Chapter 302

302.425(2m) (2m) Intensive sanctions program participants. Notwithstanding the agreement requirements under sub. (3), the department may place any intensive sanctions program participant in a home detention program.

302.425(3) (3) Placement of a prisoner in the program. The sheriff or superintendent may, if he or she determines that the home detention program is appropriate for a prisoner, place the prisoner in the home detention program and provide that the prisoner be detained at the prisoner’s place of residence or other place designated by the sheriff or superintendent and be monitored by an active electronic monitoring system. The sheriff or superintendent shall establish reasonable terms of detention and ensure that the prisoner is provided a written statement of those terms, including a description of the detention monitoring procedures and requirements and of any applicable liability issues. The terms may include a requirement that the prisoner pay the county a daily fee to cover the county costs associated with monitoring him or her. The county may obtain payment under this subsection or s. 302.372, but may not collect for the same expenses twice.

302.425(3m) (3m) Placement of a juvenile in the program. The department or, upon the agreement of the department, the county department may place the juvenile in the home detention program and provide that the juvenile be detained at the juvenile’s place of residence or other place designated by the department or the county department and be monitored by an active electronic monitoring system. The department or the county department shall provide reasonable terms of detention and ensure that the juvenile receives a written statement of those terms, including a description of the detention monitoring procedures and requirements and of any applicable liability issues. The terms may include a requirement that the juvenile or his or her parent or guardian pay the county or state a daily fee to cover the costs associated with monitoring him or her.

302.425(4) (4) Departmental duties. The department shall ensure that electronic monitoring equipment units are available, pursuant to contractual agreements with county sheriffs and county departments, throughout the state on an equitable basis. If a prisoner is chosen under sub. (3) or a juvenile is chosen under sub. (3m) to participate in the home detention program, the department shall install and monitor electronic monitoring equipment. The department shall charge the county a daily per prisoner fee or per juvenile fee, whichever is applicable, to cover the department’s costs for these services.

302.425(5) (5) Status.

302.425(5)(a) (a) Except as provided in par. (b), a prisoner in the home detention program is considered to be a jail prisoner but the place of detention is not subject to requirements for jails under this chapter.

302.425(5)(b) (b) Sections 302.36, 302.37 and 302.375 do not apply to prisoners in the home detention program.

302.425(6) (6) Escape. Any intentional failure of a prisoner to remain within the limits of his or her detention or to return to his or her place of detention, as specified in the terms of detention under sub. (3), is considered an escape under s. 946.42 (3) (a).

302.425(7) (7) Exceptions. This section does not apply to:

302.425(7)(a) (a) A person sentenced under s. 973.04.

302.425(7)(b) (b) A person in jail pending the disposition of his or her parole, extended supervision, or probation revocation proceedings.

302.425 History History: 1989 a. 122; 1991 a. 39; 1995 a. 26; 1995 a. 27 ss. 6374 to 6381, 9126 (19); 1995 a. 77, 225, 281; 1997 a. 35; 1999 a. 32; 2009 a. 28.

302.425 Annotation A person subject to home detention under this section is not “in custody” and therefore is not entitled to sentence credit for time served under s. 973.155. State v. Swadley, 190 Wis. 2d 139, 526 N.W.2d 778 (Ct. App. 1994).

302.425 Annotation This section allows the sheriff to place persons on home monitoring when they are given jail time as a probation condition. A circuit court has no power to prohibit the sheriff from ordering home monitoring for a probationer ordered to serve jail time as a probation condition. By precluding the sheriff from releasing the probationer on home monitoring, the trial court substantially interfered with the sheriff’s power in violation of the separation of powers doctrine. State v. Schell, 2003 WI App 78, 261 Wis. 2d 841, 661 N.W.2d 503, 02-1394.

302.425 Annotation A court cannot avoid the holding in Schell, 2003 WI App 78, by modifying the conditions of probation to order the probationer to refuse home monitoring. State v. Galecke, 2005 WI App 172, 285 Wis. 2d 691, 702 N.W.2d 392, 04-0779.

