Revocation Proceedings—An Overview

Probation, parole, and extended supervision or “ES” for short, are terms that define the different types of supervision people may be placed on in certain circumstances.  Parole or ES apply to individuals released early from their prison sentence. An individual released from prison on Parole or ES can be revoked for violating the conditions of their supervision.

Probation applies to persons with jail sentences.  A person’s probation can be revoked in two different ways, depending on whether the judge renders a “withheld” sentence,” or an “imposed and stayed” sentence.

With a withheld sentence, the judge does not actually impose a sentence and the convicted person is placed on probation.  If that person is later revoked for violating the terms of his/her probation, they must go back before the same judge to receive their sentence (up to the maximum allowed by statute) for the first time.

With an imposed and stayed sentence, the judge determines the amount of incarceration time to be served, but does not require the convicted person to begin serving the sentence.  If the judge decides to impose and stay a sentence and place the convicted person on probation—and the probation is later revoked—that individual will go directly to serving the amount of incarceration time the judge originally imposed.

Individuals facing revocation have a right to a revocation hearing.  Wisconsin revocation hearings are not held before a circuit court judge.  They are instead held by state administrative law judges (called ALJs or hearing examiners) who are employed by the Division of Hearings and Appeals of the Wisconsin Department of Administration.  They are informal and typically held most often at the county jail or wherever the accused is being held in custody. The state is represented by the probation officer or parole agent (commonly referred to as the “P.O.”).  Both the PO and the accused may present evidence at revocation proceedings.

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Although revocation proceedings are held in informal settings, preparing an effective defense is a serious matter and should not be taken lightly.  You need an experienced attorney who knows the laws and procedures necessary to fight and win these types of proceedings. Attorney Sydne French will listen carefully to your side of things and give you an honest evaluation of your case.  Contact our office now to set up a free consultation with Attorney French.  She is ready to fight for your rights, so you can get back to your life!

Required Procedures at Revocation Hearings

The United States Supreme Court has ruled that the constitutional right to due process in revocation proceedings requires all of the following:

• written notice of the alleged violation(s)
• disclosure of the evidence the state intends to use against the defendant;
• a hearing held in a timely manner
• a “neutral and detached” hearing examiner
• the opportunity to be heard in person and to present witnesses and other evidence
• a (limited) right to confront and cross-examine state’s witnesses
• a formal written decision listing the evidence and grounds relied upon for the decision

The agent has the burden of proof at revocation hearings.  The Administrative Law Judge or ALJ must decide:

• whether the defendant committed the conduct alleged;
• whether the alleged conduct qualified as a violation of the rules or conditions of supervision; and
• whether any rules violations should result in revocation or an appropriate “alternative to revocation” (called ATR).

An individual may be revoked only if the ALJ finds that:

• confinement is necessary to protect the public from further criminal activity;
• the defendant is in need of correctional treatment which can most effectively be provided if confined; or
• it would unduly depreciate the seriousness of the violation if supervision were not revoked.

The rules of evidence in open criminal cases generally do not apply at revocation hearings.  For instance, hearsay is admissible and testimony that would usually be excluded from a criminal case is often allowed at a revocation hearing if it is considered “sufficiently reliable.”  But not always. A good example of this is police reports. Police reports—without testimony from the officer who wrote the reports—are ordinarily considered unreliable hearsay on a material fact and will likely be considered insufficient evidence to prove the violation alleged.

Also, the exclusionary rule, which prevents the state from using evidence against the defendant that was illegally obtained, does not apply to revocation hearings.  Therefore, evidence that might have been suppressed or eliminated at pretrial proceedings in an open criminal case is admissible at revocation hearings.

Parole and Extended Supervision:  Special Considerations

In parole revocations, the ALJ determines how much “good time” credit the defendant should forfeit or lose, and how much of the remaining sentence the defendant is required to serve.  Eligibility for reparole is again available to the defendant; however, there will be no mandatory release date and the defendant can end up serving the entire remainder of the sentence.

