NOTICE IS HEREBY GIVEN that pursuant to section 227.11(2), Stats., and Chapters DOC 950 and 980, Stats., the Department of Corrections will hold public hearings to consider a proposed permanent rule revising Chapter DOC 328, relating to offender field supervision.

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 331, relating to the revocation of probation, parole, or extended supervision. There is a separate Notice of Hearing being published for DOC 331.

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.

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.

Sections 165.76, 301.001, 301.03, 301.45, 301.46, 302.11, 302.113, 302.114 302.14, 302.19, 302.31, 302.335, 304.06 (3), 304.072, 304.074, 304.075, 304.12, 304.13, 304.135, 304.137, 304.14, 939.615 941.29, 961.47, 971.17, 972.15, 973.01, 973.04, 973.06, 973.07, 973.08, 973.09, 973.10, 973.155, 973.20, Stats., and chapters 950 and 980, Stats.

Sections 227.11 (2), 301.03 (3), 304.074, 304.16 (1) (b) 1., and 973.01 (4m), Stats.

The Department of Corrections is responsible for the supervision in the community of persons who have been convicted of a crime and placed on probation or released from prison to parole or extended supervision.

Chapter DOC 331 (probation, parole, and extended supervision revocation procedure)

The rule:

There are no federal regulations that regulate the activities addressed by the proposed rule.

Illinois

Definitions: Chapter 20 of the Illinois Administrative Code uses the terms “probation" and “parole," while Wisconsin's 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."

Supervision Procedures: The Illinois Prisoner Review Board handles orders of parole, conditions of parole, statutory parole, and mandatory release. Chapter 20 states that the Board will not find an offender eligible for parole if:

Unlike the Illinois Administrative Code, DOC 328.07 sets forth a schedule of supervision fees for offenders based on their gross annual income. DOC 328 also includes detailed provisions outlining the criteria for refunds and exemption from supervision fees.

Under 20 Ill. Adm. Code Section 1610.70, an offender or his attorney may initiate a reconsideration of the offender's release date offer. The reviewing members are authorized, based on the hearing record, to modify or reverse an initial decision if 1) the decision is contrary to law or the guidelines governing decision, 2) the reasons given for the decision do not support it, 3) there is not sufficient factual support in the record for the decision, or 4) the length of the release date is disproportionate to like cases or sentences.

In contrast, DOC 328.13 states that offenders in Wisconsin may request administrative review to challenge any decision affecting an offender except those concerning revocation, custody and detention, denial of use or possession of firearms, special conditions or terms of supervision imposed by a court or earned release review commission, or decisions regarding early discharge from the term of supervision. Prior to initiating a request for administrative review the offender shall attempt to resolve the concern with the agent. If the concern is not resolved, the offender may file a written request for administrative review to the agent's supervisor within a reasonable time. The request and subsequent reviews shall be filed utilizing the department's forms. An offender may request a review of the supervisor's decision by the regional chief within a reasonable time. If the concern is not resolved that juncture, the offender may request a final review by the administrator within a reasonable time.

DOC 328.13 also includes a unique provision stating that the Department of Corrections may authorize temporary out-of-state travel when it is consistent with the purpose and goals of the offender's supervision, applicable interstate compact provisions, and applicable civil commitment provisions. An offender shall request and receive written authorization prior to travel out of the state of Wisconsin. Agent approval is required for travel not to exceed 15 days, and supervisory approval is required for travel exceeding 15 days. An authorization for temporary out of state travel shall specify that the offender is responsible for travel costs, reporting as required, returning to the state at any time upon request. Offenders shall be allowed to travel to foreign countries only as authorized by the sentencing court; or upon verification of official military orders from the US Armed Forces or National Guard.

Moreover, DOC 328.15 allows offenders to request a voluntary return to a correctional facility for a period not to exceed one (1) year. Upon return to the institution, the offender shall remain incarcerated until the agreed release date unless the department determines release is appropriate. During the period of incarceration the agent shall maintain contact with the offender and facilitate a release plan.

Parole Release Hearings: The Illinois Code includes detailed provisions regarding parole release hearings. Under Chapter 20, a Parole Release Panel of at least three members of the Board participates in parole release hearings. During the hearing, at least one member of the panel interviews interview the inmate and hear any witnesses. The decision to grant or deny parole requires the action of a panel of at least three members of the Board, while the decision to release on parole requires the affirmative vote of a simple majority of the voting members. DOC 328 includes no such provision.

