Rule-Making Notices
Notice of Hearing
Corrections
NOTICE IS HEREBY GIVEN that pursuant to section
227.11(2), Stats.,
the Department of Corrections will hold public hearings to consider a proposed permanent rule revising Chapter
DOC 331, relating to the revocation of probation, parole, or extended supervision.
Hearing Information
The Department of Corrections will hold public hearings at the times and places shown below:
Date and Time:
|
Location:
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November 30, 2010
Tuesday
10:00am
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State Office Building
Conference Room 116
819 North 6th Street
Milwaukee, WI 53203
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November 30, 2010
Tuesday
2:30pm
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Dept. of Administration
St. Croix Conference Room 1st floor
101 East Wilson Street
Madison, WI 53703
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It should be noted that the Department of Corrections will also be holding public hearings on the same date and at the same times and places to consider proposed permanent rule DOC 328, relating to offender field supervision. There is a separate Notice of Hearing being published for DOC 328.
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
November 23, 2010.
Submittal 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,
December 10, 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 the Department of Corrections
Statute(s) interpreted
Statutory authority
Explanation of statutory authority
The Department of Corrections is responsible for the supervision of offenders who are on probation, parole, or extended supervision. As part of its responsibility of supervising offenders, the department may initiate revocation procedures for those offenders who violate the rules or conditions of community supervision. This chapter addresses revocation procedures.
Related statute(s) or rule(s)
Chapter
328, community supervision of offenders
Plain language analysis
1.
Reorganizes and renumbers the chapter.
2. Updates terminology, including references to extended supervision.
3. Creates definitions for the terms: magistrate and reviewing authority.
4. Clarifies the investigatory process the department follows when an offender is believed to have violated the conditions or rules of supervision.
5. Creates a section requiring notice to an offender for whom revocation of community supervision is being recommended following investigation into alleged violations of the conditions or rules of supervision.
6. Clarifies the provision regarding the process for preliminary hearing.
7. Creates a provision which states that the final revocation hearing is conducted by the division of hearings and appeal in the department of administration.
8. Creates a provision which clarifies the process to be followed when an offender waives his or her right to a revocation hearing.
9. Clarifies the process for termination of revocation procedures.
10. Clarifies the impact of concurrent criminal prosecution on revocation procedures.
11.
Clarifies the special revocation procedures for an offender committed under s.
961.47, Stats.
12. Clarifies the provision addressing harmless error.
13. Clarifies the procedure to be followed for determining good time forfeiture, reincarceration or reconfinement time.
14. Incorporates the provision addressing reincarceration into the provision which addresses the procedure for determining good time forfeiture and reconfinement time.
15. Moves the provision which addresses tolled time to chapter DOC 328.
16. Moves the provision which addresses reinstatement to chapter DOC 328.
17. Repeals chapter DOC 331 appendix.
Comparison with federal regulations
There are no federal regulations which address the activities proposed to be regulated by the proposed rule.
Comparison with rules in surrounding states
Illinois
Definitions: The Illinois Administrative Code does not include specific definitions for parole, probation, or extended supervision revocation. However, the code uses the terms “probation" and “parole."
Violation Determination: Unlike Wisconsin's parole revocation determination procedure, 20 Ill. Adm. Code 1610.140 does not include a pre-revocation investigation and discussion procedure as outlined in DOC 331.05. Illinois also lacks the specific alternatives to revocation enumerated in DOC 331.03(2), including a review of the rules of supervision, formal and informal counseling sessions, formal and informal warnings, or other alternatives to revocation. In contrast to Wisconsin, if the panel determines that a parole violation has occurred, it may either order that parole be continued with or without modifying or enlarging the conditions of the parole agreement or parole the offender to a halfway house.
