(17) The commission shall provide an opportunity for a victim to provide direct input and to attend the interview.
(18) The commission shall permit any office or person to submit a written statement for consideration in its decision-making process.
PAC 1.07 Commission recommendations. (1) After consideration, a commissioner may recommend release with or without special conditions, or may deny release and defer consideration for a specified period of time. The commissioner shall make the recommendation of release to the chairperson. If release is denied, the commissioner shall establish a date for reconsideration under sub. PAC 1.06 (3), unless the inmate will reach the mandatory release date or the extended supervision date prior to that reconsideration date.
(2) The inmate shall be advised in writing of the decision to defer or to recommend a grant of parole or release, the reasons for the decision and the next opportunity for consideration or the recommended parole or release date.
(3) A commissioner may refer the case to the full commission for a decision. When the chairperson makes a final decision, the inmate shall be notified of the decision in writing and may request an interview with the commissioner through institution staff.
(4) If the chairperson disagrees with a recommendation of the commissioner, the chairperson shall inform the inmate in writing the reason for amending the recommendation.
(5) For persons sentenced under s.
973.01, Stats., if the chairperson approves a recommendation for release, the commission shall notify the sentencing court in accordance with s.
304.06 (1) (bk) 1., Stats., of its intent to modify the inmate's sentence and release the inmate to extended supervision or another case, sentence or count. The commission shall provide the sentencing court with justification for its recommendation. If the court does not schedule a review hearing within 30 days after notification, the commission will proceed with the action recommended. The commission shall issue an order for sentence modification. The term of confinement in the prison portion of the inmate's sentence will be reduced by the period of release and the term of extended supervision of the inmate's sentence will be lengthened by the period of release so that the total length of the sentence as originally imposed by the court will remain unchanged.
(6) A commissioner may withdraw a recommendation for release prior to the issuance of the grant of parole or order for release.
(7) A commissioner may amend a deferral or denial.
(8) If there is a change in circumstances, requiring a denial of the grant or order, subsequent to the issuance of a parole grant or release order but prior to release, the inmate shall be provided written notice of the reasons for rescission and a summary of the evidence supporting the reasons for rescission. The inmate shall be given an opportunity to appear and be heard by an impartial hearing examiner from the division of hearings and appeals in the department of administration. At the hearing the inmate shall be given the right to present witnesses and evidence which are material, relevant, and not unduly repetitious, the right to confront and cross-examine witnesses against the inmate, the right to receive a written statement of the evidence relied upon, and the right to be represented by counsel. After a review of the findings of fact, conclusions of law, and recommendation of the hearing examiner, the chairperson shall make a final decision.
(9) For persons sentenced for offenses committed on or before December 31, 1999, the chairperson may grant or deny parole at any time, if extraordinary circumstances affecting an inmate are documented and verified.
PAC 1.08 Extraordinary health condition release. (1) Eligibility. An inmate serving a bifurcated sentence imposed under s.
973.01, Stats., or, notwithstanding s.
973.014 (1g) (a) or
(2), Stats., serving a life sentence imposed under s.
973.014, Stats., may petition the commission for modification of the inmate's sentence to be released to extended supervision if the inmate meets one of the following eligibility criteria:
(a) The inmate is 65 years of age or older and has served at least 5 years in prison;
(b) The inmate is 60 years of age or older and has served at least 10 years in prison; or
(c) The inmate has an extraordinary health condition.
(2) Right to representation. An inmate who is eligible to petition for modification of the sentence under this section has a right to be represented by counsel in proceedings under this section. An inmate or the department on the inmate's behalf, may apply to the state public defender for determination of indigency and appointment of counsel under s.
977.05 (4) (jm), Stats., before or after the filing of the petition.
(3) Petition. An inmate who files a petition for release under this section shall include the following in support of his or her petition:
(a) Date of birth;
(b) Dates of incarceration for current sentence;
(c) Affidavits of 2 physicians, as defined under s.
448.01 (5), Stats., who practice in this state setting forth the inmate's diagnosis, medical condition, including physical or mental limitations or disabilities, treatment, and prognosis if the inmate is alleging that he or she has an extraordinary health condition. One of the affidavits shall be from the inmate's current attending physician.
(d) Other information as required by the commissioner.
(4) Hearing. (a) Upon receipt of a petition from an inmate, the commission shall review the petition to determine if the inmate is eligible for consideration under sub. (1). If the inmate meets one of the criteria for review, the commission shall schedule the petition for hearing to determine whether the public interest would be served by a modification of the inmate's sentence under s.
302.1135, Stats. The commission may seek additional information regarding the criterion which the inmate asserts as the basis of his or her eligibility for sentence modification under this section, including additional medical information.
(b) The commission shall notify in writing the inmate, the district attorney, any victims of the inmate's crime, the attorney representing the inmate, if applicable, the agent of record, the institution social worker, and the institution record office staff, of the date, time and location of the hearing. The commission will notify victims through the department's office of victim services. The notice of hearing shall be sent to the last-known address of the inmate's victim, postmarked at least 10 days before the date of the hearing.
