed on or after) December 31, 1999. The provisions relating to the Criminal Penalties Study Committee took effect immediately upon publication of Act 283. * This Information Memorandum was prepared by Don Salm, Senior Staff Attorney, Legislative Council Staff.

Copies of 1997 Wisconsin Act 283 may be obtained from the Documents Room, Lower Level, One East Main Street, Madison, Wisconsin 53702; telephone: (608) 266-2400. This Information Memorandum is divided into the following parts: Page I. INCREASE IN FELONY PENALTIES............................. 3 A. Current Law................................................... 3 1. In Criminal Code............................................ 3 2. Outside of Criminal Code..................................... 3 B. New Law..................................................... 3 1. Changes in Penalties for Felonies in the Criminal Code.............. 3 2. Changes in Penalties for Felonies Not in the Criminal Code.......... 4 II. CHANGES IN SENTENCE STRUCTURE FOR FELONY OFFENSES... 5 A. Current Law................................................... 5 1. Indeterminate Sentence (Other Than Life Sentence); Types of Release.. 5 2. Life Sentence; Parole Eligibility Options......................... 6 B. 1997 Wisconsin Act 283......................................... 6 1. Bifurcated Sentence: Sentence Structure in General................ 6 2. Life Sentence: Sentence Structure in General..................... 9 3. Specific Provisions Relating to Release to Extended Supervision: Felony Offenders Who Are Not Serving Life Sentences.............. 10 4. Specific Provisions Relating to Petition for Release and Release to Extended Supervision: Felony Offenders Who Are Serving Life Sentences.................................................. 11 5. Examples.................................................. 13 III. CRIMINAL PENALTIES STUDY COMMITTEE..................... 15 IV. BUDGET REQUEST FOR FUNDING FOR CHILD ABUSE PREVENTION EFFORTS....................................... 17 Page 2 Wisconsin Legislative Council Staff

I. INCREASE IN FELONY PENALTIES A. CURRENT LAW Current law provides penalties for felonies, which are crimes punishable by imprisonment of one year or more in a Wisconsin state prison. 1. In Criminal Code A felony created in the Criminal Code is put in one of six classes (Class A, B, BC, C, D or E) and each class has a specific maximum term of imprisonment and, in most classes, a maximum fine. The maximum terms of imprisonment under current law for the classes of felonies (other than Class A felonies, which are punishable by life imprisonment) are set forth in the table in Section B. 1., below. 2. Outside of Criminal Code There are numerous felonies outside of the Criminal Code and outside the classification system in the code. Penalties for these felonies vary but all include at least possible imprisonment in a Wisconsin state prison. B. NEW LAW Effective December 31, 1999, Act 283 increases the maximum period of imprisonment under current law for every felony offense in the statutes. The changes made are as follows: 1. Changes in Penalties for Felonies in the Criminal Code Act 283 changes the maximum terms of imprisonment under current law for classified felonies in the Criminal Code as shown by the following table: Felony Class Current Maximum Maximum Under Act 283 Class B 40 years 60 years Class BC 20 years 30 years Class C 10 years 15 years Class D 5 years 10 years Class E 2 years 5 years Act 283 does not change the penalty for Class A felonies, which are punishable by life imprisonment. Information Memorandum 98-11 Page 3

Attached as Appendix A to this Memorandum is a list of all of the felonies in the Criminal Code and the effect Act 283 will have on the maximum terms of confinement set forth in the statutes for those felonies. 2. Changes in Penalties for Felonies Not in the Criminal Code Act 283 changes penalties for all felonies that are not in the Criminal Code. Act 283 increases the maximum term of imprisonment for these felonies by 50% or one year, whichever is greater. For example, a maximum penalty under current law of one year of imprisonment is increased to two years of imprisonment, while a maximum penalty under current law of five years of imprisonment is increased to seven years and six months. Attached as Appendix B to this Memorandum is a list of all the felonies outside of the Criminal Code and the effect Act 283 will have on the maximum terms of confinement set forth in the statutes for these felonies. Page 4 Wisconsin Legislative Council Staff

