WISCONSIN DEPARTMENT OF CORRECTIONS
PROPOSED RULEMAKING ORDER
The statement of scope for this rule was approved by the Governor on October 23, 2017, published as Scope Statement No. SS 117-17 in Register No. 742B on October 30, 2017, and approved by Secretary Jon Litscher on December 8, 2017.
The Wisconsin Department of Corrections proposes an order to:
repeal DOC 328.10 (4), DOC 328.17 (4);
amend DOC 328.04 (2) (i), DOC 328.17 (2), DOC 328.27 (7);
repeal and recreate DOC 328.07, DOC 328.11, DOC 328.17 (1); and
create DOC 328.14 (3) (am), DOC 328.17 (1m), and DOC 328.27 (7) (d).
1. Statutes interpreted: ss. 304.074, 304.16 (1) (b) 1, 20.410 (1) (gn), 301.48 (2g), 301.48 (2) (d), 301.03 (3), 301.03 (3) (a), 973.013 (2), 302.11 (6), Stats., and 28 CFR Part 115. 2. Statutory authority to promulgate the rule: ss. 227.11 (2) (a) – (c), 301.03 (3), 301.03 (3m), 301.03 (7m), 302.11 (8), 302.113 (10), 302.114 (10), 302.19, 302.31 (5) and (6), 939.615 (5) (a), 961.47 (1), and 973.01 (2) (intro), Stats. 3. Explanation of agency authority: The Department of Corrections has responsibilities imposed by statute for “administer[ing] parole, extended supervision, and probations matters,” s. 303.03 (3), Stats.
5. Plain language analysis: This rule:
a. Amends par. DOC 328.04 (2) (i), to include explicit language regarding the ability to utilize electronic methods of supervision, such as Global Positions System bracelets, at the department’s discretion. The use of electronic methods of supervision is not otherwise mentioned in the department’s administrative rules. The rule is not specific to methods or devices due to consistently changing technologies.
b. Repeals and recreates s. DOC 328.07, impacting supervision fees charged to offenders due to statutory changes resulting from 2015 Act 55. Previous statute and code were written with substantial specificity in relation to the amounts charged to offenders, exemptions, and fee increases tied to the Consumer Price Index. 2015 Act 55 amended WI statute s.304.074 (2) allowing for flexibility in fee structure and directing DOC to make determinations of supervision fees by Department policy, which is reflected in this recreation.
c. Repeals sub. DOC 328.10 (4) because the statutory authority for the provisions related to Emergency Loans no longer exists.
d. Repeals and recreates s. DOC 328.11, Purchase of Goods and Services, to include Federal Prison Rape Elimination Act (PREA) language into DOC Administrative Code. In the department’s Division of Community Corrections the PREA law applies to community-based residential facilities, therefore the Code recreation requires the department contracted vendors to comply with this Federal law. e. Creates par. DOC 328.14 (3) (am) due to WI 2015 Act 55 which allowed the department to apply a fee to offenders applying to the Federal Interstate Compact for Adult Supervision. As the statute 20.410 (1)(gn) provided the department’s ability to apply a fee for offender out of state transfer requests, DOC 328.14 (3) (am) is put forth to allow in DOC Code. f. Repeals and recreates sub. DOC 328.17 (1) as the result of 2011 Act 38. The department no longer has the authority to grant an early discharge to those on probation supervision. If an offender meets statutory criteria and the department believes an early discharge may be appropriate, 2011 Act 38 places the early discharge authority with the Circuit Court. The criteria listed in DOC 328.17 (1) (a-e) is found in statute 973.09(3)(d). The present s. DOC 328.17 includes provisions regarding the early discharge of offenders on extended supervision, authority which 2011 Act 38 eliminated. Accordingly, those provisions in this section are repealed.
g. Creates sub. DOC 328.17 (1m) specifying the early discharge criteria for parolees which is found in statute 302.11 (6).