(c) In advance of the hearing the commission may request from the agent or social worker additional information, including the inmate's release plan. If the inmate meets the criteria for review under ch.
980, Stats., the commission shall request the department to provide information concerning the inmate's status.
(d) The commissioner conducting the hearing shall review the inmate's social service and legal files prior to the hearing.
(e) The commission shall permit the inmate, the attorney representing the inmate, if applicable, the district attorney, and any victims of the inmate's crime to attend the hearing and give a written or oral statement regarding the inmate's petition for sentence modification, specifically addressing the issue of whether the public interest would be served by the modification. The commission may permit attendance at the hearing in person, by telephone, videoconferencing, or other virtual communication means. During the hearing the commission may request additional information.
(f) Information about the address of a victim will not be released or disclosed.
(g) The inmate has the burden of proving by the greater weight of the credible evidence that a modification of the sentence under this section would serve the public interest.
(h) The hearing shall be recorded.
(5) Decision. (a) Upon conclusion of the hearing, the commissioner conducting shall prepare a report for submission to the chairperson. The report shall contain a summary of the information provided at the hearing, including relevant documents, and a recommendation and the justification for the recommendation to approve or deny the petition.
(b) The commission may defer making a decision or hold a decision in abeyance in order to receive additional relevant information, including medical information. If additional information is received, the commission shall reconvene the hearing. Notice will be given to individuals who were present at the initial hearing. The hearing may be held in person, by telephone, videoconferencing or other virtual communication means at the discretion of the commission.
(c) The chairperson shall issue a decision on the petition based on the report and documents submitted by the commissioner.
1. If the petition is approved, the chairperson shall modify the sentence by establishing a new release date and give notice to the department. The department shall release shall release the inmate to extended supervision within 30 days after the date on which the commission modified the sentence. The modification shall reduce the term of confinement in the prison portion of the inmate's sentence and lengthen the term of extended supervision imposed so that the total length of the sentence originally imposed does not change.
2. If the petition is denied, the inmate may not file another petition within one year of the date of the denial.
3. The commission shall provide notice of its decision in writing to the inmate, the district attorney, any victims of the inmate's crime, the attorney representing the inmate, if applicable, the agent of record, the institution social worker, and the institution record office staff
(6)
Appeal. (a) An inmate may seek review of the decision to deny the petition for modification only by common law writ of certiorari.
(b) The state may appeal the decision to grant the petition to circuit court.
PAC 1.09 Presumptive mandatory release review. (1) For an inmate who is subject to PMR and who has been deferred to the mandatory release date of the PMR offense or has waived consideration but is approaching the mandatory release date, a commissioner shall conduct a review two months prior to the mandatory release date.
(2) The institution responsible for scheduling release consideration shall give the inmate at least a 15-day written notice of the interview. When notification is not timely, the 15 day requirement may be waived by the inmate. If the inmate does not waive, consideration will be postponed until notice can be given.
(a) An inmate may waive appearance at the interview, which will result in the commissioner issuing a decision based on available information.
(b) If an inmate is unavailable for the interview, a commissioner may issue a decision based on available information or may re-schedule an interview if time allows.
(3) The inmate shall have access to the documentary information considered by the commissioner, except information determined to be confidential may not be disclosed. An inmate shall have access to records at the correctional institution where the inmate is confined.
(4) During the PMR interview, the inmate shall be afforded the opportunity to provide relevant information for the commissioner's consideration including the opportunity to comment on perceived errors of material fact in the record.
(5) The commissioner's decision shall be based on information available, including file material and any other relevant information.
(a) Presumptive mandatory release may be denied due to refusal by the inmate to participate in counseling or treatment deemed necessary or for protection of the public.
(b) If a commissioner denies PMR release, the commission shall schedule a subsequent review to consider whether circumstances have changed and the inmate meets the criteria for release.
(c) An inmate may be held until his or her maximum discharge date.
(d) If the commissioner does not deny presumptive mandatory release, the inmate shall be released to parole supervision.
(6) The interview shall be recorded. A transcript shall be prepared only upon an order of the Court which has granted a petition for judicial review of the decision.
Agency Contact Person
Kathryn R. Anderson, Chief Legal Counsel
Department of Corrections
3099 East Washington Avenue, P.O. Box 7925
Madison, WI 53707-7925
Phone: (608) 240-5049; FAX (608) 240-3306
Notice of Hearing
Hearings and Appeals
NOTICE IS HEREBY GIVEN that pursuant to s.
301.035 (5), Stats., the Division of Hearings and Appeals will hold a public hearing to consider proposed changes to the Division's rules of practice and procedures in Chapter
HA 2, Wis. Adm. Code, relating to hearings before the Division.
Hearing Information
Date and Time Location
January 26, 2010 5005 University Avenue
at 1:30 p.m. Suite 210
Madison, Wisconsin
The public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the Division of Hearings and Appeals by telephone: 608-266-7668; or by email: DHAmail@ wisconsin.gov.