302.425 Annotation This section provides no authority for issuing orders to county sheriffs to transfer prisoners from one county jail to another. State v. Galecke, 2005 WI App 172, 285 Wis. 2d 691, 702 N.W.2d 392, 04-0779.

302.425 Annotation Under this section, a prisoner participating in the home detention program remains at all times “confined,” that is to say imprisoned, in a jail. The fact that the prisoner is “detained” during the prisoner’s participation in the program at a location other than a jail facility does not negate the fact that the prisoner remains confined in a jail for purposes of this section and, therefore, “confined in a correctional institution” for purposes of s. 940.225 (2) (h). State v. Hilgers, 2017 WI App 12, 373 Wis. 2d 756, 893 N.W.2d 261, 15-2256.

302.43 302.43 Good time. Every inmate of a county jail is eligible to earn good time in the amount of one-fourth of his or her term for good behavior if sentenced to at least 4 days, but fractions of a day shall be ignored. An inmate shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). An inmate who violates any law or any regulation of the jail, or neglects or refuses to perform any duty lawfully required of him or her, may be deprived by the sheriff of good time under this section, except that the sheriff shall not deprive the inmate of more than 2 days good time for any one offense without the approval of the court. 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 be deprived of the number of days of good time specified in the court order prepared under s. 807.15 (3). This section does not apply to a person who is confined in the county jail in connection with his or her participation in a substance abuse treatment program that meets the requirements of s. 165.95 (3), as determined by the department of justice under s. 165.95 (9) and (10).

302.43 History History: 1977 c. 353; 1989 a. 31 s. 1667; Stats. 1989 s. 302.43; 1997 a. 133; 2005 a. 25; 2013 a. 20.

302.43 Cross-reference Cross-reference: See also ss. DOC 302.30, 302.31, 326.10, and 331.13, Wis. adm. code.

302.43 Annotation A person confined in jail as a condition of probation is not entitled to earn good time. State v. Fearing, 2000 WI App 229, 239 Wis. 2d 105, 619 N.W.2d 115, 99-2849.

302.43 Annotation When the defendant was sentenced to ten months in the house of correction for battery and seven years in state prison for intimidation, the defendant was not entitled to “good time” credit for the house of correction sentence, which should be applied to the prison sentence. The trial court was required to construe the defendant’s sentences as a single sentence, which put the sentences under the purview of s. 973.01. Because the defendant was, under the terms of the statutes, an inmate of the prison system rather than the county jail, this section, the county jail “good time” statute, does not apply to the defendant’s sentence. State v. Harris, 2011 WI App 130, 337 Wis. 2d 222, 805 N.W.2d 386, 10-1955.

302.43 Annotation One confined for civil (remedial) contempt is not eligible to earn good time, but one confined for criminal (punitive) contempt is eligible. 74 Atty. Gen. 96.

302.44 302.44 Cooperation between counties regarding prisoners.

302.44(1) (1) Two or more counties within the state may agree under s. 66.0301 for the cooperative establishment and use of the jails and rehabilitation facilities of any of them for the detention or imprisonment of prisoners before, during and after trial and for sharing the expense without reference to s. 302.34. The sheriffs of the counties shall lodge prisoners in any jail or rehabilitation facility authorized by the agreement and shall endorse the commitment, if any, under s. 302.35 in case detention or imprisonment is in the jail or rehabilitation facility of another county. Only jails and rehabilitation facilities approved by the department for the detention of prisoners may be used under the agreement. The sheriff of the county of arrest shall transport the prisoner to and from court and to any other institution whenever necessary.

302.44(2) (2) A county in this state may enter into a contract with a receiving county outside of the state to pay the receiving county to detain or imprison prisoners who are not in the custody of the department before, during, and after trial if the receiving county borders the county in which the prisoner would otherwise be detained or imprisoned, and the monthly expenses charged to the county in this state by the receiving county to detain or imprison the prisoner are at least 25 percent less than the monthly expenses charged by the county in this state. Any such contract shall provide for all of the following:

302.44(2)(a) (a) A termination date.

