If it determines that extraordinary circumstances warrant an early release and the sentencing court has been notified and permitted to comment upon the proposed recommendation.
If the department recommends that the person be placed on parole that includes the condition under sub. (1x)
and the commission orders that condition.
In this subsection, "serious child sex offender" means a person who has been convicted of committing a crime specified in s. 948.02 (1)
or 948.025 (1)
against a child who had not attained the age of 13 years.
The parole commission or the department may require as a condition of parole that a serious child sex offender undergo pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. This paragraph does not prohibit the department from requiring pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen as a condition of probation.
In deciding whether to grant a serious child sex offender release on parole under this subsection, the parole commission may not consider, as a factor in making its decision, that the offender is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or that the offender is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.
A person released under this section, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of parole. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department.
The parole commission may require as a condition of parole that the person is placed in the intensive sanctions program under s. 301.048
. In that case, the person is in the legal custody of the department under that section and is subject to revocation of parole under sub. (3)
If a person is sentenced under s. 973.032
, he or she is eligible for a release to parole supervision under this section and remains in the intensive sanctions program unless discharged by the department under s. 301.048 (6) (a)
No prisoner under sub. (1)
may be paroled until the parole commission is satisfied that the prisoner has adequate plans for suitable employment or to otherwise sustain himself or herself. The paroled prisoner shall report to the department in such manner and at such times as it requires.
Except as provided in par. (c)
, no prisoner who is serving a sentence for a serious sex offense may be paroled to any county where there is a correctional institution that has a specialized sex offender treatment program.
A prisoner serving a sentence for a serious sex offense may be paroled to a county where there is a correctional institution that has a specialized sex offender treatment program if that county is also the prisoner's county of residence.
The parole commission or the department shall determine a prisoner's county of residence for the purposes of this subsection by doing all of the following:
The parole commission or the department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
The parole commission or the department shall apply the criteria for consideration of residence and physical presence under subd. 1.
to the facts that existed on the date that the prisoner committed the serious sex offense that resulted in the sentence the prisoner is serving.
Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department. If the department alleges that any condition or rule of parole has been violated by the prisoner, the department may take physical custody of the prisoner for the investigation of the alleged violation. If the department is satisfied that any condition or rule of parole has been violated it shall afford the prisoner such administrative hearings as are required by law. Unless waived by the parolee, the final administrative hearing shall be held before a hearing examiner from the division of hearings and appeals in the department of administration who is licensed to practice law in this state. The hearing examiner shall enter an order revoking or not revoking parole. Upon request by either party, the administrator of the division of hearings and appeals shall review the order. The hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7)
. If the parolee waives the final administrative hearing, the secretary of corrections shall enter an order revoking or not revoking parole. If the examiner, the administrator upon review, or the secretary in the case of a waiver finds that the prisoner has violated the rules or conditions of parole, the examiner, the administrator upon review, or the secretary in the case of a waiver, may order the prisoner returned to prison to continue serving his or her sentence, or to continue on parole. If the prisoner claims or appears to be indigent, the department shall refer the prisoner to the authority for indigency determinations specified under s. 977.07 (1)
Upon demand prior to a revocation hearing under sub. (3)
, the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under s. 908.08
which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.
The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each parole revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
If a paroled prisoner signs a statement admitting a violation of a condition or rule of parole, the department may, as a sanction for the violation, confine the prisoner for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the prisoner in a county jail under this subsection, the department shall reimburse the county for its actual costs in confining the prisoner from the appropriations under s. 20.410 (1) (ab)
. Notwithstanding s. 302.43
, the prisoner is not eligible to earn good time credit on any period of confinement imposed under this subsection.
If the convicting court is informed by the department that a prisoner on parole has absconded and that the prisoner's whereabouts are unknown, the court may issue a capias for execution by the sheriff.
If any person convicted of a misdemeanor or traffic offense, any person convicted of a criminal offense and sentenced to 2 years or less in a house of correction or any person committed to a house of correction for treatment and rehabilitation for addiction to a controlled substance or controlled substance analog under ch. 961
, during the period of confinement or treatment appears to have been rehabilitated or cured to the extent, in the opinion of the superintendent of the house of correction or the person in charge of treatment and rehabilitation of a prisoner at that institution, that the prisoner may be released, the prisoner may be released upon conditional parole. Before a person is released on conditional parole under this paragraph, the superintendent or person in charge of treatment and rehabilitation shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department a written statement waiving the right to be notified.
