New budget changes sentencing practices

By Nancy Rottier, Legislative Liaison and Deborah Brescoll, Budget and Policy Officer

The new state budget, 2009 Act 28, includes changes in sentencing practices that go well beyond the early release provisions that received most of the media attention during the five months the budget was under consideration.  Most of the provisions will become effective on October 1.

Gov. Jim Doyle made several vetoes affecting sentencing proposals of the Special Committee on Justice Reinvestment Initiative Oversight (JRIO). (See separate story)

Proposed as an effort to give inmates more incentives for good behavior and to reduce costs for the state Department of Corrections (DOC), the changes give greater authority to the DOC to manage the inmate population and affect inmate release dates.

Under the new budget, the Earned Release Review Commission (ERRC) replaces the Parole Commission and is given enhanced duties and responsibilities. The ERRC will have the authority that now resides with the sentencing court to adjust a sentence of an inmate who has served 75 percent of a term of confinement for Class F to I felonies, or 85 percent of the term for Class C to E felonies.

The budget introduces a new concept called Positive Adjustment Time that allows DOC to give credit for days served without rule violations and in compliance with the inmate's programming. DOC is required to perform an objective risk assessment to determine the inmate's risk of reoffending, and then allocate resources to match the risk each inmate poses with appropriate and effective programming. 

Inmates are eligible for sentence adjustment and may earn credit for varying numbers of days, depending on the seriousness of the crime committed.  If the ERRC adjusts an inmate's sentence for early release, it adds the days of reduced confinement to the term of extended supervision (ES), so that the total length of the bifurcated sentence remains the same. (See list below for additional information on Positive Adjustment Time).

In addition, Act 28 will now allow the ERRC, rather than the sentencing court, to consider a petition to reduce a sentence for an inmate with an extraordinary health condition, such as advanced age, infirmity, disability or a need for medical treatment or services not available within a correctional institution.

Inmates incarcerated for a misdemeanor or nonviolent Class F to I felony (except for sex offenders) will also be allowed to petition DOC for early release to ES if they are within 12 months of the end of their confinement time. DOC is to promulgate rules for determining whether bifurcated sentences should be modified under this provision.

For misdemeanants placed on probation, Act 28 gives DOC the authority to modify a person's period of probation and discharge the person from probation if the person has completed 50 percent of the probation term.

Reconfinement hearings for revocations of ES are also changed, with administrative decisions replacing circuit court hearings. The administrative agency making the determination on the length of reconfinement will be the Division of Hearing and Appeals in the Department of Administration, upon proper notice and hearing, or the DOC, if a hearing is waived.

Both the Challenge Incarceration Program and the Earned Release Program are being expanded under Act 28. For the Challenge Incarceration Program, DOC is to use an evidence-based assessment tool to determine treatment needs of inmates related to his or her criminal behavior. DOC is allowed an expanded list of treatment options. The Earned Release Program, which was created in 2004 to help address demand for alcohol and drug treatment among non-violent offenders, will now allow DOC to develop new tracks within existing rehabilitation programs to address needs that are directly related to an inmate's criminal behavior, even if those needs are not completely related to substance abuse.

The Legislature accepted two recommendations offered by the court system to streamline sentencing hearings and to clarify the issue of sentencing guidelines. Act 28 deletes the statutory requirement for the sentencing court to orally explain the bifurcated sentence, including the requirement to read the Extended Confinement, or “bad time” provisions. It also deletes statutory language requiring the court to consider sentencing guidelines adopted by the Sentencing Commission or to consider any applicable temporary sentencing guidelines adopted by the 1997 Criminal Penalties Study Committee.

The Director of State Courts' Office will be working with the Office of Judicial Education and with judges who have been actively involved in legislation and JRIO to develop more extensive educational materials about these sentencing changes.

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