DOC 331.13 differs slightly from the above. Under the section, an offender's parole agent will recommend a specific period of reincarceration in terms of days, months or years. In making the recommendation, the agent considers the nature and severity of the original offense, the offender's institution conduct record, the offender's conduct and behavior while on supervision, the amount of time left before mandatory release if the offender is a discretionary release parolee, the amount of time consistent with the goals and objectives of supervision under DOC 328, the amount of time necessary to protect the public from the offender's further criminal activity, to prevent depreciation of the seriousness of the violation or to provide a confined correctional treatment setting, and other mitigating or aggravating circumstances.
Michigan
Definitions: Michigan includes some specific definitions in R 791 which differ from Wisconsin's. Pursuant to R 791.7740 “arrest" means either “the placement of a parolee in custody solely for a parole violation" or “the retention in custody of a parolee who has been held on a criminal charge and who has posted bond on that charge and is now held solely as a parole violator." The provisions of the Wisconsin Administrative Code regarding parole, probation, and extended supervision do not define the term arrest. However, the term "physical custody," used in a similar manner, is defined as “actual custody of the person in the absence of a court order granting custody to the physical custodian."
Violation Determination: Under R 791.9930, a probation agent shall petition the sentencing court for a probation revocation hearing when instructed to do so by the court or when the agent believes that revocation is necessary. Such a petition must contain a statement of the specific condition allegedly violated and a brief description of the circumstances of the alleged violation. The probation agent must provide the probationer with a copy of the petition not less than 24 hours before the scheduled hearing. The probation agent shall file a probation violation report with the sentencing court within a reasonable time before the hearing. The report must contain a full description of the alleged violation and the circumstances surrounding it and a summary of the probationer's development and adjustment while on probation. DOC 331.04 requires that a parole violation notice contain more detailed information, including the amount of time recommended and available for good time forfeiture, reincarceration, or reconfinement. Moreover, it only requires that the offender be provided written notice that the department has recommended revocation within a “reasonable time" after the violation determination.
Hearing Procedure: Similar to Wisconsin's qualified right of representation, Iowa Administrative Code R 791.7745 provides that the offender has the right to be represented by counsel at a preliminary revocation hearing as long as 1) the offender requests counsel not less than 24 hours before the hearing, and the parolee has made a claim of innocence which is plausible but may be difficult to prove, 2) there might be substantial reasons which justify or mitigate the violation, which make revocation inappropriate, and which are complex or otherwise difficult to present or 3) the accused is mentally unable to properly present a defense. In all cases where a request for counsel is denied, the grounds for refusal shall be stated in the written report of the hearing.
R 791.7740(2) specifically states that a parolee is being held on a criminal charge which is also the basis for an alleged parole violation, the preliminary examination on the criminal charge may be substituted for the preliminary parole revocation hearing. If the parolee is bound over on the criminal charge, probable cause must be established to show that the conditions of parole have been violated. If the preliminary examination is waived or the parolee is not bound over on the criminal charge, a preliminary parole revocation hearing may be held unless that hearing is waived by the parolee. Pursuant to DOC 331.09, any revocation actions may proceed regardless of any concurrent prosecution of the offender for the conduct underlying the alleged violation. A criminal acquittal for an offender's conduct underlying an alleged violation does not preclude revocation of that offender's supervision for that same or similar conduct.
Like Wisconsin's, Iowa's preliminary hearing procedures under R 791.7750 allow an offender to waive a preliminary hearing if he or she wishes. DOC 331 includes two circumstances not recognized in Iowa in which a preliminary hearing is not required: 1) the offender has given and signed a written statement which admits a violation, 2) there has been a finding of probable cause in a felony matter and the offender is bound over for trial for the same or similar conduct, 3) there has been an adjudication of guilt by a court for the same or similar conduct, 4) the offender is not being held in custody under the department's authority, 5) there has been a finding of probable cause for the same or similar conduct by a court or magistrate in another state.
Unlike Wisconsin and neighboring states, the Michigan Code does not include provisions responsive to the calculation of reincarceration terms following a parole violation.
