Appeals court: Mandatory 3 year sentence trumps early release requirement of substance abuse program


A state law dictates that inmates who complete an intensive counseling program in prison must have their remaining time converted to supervised release.

But what if that prison sentence is a mandatory minimum term? Can some of that time be converted if the inmate succeeds in the Substance Abuse Program?

The Department of Corrections says yes. But in the case of an Oak Creek man serving time for a seventh drunken driving conviction, a Milwaukee judge denied the change because it would have freed Jack Gramza, 58, just six months into a three-year mandatory minimum sentence.

His lawyer appealed. On Tuesday, the Court of Appeals came down firmly in favor of more prison time, despite Gramza’s success in the program. The 11-page decision was written by Judge William Brash, joined by judges Timothy Dugan and Joseph Donald.

Gramza’s attorney, Assistant Public Defender Andrea Cornwall, who represents three other repeat drunken drivers who were denied release though they completed SAP, said she will ask the Supreme Court to review Gramza’s case.

Gramza argued that the two conflicting statutes could be harmonized by noting that one only requires the three-year sentence be imposed, not that it be served. He also noted that when lawmakers wrote the Substance Abuse Program law, they made certain defendants ineligible and could have included OWI-seventh defendants in that group, but did not.

The appellate court, however, cited a prior case that examined the legislative history of the mandatory minimum sentence and found that lawmakers clearly intended that drivers convicted of seventh, eighth or ninth OWI actually serve all three years in prison.

Gramza also argued that denying his early release after completing the SAP amounted to double jeopardy. The court found the argument “not compelling.”  It noted that at sentencing, Milwaukee County Circuit Judge Pedro Colón made several remarks indicating he expected Gramza would serve the three years — even though he also made Gramza eligible for the SAP.

Colón later said he never expected Gramza would be eligible and would complete the program in the first six months of his sentence, since the program lasts three to five months, and usually has a very long waiting list.

The case had transferred to Circuit Judge David Borowski by the time the Department of Corrections sent notice that Gramza had completed the programand requesting the remainder of his prison time be converted to supervised release.

Borowski doubted he had that authority, given the mandatory nature of the sentence. After hearing from the DOC and Gramza’s attorney, in January he denied the release, and Gramza appealed.

That next month, Circuit Judge Christopher Dee adopted Borowski’s approach in denying early release for three other repeat drunken drivers who had completed the SAP prior to the end of three-year mandatory sentences.

Cornwall, who represents those three inmates, appealed their cases, as well. Briefing for them was put on hold in April, pending the decision in Gramza’s case.

The Substance Abuse Program, sometimes called the Early Release Program, is aimed at offenders convicted of nonviolent, non-assaultive crimes whose behavioral problems seem strongly linked to substance abuse. It’s a three-to-five month, full-time, intensive curriculum focusing on changing thinking patterns, social skills and problem-solving.

The sentencing judge must declare a defendant eligible, and can also condition the eligibility on serving a set time first — though judges say DOC officials disfavor that practice because it can throw a wrench into how DOC administers the program.

Not every convicted drunken driver deemed eligible gets into the program. That decision is made by DOC staff based on a variety of factors.

In 2018, 1,849 inmates completed the SAP and were released on supervision, according to the DOC. Early this year, there were 742 inmates in the program, offered at 12 DOC facilities, and nearly 5,000 on a waiting list.

Supporters say the program provides needed help to the right kinds of inmates and saves DOC millions of dollars by keeping low-needs, non-violent offenders out of expensive incarceration.

Lauren Stuckert, a Milwaukee lawyer who specializes in drunken driving defense, said in January that in 10 years, she’s never had a client who completed the SAP reoffend and they’ve all been very grateful for the treatment.

“DOC devotes very good staff to this,” she said. “It’s probably the best program we have.”

Franklin police stopped Gramza in August 2018 when they noticed his pickup truck repeatedly drifting from his lane on South 27th Street. He pleaded guilty to OWI-seventh in March 2019.