h. Amends sub. DOC 328.17 (2) to comport with sub. 973.013 (2), Stats., which provides the Governor’s authority to discharge parolees.
i. Repeals sub. DOC 328.17 (4), which currently pertains to the early discharge abilities by the department under extraordinary circumstances because this provision is no longer supported by statutory authority.
j. Amends sub. DOC 328.27 (7), due to the statutory change necessitated by 2013 Act 196. The previous statute s. 302.27 allowed for the department to implement jail sanctions on Extended Supervision offenders, which 2013 Act 196 expanded to include those under probation and parole supervision; therefore, the amendment alters the name from Extended Supervision Sanctions to Short Term Sanctions, noting the applicability to probationers and parolees. k. Creates par. DOC 328.27 (7) (d), because WI 2013 Act 196 directs the department to adopt an evidence-based response to violations.
6. Summary of, and comparison with, existing or proposed federal regulations that are intended to address the activities to be regulated by the proposed rule:
a. The Federal Prison Rape Elimination Act (PREA) applies to community-based residential facilities, the proposed code updates include language to explicitly require the contracted vendors to comply with this Federal Law. (Code of Federal Regulations: 28 CFR Part 115)
b. GPS Monitoring: Under 18 U.S.C. § 3563(b) (19), the court may provide that the defendant “remain at his place of residence during non-working hours and, if the court finds it appropriate, that compliance with this condition be monitored by telephonic or electronic signaling devices, except that a condition under this paragraph may be imposed only as an alternative to incarceration.” Under 18 U.S.C. § 3563(b) (6), the court may provide that the defendant “refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons.” GPS monitoring is used at the federal level, just as in Wisconsin’s state system.
c. Supervision Fees: It does not appear that federal probationer or parolees are charged a supervision fee. This is in stark contrast to Wisconsin law. Restitution and court fees exist at the federal level, but not supervision fees.
d. Interstate Compact Fee: The Federal Interstate Compact for Adult Supervision is an agreement between individual states, including Wisconsin. This type of fee would not be applicable at the federal level.
e. Early Discharge: The U.S. Parole Commission can determine if a parolee qualifies for early discharge after serving a determined about of his/her sentence. Under Rule 32.1(c) (2), the court may modify the conditions of probation or supervised release without a hearing if the defendant waives the hearing; or the modification is “favorable to the [defendant]” and does not extend the term of probation or of supervised release, and the U.S. Attorney has received notice of the modification sought and has had a reasonable opportunity to object and has not done so. Although the court must satisfy these procedural requirements and ensure that any modified condition meets statutory sentencing objectives (see: Chapter 1, Section II (A) (3)), no specified quantum of evidentiary proof is required to justify the modification, and there is no requirement that the modification of conditions be predicated upon a violation of an existing condition or a change in the defendant’s circumstances. In Wisconsin, the court can provide for early discharge of a probationer. The State Department of Corrections can provide for early discharge of a parolee, when certain conditions are met.
f. Evidence-Based Response to Violations: The Federal Probation and Supervised Release conditions contain “Principles of Supervision.” These principles include risk-based supervision, being responsive to changes, and implementing a proportional response to the individual’s needs and circumstances. Evidence-based correctional principles are integrated, including risk, need, and responsivity. These principles are consistent with the principles upon which Wisconsin’s law instructs the Department of Corrections to base an evidence-based response to violations. In general, it appears that the evidence-based response to violations being implemented by Wisconsin mirrors what is happening with probationers at the Federal level.