II. CHANGES IN SENTENCE STRUCTURE FOR FELONY OFFENSES A. CURRENT LAW 1. Indeterminate Sentence (Other Than Life Sentence); Types of Release Under Wisconsin s current indeterminate sentencing system, a court may sentence a person convicted of a felony offense to any amount of time of imprisonment up to the maximum amount allowed by statute (see Part I. A., above). After sentencing, a person serving a sentence of imprisonment to a state prison usually has three possible ways of being released on parole (after release, an offender is placed on parole supervision for the remainder of his or her sentence): a. Discretionary parole on parole eligibility date. The offender is generally eligible for parole after serving 25% of the court-imposed sentence or six months, whichever is greater. The determination as to whether the offender is released on discretionary parole is made by the Parole Commission. b. Mandatory release (MR). The offender, barring any additional time for misconduct, is required to be released after serving 2/3 of the sentence. This is termed the offender s mandatory release date (hereafter, MR date ). c. Special action release. The offender may be released by the Secretary of the DOC on a special action release, which is a program designed to relieve prison crowding. However, current law also provides for the following different parole eligibility provisions for certain serious felony offenders: a. Serious felony offender: different discretionary parole date. If a serious felony offender has one or more prior convictions for a serious felony, a judge may set a discretionary parole eligibility date for the offender that is later than 25% of the sentence or six months but not later than the MR date of 2/3 of the sentence. b. Serious felony offender: no automatic release on MR date. Certain serious felony offenders need not be automatically released when they reach their MR dates. Instead, the Parole Commission may deny MR to such an offender in order to protect the public or because the offender refused to participate in counseling or treatment. The serious felony offenders covered by these parole provisions include persons convicted of serious violations such as homicide, battery, sexual assault, mayhem, kidnapping, taking hostages, arson, armed burglary, armed robbery, carjacking, assault by a prisoner, crimes against children and controlled substances. In addition to these provisions, current law, as affected by 1997 Wisconsin Act 275 (effective June 26, 1998), provides for the possibility of lifetime supervision for persons who Information Memorandum 98-11 Page 5

commit serious sex offenses as specified in the Act. Under s. 939.615, Stats., as created in the Act, if a person is convicted of such an offense, the court may, in addition to sentencing the person, place the person on lifetime supervision by DOC if notice concerning lifetime supervision is given to the person and if the court determines that lifetime supervision is necessary to protect the public. In general, a person may file a petition requesting termination of lifetime supervision 15 years after the date the supervision began. Unless the person has committed a criminal offense during the period of lifetime supervision (in which case the court must deny the petition without hearing), the court may, after a hearing, grant the petition if it determines that lifetime supervision is no longer necessary to protect the public. If the petition is denied, the person may not file a subsequent petition until at least three years have elapsed since the most recent petition was denied. The Act provides for penalties for persons who violate a condition or regulation of lifetime supervision established by the court or DOC. A copy of Act 275 is attached as Appendix C. 2. Life Sentence; Parole Eligibility Options Under current law, no person serving a life sentence is entitled to MR. Instead, a person serving a life sentence usually must serve 20 years minus time calculated under the MR formula before he or she is eligible for release on parole. If the person does not receive extensions due to violations of prison rules, he or she reaches discretionary parole eligibility (not MR) after serving 13 years and four months. However, a judge may set a parole eligibility date for a person serving a life sentence that: a. Is later than the usual parole eligibility date (e.g., the judge could set an eligibility date 35, 75 or 100 years from the date of sentencing); or b. May provide that the person is not eligible for parole. Also: (a) if a person has two convictions for any of certain serious felonies and is then convicted a third time for another serious felony, he or she must be sentenced to life without parole (the so-called Three Strikes, You re Out law); and (b) if a person has one or more prior convictions for a serious child sex offense, as defined by statute, and is then convicted of committing another serious child sex offense, he or she must be sentenced to life without parole (the so-called Two Strikes and You re Out Serious Child Sex Offender Law, under 1997 Wisconsin Act, effective ). B. 1997 WISCONSIN ACT 283 1. Bifurcated Sentence: Sentence Structure in General Under Act 283, if a court chooses to sentence a felony offender to a term of imprisonment in a state prison for a felony committed on or after December 31, 1999, the court must do so by providing a bifurcated sentence that includes a term of confinement in prison followed by a term of extended supervision (hereafter, ES ) in the community. A person given a bifurcated sentence is not eligible for parole. Page 6 Wisconsin Legislative Council Staff