Application for such conditional parole shall be made in writing by the superintendent of the house of correction to the court of commitment stating the facts justifying the application. The court shall proceed to take testimony in support of the application. If the judge is satisfied from the evidence that there is good reason to believe that the prisoner has been rehabilitated or cured to the extent that he or she may be released and that proper provision for employment and residence has been made for the prisoner, the judge may order the prisoner's release on parole to the superintendent of the house of correction, on such conditions to be stated in the order of release as the judge determines. In the event of violation of any such conditions by the prisoner, he or she shall be returned to the court and may be recommitted to the house of correction to serve the remainder of his or her sentence or for further treatment.
History: 1971 c. 125
; 1973 c. 90
; 1975 c. 156
; 1977 c. 29
; 1979 c. 356
; 1981 c. 266
; 1983 a. 27
; 1985 a. 262
; 1987 a. 244
; 1987 a. 412
; 1989 a. 31
; Stats. 1989 s. 304.06; 1989 a. 107
; 1991 a. 39
; 1993 a. 79
; 1995 a. 27
; 1997 a. 133
; 1999 a. 32
; 2001 a. 109
; 2003 a. 33
; 2005 a. 42
; 2009 a. 28
; 2011 a. 38
; 2013 a. 79
See also ch. PAC 1
and ss. DOC 330.02
, Wis. adm. code.
A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS, 64 Wis. 2d 367
, 219 N.W.2d 267
Refusal by the parole board to grant discretionary parole is subject to judicial review. Failure to notify the prisoner of the standards and criteria applied to a parole application constituted a denial of due process. State ex rel. Tyznik v. DHSS, 71 Wis. 2d 169
, 238 N.W.2d 66
Every violation of probation or parole does not result in automatic revocation. Snajder v. State, 74 Wis. 2d 303
, 246 N.W.2d 665
A parole revocation hearing is not part of a criminal prosecution. Thus the full panoply of rights, including Miranda
warnings and the exclusionary rule, are not applicable. State ex rel. Struzik v. DHSS, 77 Wis. 2d 216
, 252 N.W.2d 660
Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds that the parolee's conduct related to an alleged crime for which the parolee was charged and acquitted. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376
, 260 N.W.2d 727
Presentence incarceration due to indigency must be credited to a life sentence for the purpose of determining eligibility for parole. Wilson v. State, 82 Wis. 2d 657
, 264 N.W.2d 234
A parole agent's failure to act on knowledge of similar prior violations did not preclude revocation. Van Ermen v. DHSS, 84 Wis. 2d 57
, 267 N.W.2d 17
Prison inmates subject to parole rescission are entitled to Morrissey-Gagnon
due process. State ex rel. Klinke v. H&SS Dept. 87 Wis. 2d 110
, 273 N.W.2d 379
(Ct. App. 1978).
The secretary's authority to revoke under s. 57.06 (3), 1987 stats. [now s. 304.06 (3)] cannot be bound by an agent's representations. State ex rel. Lewis v. H&SS Dept. 89 Wis. 2d 220
, 278 N.W.2d 232
(Ct. App. 1979).
A parole violation may not be proved entirely by unsubstantiated hearsay testimony. State ex rel. Henschel v. H&SS Dept. 91 Wis. 2d 268
, 280 N.W.2d 785
(Ct. App. 1979).
Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 Wis. 2d 306
, 284 N.W.2d 108
(Ct. App. 1979).
A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329
, 283 N.W.2d 408
(Ct. App. 1979).
An inmate who entered into Mutual Agreement Program (MAP) "contract" for discretionary parole may not bring a civil action for breach of contract. Coleman v. Percy, 96 Wis. 2d 578
, 292 N.W.2d 615
A mandatory release parole violator may be required to serve beyond the final discharge date originally set by the trial court. State ex rel. Bieser v. Percy, 97 Wis. 2d 702
, 295 N.W.2d 179
(Ct. App. 1980).
Because courts have exclusive criminal jurisdiction, criminal charges against a defendant were not collaterally estopped even though a parole revocation hearing examiner concluded that the defendant's acts did not merit parole revocation. State v. Spanbauer, 108 Wis. 2d 548
, 322 N.W.2d 511
(Ct. App. 1982).
Due process was not violated by holding two revocation hearings dealing with the same conduct when the first hearing was based on facts and the second hearing was based on a conviction. State ex rel. Leroy v. DHSS, 110 Wis. 2d 291
, 329 N.W.2d 229
(Ct. App. 1982).
