NOTICE IS HEREBY GIVEN that pursuant to section
227.11 (2), Stats., the Wisconsin Earned Release Review Commission will hold public hearings to consider emergency rules and proposed permanent rules revising Chapter
PAC 1, relating to the release of inmates from state prison through parole or other procedures established under
2009 Wis. Act 28.
Hearing information
Date and Time Location
February 23, 2010 Conference Room 116
10:00 a.m. State Office Building
819 North 6th Street
Milwaukee, Wisconsin
February 23, 2010 Yahara Conference Rm., 1st Floor
2:30 p.m. Department of Administration
101 East Wilson Street
Madison, Wisconsin
The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact Kathryn Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, email kathryn.anderson@ wisconsin.gov, telephone (608) 240-5049 by February 15, 2010.
Appearances at the Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Friday, March 5, 2010. Written comments should be addressed to: Kathryn R. Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, or by email kathryn.anderson@ wisconsin.gov.
Analysis Prepared by Wisconsin Earned Release Review Commission
Statutes interpreted
Section
302.1135, Stats, as created by
2009 WI Act 28, ss.
2729j – 2738 and 2739d – 2739j, and ch.
304, Stats., and s.
304.06 (1) (bg) 1.,
2.,
3., and
4., as created by
2009 WI Act 28, s.
2751
Statutory authority
Explanation of agency authority
The Earned Release Review Commission (formerly the Parole Commission) has the authority to promulgate rules which govern its procedures for considering inmate petitions for release. This rule updates the current rule (PAC 1) to reflect changes in procedures, practice, and the law.
Under s.
302.1135, Stats, as created by
2009 WI Act 28, ss.
2729j – 2738 and 2739d – 2739j, the Earned Release Review Commission (formerly the Parole Commission) has the authority to consider inmate petitions for release due to age or extraordinary health condition. This rule sets forth the procedure which the ERRC will follow in reviewing these petitions.
Under s.
304.06 (1) (bg) 1. and
2., as created by
2009 WI Act 28, s.
2751, the Earned Release Review Commission has the authority to consider inmate petitions requesting release to extended supervision after having served the term of confinement of his or her bifurcated sentence less positive adjustment time he or she has earned. This rule sets forth the procedure which the ERRC will follow in reviewing these petitions.
Under s.
304.06 (1) (bg) 3. and
4., as created by
2009 WI Act 28, s.
2751, the Earned Release Review Commission has the authority to consider inmate petitions requesting release to extended supervision after having served either 75% or 85% of his or her term of confinement, depending on the offense for which the inmate was sentenced. This rule sets forth the procedure which the ERRC will follow in reviewing these petitions.
Related statute or rule
Plain language analysis
The emergency rule and the proposed permanent rule:
1.
Revises s.
PAC 1.02, Purpose, to more clearly state the purpose of the rule chapter is to set forth the procedures under which the Earned Release Review Commission (formerly Parole Commission) operates.
2.
Updated terminology and phrasing throughout the rule to reflect the responsibility of the commission for parole and other release mechanisms under
2009 Act 28.
3. Added definitions for the following terms: denial, extended supervision, extraordinary health condition, file review, informational deferral, no action, and presumptive mandatory release.
4.
Moved the definition of “direct input," which had previously been in s.
PAC 1.06 (9) (c) to the definition section.
5.
Modified the term “member of the family" to “family member" and included domestic partners under ch.
770, Stats., in the definition of covered persons.
6.
Modified definitions to include reference to
2009 Act 29 release mechanisms. Specifically, “parole grant" became “parole grant or release order," and “parole eligible" became “parole or release eligible," and “parole consideration" became “release consideration."
7.
Clarified the purpose of release consideration in s.
PAC 1.04.
8.
Modified s.
PAC 1.05 to address the commission's authority to consider parole eligibility or release eligibility for inmates depending on the date on which the offense for which they were convicted was committed, including those eligible for early release to extended supervision.
9.