7. Comparison with similar rules in adjacent states:
Definitions: Chapter 20 of the Illinois Administrative Code uses the terms “probation,” “parole,” and “supervision” while Wisconsin’s ch. DOC 328 employs the broader term “community supervision” to encompass “the control and management of offenders on probation, parole, extended supervision or other statuses as authorized by court order or statute.” In Illinois “supervision” means the release of a person upon set conditions after an adjudication of guilt but prior to entry of conviction under the supervision of a county probation officer. In Wisconsin offenders under community supervision are supervised by Department of Corrections’ Probation and Parole Agents. Supervision Procedures: Chapter DOC 328 codifies rules pertaining to the control and management of offenders under community supervision. Rules related to standard rules of supervision offenders must abide by, offender fees, housing of offenders in the community, enforcement options and related matters, and eligibility for discharge from supervision are contained within ch. DOC 328. Chapter 20 part 1610 of Illinois Administrative Code addresses offender rules of supervision, as well as eligibility for discharge from supervision. Part 800 addresses Transitional Housing Licensure for sex offenders on supervision. Illinois standard rules of supervision are similar to those specified under ch. DOC 328, including a requirement to comply with instructions provided by the agent, obey all laws and ordinances, obtain permission prior to leaving the state, notify the agent prior to any change in residence or employment, submit written reports to the agent, report all arrests to the agent, and not own, possess, use, sell or have under his control any firearms or dangerous weapons (20 ILADC 1610.120). DOC 328.04 (2) (b) specifies standard rules of supervision including those listed above as well as additional rules including “avoid all conduct which is not in the best interest of the public welfare or the offender’s rehabilitation,” and “submit to searches ordered by the agent under s. DOC 328.22.”
Unlike the Illinois Administrative Code, Wisconsin provides rules concerning supervision fees, identifying agent responsibilities, department responsibilities, provisions for refunds, and indicates the fee shall be reasonable as determined by the department established pursuant to department policy.
Illinois rules include a licensure process for Transitional Housing for Sex Offenders on Parole, Probation, or Supervision (20 ILADC 800). "Transitional Housing" means a Department licensed community based facility where a limited number of sex offenders on parole, probation, or supervision are temporarily placed and reside for monitoring, counseling, and treatment. This section applies to the Department of Corrections and any person, group of persons, corporations, or entity that intends to develop, establish, maintain, or operate Transitional Housing for sex offenders on parole, probation, or supervision. Illinois code defines transitional housing, treatment, referral criteria, licenses required, grounds for revocation or termination of a license, requirements pertaining to background investigations, operating standards such as security and emergency procedures, as well as authority for Department-directed closure of a facility. Code relating to these facilities are under Title 20: Corrections, Criminal Justice, and Law Enforcement.
Unlike Illinois, such facilities are regulated under code promulgated by the Department of Health Services, DHS 83 Community Based Residential Facilities. “Community-based residential facility" means a place where 5 or more adults who are not related to the operator or administrator and who do not require care above intermediate level nursing care reside and receive care, treatment or services that are above the level of room and board but that include no more than 3 hours of nursing care per week per resident. The chapter defines licensing categories, application requirements, limitations on admissions and retentions, rules relating to personnel management, orientation and training, admission, retention and discharge, program services, building design, facility closing as well as emergency and fire safety requirements.
Illinois rules indicate several enforcement options (20 ILADC 120.100). Failure to comply with any of the foregoing rules of conduct may result in discipline, termination of services, or restriction from entering all or some Department facilities. Chapter DOC 328 Subchapter III enumerates several enforcement options in detail, providing guidance concerning use of force, search and seizure, contraband, absconding, tolled time, reinstatement, as well as custody and detention. Section DOC 328.27 specifies the circumstances in which an offender may be detained in county jail while on supervision, along with limited time frames permissible to be in jail pending disciplinary or investigation. Corresponding detail concerning length of and reasons for custody are not found in Illinois Administrative Code.
Under Illinois rules the Prisoner Review Board may enter an order releasing and discharging a parolee or mandatory supervised releasee from supervision (with court approval for juveniles) and his commitment to the Department when it determines that he is likely to remain at liberty without committing another offense (20 ILADC 1610.130). The order of discharge for adults becomes effective upon entry of an order of the Board. When approved by the Governor, said order operates as a commutation of sentence. Offenders sentenced or adjudicated under the provisions of the Unified Code of Corrections prior to February 1, 1978 are eligible for these provisions. Illinois code does not have provisions relating to discharge of probationers or those released from prison after February 1, 1978.