Minnesota
Definitions: Minnesota's Administrative Code does not include specific definitions in connection with parole, probation, or extended supervision revocation
Violation Determination: As in Wisconsin, offenders may admit the alleged violations any time prior to the hearing. The admission must be in writing. However, Minnesota also requires that the offender must have been notified of the consequences of their admission, including the possibility that they may be returned to a correctional facility for a term of imprisonment specified by the executive officer of hearings and release or a district supervisor.
Hearing Procedure: Minnesota's parole revocation hearing procedure under 2940.4300 is not as detailed as Wisconsin's. Unlike DOC 331, the Minnesota Code specifies that the revocation hearing shall be held near the site of the alleged violation, and conducted by the executive officer of hearings and release or a district supervisor who does not directly supervise the supervising agent alleging the violation. Indeed, in Minnesota, all conditions of parole or supervised release are imposed by the executive officer of hearings and release.
Similarly, Section 2940.0700 of the Minnesota Code specifically provides that all needs assessments, program and projected release plans must be in writing and the central office file copy must be forwarded to the hearings and release unit for informational purposes.
Sentence Calculation: As in Wisconsin, Minnesota's Administrative Code Section 2940.2700 provides that offenders on parole or supervised release may request that the standard or special conditions of release be modified at any time during their term of release. This request must be made in writing through their supervising agent. The agent then submits the request and the supervising agent's recommendation to the hearings and release unit within ten days of its receipt. The executive officer of hearings and release shall review the request and respond in writing within 30 days of the receipt of the request for the modification of the standard or special conditions of release.
The executive officer of hearings and release may authorize the supervising agent to modify the standard or special conditions of release or cause the offender to be brought before the executive officer of hearings and release for a review of the matter of modification. Any modification of the standard or special conditions of must be in writing and executed with the same formality as the original conditions.
Unlike Wisconsin and neighboring states, the Minnesota Code does not include provisions responsive to the calculation of reincarceration terms following a parole violation.
Summary of data and analytical methodologies
The department of corrections has determined that the rule will not have a significant economic impact on a substantial number of small businesses since the rule does not regulate small businesses as that term is defined in s.
227.114, Stats.
Any analysis and supporting documents used to determine effect on small businesses
Not applicable.
Effect On Small Businesses
Not applicable.
Fiscal Estimate
State fiscal effect
None.
Local government fiscal effect
None.
Text Of Rule
SECTION 1. DOC 331 is repealed and recreated to read:
PROBATION, PAROLE, OR EXTENDED SUPERVISION REVOCATION PROCEDURES
(2) This chapter applies to offenders on probation, parole, and extended supervision in the legal custody of the department.
DOC 331.02 Definitions. (1) “Magistrate" means a supervisor or supervisor's designee who has not been directly involved in the decision to initiate proceedings to revoke the offender's supervision.
(2) “Reviewing authority" means the division of hearings and appeals in the department of administration, upon proper notice and hearing, or the department of corrections, if the offender waives a hearing.
(3) The definitions under s.
DOC 328.03 apply to this chapter.
DOC 331.03 Violation of supervision. (1) INVESTIGATION. The department shall investigate the facts underlying an alleged violation and shall meet with the offender to discuss the allegation within a reasonable period of time after becoming aware of the allegation.
(2) RECOMMENDATION. After investigation and discussion under sub. (1), the agent and supervisor shall do one of the following:
(a) Take no action because the allegation is unfounded.
(b) Resolve alleged violations by any of the following:
1. A review of the rules of supervision followed by changes in them where necessary or desirable, including return to court.
2. A formal or informal counseling session with the offender to reemphasize the necessity of compliance with the rules or conditions.
3. An informal or formal warning that further violation may result in a recommendation for revocation.
4. Implement an alternative to revocation.
(c) Recommend revocation for an alleged violation.
DOC 331.04 Notice. Within a reasonable time after the determination under DOC 331.03 (2) (c), the department shall provide the offender with written notice that the department has recommended revocation. The notice shall contain all of the following:
(1) A statement describing the alleged violation and the rule violated.
(2) The offender's hearing rights, including the right to waive the hearing.
(3) The amount of any time available for good time forfeiture, reincarceration, or reconfinement.
