SCOW accepts case calling into question Gramza holding
State v. Angela R. Joski, 2023AP001371-CR, petition for review of a published decision of the court of appeals, granted 8/18/25; case activity
In a case that could call for an abrupt reassessment of very recent COA precedent, SCOW has indicated its willingness to assess the ability of persons convicted of certain OWI offenses to obtain early release.
Joski, who was convicted of a 7th OWI offense, had her petition for sentence adjustment under § 973.195 granted by the circuit court. The State appealed, claiming this runs afoul of the statutory mandatory minimum penalty.
In a vacuum, Joski’s case therefore posed an interesting statutory construction issue. After all, the statute at issue, § 346.65(2)(am)6., merely requires the circuit court to “impose” a mandatory minimum sentence; it is silent about the applicability of other statutory provisions entitling the inmate to earn early release from that imposed sentence. However, this is where the common law rears its head; in particular, COA’s 2020 Gramza decision, which not only forbade inmates sentenced under this statute from receiving early release via ERP but also issued a relatively sweeping holding: That the requirement a circuit court “impose” a mandatory minimum means the inmate must therefore also serve that entire mandatory minimum. Here, COA viewed this sweeping holding as controlling and therefore insisted its hands were tied.
However, to say that COA regrets its holding is probably a bit of an understatement. For example, COA devoted three paragraphs in a footnote explaining why Gramza wrongly interpreted Supreme Court precedent, and even goes so far as to call some of its prior reasoning in Gramza “erroneous.” And, while COA also recognized that perhaps one could distinguish early release via ERP from early release via the statute at issue here, it then held that Gramza‘s sweeping diktat permits no such divergence from that precedent. Accordingly, it all but invited SCOW to overturn, or at least refine, the holding of Gramza.
Joski therefore makes a bold move in her petition for review and, rather than seeking a modified holding, asks for outright overturning of Gramza to include the potential for OWI inmates to earn early release via ERP and the sentence adjustment mechanism:
Are statutory early-release mechanisms, including sentence adjustment under WIS. STAT. § 973.195 and the earned release program under WIS. STAT. § 302.05, available to individuals sentenced to a mandatory minimum term of initial confinement under WIS. STAT. § 346.65(2)(am)6?
She argues that OWI inmates serving mandatory minimums should have this opportunity so as to incentivize rehabilitation, prevent recidivism, and reduce the prison population. Thus, this case will have a huge impact on a large class of prison inmates and could provide a release valve for those sentenced under otherwise strict mandatory minimum provisions. Will those arguments trump the ever-present argument that repeat OWI offenders deserve every day in prison due to their alleged propensity for criminal wrongdoing and threat to public safety? The Court, and its new members, therefore have a unique opportunity to signal where they stand on this debate in this case.
Moreover, as readers of this blog are well aware, the Court has been engaged in an evolving debate as to the viability of the textualist method of statutory interpretation it announced in Kalal. Here, Joski’s petition invites the Court to to weigh in the “proper” mechanism for interpretation of statutes and supports her interpretation not via textualist mechanisms but by providing a detailed legislative history–exactly the kind of post-textualist approach certain members of the Court have been advocating in favor of for years. Will this be the case that formally commences the post-Kalal framework? Stay tuned!