Modified s.
PAC 1.06 to more clearly state the process by which the commission will consider an inmate for release. Also, included are the additional criteria noted in
2009 Act 28, specifically the inmate has not refused or neglected to perform required or assigned duties. Clarified the criteria used to evaluate participation in required or recommended programming. Finally, deleted the listing of specific offenses which require giving a victim the opportunity for direct input. The commission gives victims who are registered with the Office of Victims Services an opportunity for direct input in all cases.
10.
Modified s.
PAC 1.07 to include the process for release recommendations for inmates sentenced for offenses committed on or after December 31, 1999. In addition, clarified the authority of a commissioner to amend a deferral or denial.
11.
Added to s.
PAC 1.07 the authority and the procedures of the commission to modify an inmate's bifurcated sentence in accordance with s.
304.06 (1) (bk) 1., Stats.
12.
Created s.
PAC 1.08 to establish procedures for the commission to review inmate petitions for release due to extraordinary health condition or age.
13.
Created s.
PAC 1.09 to establish procedures for the commission to review inmates who are subject to presumptive mandatory release.
Comparison with federal regulations
There are no federal regulations which address the procedures for parole or release consideration in Wisconsin.
Comparison of similar rules in adjacent states
Illinois:
The rules of the Illinois Prisoner Review Board (IPRB) are found in 20 Ill. Adm. Code ss. 1610.10 - 1610.180. Like the ERRC the IPRB notifies the inmate in advance of the parole consideration hearing that the hearing has been scheduled and gives inmates access to the evidence to be considered by the IPRB prior to the hearing. Like the ERRC the purpose of the IPRB hearings is to gather information to determine whether release should occur. The IPRB rules specifically state that the hearings are not adversarial. However, an IL inmate has an attorney present at his or her own expense. The ERRC does not permit an attorney to be present, except for hearings on petitions for release due to extraordinary health condition or age. The IPRB rules set forth a more detailed list of criteria to be considered for release. However, the ERRC listing covers all of the same issues for consideration. The IPRB requires a decision to be made within 7 days of the hearing. There is no comparable timeframe for the ERRC. The IPRB rules provide for a hearing in cases where the IPRB is considering rescinding a grant of parole. The hearing process appears to be comparable to the process used for an initial hearing. In the current rule the hearing on the decision to rescind is a full hearing before an administrative law judge from the Division of Hearings and Appeals, including the opportunity to confront and cross examine witnesses. In the proposed rule the ERRC has removed the opportunity for a hearing on the issue of rescission. Unlike the ERRC the IPRB provides the opportunity for rehearing.
Iowa:
The rules of the Board of Parole are found in IA 205 chapters 1-8, most specifically IA-ADC 205-8.1, et seq. The agency responsible for making parole and work release determinations is the Iowa Parole Board (Board). The Board is responsible for assessing the risk of each inmate committed to the custody of the IA DOC. Inmates are not eligible for parole if they are serving a mandatory minimum sentence under IC s.
902.11. The Board reviews an inmate annually for parole consideration. If an interview is to be conducted, the Board gives the inmate notice. Factors which are to be considered in parole decisions are: previous criminal record, nature and circumstances of the offense, recidivism record, convictions or behavior indicating a propensity for violence, participation in institutional programs, including academic and vocational training, psychiatric and psychological evaluations, length of time served, evidence of serious or habitual institutional misconduct, success or failure while on probation, prior parole or work release history, prior refusal to accept parole or work release, history of drug or alcohol use, a parole plan formulated by the inmate, general attitude and behavior while incarcerated, and risk assessment. The Board may request that a psychiatric or psychological evaluation be done on an inmate to assist in its determination. Information considered by the Board will normally be made available to the inmate for review. Like the ERRC the Board can conduct an interview and/or a case review when considering release. IA parole proceedings are open to the public, except as “otherwise necessary or proper." If a person from the public attends, that person may not participate in the proceedings. The number of persons other than the inmate and institution staff who may attend may be limited by the Board. The Board has extensive rules on the conduct of the media during parole proceedings. The Board rules incorporate actual risk assessment scores into its evaluation of whether an inmate is suitable for parole. Depending on the score and an assessment of whether the inmate can be released without detriment to the community or to the inmate, the Board may grant the parole if at least 3 members agree for risk assessment scores of 1 through 6, if at least 4 members agree for scores of 7 or 8, and if the Board is unanimous for a score of 9. The Board may grant an inmate parole at any time following successful completion of work release. Successful completion is a defined concept.