(4) The amount of time recommended by the agent for good time forfeiture, reincarceration, or reconfinement.
DOC 331.05 Preliminary hearing. (1) REQUIREMENT. When revocation is initiated, a magistrate shall conduct a preliminary hearing in accordance with this section to determine whether there is probable cause to believe that the offender violated a rule or a condition of supervision.
(2) EXCEPTIONS. A preliminary hearing need not be held if one of the following is true:
(a) The offender waives the right to a preliminary hearing in writing.
(b) The offender has given and signed a written statement which admits a violation.
(c) There has been a finding of probable cause in a felony matter and the offender is bound over for trial for the same or similar conduct.
(d) There has been an adjudication of guilt by a court for the same or similar conduct.
(e) The offender is not being held in custody under the department's authority.
(f) There has been a finding of probable cause for the same or similar conduct by a court or magistrate in another state.
(3) NOTICE OF PRELIMINARY HEARING. Written notice shall be given to the offender and either the offender's attorney or the state public defender. The notice shall include:
(a) The rule or condition that the offender is alleged to have violated.
(b) A statement that the offender has a right to a preliminary hearing to determine if there is probable cause to believe the offender has violated a rule or condition of supervision.
(c) A statement that the offender has the right to waive the preliminary hearing.
(d) A statement that the offender has a qualified right to be represented by an attorney at the preliminary hearing.
(e) A statement that the offender or offender's attorney, if applicable, may review all relevant evidence to be considered at the preliminary hearing, except evidence that is determined to be confidential.
(f) An explanation of the possible consequences of any decision.
(g) An explanation of the offender's rights which shall include all of the following:
1. The right to be present.
2. The right to deny the allegation.
3. The right to present relevant evidence, including witnesses who can give relevant information regarding the violation of the rules or conditions of supervision.
4. The right to receive a written decision stating the reasons for the decision based on the evidence presented.
(4) TIME AND PLACE. The preliminary hearing shall take place as close as feasible to the area of the state in which the alleged violation occurred. It shall take place not sooner than one working day and not later than 5 working days after receipt by the offender of the notice of the preliminary hearing.
(5) QUALIFIED RIGHT TO AN ATTORNEY. If an attorney fails to appear at the preliminary hearing to represent the offender, the magistrate may either proceed with the hearing or postpone the hearing. The hearing shall be postponed to permit representation by an attorney if the offender, after being informed of his or her right to representation, requests an attorney based on a timely and plausible claim that he or she did not commit the alleged violation and the magistrate concludes either that the complexity of the issues will make it difficult for the offender to present his or her case or that the offender is otherwise not capable of speaking effectively for himself or herself.
(6) DECISION. (a) After the preliminary hearing the magistrate shall issue a written decision stating findings, conclusions and reasons for the decision. The decision shall be based on the evidence presented.
(b) The magistrate shall provide copies to the offender within a reasonable time after the preliminary hearing.
(c) If probable cause was found, the division of hearings and appeals shall be contacted in writing to request the scheduling of a final revocation hearing.
(d) If no probable cause was found the revocation process terminates without prejudice.
(7) DETENTION PENDING FINAL HEARING. (a) When there is a preliminary hearing, the magistrate shall decide if the offender is to be detained pending the outcome of the final hearing. When a preliminary hearing is not required because the case meets one of the criteria under sub. (2), a supervisor shall make the detention decision.
(b) The magistrate shall consider factors that include but are not limited to the following:
1. The offender is believed to be dangerous.
2. The offender is likely to flee.
3. The offender is likely to engage in criminal behavior before the revocation takes place.
4. The offender is likely to engage in an activity that does not comply with the rules and conditions of supervision.
5. The length of the term to be served upon revocation is great.
(c) A detained offender is not eligible for release during working hours or for any other partial release from detention.
(d) The detention decision made pursuant to par. (b) shall remain in effect until one of the following occurs:
1. The decision of the administrative law judge becomes final.
2. The offender is reinstated.
3. The violation warrant is vacated by the department.
(e) If the department requests review of the administrative law judge's decision, the custody decision made pursuant to par. (b) shall remain in effect.