A bifurcated sentence imposed under Act 283 must be structured as follows: a. Total length of bifurcated sentence. The total length of the bifurcated sentence (i.e., confinement in prison plus ES) may not exceed the maximum term of imprisonment allowable for the felony. If the maximum term of confinement in prison was increased by a penalty enhancement (e.g., the current law imposing additional years of confinement for use of a dangerous weapon in the commission of a felony), the total length of the bifurcated sentence that may be imposed may be increased by the same amount as that enhancement. b. Imprisonment portion of bifurcated sentence: 100% must be served; no good time reduction. The court must set the term of confinement in prison portion of the sentence to be at least one year but not more than 40 years for a Class B felony, 20 years for a Class BC felony, 10 years for a Class C felony, five years for a Class D felony or two years for a Class E felony. If the person is being sentenced for a felony that is not in one of these classes, the term of confinement in prison portion of the sentence must be at least one year but not more than 75% of the total length of the bifurcated sentence. Act 283 specifies that: (1) The person must serve the time of confinement in prison without reduction in time for good behavior. (2) The person must serve 100% of the term of confinement in prison portion of the sentence before serving the term of community supervision portion of the sentence (i.e., if the court sentences the person to five years confinement in state prison, the person must serve five years (100%) confinement in state prison). (3) All consecutive sentences must be computed as one continuous sentence and the person serves any term of community supervision only after serving all terms of confinement in prison. c. Minimum term of extended supervision. The term of ES must equal at least 25% of the length of the term of confinement in prison. Thus, for example: (1) If a person is convicted of a Class B felony (60 year maximum: confinement in prison plus ES) and a judge sentences the person to the maximum allowable 40-year term of confinement in prison, the term of ES would have to be at least 10 years (25% of the length of confinement of 40 years), but could not be more than 20 years (40 years confinement in prison plus 20 years ES = 60-year maximum term for a Class B felony). (2) If under item (1), the judge sentences the person to 20 years confinement in prison, the judge must also sentence the person to at least five years in ES (five years of ES is equal to 25% of the length of confinement of 20 years), but could sentence the person to a longer period in ES up to 40 years (20 years confinement in prison plus 40 years ES = 60-year maximum term for a Class B felony). Information Memorandum 98-11 Page 7

Act 283 also provides that: a. Not eligible for intensive sanctions program or community residential confinement during confinement portion. A person serving a bifurcated sentence is not eligible for release from the term of confinement in prison to the intensive sanctions program or the community residential confinement program. b. Restricted eligibility for boot camp program. When imposing a bifurcated sentence for other than the specified excluded crimes, the court must decide whether the person being sentenced is eligible or ineligible for the Challenge Incarceration Program ( boot camp ) during the prison confinement portion of the sentence. Crimes to which this provision does not apply (i.e., the person being sentenced is not eligible for boot camp) are any crime specified in ch. 940, Stats. (crimes against life and bodily security), or s. 948.02, Stats. (sexual assault of a child), 948.025, Stats. (repeated acts of sexual assault of same child), 949.03, Stats. (physical abuse of a child), 948.05, Stats. (sexual exploitation of a child), 948.055, Stats. (causing a child to view or listen to sexual activity), 948.06, Stats. (incest with a child), 948.07, Stats. (child enticement), 948.08, Stats. (soliciting a child for prostitution) or 948.095, Stats. (sexual assault of a student by a school instructional staff person). In general, if DOC determines that such an inmate has successfully completed boot camp, DOC must inform the court that sentenced the inmate and the court must modify the inmate s bifurcated sentence as follows: (1) The court must reduce the term of confinement in prison portion of the inmate s bifurcated sentence in a manner that provides for the release of the inmate to ES within 30 days of the date on which the court receives the information from DOC. (2) The court must lengthen the term of ES imposed so that the total length of the bifurcated sentence originally imposed does not change. The court may not increase the total length of the bifurcated sentence when modifying a bifurcated sentence under this provision. c. Extended supervision; violation of conditions. After the person completes the term of confinement in prison portion of a bifurcated sentence, he or she serves the term of ES in which he or she is subject to conditions set by both the court and the DOC and is subject to supervision by DOC. If a person violates a condition of ES, ES may be revoked and the person may be returned to serve a period of time in prison. d. No discharge until entire bifurcated sentence served. The DOC is prohibited from discharging a person serving a bifurcated sentence from custody, control and supervision until the person had served the entire bifurcated sentence, including any periods of extension imposed by DOC for disciplinary reasons. The court must inform a person being sentenced of DOC s authority to extend a sentence for disciplinary reasons. Page 8 Wisconsin Legislative Council Staff

