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Earned Release Program – Petition for Eligibility under Pre-Effective Date (7/26/03) Sentence: DOC Approval Required but Refusal to Take Position = Approval

State v. Kathy J. Johnson, 2007 WI App 41
For Johnson: Jeremy Perri, SPD, Milwaukee Appellate

Issue: Whether DOC policy, for inmates under sentence commencing prior to July 26, 2003, to take no position on an ERP petition constitutes approval of the petition under Wis. Stat. § 302.05(3)(e).


¶8        Wisconsin Stat. § 302.05(3)(e) governs inmate petitions for the determination of eligibility for the ERP for inmates sentenced prior to the effective date of § 302.05, i.e., July 26, 2003. Section 302.05(3)(e) provides the procedure to be followed and states, in relevant part:

If an inmate is serving the term of confinement portion of a bifurcated sentence imposed under s. 973.01, the sentence wasimposed before July 26, 2003, and the inmate satisfies the criteria under par. (a) 1., the inmate may, with the department’s approval, petition the sentencing court to determine whether he or she is eligible or ineligible to participate in the earned release programunder this subsection….

(Emphasis added.)

¶14      Wisconsin Stat. § 302.05 sets forth no criteria which the DOC must use in its determination of whether to approve an inmate’s petition. Section 302.05 does identify those inmates who are not eligible for the ERP because they either were sentenced under one of the statutes listed in § 302.05(3)(a)1. or were participants in the intensive sanctions program. Wis. Stat. §§ 302.05(3)(a)1. and (d). Because inmates may be incarcerated under multiple sentences from multiple counties, the State argues, and we agree, that the DOC is in the best position to determine, and inform the court, whether a specific inmate is ineligible for the ERP because of the statutory exclusions. This approach is consistent with Wis. Stat. § 972.15(2b) which requires that the PSI preparer tell the court whether the defendant is statutorily eligible for the ERP under § 302.05(3)(a)1. It is also consistent with Truth-In-Sentencing,[6] in which the legislature specifically took away from the administrative agencies the ability to grant parole or other early release and placed within the discretion of the courts the amount of extended supervision for which a defendant would be eligible, as well as the eligibility of a defendant to participate in any early release programs. If the legislature intended to give to the courts the responsibility of determining whether an individual is eligible for participation in a program, it is incongruous to read § 302.05(3)(e) as returning that discretion to the DOC, and essentially preventing the courts from ruling on an otherwise eligible defendant. Accordingly, we conclude that the DOC approval required by § 302.05(3)(e) is merely a determination that the petitioner is not statutorily excluded from eligibility for ERP, and the exercise of discretion as to whether the inmate should be included in ERP eligibility is a matter for the trial court. Here, the DOC did not provide the information required; in fact, the DOC provided no information at all with respect to whether Johnson was eligible for the ERP.

Thus, DOC refusal to act on a petition is tantamount to approval to bring the petition, ¶17. This holding, however, is limited to the current DOC practice of blanket refusal to act; if DOC were to exercise individuated discretion, then the outcome would be different, ¶18. The court also, in passing, indicates that an inmate’s previous participation in ERP may be factored against current eligibility, ¶16 n. 8.


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