Chapter 301

301.032 History History: 1995 a. 27, 77; 2005 a. 344; 2015 a. 55.

301.035 301.035 Division of hearings and appeals; administrator’s general duties. The administrator of the division of hearings and appeals in the department of administration shall:

301.035(1) (1) Serve as the appointing authority of the employees of the division under s. 230.06.

301.035(2) (2) Assign hearing examiners from the division to preside over hearings under ss. 302.11 (7), 302.113 (9), 302.114 (9), 938.357 (5), 973.10 and 975.10 (2) and ch. 304.

301.035(4) (4) Supervise employees in the conduct of the activities of the division and be the administrative reviewing authority for decisions of the division under ss. 302.11 (7), 302.113 (9), 302.114 (9), 938.357 (5), 973.10, 973.155 (2) and 975.10 (2) and ch. 304.

301.035(5) (5) After consultation with the department of corrections, promulgate rules relating to the exercise of the administrator’s and the division’s powers and duties.

301.035 History History: 1989 a. 31, 107; 1995 a. 77; 2001 a. 109.

301.035 Cross-reference Cross-reference: See also ch. HA 2, Wis. adm. code.

301.04 301.04 Legal actions. The department may sue and be sued.

301.04 History History: 1989 a. 31.

301.04 Annotation The Department of Corrections (DOC) is entitled to sovereign immunity. DOC lacks sufficient attributes to render it an independent going concern. Despite the breadth of its statutory powers, the character of those powers reveals that the legislature did not intend DOC to be anything other than an arm of the state. The legislature has not expressly waived DOC’s sovereign immunity. This section is not an express waiver of DOC’s tort immunity but rather addresses DOC’s capacity to be sued. Mayhugh v. State, 2015 WI 77, 364 Wis. 2d 208, 867 N.W.2d 754, 13-1023.

301.045 301.045 Investigations. The secretary may inquire into any matter affecting corrections and hold hearings, subpoena witnesses and make recommendations on such matters to the appropriate public or private agencies.

301.045 History History: 1989 a. 31.

301.046 301.046 Community residential confinement.

301.046(1) (1) Institution status. The department shall establish and operate a community residential confinement program as a correctional institution under the charge of a superintendent. Under the program, the department shall confine prisoners in their places of residence or other places designated by the department. The secretary may allocate and reallocate existing and future facilities as part of the institution. The institution is subject to s. 301.02 and is a state prison as defined in s. 302.01. Construction or establishment of the institution shall be in compliance with all state laws except s. 32.035 and ch. 91. In addition to the exemptions under s. 13.48 (13), construction or establishment of facilities for the institution are not subject to the ordinances or regulations relating to zoning, including zoning under ch. 91, of the county and municipality in which the construction or establishment takes place and are exempt from inspections required under s. 301.36.

301.046(2) (2) Inmate, officer and employee status. Inmates confined under sub. (1) are under the care and control of the institution, subject to its rules and discipline and subject to all laws pertaining to inmates of other correctional institutions. Courts may not directly commit persons to the institution under sub. (1). Officers and employees of the institution are subject to the same laws pertaining to other correctional institutions.

301.046(3) (3) Eligibility. The department shall determine those prisoners who are confined under sub. (1). Except as provided in subs. (3m) and (3t), a prisoner is eligible for this confinement only under all of the following conditions:

301.046(3)(c) (c) The prisoner is not serving a life sentence.

301.046(3)(d) (d) The prisoner is eligible for parole under s. 304.06 (1) (b) or is serving a sentence that is not longer than 3 years.

301.046(3m) (3m) Intensive sanctions program participants. The department may confine any intensive sanctions program participant under sub. (1).

301.046(3t) (3t) Persons serving bifurcated sentence; restricted eligibility. A prisoner serving a bifurcated sentence imposed under s. 973.01 is not eligible for confinement under sub. (1) during the term of confinement in prison portion of the bifurcated sentence.

301.046(4) (4) Notification.

301.046(4)(a) (a) In this subsection:

301.046(4)(a)1. 1. “Member of the family” means spouse, domestic partner under ch. 770, child, sibling, parent or legal guardian.

301.046(4)(a)2. 2. “Victim” means a person against whom a crime has been committed.

301.046(4)(b) (b) Before a prisoner is confined under sub. (1) for a violation of s. 940.03, 940.05, 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, 948.07, or 948.085, the department shall make a reasonable attempt to notify all of the following persons, if they can be found, in accordance with par. (c) and after receiving a completed card under par. (d):

301.046(4)(b)1. 1. The victim of the crime committed by the prisoner 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.

301.046(4)(b)2. 2. Any witness who testified against the prisoner in any court proceeding involving the offense.

301.046(4)(c) (c) The department shall make a reasonable effort to send the notice, postmarked at least 7 days before a prisoner is confined under sub. (1), to the last-known address of the persons under par. (b).

301.046(4)(d) (d) The department shall design and prepare cards for any person specified in par. (b) 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 prisoner 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 par. (b). 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).