302.44(2)(b) (b) A requirement that an equivalent agency or department to the department of corrections in the receiving state approve the jail or facility in the receiving county to receive prisoners from the county in this state.

302.44(2)(c) (c) Provisions concerning the costs of prisoner maintenance, extraordinary medical and dental expenses, and any participation in or receipt by prisoners of rehabilitative or correctional services, facilities, programs, or treatment, including those costs not reasonably included as part of normal maintenance.

302.44(2)(d) (d) Provisions concerning any participation in programs of prisoner employment, if any, the disposition or crediting of any payments received by prisoners on account of employment, and the crediting of proceeds from or disposal of any products resulting from employment.

302.44(2)(e) (e) Delivery and retaking of prisoners.

302.44(2)(f) (f) Waiver of extradition by Wisconsin and the state to which the prisoners are transferred.

302.44(2)(g) (g) Retention of jurisdiction of the prisoners transferred by Wisconsin.

302.44(2)(h) (h) Regular reporting procedures concerning Wisconsin prisoners by officials of the receiving county.

302.44(2)(i) (i) Provisions concerning procedures for probation, parole, extended supervision, and discharge.

302.44(2)(j) (j) The same standards of reasonable and humane care as the prisoners would receive in an appropriate Wisconsin institution.

302.44(2)(k) (k) Any other matters as are necessary and appropriate to fix the obligations, responsibilities and rights of the state of Wisconsin, the county within the state, and the receiving state and county.

302.44 History History: 1975 c. 94; 1983 a. 110; 1989 a. 31 s. 1668; Stats. 1989 s. 302.44; 1999 a. 150 s. 672; 2013 a. 376.

302.445 302.445 Confinement of county jail prisoners in tribal jails. The county board and the sheriff of any county may enter into an agreement with the elected governing body of a federally recognized American Indian tribe or band in this state for the confinement in a tribal jail of county jail prisoners. The sheriff retains responsibility for the prisoners for providing custody, care, treatment, services, leave privileges and food and determining good time as if they remained county jail prisoners, except that the sheriff may delegate, under the agreement, any of the responsibility to the tribal chief of police. The tribal jail is subject to s. 301.37 (4) but is not subject to the requirements for county jails unless otherwise provided under the agreement.

302.445 History History: 1993 a. 48.

302.446 302.446 Confinement of tribal prisoners in county jails.

302.446(1) (1) The county board and the sheriff of any county may enter into an agreement with the elected governing body of a federally recognized American Indian tribe or band in this state for the confinement in the county jail of a person who is being confined for any of the following reasons:

302.446(1)(a) (a) The person has been arrested by a tribal law enforcement officer for violating a tribal statute or ordinance.

302.446(1)(b) (b) The person has been ordered incarcerated by a tribal court.

302.446(1)(c) (c) The person is being held in custody for any cause authorized by tribal law.

302.446(2) (2) Notwithstanding ss. 302.33 (1), 302.37, 302.38, 302.381, 302.383, 302.41, 302.43 and 303.08, the tribe or tribal official designated by the tribe retains responsibility for the prisoners for providing custody, care, treatment, services, leave privileges and food and for determining good time as if they remained tribal prisoners, except that the tribe or tribal official designated by the tribe may delegate, under the agreement, any of the responsibility to the sheriff. The county jail is not subject to any of the requirements for tribal jails unless otherwise provided under the agreement.

302.446 History History: 1995 a. 379.

302.45 302.45 State-local shared correctional facilities.

302.45(1) (1) The department and any county or group of counties may contract for the cooperative establishment and use of state-local shared correctional facilities. Inmates sentenced to the Wisconsin state prisons, a county jail, a county reforestation camp or a county house of correction may be transferred to a shared facility by the department, sheriff or superintendent, respectively, under the agreement covering use of the facility. Any inmate confined in a state-local shared correctional facility shall be deemed to be serving time in the penal institution to which he or she was sentenced and shall be eligible to earn good time credit against his or her sentence as provided under ss. 302.11, 302.12, 302.43, 303.07 and 303.19 for that institution.

