Chapter PAC 1

PAC 1.05(2)(c)1. 1. When incarceration follows parole revocation without the imposition of a new sentence, parole eligibility shall be established at 6 months from the date of return to the institution, less sentence credit under s. 973.155 (1), Stats.

PAC 1.05(2)(c)2. 2. When incarceration follows parole revocation and involves the imposition of a new sentence, parole eligibility shall be established at 6 months from the custody date, less sentence credit under s. 973.155 (1), Stats., or in accordance with the eligibility date of the new sentence.

PAC 1.05(2)(c)3. 3. When incarceration follows parole revocation and initial release consideration occurs, the imposition of a new sentence may affect parole eligibility if the 25% service requirement under s. 304.06 (1) (b), Stats., of the new sentence results in a date that is later than the parole eligibility date that the commission establishes at initial consideration.

PAC 1.05(3) (3) Release to extended supervision eligibility.

PAC 1.05(3)(a) (a) Initial release to extended supervision eligibility. For persons sentenced under s. 973.01, Stats., the inmate’s eligibility for release consideration will be determined under s. 304.06 (1) (bg), Stats.

PAC 1.05(3)(b) (b) Subsequent release to extended supervision eligibility. When incarceration follows revocation of extended supervision, an eligibility date will be established in accordance with s. 304.06 (1) (bg), Stats.

PAC 1.05(4) (4) Waiver of release consideration. An inmate may waive release consideration at any time by notifying the commission in writing through institution staff. No review or decision will occur. A waiver will not effect future commission decisions.

PAC 1.05(5) (5) Withdrawal of consideration. If an inmate declines to appear before the commission at the time of a scheduled interview or appears but refuses to participate, the failure to appear or participate, unless excused by the commission, shall be construed as a withdrawal of release consideration. No review or decision will occur. A withdrawal will not affect future parole or release to extended supervision decisions.

PAC 1.05(6) (6) Re-establishment of eligibility for consideration. To become eligible for release consideration following a waiver or withdrawal, the inmate shall apply in writing to the commission through institution staff. The eligibility date shall be established in accordance with the inmate’s sentence structure. An interview will be scheduled based on the inmate’s application.

PAC 1.05 History History: EmR0940: emerg. r. and recr. eff. 12-31-09; CR 09-119: cr. Register November 2010 No. 659, eff. 12-1-10.

PAC 1.06 PAC 1.06 Release consideration.

PAC 1.06(1) (1) Except as provided in s. PAC 1.05 (1), for persons sentenced for offenses that occurred before December 31, 1999, the initial release consideration shall be scheduled during the month prior to the date of first statutory eligibility for parole, unless waived in writing by the inmate, the inmate is not available, in which case the commissioner will set a new interview date, or the inmate has been transferred after which an interview will be scheduled as soon as practicable.

PAC 1.06(2) (2) Except as provided in s. PAC 1.05 (1), for persons sentenced under s. 973.01, Stats., the inmate will be scheduled for release consideration prior to the earliest eligibility date established under s. 304.06 (1) (bg), Stats., if practicable.

PAC 1.06(3) (3) After initial consideration, the commission may schedule a subsequent review to determine if the inmate meets the criteria for release.

PAC 1.06(4) (4) The institution responsible for scheduling release consideration shall give the inmate at least a 15-day written notice of the interview, except following an informational deferral, in which case subsequent notification is not required. When notification is not timely, the inmate may waive the 15-day requirement. If the inmate does not waive, consideration will be postponed until notice can be given. The notice of consideration for release shall address the criteria under sub. (15).

PAC 1.06(5) (5) The chairperson may assign one or more commissioners to conduct a release consideration interview.

PAC 1.06(6) (6) The inmate shall have access at the correctional institution where the inmate is confined to the documentary information which the commissioner considered, except information determined to be confidential may not be disclosed.

PAC 1.06(7) (7) During the release consideration interview, the inmate shall be afforded the opportunity to provide information that is relevant, material, and not unduly repetitious, including the opportunity to comment on perceived errors of material fact in the record.

PAC 1.06(8) (8) The commissioner’s decision shall be based on information available, including file material, victim’s statements if applicable, and any other relevant information.

PAC 1.06(9) (9) A deferral greater than 12 months requires the written approval of the chairperson.