301.046(4)(e) (e) Before a prisoner is confined under sub. (1), the department shall notify the police chief of any community and the sheriff and district attorney of any county where the prisoner will be confined.

301.046(5) (5) Electronic surveillance. The department shall monitor any prisoner’s confinement under sub. (1) by the use of an electronic device worn continuously on the prisoner’s person or by the confinement of the prisoner in supervised places designated by the department. The department may permit the prisoner to leave confinement for employment, education or other rehabilitative activities.

301.046(5m) (5m) Fee. The prisoner shall pay any fee charged under s. 301.135 (3).

301.046(6) (6) Escape. Any intentional failure of a prisoner to remain within the extended limits of his or her confinement or to return within the time prescribed by the superintendent is considered an escape under s. 946.42 (3) (a).

301.046 History History: 1989 a. 31 ss. 961m, 961mb; Stats. 1989 s. 301.046; 1989 a. 251; 1991 a. 39; 1993 a. 97, 227, 479; 1997 a. 181, 283; 2005 a. 277; 2009 a. 28.

301.046 Cross-reference Cross-reference: See also s. DOC 327.01, Wis. adm. code.

301.046 Annotation Read together, ss. 301.045 and 301.048 permit an escape charge when a prisoner in community residential confinement cuts off an electronic bracelet and fails to return. State v. Holliman, 180 Wis. 2d 348, 509 N.W.2d 73 (Ct. App. 1993).

301.046 Annotation An inmate does not have a constitutionally protected liberty interest in maintaining the inmate’s status under this section. Santiago v. Ware, 205 Wis. 2d 295, 556 N.W.2d 356 (Ct. App. 1996), 95-0079.

301.046 Annotation Except as provided in s. 301.048 (7), counties are responsible for the provision of medical and dental services, including psychiatric and alcohol and drug abuse services, to persons in the community residential confinement program. 81 Atty. Gen. 156.

301.047 301.047 Inmate rehabilitation and aftercare.

301.047(1) (1) Program. The department may permit one or more nonprofit community-based organizations meeting the requirements of this section to operate an inmate rehabilitation program in any department facility if the department determines that operation of that program does not constitute a threat to the security of the facility or the safety of inmates or the public and that operation of the program is in the best interest of the inmates.

301.047(2) (2) Program requirements.

301.047(2)(a) (a) An organization seeking to operate a rehabilitation program under sub. (1) shall submit to the department a detailed proposal for the operation of the program. The proposal shall include all of the following:

301.047(2)(a)1. 1. A description of the services to be provided, including aftercare services, and a description of the geographic area in which aftercare services will be provided.

301.047(2)(a)2. 2. A description of the activities to be undertaken and the approximate daily schedule of programming for inmates participating in the program.

301.047(2)(a)3. 3. A statement of the qualifications of the individuals providing services.

301.047(2)(a)4. 4. A statement of the organization’s policies regarding eligibility of inmates to participate in the program.

301.047(2)(a)5. 5. A statement of the goals of the program.

301.047(2)(a)6. 6. A description of the methods by which the organization will evaluate the effectiveness of the program in attaining the goals under subd. 5.

301.047(2)(a)7. 7. Any other information specified by the department.

301.047(2)(b) (b) An organization seeking to operate a rehabilitation program under sub. (1) shall agree in writing to all of the following:

301.047(2)(b)1. 1. The organization may not receive compensation from the department for services provided in the rehabilitation program.

301.047(2)(b)2. 2. The organization may not deny an inmate the opportunity to participate in the program for any reason related to the inmate’s religious beliefs or nonbelief.

301.047(2)(b)3. 3. An inmate may stop participating in the program at any time.

301.047(2)(b)4. 4. Upon the inmate’s release, the organization shall provide community-based aftercare services for each inmate who completes the program and who resides in the geographic area described in par. (a) 1.

301.047(3) (3) Duties and authority of the department.

301.047(3)(a) (a) The department shall establish policies that provide an organization operating a rehabilitation program under sub. (1) reasonable access to inmates.

301.047(3)(b) (b) The department shall designate a specific portion of the facility for operation of a rehabilitation program, if one is established, under sub. (1). To the extent possible, inmates participating in the program shall be housed in the portion of the facility in which the program is operated.

301.047(3)(c) (c) The department may not require an inmate to participate in a rehabilitation program under sub. (1).

301.047(3)(d) (d) The department may not base any decision regarding an inmate’s conditions of confinement, including discipline, or an inmate’s eligibility for release, on an inmate’s decision to participate or not to participate in a rehabilitation program under sub. (1).

301.047(3)(e) (e) The treatment of inmates, including the provision of housing, activities in which an inmate may participate, freedom of movement, and work assignments, shall be substantially the same for inmates who participate in a rehabilitation program under sub. (1) and inmates who do not participate in such a program.

301.047(3)(f) (f) The department may restrict an inmate’s participation in a rehabilitation program under sub. (1).

301.047(3)(g) (g) The department may suspend or terminate operation of a rehabilitation program under sub. (1) if the organization operating the program fails to comply with any of the requirements under this section and shall suspend or terminate the operation of a program if the department determines that suspension or termination of the program is necessary for the security of the facility or the safety of the inmates or the public or is in the best interests of the inmates.