e. Explanation of sentence. When a court imposes a bifurcated sentence, it must explain, orally and in writing, all of the following to the person being sentenced: (3) The total length of the bifurcated sentence. (4) The amount of time the person will serve in prison under the term of confinement in prison portion of the sentence. (5) The amount of time the person will spend on ES, assuming that the person does not commit any act that results in the extension of the term of confinement in prison. (6) That the amount of time the person must actually serve in prison may be extended and that because of extensions, the person could serve the entire bifurcated sentence in prison. (7) That the person will be subject to certain conditions while on release to ES, and that violation of any of those conditions may result in the person being returned to prison. If the court provides that the person is eligible for the Challenge Incarceration Program, the court must also inform the person of the provisions of item b., above. The Act specifies that the court s explanation of a person s potential period of ES does not create a right to a minimum period of ES. 2. Life Sentence: Sentence Structure in General Act 283 provides that a person sentenced to life imprisonment for a crime committed on or after December 31, 1999 is not eligible for parole. Instead, Act 283 requires the court to make an ES eligibility (not MR) date determination regarding the person and choose one of the following options: a. The person is eligible for release to ES after serving 20 years. b. The person is eligible for release to ES on a date set by the court that is later than 20 years. c. The person is not eligible for release to ES. If the court provides that the person is eligible for ES, the person may petition the sentencing court for release to ES on or after the applicable ES eligibility date. A person sentenced to life who is released to ES is on ES for the remainder of his or her life and, like a person on ES under a bifurcated sentence (see item 1., above), may have his or her ES revoked and be returned to prison if he or she violates a condition of ES. When sentencing a person to life imprisonment, the court is required to inform the person of: (a) DOC s ability to increase imprisonment time for disciplinary reasons; and (b) the procedure for petitioning for release to ES. Information Memorandum 98-11 Page 9

Act 283 does not affect persons sentenced to life imprisonment without the possibility of parole under the Three Strikes, You re Out or Two Strikes, You re Out laws. 3. Specific Provisions Relating to Release to Extended Supervision: Felony Offenders Who Are Not Serving Life Sentences As noted in item 1., above, Act 283 eliminates MR for persons committed to prison for offenses occurring on or after December 31, 1999. An inmate imprisoned under a bifurcated sentencing process is not eligible for release to ES until the court-specified term of confinement is completed. With reference to confinement and ES for felony offenders not serving life sentences, Act 283 specifies: a. Extended term of confinement. A warden or superintendent of a correctional facility is required to keep a record of the conduct of each inmate, specifying each infraction of the rules. If an inmate violated any regulation of the prison or refused or neglected to perform required or assigned duties, DOC is permitted to extend the term of confinement as follows: (1) Ten days for the first offense. (2) Twenty days for the second offense. (3) Forty days for the third or each subsequent offense. In addition to the above sanctions, if an inmate was placed in adjustment, program or controlled segregation status, DOC may extend his or her term of confinement by a number of days equal to 50% of the number of days spent in segregation status. The DOC is required to use the definition of adjustment, program or controlled segregating status under administrative rules in effect at the time an inmate is placed in that status. An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15, Stats. (a copy of s. 807.15, Stats., as created by 1997 Wisconsin Act 133 and as affected by Act 283 is attached as Appendix D), 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), Stats. Upon receiving a court order issued under s. 807.15, the DOC must recalculate the date on which the inmate to whom the order applies will be entitled to release to ES and must inform the inmate of that date. Act 283 specifies that: (1) No extension of a term of confinement may require an inmate to serve more days in prison than the total length of the bifurcated sentence. (2) If the term of confinement in prison was increased, the term of ES must be reduced so that the total length of the bifurcated sentence does not change. Page 10 Wisconsin Legislative Council Staff