Hearing Procedure: Similar to the preliminary hearing procedure in Wisconsin, pursuant to 20 Ill. Adm. Code 1610.140(a), a parolee may appear at the hearing and speak in his own behalf and may bring letters, documents, or individuals who can give relevant information to the hearing officer. In Illinois, however, on request of the parolee, persons who have given adverse information on which parole revocation is to be based shall be made available for questioning in his presence. If the hearing officer determines that the informant would be subjected to risk or harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination. The Illinois Code also states that he hearing officer shall not be bound by strict rules of evidence
20 Ill. Adm. Code 1610.140(c) dictates that an offender has the right to counsel at the preliminary hearing and revocation hearing. In contrast to Illinois, the right to counsel at such hearings in Wisconsin is not absolute. As stated in DOC 331.05(7) the magistrate presiding over the hearing may postpone the hearing to permit representation by an attorney if the offender, after being informed of his or her right to representation, requests an attorney. The request must be based on a timely and plausible claim that the offender did not commit the alleged violation, and the magistrate must conclude 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.
20 Ill. Adm. Code 1610.140(f) includes a uniquely detailed explanation of the subpoena process for revocation hearings that DOC 331 lacks. Under this section, the Prisoner Review Board or parolee may request by subpoena the attendance and testimony of witnesses and the production of documentary evidence relating to any matter under investigation or hearing. The attendance of witnesses and the production of documentary evidence may be required from any place in the state to a hearing location within 150 miles of the place where the violation is alleged to have occurred. Witnesses summoned by subpoena are required to be paid the same fees and mileage that are paid witnesses in the circuit courts of the state. Failure to obey such an order may be punished by that court as a contempt of court.
Under DOC 331.08 a supervisor may recommend to the regional chief that revocation proceedings be terminated at any time before the administrative law judge's decision is issued. The regional chief shall determine if there is sufficient basis for terminating the revocation proceedings.
DOC 331.09 makes clear that revocation actions may proceed regardless of any concurrent prosecution of the offender for the conduct underlying the alleged violation. An acquittal in a criminal proceeding for an offender's conduct underlying an alleged violation shall not preclude revocation of that offender's supervision for that same or similar conduct.
Sentence Calculation: Unlike in Wisconsin, Illinois includes a specific provision that offenders adjudicated under the code in effect prior to February 1, 1978 are recommitted for that portion of the imposed maximum term of imprisonment or confinement which had not been served at the time of parole, and, in addition, the parole term less the time elapsed between the parole of the person and the commission of the violation for which parole was revoked, less "good time." Offenders are given credit against the term of recommitment for time spent in custody since parole began which has not been credited against another sentence or period of confinement. If an offender violates mandatory supervised release, he will be reconfined for the unserved portion of the mandatory supervised release period, plus any good time (not to exceed one year) revoked on account of the violation.
In Wisconsin, reincarceration hearings apply to offenders who, between June 1, 1984, and December 30, 1999 committed the crime for which they were sentenced to a period of incarceration and to any other offender who chose to have
1983 Wis. Act 528 apply, except offenders sentenced under s.
973.01. Reconfinement hearings apply to offenders who, on or after December 31, 1999, committed the crime for which they received a bifurcated sentence under s.
973.01. Moreover, DOC 331 states specifically that the offender is entitled to a hearing under sub. 1 (a) (b) or (c) to determine the amount of good time to be forfeited, or the amount of reincarceration or reconfinement time to be served.
Finally, DOC 331.05(9) includes detailed provisions regarding the requirement of and procedure for detention pending a final hearing, while the Illinois Code does not.
Iowa
Definitions: Iowa's Administrative Code does not include specific definitions in connection with parole, probation, or extended supervision revocation. Many of the requirements and procedures in connection with parole violations are enumerated in the Iowa Annotated Statutes, Chapter
908.