Michigan:
The authority for the Michigan Parole Board (Board) is found in MCLA 791.231a, et seq., and MI ADC R. 791.7715, et seq. Like Wisconsin, the Board may parole an inmate once the inmate has served a minimum term imposed by the sentencing court less allowances for good time. Michigan prohibits release before the inmate has served the minimum term, despite the earning of good time for certain enumerated crimes, including those sentenced to an indeterminate sentence, controlled or counterfeit substance offenses, and habitual offender. Factors to be considered in making a parole decision include: the offense for which the inmate is incarcerated, the inmate's institutional conduct, program performance, prior criminal record, and other relevant factors; also, the inmate's statistical risk screening and age. The Board may grant a parole without interviewing the inmate if after evaluating the inmate the Board determines that the inmate has a high probability of being paroled and the Board intends to parole the inmate. The Board is required to give the inmate 1 month notice of the parole interview, including date and issues and concerns to be discussed during the interview. An inmate may waive the right to an interview before one Board member. The inmate may have a representative of his choice but the representative may not be another inmate or an attorney. There is no right to the appointment of public counsel. Institution staff prepares a parole eligibility report which includes misconduct reports, institution work and education record, health and mental health examination results, and cooperation with the payment of financial obligations. If the Board denies parole, the inmate shall be given a written explanation for the denial and, if appropriate, specific recommendations for corrective action. The Board may amend or rescind a parole decision for cause before the inmate is released on parole. However, at least one member of the Board must conduct an interview with the inmate for the purpose of considering and acting upon information received after the original parole release decision. A parole order may be amended but is not effective until the inmate is given written notice of the amendment. The Board sets the conditions of parole and the amount of the supervision fees to be collected during the period of supervision. In the administrative rules, the Board may consider the inmate's criminal behavior, institutional adjustment, readiness for release, the inmate's personal history and growth, the inmate's physical and mental health. If an inmate is being considered for parole, the inmate shall receive a psychological or psychiatric evaluation before release if the inmate has been hospitalized for mental illness in the last 2 years, has a history of predatory or assaultive sexual offenses, or has serious or persistent history of assaultiveness within the institution. Inmates are evaluated for a parole guideline score which is based on a combination of the length of the time the inmate has been incarcerated for the offense and other listed factors.
Minnesota:
The State of Minnesota does not have a separate Parole Board. The entity which grants paroles and work release is called the executive officer of hearings and release, who has been delegated this authority by the commissioner of corrections. The relevant provisions can be found in MN ADC chapter 2940 [MN ADC 2940.0100, et seq.]. Prior to a reentry review, an inmate is given notice of the date and time of the review. The notice must include the purpose of the review, the material to be covered and the right to review documents which will be considered as part of the review. The inmate may submit written documentation and appear and speak on his or her own behalf during the hearing. Institution discipline may cause an inmate to lose good time or extend a term of incarceration. For inmates with life sentences, there is an advisory panel which is comprised of the deputy commissioner for institutions, the deputy commission for community services, the superintendent or warden of the inmate's current residence, and the executive officer of the hearings and release unit and whose duties is to review each inmate 3 years before the inmate's parole or supervised release eligibility date in order to establish a projected release date or future review date. The panel shall assist the commissioner of corrections in considering the inmate's case history, including the facts and circumstances of the offense for which the life sentence is being served, past criminal history, institutional adjustment, program team reports, psychological and psychiatric reports where pertinent, and the results of community investigations.