In contrast, s. DOC 328.13 states that parolees in Wisconsin may be granted discharge when there is a reasonable probability that supervision is no longer necessary for the rehabilitation and treatment of the offender and for the protection of the public. The offender must have reached their mandatory release date pursuant to s. 302.21, Stats. or have been under supervision for two years. In Wisconsin the department may petition the sentencing court for early discharge of a probationer when there is a reasonable probability that supervision is no longer necessary for the rehabilitation and treatment of the offender and for the protection of the public. The department may only proceed if all of the following apply: (a) The rules and conditions of supervision set by the department have been satisfied; (b) The offender has served at least fifty percent of the term of probation; (c) All conditions of probation set by the sentencing court have been satisfied; (d) All financial obligations to the court, victim (s), and the department have been fulfilled including any fine, forfeiture, fee or surcharge, or order of restitution; and (e) The probationer is not required to register under s. 301.45, Stats.
Definitions: The Iowa Administrative Code uses the terms “probation” and “parole.” DOC 328 uses the term “community supervision” to encompass “the control and management of offenders on probation, parole, extended supervision or other statuses as authorized by court order or statute.”
Supervision Procedures: The Iowa Code does not provide detailed enforcement rules for offenders on parole and probation, as does ch. DOC 328. Iowa rules indicate “The district department shall establish conditions of probation which meet the approval of the chief judge of the judicial district, which apply to each person under probation supervision, and shall have written procedures for assuring that each client receives those conditions in writing which include written documentation of receipt by the probationer.” (IAC 201.42.1(12)) Iowa rules indicate the department shall have written policies and procedures governing the preparation, submission, review, modification, collection, retention, and waiver of fees for those on probation or parole (IAC 201.42.1 (13)). Wisconsin provides rules concerning supervision fees, identifying agent responsibilities, department responsibilities, provisions for refunds, and indicates the fee shall be reasonable as determined by the department established pursuant to department policy (s. DOC 328.07). Pursuant to IAC 201.45.4(2) a parole officer, with supervisory approval, may arrest a parolee when there is probable cause to believe the parolee has violated conditions of parole which may result in parole revocation. The arresting agent may request temporary detention of the parolee in a local detention facility. A parole officer may also proceed without arrest by filing a complaint with the Iowa board of parole pursuant to Iowa Code section 908.8. When a parolee is arrested the agent shall immediately notify the board of parole. Under IAC 201.45.4(3), upon receipt of information that a parolee has absconded from supervision, preliminary parole violation information shall immediately be filed with a judge, an associate judge, or a magistrate and a warrant for arrest requested. Chapter DOC 328 has similar provisions for the arrest and temporary detention of a parolee, outlined in s. DOC 328.27. However, Wisconsin includes more detailed provisions and limitations on the duration of detentions for such arrests.
Discharge from Parole: Pursuant to IAC 205.13.1, an offender released on parole will be discharged when the person’s sentence expires. However, discharge from parole may be granted earlier, if appropriate. There are some exceptions: a person convicted of a violation of the Iowa Code section 709.3, 709.4, or 709.8 committed on or with a child, or a person serving a sentence under section 902.12, shall not be discharged until expiration of maximum sentence (IAC 201.45.6).
Wisconsin’s discharge requirements differ slightly from Iowa’s. In Iowa, the recommendation for discharge from parole as submitted by the supervising officer shall include, but not be limited to, the following: (a) Parolee’s attitude and adjustment to parole supervision; (b) Public offenses committed by the parolee while under supervision; (c) Violation of any parole conditions set by the board of parole; (d)Abuse of alcohol or drugs while on parole (e) Restitution accomplished by the parolee.