Violation Determination: Pursuant to 201-45.4(1), the district department may at any time report violations of the conditions of parole to the board of parole. Within 10 calendar days of receipt of knowledge of the commission of certain violations, the supervising officer shall make written report to the board of parole of the violations. The report shall include a recommendation or revoke parole or continue the person on parole. When the subject of the report is the commission of a new offense, the supervising officer may withhold recommendation until disposition of the charges in district court. The violations include violation of any federal or state law (simple misdemeanors need not be reported), any violent or assaultive conduct, possession, control, or use of any firearms, imitation firearm, explosives, or weapons as defined in federal or state statutes, possession, continual or problem use, transportation or distribution of any narcotic or other controlled substance, or repeated excessive use of alcohol by the parolee, a parolee whose whereabouts are unknown and has been unavailable for contact for 30 days, or reliable information has been received indicating that the parolee is taking flight or absconding, any behavior indicating the parolee may be suffering from a mental disorder which impairs the parolee's ability to function in the community or which makes the parolee a danger to self or others when the mental disorder cannot be adequately treated while in the community, or other conduct or pattern of conduct in violation of the conditions of parole deemed sufficiently serious by the parole officer. The parole officer or supervisor is authorized to dispose of any other parolee misconduct not required to be reported above.
The Iowa Annotated Statutes, Chapter 908.1 states that a parole officer who has probable cause to believe that a person released on parole has violated the parole plan or the conditions of parole may arrest such person, or the parole officer may make a complaint before a magistrate regarding the violation. If it appears from the complaint or from affidavits filed with it that there is probable cause to believe that the offender has violated the parole plan or the terms of parole, the magistrate shall issue a warrant for the arrest of such person. Moreover, if a parole officer has newly discovered evidence which indicates that a person released on parole should not have been granted parole originally, the officer must present the evidence to the board of parole, and the board may issue an order to rescind the parole.
Iowa law includes the specific provision that if the court revokes the probation of a defendant who received a deferred judgment and imposes a fine, the court shall reduce the amount of the fine by an amount equal to the amount of the civil penalty previously assessed against the defendant pursuant to section 907.14. However, the court shall assess any required surcharge, court cost, or fee upon the total amount of the fine prior to reduction pursuant to this subsection.
Hearing Procedure: Section 908.3 of the Iowa Compiled Statutes makes clear that parole revocation hearings must be held in any county in the same judicial district in which the alleged parole violator had the initial appearance or in the county from which the warrant for the arrest of the alleged parole violator was issued. Moreover, the code specifically requires that such a hearing be conducted by an administrative parole judge who is an attorney. DOC 331 does not include these specific requirements.
Parole violators in Iowa have the right to counsel at parole revocation hearings, pursuant to Section 908.2. However, similar to Wisconsin, the following circumstances must apply: 1) the alleged parole violator lacks skill or education and would have difficulty presenting the alleged parole violator's case, particularly if the proceeding would require the cross-examination of witnesses or would require the submission or examination of complex documentary evidence 2) the alleged parole violator has a colorable claim the alleged violation did not occur, or there are substantial reasons that justify or mitigate the violation and make any revocation inappropriate under the circumstances.
Under Iowa law, a contract attorney with the state public defender may be appointed to represent the alleged parole violator. If a contract attorney is unavailable, an attorney who has agreed to provide these services may be appointed. The appointed attorney shall apply to the state public defender for payment in the manner prescribed by the state public defender. DOC 331 does not include this specific provision regarding appointed counsel.
As in Wisconsin, the Iowa Code allows offenders the right to appeal the revocation of their parole. On appeal or review of the administrative parole judge's decision, the board panel has all the power which it would have in initially making the revocation hearing decision.
Sentence Calculation: In Iowa, if an offender violates his parole by committing a felony, his term of imprisonment as a parole violator is the same as that provided in cases of revocation of parole for violation of the conditions of parole. The new sentence shall be served consecutively with the term imposed for the parole violation, unless a concurrent term of imprisonment is ordered by the court. Similarly, DOC 331.09 provides that any parole revocation actions may proceed regardless of any concurrent prosecution of the offender for the conduct underlying the alleged violation. An acquittal in a criminal proceeding for an offender's conduct underlying an alleged violation does not preclude revocation of that offender's supervision for that same or similar conduct.
In Iowa, if a violation of parole is established, the administrative parole judge has discretion to continue the parole with or without any modification of the conditions of parole. The judge may revoke the parole and require the parolee to serve the sentence originally imposed, or may revoke the parole and reinstate the parolee's work release status.