b. Consecutive sentences. All consecutive sentences are computed as one continuous sentence. A person serves any term of ES only after serving all terms of confinement in prison. c. Waiver of entitlement to release. An inmate is allowed to waive entitlement to release to ES if DOC agrees to the waiver. d. Notification of law enforcement before release. Before a person is released to ES, DOC must notify the municipal police department and the county sheriff in the area where the person would be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the DOC a written statement waiving the right to be notified. e. Conditions of release. Inmates released to ES are subject to all conditions and rules of ES until the expiration of the term of ES portion of the bifurcated sentence. The DOC is allowed to establish conditions of ES in addition to any conditions set by the court at sentencing, if the conditions set by DOC do not conflict with the court s conditions. f. Day of release to extended supervision. Releases to ES must be on the Tuesday or Wednesday preceding the date on which the person completes the term of imprisonment. g. Violation of condition; revocation. If a person released to ES violated a condition of that placement, the Division of Hearings and Appeals in the Department of Administration (DOA) or DOC (if the person on ES waived a hearing) may revoke the ES of the person and return the person to prison. If the person is returned to prison, he or she may be returned for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The term time remaining is defined as the total length of the bifurcated sentence, less time served in custody by the person. A person who was returned to prison after revocation may be incarcerated for the entire period of time specified by DOC or the Division of Hearings and Appeals. The period of reincarceration time may be extended for disciplinary reasons. h. Department rules. The DOC is permitted to promulgate rules establishing guidelines and criteria for the exercise of discretion under any of the items above (i.e., items 3. a. to 3. g.) permitting such exercise of DOC discretion. 4. Specific Provisions Relating to Petition for Release and Release to Extended Supervision: Felony Offenders Who Are Serving Life Sentences A person sentenced to life imprisonment is generally subject to the provisions in item 3., above, except that the following specific provisions apply: a. When no extended supervision allowed. No person sentenced to life without the possibility of ES may be placed on ES. b. Petition for release; when first possible. An inmate serving a life sentence with the possibility of ES may petition the sentencing court for release to ES after either: (1) he or she Information Memorandum 98-11 Page 11

has served 20 years, if the inmate was given a sentence allowing that possibility; or (2) he or she reaches the ES eligibility date set by the court. c. Extension of eligibility for release date. Violations of prison rules and regulations may result in the extension of the date of eligibility for ES. d. Petition for release; time limits and procedure. An inmate serving a life sentence who seeks release to ES is required to file a petition for release with the court that sentenced him or her. An inmate may not file an initial petition earlier than 90 days before his or her ES eligibility date. If an inmate files an initial petition for release to ES at any time earlier than 90 days, the court is required to deny the petition without a hearing. The inmate is also required to serve a copy of a petition for release on the district attorney s office that prosecuted him or her and the district attorney is required to give a written response to the petition within 45 days after he or she receives the petition. e. Hearing on petition. After reviewing a petition for release and the district attorney s response, the court must decide whether to hold a hearing on the petition or, if it does not hold a hearing, whether to grant or deny the petition without a hearing. If the court decides to hold a hearing, the hearing must be without a jury. The office of the district attorney that prosecuted the inmate must represent the state at the hearing. f. Victim statement. Before deciding whether to grant or deny the inmate s petition, the court must allow a victim or family member of a homicide victim to make a statement or submit a statement concerning the release of the inmate to ES. The court may also allow any other person to make or submit a statement. Any statement, however, must be relevant to the release of the inmate to ES. g. Burden of proof for release; conditions on release. In order to be released to ES, an inmate must prove to the court, by clear and convincing evidence, that he or she is not a danger to the public. If the court grants the inmate s petition for release, the court may impose conditions on the term of ES. h. Denial; subsequent petition. If the court denies the inmate s petition, the court must specify the date on which the inmate is permitted to file a subsequent petition. An inmate may file a subsequent petition at any time on or after the date specified by the court, but if the inmate files a subsequent petition for release to ES before the date specified by the court, the court is permitted to deny the petition without a hearing. i. Appeal. An inmate may also appeal an order denying his or her petition for release to ES, but the appellate court is required to determine only whether the court properly exercised its discretion in denying the petition. j. Victim notification and cards. If a person serving a life sentence files a petition for release or rerelease, the clerk of the circuit court in which the petition is filed is required to send a copy of the petition and, if a hearing is scheduled, a notice of hearing to victims who have submitted a card requesting notification. If the victim died as a result of the crime, an adult Page 12 Wisconsin Legislative Council Staff