PAC 1.06(10) (10) The interview shall be recorded. A transcript shall be prepared only upon an order of the court which has jurisdiction over a petition for judicial review of the decision.

PAC 1.06(11) (11) Release consideration may occur without the inmate present when one of the following circumstances occurs:

PAC 1.06(11)(a) (a) The inmate had an interview within the preceding 12 months.

PAC 1.06(11)(b) (b) It is not practicable to arrange for an interview within the timeframe for considering release and the interest of justice as well as that of the inmate would best be served by a file review.

PAC 1.06(11)(c) (c) The inmate is in segregation status.

PAC 1.06(11)(d) (d) The inmate is within two months of MR or release to extended supervision.

PAC 1.06(12) (12) If release consideration occurs under sub. (11) without the inmate being present, the inmate may make a written request through institution staff for the opportunity to receive an explanation of the decision. The commission may grant the request.

PAC 1.06(13) (13) Representation by legal counsel during the interview for release consideration shall not be permitted, except for extraordinary health conditions under s. PAC 1.08.

PAC 1.06(14) (14) Interpretive services shall be provided for an inmate in order to facilitate effective communication.

PAC 1.06(15) (15) Release consideration is exempt from open meeting legislation under s. 19.85 (1) (d), Stats., and shall be closed to the public. However, upon request, and with the approval of the chairperson, persons with a civic, academic, or professional interest in the release consideration process may be allowed to observe individual proceedings. Observers shall not be allowed if the inmate objects.

PAC 1.06(16) (16) A recommendation for a parole grant or release to extended supervision order may be made after consideration of all the following criteria:

PAC 1.06(16)(a) (a) The inmate has become parole or release to extended supervision eligible under s. 304.06, Stats., and s. PAC 1.05.

PAC 1.06(16)(b) (b) The inmate has served sufficient time so that release would not depreciate the seriousness of the offense.

PAC 1.06(16)(c) (c) The inmate has demonstrated satisfactory adjustment to the institution.

PAC 1.06(16)(d) (d) The inmate has not refused or neglected to perform required or assigned duties.

PAC 1.06(16)(e) (e) The inmate has participated in and has demonstrated sufficient efforts in required or recommended programs which have been made available by demonstrating one of the following:

PAC 1.06(16)(e)1. 1. The inmate has gained maximum benefit from programs.

PAC 1.06(16)(e)2. 2. The inmate can complete programming in the community without presenting an undue risk.

PAC 1.06(16)(e)3. 3. The inmate has not been able to gain entry into programming and release would not present an undue risk.

PAC 1.06(16)(f) (f) The inmate has developed an adequate release plan.

PAC 1.06(16)(g) (g) The inmate is subject to a sentence of confinement in another state or is in the United States illegally and may be deported.

PAC 1.06(16)(h) (h) The inmate has reached a point at which the commission concludes that release would not pose an unreasonable risk to the public and would be in the interests of justice.

PAC 1.06(17) (17) The commission shall provide an opportunity for a victim to provide direct input and to attend the interview.

PAC 1.06(18) (18) The commission shall permit any office or person to submit a written statement for consideration in its decision-making process.

PAC 1.06 History History: EmR0940: emerg. r. and recr. eff. 12-31-09; CR 09-119: cr. Register November 2010 No. 659, eff. 12-1-10.

PAC 1.07 PAC 1.07 Commission recommendations.

PAC 1.07(1) (1) Following release consideration under s. PAC 1.06, 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 s. PAC 1.06 (3), unless the inmate will reach the MR date or the extended supervision date prior to the reconsideration date.

PAC 1.07(2) (2) The inmate shall be advised in writing of the decision to defer or to recommend a grant of parole or release to extended supervision, the reasons for the decision, and the next opportunity for consideration or the recommended parole or release to extended supervision date.

PAC 1.07(3) (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. The inmate may make a written request through institution staff for the opportunity to receive an explanation of the decision. The commission may grant the request.

PAC 1.07(4) (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.

PAC 1.07(5) (5) For persons sentenced under s. 973.01, Stats., if the chairperson approves a recommendation for release to extended supervision, 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 or sentence. 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.

