302.05 Wisconsin substance abuse program.

(1)

(am) The department of corrections and the department of health services may designate a section of a mental health institute as a correctional treatment facility for the treatment of substance abuse of inmates transferred from Wisconsin state prisons. This section shall be administered by the department of corrections and shall be known as the Wisconsin substance abuse program. The department of corrections and the department of health services shall ensure that the residents at the institution and the residents in the substance abuse program:

1. Have access to all facilities that are available at the institution and are necessary for the treatment programs designed by the departments.

2. Are housed on separate wards.

(b) The department of corrections and the department of health services shall, at any correctional facility the departments determine is appropriate, provide a substance abuse treatment program for inmates for the purposes of the program described in sub. (3).

(2) Transfer to a correctional treatment facility for the treatment of substance abuse shall be considered a transfer under s. 302.18.

(3)

(a) In this subsection, “eligible inmate" means an inmate to whom all of the following apply:

1. The inmate is incarcerated regarding a violation other than a crime specified in ch. 940 or s. 948.02, 948.025, 948.03, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, or 948.095.

2. If the inmate is serving a bifurcated sentence imposed under s. 973.01, the sentencing court decided under par. (e) or s. 973.01 (3g) that the inmate is eligible to participate in the earned release program described in this subsection.

(b) Except as provided in par. (d), if the department determines that an eligible inmate serving a sentence other than one imposed under s. 973.01 has successfully completed a treatment program described in sub. (1), the parole commission shall parole the inmate for that sentence under s. 304.06, regardless of the time the inmate has served. If the parole commission grants parole under this paragraph, it shall require the parolee to participate in an intensive supervision program for drug abusers as a condition of parole.

(c)

1. Except as provided in par. (d), if the department determines that an eligible inmate serving the term of confinement in prison portion of a bifurcated sentence imposed under s. 973.01 has successfully completed a treatment program described in sub. (1), the department shall inform the court that sentenced the inmate.

2. Upon being informed by the department under subd. 1. that an inmate whom the court sentenced under s. 973.01 has successfully completed a treatment program described in sub. (1), the court shall modify the inmate's bifurcated sentence as follows:

a. The court shall 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 extended supervision within 30 days of the date on which the court receives the information from the department under subd. 1.

b. The court shall lengthen the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change.

3. Upon receiving a court order modifying an inmate's bifurcated sentence, the department shall release the inmate within 6 working days, as defined in s. 227.01 (14) and as computed in s. 990.001 (4).

4. A person released under this paragraph, 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 release to extended supervision. Any search conducted pursuant to this subdivision 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 subdivision shall, as soon as practicable after the search, notify the department.

(d) The department may place intensive sanctions program participants in a treatment program described in sub. (1), but pars. (b) and (c) do not apply to those participants.

(e) If an inmate is serving the term of confinement portion of a bifurcated sentence imposed under s. 973.01, the sentence was imposed 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 program under this subsection during the term of confinement. The inmate shall serve a copy of the petition on the district attorney who prosecuted him or her, and the district attorney may file a written response. The court shall exercise its discretion in granting or denying the inmate's petition but must do so no later than 90 days after the inmate files the petition. If the court determines under this paragraph that the inmate is eligible to participate in the earned release program, the court shall inform the inmate of the provisions of par. (c).

History: 1989 a. 31; 1995 a. 27 s. 9126 (19); 2003 a. 33; 2005 a. 25, 277; 2007 a. 20 ss. 3168, 9121 (6) (a); 2007 a. 116; 2009 a. 28; 2011 a. 38; 2013 a. 79.

Excluding persons whose conduct has caused death or great bodily harm in violation of ch. 940 from the opportunity to reduce their period of confinement by participation in the earned release program is rationally related to the legitimate government purpose of punishing more serious crimes more severely. Sub. (3) (a) does not violate the right to equal protection by precluding participation in the program by violators of ch. 940. State v. Lynch, 2006 WI App 231, 297 Wis. 2d 51, 724 N.W.2d 656, 05-2128.

The department of corrections approval required by sub. (3) (e) is merely a determination that the petitioner is not statutorily excluded from eligibility for the earned release program. The exercise of discretion as to whether the inmate should be included in program eligibility is a matter for the trial court. State v. Johnson, 2007 WI App 41, 299 Wis. 2d 785, 730 N.W.2d 661, 06-0870.