STATEMENT OF SCOPE
DEPARTMENT OF CORRECTIONS
This revised statement of scope modifies, Statement of Scope #091-13, which was approved by the Governor on July 19, 2013, and published in Register No. 692, on August 14, 2013.
Relating to: Amending Chapter DOC 328, relating to adult field supervision.
Rule Type: Permanent
1. DETAILED DESCRIPTION OF THE OBJECTIVE OF THE PROPOSED RULE.
The objective of the rule is to review the entire chapter to reflect changes in the law and changes in the operations and practices of the department as they affect adult field supervision, and to achieve the following:
• Review the current rule to bring it into compliance with the Federal standards addressing the federal Prison Rape Elimination Act (PREA) of 2003 (42 U.S.C. chapter 147 (ss. 15601-09) (2004)). • Review the current rule for changes necessitated by 2013 Act 196, Short Term Sanctions. • Review the current rule for changes necessitated by 2015 Act 355, Restitution owed to Victims of Crime.
• Review the current rule to address current methods of electronic supervision.
• Review the current rule for changes necessitated by 2015 Act 55.
2. DESCRIPTION OF EXISTING POLICIES AND NEW POLICIES INCLUDED IN PROPOSED RULE AND AN ANALYSIS OF POLICY ALTERNATIVES.
The current rule chapter provides for the department’s supervision of persons on probation, parole, and extended supervision. The department needs to review the current rule for changes necessitated by the repeal of the sentencing reforms under 2009 Wis. Act 28 by 2011 Wis. Act 38. For example, at minimum, the department has identified that at least s. DOC 328.17 will need to be updated. The current rule does not address the requirements imposed under the new federal standards implementing the Prison Rape Elimination Act (PREA) of 2003 (42 U.S.C. chapter 147 (ss. 15601-09) (2004)). The new standards go into effect on August 20, 2013.
Expand current language regarding Short Term Sanctions to incorporate eligibility of probationers and parolees.
The current rule does not address changes to the collection of restitution and court ordered obligations provided under 2015 Act 355, potentially necessitating changes to DOC 328.08.
The current rule does not reflect the department’s use of monitoring and tracking technology; therefore, the department has identified a potential amendment to DOC 328.04.
2015 Act 55 directed the department to impose a fee on those requesting an Interstate Transfer of supervision, therefore the department has identified potential amendments to section DOC 328.14. 2015 Act 55 amended statutory language regarding supervision fees, therefore the department will review for potential amendments to DOC 328.07.
There is no alternative means to address the need for revisions as discussed above.
3. STATUTORY AUTHORITY.
Section 227.11 (2) (a) – (c): Rule –making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or non-statutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
(b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
Section 301.03 (3): Administer parole, extended supervision, and probation matters, except that the decision to grant or deny parole to inmates shall be made by the parole commission and the decision to revoke probation, extended supervision, or parole in cases in which there is no waiver of the right to a hearing shall be made by the division of hearings and appeals in the department of administration. The secretary may grant special action parole releases under s. 304.02. The department shall promulgate rules establishing a drug testing program for probationers, parolees and persons placed on extended supervision. The rules shall provide for assessment of fees upon probationers, parolees and person placed on extended supervision to partially offset the costs of the program. Section 301.03 (3m): Monitor compliance with deferred prosecution agreements under s. 971.39. Section 301.03 (7m): Supervise criminal defendants accepted into the custody of the department under s. 969.02 (3) (a) or 969.03 (1) (a). The department shall charge the county that is prosecuting the defendant a fee for providing this supervision. The department shall set the fee by rule. Section 302.11 (8): The department may promulgate rules under ch. 227 establishing guidelines and criteria for the exercise of discretion under this section [mandatory release]. Section 302.113 (10): The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section [release to extended supervision for felony offenders not serving life sentences]. Section 302.114 (10): The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section [petition for release and release to extended supervision for felony offenders serving life sentences].