302.11 Mandatory release.
(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.
(1g)
(a) In this subsection, “serious felony" means any of the following:
1. Any felony under s. 961.41 (1), (1m) or (1x) if the felony is punishable by a maximum prison term of 30 years or more.
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).
3. The solicitation, conspiracy or attempt, under s. 939.30, 939.31 or 939.32, to commit a Class A felony.
(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.
(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:
1. Protection of the public.
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.
(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).
(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.
(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).
(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).
(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.
(1q)
(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).
(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.
(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.
(2)
(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.
(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.
(c) No extension under this subsection may require the inmate to serve more days in prison than provided for under the sentence.
(3) All consecutive sentences imposed for crimes committed before December 31, 1999, shall be computed as one continuous sentence.
(4) An inmate may waive entitlement to mandatory release if the department agrees to the waiver.
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.
(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.
(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.
(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).
(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.
(7)
(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.
(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.
(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).
(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.
(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.
(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.
(8) The department may promulgate rules under ch. 227 establishing guidelines and criteria for the exercise of discretion under this section.
(9) Except as provided in subs. (1g) (am) and (1z), this section applies to persons committing offenses occurring on or after June 1, 1984, or persons filing requests in accordance with 1983 Wisconsin Act 528, section 29 (2) or (3).
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.
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).
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).
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).
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).
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.
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.
Whether or not a residence has been found for an inmate, he or she must be released on his or her mandatory release date. State ex rel. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 N.W.2d 425, 99-1082.
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.
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.
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.
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.
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).
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).
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).