A judge says “six years.” The defendant hears six years in prison. His mother hears six years until he comes home. Both are wrong, and the gap between what was said and what was meant is the single most common source of confusion in a Wisconsin criminal case — including among defendants who have already been through the system once.
Wisconsin abolished parole for new offenses more than twenty-five years ago and replaced it with a structure the statutes call a bifurcated sentence. It is not a complicated idea, but it is an unfamiliar one, and almost nothing about the way sentences are discussed in ordinary speech prepares anyone for it. This article explains what the court is actually imposing, what it can and cannot do, and where the numbers come from.
What a bifurcated sentence is
Under Wis. Stat. § 973.01 (1), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, or a misdemeanor committed on or after February 1, 2003, the court shall impose a bifurcated sentence. This is not discretionary.
Section 973.01 (2) defines the structure: a bifurcated sentence “consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113,” and the total length of the sentence equals the confinement term plus the extended supervision term.
So the six years in the example above is a total. It is composed of two named parts, and the judge sets both. A sentence of six years might be three years of initial confinement followed by three years of extended supervision, or four and two, or two and four. The pronouncement that matters is not the total — it is the split.
One category is carved out. Under § 973.01 (3), a person being sentenced for a felony punishable by life imprisonment is not subject to this section and is sentenced instead under § 973.014 (1g).
Bifurcation applies only to prison sentences
This is the first thing that trips people up. Section 973.01 (1) is triggered by a sentence “to imprisonment in the Wisconsin state prisons.” A jail sentence is not a bifurcated sentence.
Where a statute authorizes imprisonment but does not say where, § 973.02 supplies the rule: a sentence of less than one year is to the county jail, a sentence of more than one year is to the Wisconsin state prisons, and a sentence of exactly one year may be to either. Section 973.15 (1) points the same direction from the other side — all sentences to the Wisconsin state prisons must be for one year or more.
Because a Class A misdemeanor carries at most nine months under § 939.51 (3) (a), a Class B misdemeanor ninety days, and a Class C misdemeanor thirty days, the ordinary misdemeanor sentence is county jail time and the bifurcated structure rarely comes into it — the exception being the unusual misdemeanor sentence that does reach state prison, which § 973.01 (1) does bifurcate. If you are working out which side of that line your own charge falls on, our explanation of the difference between a Wisconsin misdemeanor and a felony is the place to start.
The arithmetic, class by class
The statute caps each half separately, and the caps are not arbitrary — they add up to the maximum penalty for the class. Section 939.50 (3) sets the felony maximum; § 973.01 (2) (b) caps the confinement portion; § 973.01 (2) (d) caps the extended supervision portion.
- Class B felony — 60 years maximum; confinement may not exceed 40 years; extended supervision may not exceed 20 years.
- Class C felony — 40 years maximum; confinement may not exceed 25 years; extended supervision may not exceed 15 years.
- Class D felony — 25 years maximum; confinement may not exceed 15 years; extended supervision may not exceed 10 years.
- Class E felony — 15 years maximum; confinement may not exceed 10 years; extended supervision may not exceed 5 years.
- Class F felony — 12 years and 6 months maximum; confinement may not exceed 7 years and 6 months; extended supervision may not exceed 5 years.
- Class G felony — 10 years maximum; confinement may not exceed 5 years; extended supervision may not exceed 5 years.
- Class H felony — 6 years maximum; confinement may not exceed 3 years; extended supervision may not exceed 3 years.
- Class I felony — 3 years and 6 months maximum; confinement may not exceed 1 year and 6 months; extended supervision may not exceed 2 years.
Two floors operate underneath all of this. Under § 973.01 (2) (b), the confinement portion “may not be less than one year.” Under § 973.01 (2) (d), the extended supervision term “may not be less than 25 percent of the length of the term of confinement in prison imposed.” A bifurcated sentence therefore cannot be structured as all confinement and no supervision, and it cannot be structured as a few months of prison.
For crimes that are not classified felonies — and for the rare prison sentence on a misdemeanor — § 973.01 (2) (b) 10. supplies a proportional rule instead: the confinement term may not exceed 75 percent of the total length of the bifurcated sentence.
Penalty enhancers sit on top. Under § 973.01 (2) (c) 1., an applicable enhancer increases the maximum confinement term, and the total length of the bifurcated sentence increases by the same amount. Subdivision 2. prescribes the order in which multiple enhancers are applied. The court of appeals has held that § 973.01 (2) (c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. State v. Volk, 2002 WI App 274.