302.45(2) (2) Costs of establishment and use of state-local shared correctional facilities shall be borne in accordance with the contract between the department and the cooperating county or counties. The contract shall provide for administration of the facility, establish criteria and a procedure for transfer of inmates to and from the facility and allow for dissolution of the agreement. The contract may exempt inmates at the shared facility from rules governing inmates at other prisons and county correctional facilities and, within statutory authority, establish separate rules for the facility.

302.45(3) (3) Any county jail, reforestation camp established under s. 303.07, county house of correction or rehabilitation facility established under s. 59.53 (8), whether operated by one county or more than one county, may be a state-local shared correctional facility.

302.45(4) (4) The Taycheedah Correctional Institution may not be used as a state-local shared correctional facility.

302.45 History History: 1983 a. 332; 1989 a. 31 s. 1669; Stats. 1989 s. 302.45; 1995 a. 201; 2013 a. 165 s. 115.

302.45 Note NOTE: 1983 Wis. Act 332, which created this section, contains a long prefatory note explaining the bill. See 1983 Session Laws.

302.46 302.46 Jail surcharge.

302.46(1) (1) 

302.46(1)(a) (a) If a court imposes a fine or forfeiture for a violation of state law or for a violation of a municipal or county ordinance except for a violation of s. 101.123 (2) or (2m), for a financial responsibility violation under s. 344.62 (2), or for a violation of state laws or municipal or county ordinances involving nonmoving traffic violations, violations under s. 343.51 (1m) (b), or safety belt use violations under s. 347.48 (2m), the court, in addition, shall impose a jail surcharge under ch. 814 in an amount of 1 percent of the fine or forfeiture imposed or $10, whichever is greater. If multiple offenses are involved, the court shall determine the jail surcharge on the basis of each fine or forfeiture. If a fine or forfeiture is suspended in whole or in part, the court shall reduce the jail surcharge in proportion to the suspension.

302.46(1)(b) (b) If a fine or forfeiture is imposed by a court of record, after a determination by the court of the amount due for the jail surcharge, the clerk of the court shall collect and transmit the jail surcharge to the county treasurer as provided in s. 59.40 (2) (n). The county treasurer shall place the amount in the county jail fund as provided in s. 59.25 (3) (g).

302.46(1)(c) (c) If a fine or forfeiture is imposed by a municipal court, after a determination by the court of the amount due for the jail surcharge, the court shall collect and transmit the jail surcharge to the county treasurer under s. 800.10 (2). The county treasurer shall place the amount in the county jail fund as provided in s. 59.25 (3) (g).

302.46(1)(d) (d) If any deposit of bail is made for a noncriminal offense to which this section applies, the person making the deposit shall also deposit a sufficient amount to include the jail surcharge under this section for forfeited bail. If bail is forfeited, the amount of the jail surcharge shall be transmitted to the county treasurer under this section. If bail is returned, the jail surcharge shall also be returned.

302.46(2) (2) Counties may make payments for construction, remodeling, repair or improvement of county jails and for costs related to providing educational and medical services to inmates from county jail funds.

302.46(3) (3) This section applies only to violations occurring on or after October 1, 1987.

302.46 History History: 1987 a. 27; 1989 a. 22; 1989 a. 31 s. 1670c, 1670g; Stats. 1989 s. 302.46; 1989 a. 97, 359; 1991 a. 26, 32, 130, 189; 1993 a. 313; 1995 a. 201; 1999 a. 72; 2001 a. 16; 2003 a. 30, 139, 268, 326, 327; 2005 a. 455; 2009 a. 12, 28, 100, 256; 2011 a. 260.

302.46 Annotation The imposition of a fine or forfeiture is a prerequisite to the imposition of a jail assessment under sub. (1). State v. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999), 98-1688.