The doctrine of issue preclusion should not be applied to findings in parole and probation revocation hearings to prevent criminal prosecutions on the same issue. State v. Terry, 2000 WI 250
, 239 Wis. 2d 519
, 620 N.W.2d 217
Sub. (3) does not provide authority to the department of corrections to make and enforce rules binding on the division of hearings and appeals regarding the revocation of parole or period of reincarceration in contested cases. The decision to impose reincarceration time is solely that of the division of hearings and appeals, and a department of corrections manual has no binding effect upon it. George v. Schwarz, 2001 WI App 72
, 242 Wis. 2d 450
, 626 N.W.2d 57
Sub. (1m) permits the waiver of the minimum sentence service requirement if certain conditions are met. Such a determination removes the parole eligibility conditions that would otherwise apply under sub. (1) (b), but it does not eliminate the necessity for a parole hearing. While the grant of parole might logically follow from a determination of extraordinary circumstances, the statute does not dictate that result. State ex rel. Szymanski v. Gamble, 2001 WI App 118
, 244 Wis. 2d 272
, 630 N.W.2d 570
A rule that inmates must always be released from physical custody before any revocation is commenced would elevate form over substance. When inmates violate probation terms immediately and simultaneously with their scheduled mandatory release dates, the department of corrections may maintain continuous custody, even though that person's status changes from a prisoner serving a sentence to a parolee detained on a parole hold. Riesch v. Schwarz, 2005 WI 11
, 278 Wis. 2d 24
, 692 N.W.2d 219
304.06 Annotation2011 Wis. Act 38
repealed or modified ss. 302.113 (2) (b) and 304.06 (1) (bg) 1., 2009 stats., which afforded certain prisoners convicted of Class F to Class I felonies an opportunity to earn early release from confinement, resulting in the petitioner being required to serve the full term of the initial confinement portion of his sentence. Because the law in effect when he was convicted afforded him the opportunity to be released earlier and the 2011 Act 38
modifications resulted in a significant risk of prolonging the defendant's incarceration, the portions of Act 38 that eliminated the defendant's eligibility for early release under the 2009 law violated the ex post facto clauses when applied to the defendant's offenses. Singh v. Kemper, 2014 WI App 43
, 353 Wis. 2d 520
, 846 N.W.2d 820
When required by the right to effectively present a defense, the state must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.
When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.
A convict has no constitutional right to be paroled. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1
A state administrative rule imposing an absolute bar on international travel by parolees is constitutional. Williams v. State, 336 F.3d 576
Probation and parole revocation in Wisconsin. 1977 WLR 503.
Ordering parolees and persons on extended supervision to perform community service work. 304.062(1)(1)
The department may order that a parolee or a person on extended supervision perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the parolee or the person on extended supervision and the organization or agency. The department shall ensure that the parolee or the person on extended supervision is provided a written statement of the terms of the community service order and shall monitor the compliance of the parolee or person on extended supervision with the community service order.
Any organization or agency acting in good faith to which a parolee or person on extended supervision is assigned under an order under this section has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the parolee or person on extended supervision. The department has immunity from any civil liability for acts or omissions by or impacting on the parolee or person on extended supervision regarding the assignment under this section.
History: 1995 a. 96
; 1997 a. 283
Notification prior to release on extended supervision or parole. 304.063(1)(a)
"Member of the family" means spouse, child, sibling, parent or legal guardian.
"Victim" means a person against whom a crime has been committed.
Before a prisoner is released on parole under s. 302.11
or on extended supervision under s. 302.113
, if applicable, for a violation of s. 940.01
, 940.225 (1)
, 948.02 (1)
, or 948.085
, the department shall make a reasonable attempt to notify all of the following persons, if they can be found, in accordance with sub. (3)
and after receiving a completed card under sub. (4)
The victim of the crime committed by the prisoner or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian.
Any witness who testified against the prisoner in any court proceeding involving the offense.
The department shall make a reasonable attempt to send the notice, postmarked at least 7 days before a prisoner is released on parole or extended supervision, to the last-known address of the persons under sub. (2)
The department shall design and prepare cards for any person specified in sub. (2)
to send to the department. The cards shall have space for any such person to provide his or her name and address, the name of the applicable prisoner and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in sub. (2)
. These persons may send completed cards to the department. All department records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1)
Offender release information.