member of the victim s family must be notified or, if the victim is younger than 18 years old, the victim s parent or legal guardian must be notified. The Director of State Courts is required to design and prepare cards to send to the clerks of the circuit courts without charge. The clerks of circuit courts must then be required to provide the cards, without charge, to victims. If a hearing is scheduled, the victims may appear at the hearing and may provide written statements concerning the inmate s petition for release. k. Revocation; minimum five-year period of incarceration. A person serving a life sentence who is returned to prison after revocation of ES must be incarcerated for at least five years, after which period of time the person may, upon petition to the sentencing court, be released to ES. An inmate may not file a petition earlier than 90 days before the end of the reincarceration period, which includes any extensions for prison rules violations. l. Department rules. The DOC is permitted to promulgate rules establishing guidelines and criteria for the exercise of discretion under any of the items above (i.e., 4. a. to 4. k.) permitting such exercise of DOC discretion. 5. Examples The following are a few examples of how the bifurcated sentencing system could be used by judges: EXAMPLE A: FELONY WHERE JUDGE IMPOSES LESS THAN MAXIMUM PERIODS OF IMPRISONMENT AND EXTENDED SUPERVISION Offense: Offender X is found guilty of first degree sexual assault of a child [s. 948.02 (1), Stats.], a Class B felony punishable by up to 60 years in prison. Bifurcated Sentence Imposed: Judge sentences X to 20-year period of confinement in prison plus minimum required period of ES (i.e., minimum of 25% of X s period of confinement in prison = five years). Offender X s total sentence equals 25 years. Sentence Served: Offender X must serve 100% of period of confinement in prison (20 years in prison), unless it is extended for violations of prison rules or for violations of conditions of ES. However, even if prison time is extended, the total sentence may not exceed 25 years, the sentence imposed by the court. Information Memorandum 98-11 Page 13

EXAMPLE B: FELONY WHERE COURT IMPOSES MAXIMUM PRISON CONFINEMENT Offense: Offender Y is found guilty of causing death by intoxicated use of a motor vehicle (s. 940.09, Stats.), a Class B felony punishable by up to 60 years in prison. Bifurcated Sentence Imposed: Judge sentences Y to 40-year period of confinement in prison (the maximum prison time allowed) plus the maximum period of ES (which must be 25% or more of the period of confinement, but may not, when added to the prison time, exceed the maximum total confinement period for a Class B felony, i.e., 60 years). So, in this case, the judge may sentence Y anywhere from 10 years to 20 years on ES)--10 years on ES at a minimum because 10 years is 25% of 40 years and Y has to serve at least 25% of his or her term on ES; 20 years on ES at a maximum because 40 years in prison plus 20 years on ES equals 60 years, the maximum time Y must serve on a Class B felony. Sentence Served: Offender Y must serve 100% of confinement in prison (40 years in prison) unless it is extended for violations of prison rules or for violations of conditions of ES. However, even if prison time is extended, the total sentence may not exceed 60 years, the maximum term for a Class B felony. EXAMPLE C: FELONY PUNISHABLE BY LIFE IMPRISONMENT Offense: Offender Z is found guilty of first-degree intentional homicide, a Class A felony, punishable by life imprisonment. ES Eligibility Date Set: Judge must determine an ES eligibility date, choosing one of the following: (a) the person is eligible for release to ES after serving 20 years (no earlier release; person must serve at least 20 years in prison); (b) the person is eligible for release to ES on a date set by the court later than the date in item (a); or (c) the person is not eligible for release to ES. Petition for Release to ES: Offender Z may file a petition for release to ES with the court that sentenced him or her no sooner than 90 days before his or her ES eligibility date (e.g., if eligible for ES release after 20 years, no sooner than 90 days of the completion of 20 years in prison). If the court decides to hold a hearing on the petition, Z must prove, by clear and convincing evidence, that he or she is not a danger to the public. Denial or Grant of Petition: If the court denies petition, the court must specify the date on which the inmate may file a subsequent ES release petition (there is a procedure for appeal of a denial). If the court grants petition, the court and DOC may impose conditions on Z s term of ES. Page 14 Wisconsin Legislative Council Staff