No good time, no parole, no early discharge
These three rules are what make the confinement number mean what it says.
Section 973.01 (4) provides that a person serving a bifurcated sentence “shall serve the term of confinement in prison portion of the sentence without reduction for good behavior.” Section 973.01 (6) provides that such a person “is not eligible for release on parole under that sentence.” And § 973.01 (7) provides that the Department of Corrections may not discharge the person from custody, control and supervision until the entire bifurcated sentence has been served.
The practical consequence is that the confinement figure is close to a real number. Under § 302.113 (2), an inmate serving a bifurcated sentence is entitled to release to extended supervision once the confinement portion is served — subject, by the terms of that subsection, to subs. (3) and (9), both discussed below. That is a statutory entitlement, not a parole board’s judgment.
Extended supervision is part of the sentence, not something after it
This is where the most costly misunderstanding lives. Extended supervision is not aftercare. It is the back half of a prison sentence, served in the community under conditions, and it can be converted back into prison time.
Under § 973.01 (5), the court may impose conditions on the term of extended supervision at sentencing. It may not, however, order confinement as one of those conditions. State v. Larson, 2003 WI App 235.
If a condition is violated, § 302.113 (9) (am) governs. The reviewing authority — the Division of Hearings and Appeals in the Department of Administration, or the Department of Corrections where the person waives a hearing — may revoke extended supervision and order the person returned to prison for a specified period not exceeding the time remaining on the bifurcated sentence. The statute defines that remainder precisely: the total length of the sentence, less confinement already served before release, less all confinement served for previous revocations. Under § 302.113 (9) (b), the person must serve the entire period specified in the revocation order.
Read that alongside § 973.01 (8) (a) 4., which requires the court to explain in writing, at sentencing, that the time actually served in prison may be extended and that the person could serve the entire bifurcated sentence in prison. The statute says the quiet part out loud. The total, not the confinement figure, is the true measure of exposure.
The Department can add to the confinement term
Separate from revocation, § 302.113 (3) (a) allows the Department to extend the confinement portion for prison rule violations: ten days for the first offense, twenty days for the second, and forty days for the third or each subsequent offense. Paragraph (b) adds a further extension equal to 50 percent of the number of days spent in adjustment, program, or controlled segregation status.
There is a ceiling. Under § 302.113 (3) (c), no extension may require an inmate to serve more days in prison than the total length of the bifurcated sentence. The total is the outer wall in every direction.
Credit, concurrent terms, and consecutive terms
Section 973.155 (1) (a) entitles a convicted offender to credit toward service of the sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed — including time awaiting trial, time during trial, and time awaiting sentencing. Paragraph (b) extends the categories to custody resulting in whole or in part from a probation, extended supervision, or parole hold. Sentence credit is frequently miscalculated, and it is worth checking line by line against the jail record.
Where there is more than one sentence, § 973.15 (2) (a) permits the court to impose as many sentences as there are convictions and to make any of them concurrent with or consecutive to any other. Section 973.15 (2m) (b) then explains how that works on bifurcated sentences specifically: concurrent determinate sentences run confinement alongside confinement and supervision alongside supervision, while consecutive determinate sentences run confinement after confinement and supervision after supervision, in the order pronounced. The halves stack with their own kind; they do not interleave.
Timing matters too. Under § 973.15 (1), sentences commence at noon on the day of sentencing, but time spent at large on bail after sentencing is not counted as part of the term.
Probation is a different instrument entirely
Most criminal cases in Wisconsin do not end in a prison sentence. Section 973.09 (1) (a) gives the court two distinct routes: it may withhold sentence, or it may impose a sentence and stay its execution — and in either case place the person on probation for a stated period, with any conditions that appear reasonable and appropriate.
The difference between those two routes is not a formality; it determines what happens if probation is revoked. Under § 973.10 (2) (a), if sentence was withheld, the probationer is brought before the court for sentencing, which is then imposed without further stay — the judge decides the number at that point, with the violation in front of him. Under § 973.10 (2) (b), if sentence was already imposed and stayed, the probationer is ordered to prison and the term begins on the date he enters. Revocation proceedings themselves run through the Division of Hearings and Appeals under § 973.10 (2), not before the sentencing judge.