PAC 1.07(6) (6) A commissioner may withdraw a recommendation for parole or release to extended supervision prior to the issuance of the grant of parole or order for release to extended supervision whenever the circumstances affecting the original recommendation have, in the opinion of the commissioner, changed sufficiently to require withdrawal of the recommendation.

PAC 1.07(7) (7) 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 to extended supervision 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.

PAC 1.07(8) (8) For persons sentenced for offenses committed 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 1.07 History History: EmR0940: emerg. r. and recr. eff. 12-31-09; CR 09-119: cr. Register November 2010 No. 659, eff. 12-1-10.

PAC 1.08 PAC 1.08 Release due to extraordinary health condition or age.

PAC 1.08(1) (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:

PAC 1.08(1)(a) (a) The inmate is 65 years of age or older and has served at least 5 years of the term of confinement in the prison portion of the bifurcated sentence for a sentence imposed under s. 973.01, Stats., or has served at least 5 years for a life sentence imposed under s. 973.014, Stats.

PAC 1.08(1)(b) (b) The inmate is 60 years of age or older and has served at least 10 years of the term of confinement in the prison portion of the bifurcated sentence for a sentence imposed under s. 973.01, Stats., or has served at least 5 years for a life sentence imposed under s. 973.014, Stats.

PAC 1.08(1)(c) (c) The inmate has an extraordinary health condition.

PAC 1.08(2) (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.

PAC 1.08(3) (3) Petition. An inmate who files a petition for release under this section shall include all of the following in support of his or her petition:

PAC 1.08(3)(a) (a) Date of birth.

PAC 1.08(3)(b) (b) Dates of incarceration for current sentence.

PAC 1.08(3)(c) (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.

PAC 1.08(3)(d) (d) A signed authorization on a form specified by the commission, authorizing the release of a copy of the petition and supporting documentation to the sentencing court, the district attorney, and victims of the inmate’s crime for purposes of reviewing and processing the petition.

PAC 1.08(3)(e) (e) Other information as required by the commissioner.

PAC 1.08(4) (4) Hearing.

PAC 1.08(4)(a) (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 factual bases of the inmate’s petition for sentence modification under this section, including additional medical information.

PAC 1.08(4)(b) (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.

PAC 1.08(4)(c) (c) In advance of the hearing the commission may request from the agent or social worker additional information, including the inmate’s release plan. The commission may request the department to provide information concerning the inmate’s status regarding civil commitment under ch. 980, Stats., and community notice under ss. 301.45, 301.46, and 301.47, Stats.

PAC 1.08(4)(d) (d) The commissioner conducting the hearing shall review the inmate’s social service and legal files prior to the hearing.

PAC 1.08(4)(e) (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. During the hearing the commission may request additional information. The hearing may be held in person, by telephone, videoconferencing or other virtual communication means at the discretion of the commission.

PAC 1.08(4)(f) (f) Information about the address of a victim will not be released or disclosed.

PAC 1.08(4)(g) (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.

PAC 1.08(4)(h) (h) The hearing shall be recorded. A transcript shall be prepared only upon an order of the court which has jurisdiction over a petition for judicial review of the decision.

PAC 1.08(5) (5) Decision.

PAC 1.08(5)(a) (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, a recommendation to approve or deny the petition, and the justification for the recommendation.

PAC 1.08(5)(b) (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.

PAC 1.08(5)(c) (c) The chairperson shall issue a decision on the petition based on the report and documents submitted by the commissioner.

PAC 1.08(5)(c)1. 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 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.

PAC 1.08(5)(c)2. 2. If the petition is denied, the inmate may not file another petition within one year of the date of the denial.

PAC 1.08(5)(c)3. 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.

PAC 1.08(6) (6) Appeal.

PAC 1.08(6)(a) (a) An inmate may seek review of the decision to deny the petition for modification only by common law writ of certiorari.

PAC 1.08(6)(b) (b) The state may appeal the decision to grant the petition to circuit court.

PAC 1.08 History History: EmR0940: emerg. r. and recr. eff. 12-31-09; CR 09-119: cr. Register November 2010 No. 659, eff. 12-1-10; corrections in (4) (c) made under s. 13.92 (4) (b) 7., Stats., Register November 2010 No. 659.

PAC 1.09 PAC 1.09 Presumptive mandatory release review.

PAC 1.09(1) (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.