Summary of the factual data and analytical methodologies
The Earned Release Review Commission 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 §
227.114, Stats.
Analysis and supporting documents used to determine effect on small businesses
Not applicable.
Small Business Impact
The Earned Release Review Commission 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 §
227.114, Stats.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
This rule repeals PAC 1 relating to procedures for the release of inmates from Wisconsin prison and recreates the chapter to incorporate current practice and changes required by
2009 Wisconsin Act 28.
The Earned Release Review Commission [ERRC — formerly the Parole Commission] has authority to promulgate rules governing its procedures for considering inmate petitions for release. This rule incorporates current procedures, changes in practice and law changes [
2009 Wisconsin Act 28] including consideration of inmate petitions for release due to age or to extraordinary health considerations, early release of certain truth-in-sentencing offenders [TIS] and inmates who have served 75% or 85% of the term of confinement. This rule sets forth the procedures by which ERRC will operate.
Extraordinary Health or Aged
Prior to the passage of
2009 Act 28, inmates sentenced under truth-in-sentencing [TIS], and who had a Class C through Class I felony, could petition the sentencing court for early release if the inmate had a terminal health condition. Instead of petitioning the sentencing court, inmates will now petition ERRC for early release consideration if the inmate claims to have an extraordinary health condition as certified by two physicians. This procedure also applies to inmates who are 60 years old or older and have served 10 years of the sentence or 65 years old or older and served 5 years of the sentence.
The Department can not estimate the number of inmates who will petition ERRC for early release pertaining to extraordinary health circumstances or age, since many more inmates than those who are eligible may apply.
Positive Adjustment Time
Effective October 1, 2009, ERRC will also review all TIS petitions, rather than the courts, and expand reviews to include Class A and Class B felonies, as well as consideration of positive adjustment time eligibility. The Department can not estimate how many of the eligible inmates will be approved to be released early.
State fiscal effect
Increase costs — may be possible to absorb within agency's budget.
Local government fiscal effect
None.
Fund sources affected
GPR.
Affected Ch.
20 appropriations
Text of Emergency Rule and Proposed Permanent Rule
SECTION 1. Chapter PAC 1 is repealed and recreated to read:
Chapter PAC 1
GENERAL PROVISIONS
PAC 1.02 Purpose. This chapter establishes the process by which the commission reviews requests for parole or release under Ch.
302 and
304, Stats.
PAC 1.03 Definitions. In this chapter:
(1) "Chairperson" means the chairperson of the commission. "Chairperson" includes a commissioner who is designated by the chairperson to perform a specific assignment or duty.
(2) “Commission" means the earned release review commission, including the chairperson and commissioners.
(3) “Commissioner" means a member of the earned release review commission, including the chairperson.
(4) “Deferral" means an action by a commissioner, which follows release consideration and which denies release for a specified period of time.
(5) “Denial" means an action by a commissioner which denies early release to extended supervision or release prior to mandatory release.
(6) “Department" means the department of corrections.
(7) “Direct input" means the opportunity for the victim to communicate with the commission regarding the offender's release.
(8) “Extended supervision" means the portion of a bifurcated sentence imposed under s.
973.01, Stats., wherein the individual is released by the department to supervision in the community.
(9) “Extraordinary health condition" means a condition afflicting a person such as advanced age, infirmity or disability of the person or a need for medical treatment or services not available within a correctional institution.
(10) “Family member" means spouse, domestic partner under ch.
770, Stats., child, sibling, parent or legal guardian.
(11) “File review" means release consideration that takes place outside the presence of the inmate.
(12) “Informational deferral" means an action by a commissioner to hold release consideration in abeyance.
(13) “Mandatory release" or “MR" means the release of an inmate by the department to community supervision as provided under s.
302.11 (1), Stats.
(14) “No action" means release consideration that has been referred to the chairperson or the full commission.