The available probation terms are set by § 973.09 (2). For felonies, § 973.09 (2) (b) 1. allows not less than one year nor more than either the maximum term of confinement in prison for that crime or three years, whichever is greater. For Class A misdemeanors not falling within the enumerated categories of subd. 1., § 973.09 (2) (a) 1m. allows not less than six months nor more than one year; other misdemeanors are capped at one year under subd. 1r. Certain enumerated misdemeanors — including one committed while possessing a firearm and one that was an act of domestic abuse as defined in § 968.075 (1) (a) — carry a wider band of six months to two years under subd. 1. Where multiple convictions are entered at once, subds. (2) (a) 2. and (2) (b) 2. permit increases. And if a court imposes a term longer than the statute authorizes, § 973.09 (2m) makes the excess void and commutes the term without further proceedings.
If your case involves a domestic-abuse allegation, our article on domestic-violence charges and the 72-hour no-contact rule covers the front end of that process.
Two doors that open later
Truth in sentencing left very few mechanisms for shortening a prison term. Two are worth knowing.
The first is sentence adjustment under § 973.195. An inmate serving a bifurcated sentence for a crime other than a Class B felony may petition the sentencing court once he has served the “applicable percentage” of the confinement portion — defined by § 973.195 (1g) as 85 percent for a Class C to E felony and 75 percent for a Class F to I felony. The grounds in § 973.195 (1r) (b) include conduct and progress in rehabilitation, education or treatment programs since sentencing; an intervening change in sentencing law that would have produced a shorter confinement term; exposure to a sentence in another state or potential deportation; and adjustment otherwise being in the interests of justice. The statute appears to give the prosecutor a veto: under § 973.195 (1r) (c), if the district attorney objects within 45 days of notification, the court “shall deny” the petition. The Wisconsin Supreme Court has held otherwise. In State v. Stenklyft, 2005 WI 71, the court held that the “shall” in the last sentence of sub. (1r) (c) is directory, giving a circuit court discretion to accept or reject a district attorney’s objection — and requiring the court to exercise that discretion by weighing the factors under sub. (1r) (b) 1. in reaching its decision. An objection is a serious obstacle; it is not the end of the petition.
The second is modification for an extraordinary health condition under § 302.113 (9g), which defines the term to include advanced age, infirmity, or disability, or a need for medical treatment or services not available within a correctional institution. The petition is not available to inmates serving sentences for a Class B felony or for certain enumerated offenses.
Both doors are narrow. Neither should be relied on at sentencing as a reason to accept a longer confinement term than the case warrants.
Decisions the judge makes at sentencing that you will not get back
Two program eligibility determinations are made at sentencing and only at sentencing. Under § 973.01 (3g), for crimes outside certain enumerated categories, the court must decide as part of its sentencing discretion whether the person is eligible to participate in the earned release program under § 302.05 (3) during the confinement portion. Under § 973.01 (3m), the court must make the parallel determination for the challenge incarceration program under § 302.045.
These are frequently the most consequential sentences spoken in the courtroom, and they are also the easiest to lose by default — the court must decide, but nothing guarantees that anyone will have given it a reason to decide favorably.
Why sentencing advocacy is not a formality
Wisconsin appellate law imposes real structure on the exercise of sentencing discretion. Under State v. Gallion, 2004 WI 42, a circuit court must specify the objectives of the sentence on the record and identify the general objectives of greatest importance; describe the facts relevant to those objectives and explain why the component parts of the sentence advance them; and identify the factors considered and how those factors fit the objectives. Separately, the court must consider the gravity of the offense, the offender’s character, and the public’s need for protection, with the weight given to any factor left to its discretion. State v. Steele, 2001 WI App 160.
That framework is an opportunity. A sentencing court that must articulate objectives and tie the structure of the sentence to them is a court that can be given material to work with — on the split between confinement and supervision, on program eligibility, on conditions, and on whether the case belongs in the prison system at all. The work of assembling that material happens before the hearing, not during it.
Talk to a New Berlin criminal defense attorney
The number a judge announces in a Wisconsin courtroom is a total with two halves, a floor, a ceiling, and several mechanisms that can move prison time in one direction only. Understanding the structure before the sentencing hearing is how a defendant and his family avoid learning it afterward.
Carson Law Office handles criminal defense matters for clients throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. If you are facing sentencing, or you are trying to work out what a sentence already imposed actually means, call (262) 860-8932 or contact us here.
This article provides general information about Wisconsin sentencing law and is not legal advice. Reading it does not create an attorney-client relationship. Statutes, penalty classifications, and case law change, and the sentence available in any particular case depends on the offense, the offense date, applicable enhancers, and the record before the court; for advice about your own situation, speak with a licensed Wisconsin attorney.