Unlike DOC 328, the Illinois Code states that the Parole Board is not bound by strict rules of evidence in the conduct of a parole release hearing and will consider all evidence presented, so long as the evidence is not “cumulative, repetitive or inherently unreliable," and so long as it has some relevance to the parole release decision.

Individuals identified as victims, or members of the families of victims of the crime for which the inmate is receiving parole consideration may appear in person before the Parole Release Panel. Other persons who wish to testify as complaining witnesses shall be permitted to appear unless the presiding member determines that they cannot provide relevant information or that their testimony would be repetitive or cumulative. Individuals who wish to appear on behalf of the inmate, in support of the grant of parole, may do so, unless the presiding member determines that their testimony would be irrelevant, repetitive, or cumulative, or unless the potential witness is barred from the institution by the Department of Corrections.

As in Wisconsin, an inmate in Illinois shall be heard, as required by the Unified Code of Corrections, Ill. Rev. Stat. 1983, Chapter 39, par. 1003, if he chooses.

Following the Conference, the Parole Release Panel will vote on the question of granting or denying parole. When the panel votes to deny parole, a rationale will be prepared by at least one member who states the basis for denial, including the primary factors considered. The inmate shall be provided a copy of the Order and rationale within 21 days after the Parole Release Hearing.

Chapter 20 also includes a provision stating that any inmate convicted of murder or whose minimum sentence is 20 years or more under Chapter 39 of the Illinois Revised Statutes in effect prior to February 1, 1978, the Parole Release Panel submits the case to the entire Board at an en banc hearing, at which time a determination will be made as to whether parole will be granted or denied. In addition, the Chairman or a majority of the members of a panel hearing a case upon which a decision has not been rendered may cause that case to be considered at the next scheduled en banc hearing day. Once a case is designated en banc, it will continue to be considered by the full Board unless the Board determines otherwise.

The Illinois Code does not include any provision that reflects the Wisconsin's detailed parole discharge requirements, or the psychotropic medication hearing procedures outlined in DOC 328.28. The Illinois Code does not provide detailed enforcement rules, as does DOC 328.

Iowa

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: Pursuant to the Iowa Administrative Code, Section 205-8.1, Iowa's Parole Board evaluates whether there is reasonable probability that an inmate who is eligible for parole or work release can be released without detriment to the community or the inmate. In doing this, the board considers the best interests of society. Section 205-8 states specifically that the board will not grant parole or work release as an award of clemency. DOC 328 does not include these considerations or a mention clemency specifically.

Under IAC 8.2(1), the board will not grant parole to an inmate serving a mandatory minimum sentence. Similarly, the board will not grant work release to an inmate serving a mandatory minimum sentence unless the inmate is within 6 months of completing the mandatory minimum portion of the sentence.

Moreover, the Iowa Administrative Code states specifically that an inmate on patient status will not usually be granted parole or work release. The board may grant parole to an inmate against whom a detainer has been placed by another state. In Iowa, as in Wisconsin, the board may grant parole to another state pursuant to the provisions of the interstate parole and probation compact set forth in Iowa Code chapter 907A.

In contrast to Iowa, DOC 328.07 sets forth a schedule of supervision fees for offenders based on their gross annual income. DOC 328 also includes detailed provisions outlining the criteria for refunds and exemption from supervision fees.

Parole Release Hearings: Unlike DOC 328, 8.6(1) includes detailed provisions regarding parole release hearings. Under this section, the board may review the records of an inmate committed to the custody of the department of corrections and consider the inmate's prospects for parole or work release at any time. The board must notify an inmate only if the inmate is granted parole or work release, except as provided in 8.16(3). The board may interview an inmate committed to the custody of the department of corrections at any time.

Under Iowa law, parole or work release shall be ordered only for the best interest of society and the offender. In order to release an offender on parole, the Board must determine that there is a reasonable probability that the person can be released without detriment to the community or to the person. As in Wisconsin, an offender may be paroled to a place outside of Iowa when the board of parole shall determine it to be to the best interest of the state and the prisoner, under such rules as the board of parole may impose.

Section 8.14(1) provides that parole proceedings shall be open to the public except as otherwise necessary or proper. Under this section, inmates who attend parole proceedings are required to conduct themselves in a manner consistent with decorum appropriate for a participant in a public meeting of a governmental body. The inmate will be given an opportunity to make an independent statement to the panel or board at some point during the parole proceeding. The panel or board may limit this statement in any manner as to topic or time. Under the code, specifically subject to this limitation will be persons who have no realistic grounds to believe a parole will be granted, such as those with mandatory minimum sentences, those serving life terms, or those having served short times relative to the severity of their crimes and length of their sentences.