Submission of Written Comments
Written comments in lieu of public hearing testimony may be submitted which must be received no later than the hearing date and should be addressed to Diane Norman, Assistant Administrator for the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705.
Copies of Proposed Rule and Fiscal Estimate
A copy of the full text of the proposed rule revisions and fiscal estimate may be obtained from:
Diane E. Norman, Assistant Administrator, Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705; Phone: 608-266-7667; email:
DHAmail@wisconsin.gov.
Analysis Prepared by the Division of Hearings and Appeals
Statutes interpreted
Statutory authority
Section
301.035 (5), Stat., gives the division authority to promulgate its rules of procedure. This chapter applies to corrections hearings under ss.
302.11 (7),
973.10,
975.10 (2) and ch.
304, Stats. The procedural rules of general application contained in this chapter also apply to youth aftercare revocation proceedings in any situation not specifically dealt with in ch.
DOC 393.
Explanation of agency authority
If a person on probation supervision violates a condition or rule of probation, s.
973.10(2), Stats. allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking probation. If a person on parole or extended supervision violates a condition or rule of parole or extended supervision, ch.
304, Stats., allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking parole or extended supervision. If a juvenile violates a condition or rule of aftercare status, s.
938.357(5), Stat., allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking the aftercare status of a juvenile. The division's rules govern procedures in these hearings.
Related statute or rule
Plain language analysis
Section by section details of this rule order are outlined as follows:
Section 1: HA 2.03 is amended to allow documents to be issued or filed by electronic means as well as personally or by United States mail, inter-departmental mail or facsimile transmission. This amendment is to acknowledge the current technology for sending documents and reflects the current procedure of the division.
Section 2: HA 2.04 is amended to allow the secretary of the department of corrections, or any person authorized by the secretary to act in his or her stead, to issue a subpoena to require the attendance of witnesses, on behalf of the department of corrections, in any community supervision revocation proceeding. The secretary is authorized by s.
301.045, Stats. to issue subpoenas in corrections matters. This amendment also allows that a department of corrections agent, who is representing the department of corrections at the revocation hearing, to issue subpoenas as has been the regular practice for revocation hearings. Although the division reserves the right to issue subpoenas directly, the agents are in a better position to issue the necessary subpoenas and the division's responsibility should be limited to cases where the division is asked to modify or cancel a subpoena.
Section 3: HA 2.05(1) is amended to delete unnecessary statutory references. This section is also amended to require that reference to any witness statements that will be part of the Department of Correction's evidence shall be included in the notice of the hearing to the offender. This section is also amended to add the word “potential" to the list of evidence and witnesses to reflect that the department may not actually bring this evidence or call these witnesses when the hearing takes place.
Section 4: HA 2.05 (3) is amended to allow the client to attend the hearing by electronic means. The next section explains the authority for this change in more detail. This section is also amended to delete the unnecessary reference to the administrative appeal which is addressed in HA 2.05(8).
Section 5: HA 2.05 (6) is amended to allow a revocation hearing to take place by video conferencing or by telephone. The ability to conduct revocation hearings by videoconference or telephone is the practice of the division at this time. This allows the hearings to be done in a timely manner when the number of hearing requests continue to increase, while the number of administrative law judges does not. Videoconference or telephone hearings satisfy the due process required for revocation hearings. In
Morrissey v. Brewer, the United States Supreme Court held that the minimum requirements of due process in relation to a community supervision revocation hearing must include the opportunity to be heard in
person and the right to confront and cross-examine adverse witnesses.
408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). While
Morrissey specifically provided for the right to “confront and cross-examine adverse witnesses" absent a showing of good cause,
408 U.S. at 489, 92 S.Ct. 2593, the Supreme Court clarified in
Gagnon that it “did not in
Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence,"
411 U.S. at 782 n. 5, 93 S.Ct. 1756. Given that the Supreme Court held that these types of statements can substitute for live testimony in some cases, it is not “objectively unreasonable" to conclude that it would have approved of videoconferencing. While videoconferencing was not available in the early 1970s, and thus was not contemplated by the Supreme Court in
Morrissey, it provides a person on community supervision with the right to observe and respond to the testimony of his accuser. Videoconferencing also provides the right to cross examine at the hearing. Moreover, if the parties agree or if there are no factual issues regarding the violations alleged by the department, the person on community supervision will be afforded the required due process by appearing by telephone.
Section 6: HA 2.05 (7) is amended to delete unnecessary statutory and administrative rule references. HA 2.05 (7) (f) 3. is amended to replace the term “parole" with the more inclusive term “community supervision."
Section 7: HA 2.06 (7) (h) is amended to replace the term “hearing" with the term “close of the record" which allows for situations where the record is held open for a specified period of time after the hearing.
Section 8: HA 2.05 (8) (b) is amended to allow for an administrative appeal to be dismissed if the opposing party does not receive a timely copy of the appeal which is necessary to allow both parties to participate in an administrative appeal.
Section 9: The title to HA 2.06 is amended to add the term reconfinement to reflect that the division now has the authority to order reconfinement in extended supervision cases under section
302.113 (9) and
302.114 (9), Stats.