III. CRIMINAL PENALTIES STUDY COMMITTEE of: Act 283 creates a committee called the Criminal Penalties Study Committee consisting a. Two judges appointed by the Wisconsin Supreme Court. b. The majority leader in each house of the Legislature, or his or her designee. c. The minority leader in each house of the Legislature, or his or her designee. d. One faculty member from University of Wisconsin Law School, appointed by the Governor. e. One faculty member from the Marquette University Law School, appointed by the Governor. f. The Attorney General, or his or her designee. g. One current district attorney appointed by the Attorney General. h. The State Public Defender, or his or her designee. i. One representative of crime victims appointed by the Attorney General. j. One member of the Criminal Law Section of the Wisconsin State Bar appointed by the Governor. k. One representative of law enforcement agencies appointed by the Governor. l. Three public members appointed by the Governor. m. The Secretary of DOC, or his or her designee. The Governor is required to appoint one member of the committee to be chairperson and one member of the committee to be reporter for the committee. The DOA must provide staff services to the committee. Act 283 increases DOA s authorized full-time employe positions by 1.0 general purpose revenue attorney project position for the purpose of providing legal services to the committee for the period ending on April 30, 1999. The position is to be funded from a $200,000 appropriation created in Act 283 for the operation of the... committee (e.g., staff, attorney, expenses). Information Memorandum 98-11 Page 15

The committee is directed to study: (a) the classification of criminal offenses in the Criminal Code; (b) the penalties for all felonies and Class A misdemeanors (Class A misdemeanors are crimes in the Code punishable by a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both); and (c) issues relating to the implementation of the changes in sentencing made by Act 283. In addition, the committee must make recommendations concerning all of the following: a. Creating a uniform classification system for all felonies, including felonies outside of the Criminal Code. b. Classifying each felony and Class A misdemeanor in a manner that places crimes of similar severity into the same classification. c. Consolidating all felonies into a single criminal code. d. The creation of a sentencing commission to promulgate advisory sentencing guidelines for use by judges when imposing sentence under the new sentencing structure, as created in Act 283. e. Temporary advisory sentencing guidelines for use by judges when imposing sentence under the new sentencing structure during the period before the promulgation of advisory sentencing guidelines by a sentencing commission. f. Changing the administrative rules of the DOC to ensure that a person who violates a condition of ES imposed as part of a sentence under the new sentencing structure is returned to prison promptly and for an appropriate period of time. Act 283 requires that no later than April 30, 1999, the sentencing committee must submit a report of its findings and recommendations to the Legislature and to the Governor. The report must include any proposed legislation that is necessary to implement the recommendations made by the committee in its report. Page 16 Wisconsin Legislative Council Staff

IV. BUDGET REQUEST FOR FUNDING FOR CHILD ABUSE PREVENTION EFFORTS Act 283 requires the DHFS to submit, as part of its biennial budget request, a request for child abuse prevention efforts in an amount equal to or greater than 1% of the total proposed budget of the DOC for the same biennium, as indicated by the estimate provided by DOC. Act 283 requires DOC to provide to DHFS, on or before August 1 of each even-numbered year, an estimate of the total proposed budget that DOC will submit in its biennial budget request. DLS:kjf:ksm:rv:tlu:jt;wu;ksm Information Memorandum 98-11 Page 17