Unlike Wisconsin, 8.14 includes detailed provisions regarding the conduct of spectators at parole hearings. Under this section, spectators must conduct themselves with decorum, may not participate in the parole proceedings, and the number of spectators will be limited by the number of seats provided. Any activity deemed inappropriate by the panel or institutional staff may result in a request by the panel or institutional staff for the offending party or parties to leave. Warnings for inadvertent or minor misconduct may or may not be given the first time it occurs, and any subsequent offending activity will result in a request to leave. Refusal to leave upon request will result in a request by the panel to have the person or persons removed by the institutional staff.

Similarly, broadcasting, televising, recording and photographing are be permitted in the interview room during open sessions of the board or panel, including recesses between sessions if the Department of Corrections permits. However, the panel or board may limit or terminate photographic or electronic media coverage by any or all media participants at any time during the proceedings in the event the panel or board finds that rules in this chapter or additional rules imposed by the institution or department of corrections have been violated. All still photographers and broadcast media personnel are required to be properly attired and maintain decorum appropriate for a public meeting of a governmental body at all times while covering a parole proceeding.

The Iowa Code does not include any provision that reflects the psychotropic medication hearing procedures outlined in DOC 328.28. Similarly, the Iowa Code does not provide detailed enforcement rules for offenders on parole and probation, as does DOC 328, nor does it include specific provisions regarding travel out of state and abroad or voluntary return to an institution.

Pursuant to 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 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. DOC 328 has similar provisions for the arrest and temporary detention of a parolee, outlined in 328.29. However, Wisconsin includes more detailed provisions for such arrests and requirements for the conduct of correctional staff during such arrests.

Discharge from Parole: Pursuant to 20 IAC 205-13.1, an offender released on parole will be discharged when the person's term of parole equals the period of imprisonment specified in the person's sentence, less all time served in confinement. 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 from parole until the person's term of parole equals the period of imprisonment specified in the person's sentence, less all time served in confinement.

Wisconsin's discharge requirements differ slightly from Iowa's. Pursuant to DOC 328.16, the Department of Corrections must comply with certain discharge requirements depending on whether the discharged offender is a felon, misdemeanant, or probationer. For felons, the department must issue a certificate of discharge or a certificate of final discharge if the offender has discharged from all felony cases. The offender shall receive a certificate of final discharge under this subdivision shall list the civil rights that have been restored to the offender and the civil rights that have not been restored to the offender. For misdemeanants, the department notify the offender that their period of supervision has expired. For probationers, the department shall notify the sentencing court that the period of probation supervision has expired.

Pursuant to DOC 328.17(1), the Department of Corrections may grant an offender early 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. In making this determination, the department will consider whether the goals and objectives of supervision have been satisfied, for offenders on probation, the offender has served at least fifty percent of the term of probation, for offenders on parole, the offender has reached their mandatory release date or has been under supervision for two years.

In Wisconsin, an offender on extended supervision is not eligible for early discharge under this section if convicted of any of the following offenses: Class B felony offenses, or violations of s. 940.03, 940.06, 940.11(1), 940.235, 940.302, 940.31(1), 940.32(3), 941.21, 946.465, 948.03(2)(a), 948.40(4)(a), Stats., or offenses against elderly or vulnerable persons as defined in s. 939.22(20d), Stats., offenses related to ethical government, as defined in s. 939.22(20m), Stats., or offenses related to school safety as defined in s. 939.22(20s). Offenders serving a life sentence are eligible for discharge as provided by s. 973.013(2) Stats. The department may not discharge an offender on lifetime supervision under s. 939.615. Notwithstanding these requirements, the department may grant an early discharge if extraordinary circumstances exist.

Under 205 IAC 9.2-9.3, Iowa has a unique certificate of employability program, the goal of which is to maximize the opportunities for rehabilitation and employability of offenders and provide protection of the community while considering the needs of potential employers. Upon the successful completion of the required programming and receipt of a positive recommendation from the Department of Corrections or community-based corrections in the state of Iowa, participants receive certificates of employability. The board will not issue any certificate of employability unless it is satisfied that the person to whom it is to be granted is an eligible offender, the relief to be granted by the certificate is consistent with the employability of the eligible offender and the relief to be is consistent with the public interest.