The department shall obtain computer software and use the software to provide local law enforcement agencies with information regarding offenders who have been released to or placed in the agencies' jurisdictions.
History: 1993 a. 98
The parole commission may at any time grant a parole to any prisoner in any penal institution of this state, or the department may at any time suspend the supervision of any person who is on probation or parole to the department, if the prisoner or person on probation or parole is eligible for induction into the U.S. armed forces. The suspension of parole or probation shall be for the duration of his or her service in the armed forces; and the parole or probation shall again become effective upon his or her discharge from the armed forces in accordance with regulations prescribed by the department. If he or she receives an honorable discharge from the armed forces, the governor may discharge him or her and the discharge has the effect of a pardon. Upon the suspension of parole or probation by the department, the department shall issue an order setting forth the conditions under which the parole or probation is suspended, including instructions as to where and when and to whom the person on parole shall report upon discharge from the armed forces.
Period of probation, extended supervision or parole tolled. 304.072(1)(1)
If the department of corrections in the case of a parolee, probationer or person on extended supervision who is reinstated or waives a hearing or the division of hearings and appeals in the department of administration in the case of a hearing determines that a parolee, probationer or person on extended supervision has violated the terms of his or her supervision, the department or division may toll all or any part of the period of time between the date of the violation and the date an order of revocation or reinstatement is entered, subject to credit according to the terms of s. 973.155
for any time the parolee, probationer or person on extended supervision spent confined in connection with the violation.
If a parolee, probationer or person on extended supervision is alleged to have violated the terms of his or her supervision but the department or division determines that the alleged violation was not proven, the period between the alleged violation and the determination shall be treated as service of the probationary, extended supervision or parole period.
Except as provided in s. 973.09 (3) (b)
, the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.
The sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a jail, correctional institution or any other detention facility pending revocation according to the terms of s. 973.155
The sentence of a revoked probationer shall be credited with the period of custody in a jail, correctional institution or any other detention facility pending revocation and commencement of sentence according to the terms of s. 973.155
See also s. DOC 331.01
, Wis. adm. code.
The court could revoke a probation after the original probationary period had expired but the defendant had committed several crimes during the period. Williams v. State, 50 Wis. 2d 709
, 184 N.W.2d 844
Before the tolling statute applies, the department must make a final determination that a violation occurred. Locklear v. State, 87 Wis. 2d 392
, 274 N.W.2d 898
(Ct. App. 1978).
When revocation proceedings were initiated prior to expiration of the parole period, parole was properly revoked after the period expired. State ex rel. Avery v. Percy, 99 Wis. 2d 459
, 299 N.W.2d 886
(Ct. App. 1980).
The department may not grant jail credit where it is not provided for by statute. 71 Atty. Gen. 102
The preceding annotations concern s. 57.072, 1975 stats., [now s. 304.072] which was repealed and recreated by ch. 353, laws of 1977 and again by Act 528, laws of 1983
Sub. (3) applies to all parole violations that occur before the offender's date of discharge from his or her entire sentence. DOC had jurisdiction to revoke a 2nd period of parole for a violation that the defendant committed during his first, and later revoked, period of parole when the violation was not discovered until the 2nd parole period. Department of Corrections v. Schwarz, 2005 WI 34
, 279 Wis. 2d 223
, 693 N.W.2d 703
A term of supervision under sub. (3) includes the nonconfinement and confinement time arising from the same sentencing decision. With regard to identifying a term of supervision, probation, incarceration, and extended supervision are each a component of the sentence. A person who initially serves a term of probation that is ultimately revoked, and following revocation serves a bifurcated prison term, can be revoked from that prison term's extended supervision component on the basis of a rules violation that occurred during the initial term of probation. McElvaney v. Schwarz, 2008 WI App 102
, 313 Wis. 2d 125
, 756 N.W.2d 441
The "sentence" to which sub. (4) refers is the sentence that was issued by the circuit court subsequent to conviction. Sub. (4) looks back at a sentence earlier commenced. In this case when the defendant's parole was revoked, the indeterminate sentence for the defendant's felony conviction caused reincarceration. The reincarceration order did not establish reincarceration as a new sentence. Rather, it was a continuation of the sentence meted out by the circuit court judge. Therefore, if the defendant had not received all the sentence credit that was available to apply to the felony sentence when that sentence was imposed, he could have received it when his parole was revoked. State v. Obriecht, 2015 WI 66
, ___ Wis. 2d ___, ___ N.W.2d ___, 13-1345