In contrast, s. DOC 328.13 states that parolees in Wisconsin may be granted discharge when there is a reasonable probability that supervision is no longer necessary for the rehabilitation and treatment of the offender and for the protection of the public. The offender must have reached their mandatory release date pursuant to s. 302.21, Stats. or have been under supervision for two years.
Iowa rules provide that the district department shall have written policies and procedures for requesting a discharge from probation and shall require a recommendation for discharge when it is clear that the client has met court obligations, is no longer a threat to the community or cannot benefit substantially from further supervision (IAC 201.42.1(7)).
In Wisconsin the department may petition the sentencing court for early discharge of a probationer when there is a reasonable probability that supervision is no longer necessary for the rehabilitation and treatment of the offender and for the protection of the public. The department may only proceed if all of the following apply: (a) The rules and conditions of supervision set by the department have been satisfied; (b) The offender has served at least fifty percent of the term of probation; (c) All conditions of probation set by the sentencing court have been satisfied; (d) All financial obligations to the court, victim (s), and the department have been fulfilled including any fine, forfeiture, fee or surcharge, or order of restitution; and (e) The probationer is not required to register under s. 301.45, Stats. (s. DOC 328.17).
Definitions: Pursuant to Chapter R 791.9901 of the Michigan Administrative Code, “offender" means a person convicted of a felony or misdemeanor. Wisconsin has a more expansive definition of offender: “a person who is committed to the custody of the department for correctional purposes and is under community supervision of the department.” Unlike Michigan, Wisconsin’s code does not include definitions of probationer, probation agent, or probation plan. Wisconsin has the term “community supervision” which encompasses the control and management of offenders on probation, parole, extended supervision or other statuses as authorized by court order or statute.
Supervision Procedures: Pursuant to R 791.9920, when an offender is placed on probation, the supervising probation agent provides the offender with a copy of the order and informs the offender of the statutory conditions, as well as all of the terms and conditions contained in the order, and the possible consequences of a failure to adhere to the conditions of probation. For the purpose of monitoring the probationer's adjustment while on probation, the probation agent may 1) inquire into the probationer's employment status, including, but not limited to, the probationer's performance on the job, relationships with fellow employees, and relationships with supervisors 2) conduct interviews with probationer, members of the probationer's family, and acquaintances, 3) make other reasonable inquiries to determine whether the objectives of probation are being met. Section DOC 328.04 includes a similar, but more expansive list of individualized supervision duties, including the responsibility to collect restitution and other court ordered financial obligations, and fees as and to report suspected child abuse cases to the appropriate authorities. Unlike Michigan, s. DOC 328.07 sets forth responsibilities for the agent and department relating to supervision fees.
In Michigan, if it appears to the probation agent that a modification of the terms or conditions of probation is necessary to achieve the objectives of probation, the agent may petition the sentencing court for a modification of the probation order (Mich. Admin. Code R. 791.9920(s)). The petition must contain a clear statement of the requested modification and the reason for the change. The agent must provide the probationer with a copy of the modified order of probation and shall explain the changes made by the modified order to the probationer.
The Michigan Parole Board considers a variety of factors when deciding if parole is appropriate in a particular case, such as family and community ties, pending charges, and education level. A prisoner being considered for parole shall receive psychological or psychiatric evaluation before the release decision is made if the prisoner has been hospitalized for mental illness within the past two years, has a history of predatory or assaultive sexual offenses, or a history of serious or persistent assault within the investigation. The board may also consider the prisoner's marital history and prior arrests that did not result in conviction or adjudication of delinquency. However, denial of parole cannot be based solely on either of these factors.
Specific rules are not present in Michigan Department of Corrections code related to standard rules of supervision offenders must abide by, offender fees, or housing of offenders in the community. S791.236a of the Michigan Compiled Laws does include provisions for a parole oversight fee, which is referenced in Mich. Admin. Code R. 791.7730(3) (b) Conditions of Parole. The fee varies based upon income, not to exceed $135 per month for not more than 60 months.