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ERP Case Analysis

Ironically, while the similarity between subsections (3m) and (3g) of sec 973.01 is what doomed White’s case in the court of appeals, that similarity is the best chance he has to ultimately prevail in the Supreme Court, were that court to accept review in his case.

The two subsections are verbatim, save for the fact that subsec. (3m)(Challenge Incarceration Program) references sec. 302.045, while subsec. (3g)(Earned Release Program) references sec. 302.05(3).

However, sec. 302.045 and sec. 302.05(3) are very different statutes, and the differences in those statutes arguably undermine the decision in Lehman, but not the case at bar.

There is nothing in sec. 302.05(3) that is inconsistent with the trial court setting an eligibility date. The subsection does nothing other than define "eligible inmate," and establish procedures for release, once an eligible inmate has successfully completed the prescribed treatment program

Thus, even if the decision in Lehman did not exist, there is nothing in sec. 302.05(3) that undermines the court’s interpretation that sentencing courts can determine both eligibility, and an eligibility date. If anything, the statute supports that interpretation, because, without it, an inmate could go into the program immediately, regardless of the length of his sentence, and be released far earlier than the court desired.

In contrast, Section 302.045 — governing CIP eligibility — states, "the department may place any inmate in the challenge incarceration program if the inmate meets all of the following criteria…"

The statute then lists five other criteria for entering CIP, in addition to the trial court’s finding; among those criteria are: "the department determines, during assessment and evaluation, that the inmate has a substance abuse problem," and "the department determines that the inmate has no psychological, physical or medical limitations that would preclude participation in the program."

Some of those criteria are not within the ability of the trial court to make meaningful determinations. For example, in most cases, a sentencing court can’t reasonably be expected to know whether an inmate has physical limitations that would preclude participation.

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Thus, sec. 302.045 necessarily contemplates that the Department of Corrections will play a primary role in determining who gets to enter the CIP program, and when. A good argument can be made that the statutory scheme contemplates that the finding of eligibility by the sentencing court is just step one for the prisoner, but the statute vests DOC with the authority to decide when.

As noted, however, sec. 302.05 does not give any decisionmaking authority to the DOC in determining eligibility for the ERP program. It is more reasonable, therefore, to interpret the statutes as giving the sentencing court the authority to determine when a prisoner can enter ERP.

Of course, given the near verbatim language in secs. 973.01(3g) and (3m), concerns for consistency would seem to dictate, as the court concluded, that a sentencing court either can determine the date of eligibility for both programs, or it cannot, while permitting it for one but not the other would be illogical.

Nevertheless, the significant differences between secs. 302.045 and 302.05 provide more room for argument than the similarities between sec. 973.01(3g) and (3m) would appear to allow at first blush. Unfortunately for White, and other inmates in his position, however, if the two statutes were to be treated differently, that difference will be in favor of those seeking a place in CIP, and not ERP.

– David Ziemer

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David Ziemer can be reached by email.

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