Under law prior to 2009 Act 28, with extended supervision (ES) revocations, the ALJ determined whether the ES should be revoked, but the circuit court judge determined the incarceration time the defendant must serve on the remaining sentence before being eligible for release again on ES.  This reincarceration period can be up to the maximum length of the sentence, with credit given for time already spent in confinement.  The defendant must serve the entire period of reincarceration ordered by the judge. Under Act 28 (effective October 1, 2009), if a person’s ES is revoked it is the ALJ, rather than the circuit court, that determines the re-incarceration time.

Waivers of Hearings

If a paroled defendant waives (gives up) the right to a revocation hearing, the Department of Corrections (DOC) determines the length of reincarceration.  The same is true for an ES defendant.  If an ES defendant waives a revocation hearing, then the DOC determines the period of re-incarceration to impose.

Appealing A Revocation Decision

There are several stages to challenging a revocation decision:

1. administrative appeal to the Division of Hearings and Appeals (DOHA)
2. petition for writ of certiorari
3. appeal to the Wisconsin Court of Appeals (COA)

ADMINISTRATIVE APPEAL TO THE DOHA.  The ALJ (administrative law judge) must issue a written decision within 10 days after the hearing is concluded.  Both parties have 10 days to appeal the ALJ’s decision.  This must be done by filing a written appeal with arguments and any supporting materials with the administrator of the Division of Hearings and Appeals (DOHA).

PETITION FOR WRIT OF CERTIORARI IN CIRCUIT COURT.  Once the administrative appeal process has concluded, revocation decisions may be challenged through judicial review by petition for writ of certiorari in the circuit court in which the defendant was convicted.  Certiorari is limited to:

• whether the administrative agency acted within its jurisdiction;
• whether it acted according to law;
• whether its action was arbitrary, oppressive, or unreasonable and represented its will rather than its judgment;
• or whether the evidence was such that the agency might reasonably make the order or determination in question.

The evidence that a court reviewing a revocation decision by writ of certiorari will consider is limited to evidence presented at the revocation hearing.  New evidence is generally not permitted, nor will the court overrule the revocation decision based on the credibility of the state’s witnesses or the defendant.

APPEAL TO THE COURT OF APPEALS.  The decision on a writ of certiorari can be appealed to the Wisconsin Court of Appeals.  The Court of Appeals’ review is limited to the following information:

• transcript of the revocation hearing
• agent’s revocation summary
• documents included in the revocation proceedings (briefs filed by both parties)
• the administrative law judge’s written decision to revoke
• your written appeal to the DOHA
• the DOHA’s written decision affirming the administrative law judge’s decision to revoke
• the circuit court decision affirming revocation

Alternative to Revocation (ATRs)

What they are and how we use them to beat revocations!

The term, “Alternative to Revocation” or “ATR” is used to describe options that may be more appropriate than revocation for those who violate their supervision rules.  For example, in cases with individuals who have mental health issues, it may be wise to propose a well-researched, specific, community-based treatment program as a better means to correct offending behavior than revocation and prison time.

We have found that mental health issues (which may actually be the cause of the problem behavior) often go undetected, and/or untreated in the criminal justice system. One way to tell if this may be happening, is the indidvidual has usually had all the standard treatment programs available through the DOC, yet they keep getting in trouble, over and over again. This kind of pattern usually tells us that there may be something more going on, something driving the behavior.

In these types of cases, we argue that revocation is unwarranted and inappropriate because this underlying mental health issue (driving the behavior) has not yet been properly treated with the right kind of treatment, and that treatment is available and best provided in the community. We talk with a variety of doctors, nurses, and community-based treatment facilities to find the most suitable and effective program for the client’s particular diagnoses and treatment needs.

We then craft a comprehensive, persuasive ATR proposal detailing the specific program we have in mind, explaining why this would be a much more effective and appropriate resolution than revocation would be.

In situations like these, it may be best to arrange for a diagnostic mental health evaluation of the client. We then have a qualified, diagnostic report backing our ATR proposal and proposed treatment plan.

But this is just one example of an ATR. A persuasive ATR doesn’t have to be about mental health issues.

In some cases, the ATR may not be enough to convince the agent or Administrative Law Judge (ALJ) that revocation is unnecessary, but it may still help to greatly diminish the amount of time for which the ALJ sends the client back to prison.

The bottom line is, a well researched, well-written ATR can have a tremendous positive effect on the outcome of a revocation case.