301.047(3)(h) (h)

301.047(3)(h)1. 1. Except as provided in subd. 2., if an organization operating a rehabilitation program under sub. (1) promotes or informs the department that the organization intends to promote sectarian worship, instruction, or proselytization in connection with the rehabilitation program, the department shall permit all other religious organizations meeting the requirements of this section to operate an inmate rehabilitation program under sub. (1).

301.047(3)(h)2. 2. The department is not required under subd. 1. to permit a religious organization to operate an inmate rehabilitation program under sub. (1) if the department determines that the organization’s operation of that program constitutes a threat to the security of the facility or the safety of the inmates or the public.

301.047(4) (4) Evaluation. The department shall evaluate or contract with a public or private agency for an evaluation of the effectiveness of each rehabilitation program operated under sub. (1) in reducing recidivism and alcohol and other drug abuse among program participants. The department shall collect the data and information necessary to evaluate the program. No later than 3 years from the date on which the rehabilitation program begins operating, the department shall submit a report of the evaluation to the governor and to the appropriate standing committees of the legislature, as determined by the speaker of the assembly and the president of the senate, under s. 13.172 (3).

301.047 History History: 2001 a. 16.

301.048 301.048 Intensive sanctions program.

301.048(1) (1) Program administration and design. The department shall administer an intensive sanctions program. The department shall design the program to provide all of the following:

301.048(1)(a) (a) Punishment that is less costly than ordinary imprisonment and more restrictive than ordinary probation or parole supervision or extended supervision.

301.048(1)(b) (b) Component phases that are intensive and highly structured.

301.048(1)(c) (c) A series of component phases for each participant that is based on public safety considerations and the participant’s needs for punishment and treatment.

301.048(2) (2) Eligibility.

301.048(2)(am) (am) Except as provided in par. (bm), a person enters the intensive sanctions program only if he or she has been convicted of a felony and only under one of the following circumstances:

301.048(2)(am)1. 1. A court sentences him or her to the program under s. 973.032.

301.048(2)(am)2. 2. He or she is a prisoner serving a felony sentence not punishable by life imprisonment and the department directs him or her to participate in the program. This subdivision does not apply to a prisoner serving a bifurcated sentence imposed under s. 973.01.

301.048(2)(am)3. 3. The parole commission grants him or her parole under s. 304.06 and requires his or her participation in the program as a condition of parole under s. 304.06 (1x).

301.048(2)(am)3m. 3m. A court or the department requires his or her participation in the program as a condition of extended supervision under s. 302.113 (7), 302.114 (5) (d) or (8), or 973.01 (5).

301.048(2)(am)4. 4. The department and the person agree to his or her participation in the program as an alternative to revocation of probation, extended supervision or parole.

301.048(2)(bm) (bm)

301.048(2)(bm)1. 1. In this paragraph, “violent offense” means:

301.048(2)(bm)1.a. a. A crime specified in s. 940.19 (3), 1999 stats., s. 940.195 (3), 1999 stats., s. 943.23 (1m), 1999 stats., s. 943.23 (1r), 1999 stats., or s. 943.23 (1g), 2021 stats., or s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19 (4) or (5), 940.195 (4) or (5), 940.198 (2), 940.20, 940.201, 940.203, 940.204, 940.21, 940.225 (1) to (3), 940.23, 940.235, 940.285 (2) (a) 1. or 2., 940.29, 940.295 (3) (b) 1g., 1m., 1r., 2., or 3., 940.31, 940.43 (1) to (3), 940.45 (1) to (3), 941.20 (2) or (3), 941.26, 941.30, 941.327, 943.01 (2) (c), 943.011, 943.013, 943.02, 943.04, 943.06, 943.10 (2), 943.231 (1), 943.30, 943.32, 946.43, 947.015, 948.02 (1) or (2), 948.025, 948.03, 948.04, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, or 948.30.

301.048(2)(bm)1.b. b. A crime under federal law, the law of any other state or, prior to October 29, 1999, the law of this state that is comparable to a crime specified in subd. 1. a.

301.048(2)(bm)2. 2. A person who has at any time been convicted, adjudicated delinquent or found not guilty or not responsible by reason of insanity or mental disease, defect or illness of or for a violent offense is not eligible for the intensive sanctions program.

301.048(2m) (2m) Persons serving bifurcated sentence; restricted eligibility. A prisoner serving a bifurcated sentence imposed under s. 973.01 is not eligible for the intensive sanctions program during the term of confinement in prison portion of the bifurcated sentence.

301.048(3) (3) Component phases.

301.048(3)(a) (a) The department shall provide each participant with one or more of the following sanctions:

301.048(3)(a)1. 1. Placement in a Type 1 prison or a jail, county reforestation camp, residential treatment facility or community-based residential facility. The department may not place a participant under this paragraph for more than one year or, if applicable, the period specified by the court under s. 973.032 (3) (b), whichever is shorter, except as provided in s. 973.032 (4).