(4) The offender may withdraw a waiver prior to the secretary's decision if the offender establishes that it was not knowingly, voluntarily, or intelligently made.
DOC 331.08 Termination of revocation proceedings. (1) A supervisor may recommend to the regional chief that revocation proceedings be terminated at any time before the administrative law judge's decision is issued.
(2) The regional chief shall determine if there is sufficient basis for terminating the revocation proceedings.
DOC 331.09 Concurrent criminal prosecution and acquittal in criminal proceeding. Any revocation actions under this chapter may proceed regardless of any concurrent prosecution of the offender for the conduct underlying the alleged violation. An acquittal in a criminal proceeding for an offender's conduct underlying an alleged violation shall not preclude revocation of that offender's supervision for that same or similar conduct.
DOC 331.10 Records. A summary of all alleged violations, revocation actions, and proceedings under this section against an offender shall be maintained in the offender's record.
DOC 331.11 Special revocation procedures. All offenders under supervision by the department are subject to revocation under ss.
DOC 331.03 to
331.10 except for an offender committed under s.
961.47, Stats. For an offender committed under 961.47, stats, an agent shall proceed under s.
DOC 331.03 (1) and
(2) and shall, upon the approval of a supervisor, notify the committing court of the alleged violation and submit a report to the court within a reasonable time after becoming aware of the alleged violation. The court will decide if the offender shall remain on probation under s.961.47, Stats.
DOC 331.12 Harmless error. The secretary may deem a failure to comply with a requirement under this chapter as harmless error if it does not prejudice a fair proceeding or disposition.
DOC 331.13 Post revocation hearing to determine good time forfeiture, reincarceration or reconfinement time. (1) APPLICABILITY. (a) Good time forfeiture hearings apply to offenders who, before June 1, 1984, committed the crime for which they were sentenced to a period of incarceration in the Wisconsin state prison and chose not to have
1983 Wis. Act 528 apply.
(b) Reincarceration hearings apply to offenders who, between June 1, 1984, and December 30, 1999
, committed the crime for which they were sentenced to a period of incarceration in the Wisconsin state prison and to any other offender who chose to have
1983 Wis. Act 528 apply, except offenders sentenced under s.
973.01, Stats.
(c) Reconfinement hearings apply to offenders who, on or after December 31, 1999, committed the crime for which they received a bifurcated sentence under s.
973.01, Stats.
(2) HEARING. The offender is entitled to a hearing under sub. 1 (a) (b) or (c) to determine the amount of good time to be forfeited, or the amount of reincarceration or reconfinement time to be served.
(3) WAIVER. The offender may waive, in writing, the right to a hearing. The waiver may be withdrawn by the offender prior to the decision if the offender establishes that it was not knowingly, voluntarily, or intelligently made.
(4) AMOUNT OF TIME AVAILABLE. The agent shall notify the reviewing authority of the amount of good time available for forfeiture, or the amount of reincarceration or reconfinement time available.
(5) CRITERIA. (a) The agent shall recommend to the reviewing authority that a specific amount of good time be forfeited under sub. (1) (a), and whether good time should be earned upon the forfeited good time. Under sub. (1) (b) and (c), the agent shall recommend a specific period of reincarceration or reconfinement. The amount of time shall be expressed in terms of days, months or years. The agent shall include the reasons and facts consistent with the criteria listed in par. (b) that support the recommendation.
(b) The following shall be considered by the agent:
1. The nature and severity of the original offense.
2. The offender's institution conduct record.
3. The offender's conduct and behavior while on supervision.
4. The amount of time left before mandatory release if the offender is a discretionary release parolee.
5. The amount of time consistent with the goals and objectives of supervision under ch.
DOC 328.
6. The amount of time necessary to protect the public from the offender's further criminal activity, to prevent depreciation of the seriousness of the violation or to provide a confined correctional treatment setting.
7. Other mitigating or aggravating circumstances.
SECTION 2. Repeals DOC 331 appendix.
SECTION 3. Effective date: This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s.
227.22 (2) (intro), Stats.
Agency Contact Person
Questions or comments related to this rule may be sent to the following address:
Kathryn R. Anderson, Chief Legal Counsel, Department of Corrections 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925 (608) 240-5049; FAX (608) 240-3306
Kathryn.Anderson@Wisconsin.gov
Notice of Hearing
Corrections
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.
Hearing Information
Date and Time:
|
Location:
|
November 30, 2010
Tuesday
10:00am
|
State Office Building
Conference Room 116
819 North 6th Street
Milwaukee, WI 53203
|
November 30, 2010
Tuesday
2:30pm
|
Dept. of Administration
St. Croix Conference Room 1st floor
101 East Wilson Street
Madison, WI 53703
|
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.
Appearances at the Hearing and Submission of Written Comments
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.
Analysis Prepared by the Department of Corrections
Statutes interpreted
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.
Statutory authority
Explanation of agency authority
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.
Related statutes or rules
Chapter
DOC 331 (probation, parole, and extended supervision revocation procedure)
Plain language analysis
The rule:
1. Retitles the chapter to Community Supervision of Offenders to recognize that the division may have responsibility for supervising any person regardless of age, who is in the adult correctional system.
2. Reorganizes and renumbers the rule.
3. Updates terminology to include references to extended supervision.
4. Recognizes the department's initiatives towards reentry of inmates into the community in its purpose statement.
5. Eliminates the following definitions: absconding, administrative supervision, client, compact administrator, compact coordinator, compact specialist, field staff or staff, field supervision, high risk supervision, minimum supervision, monitoring, physical custody, referral, TIME system, and transfer.
6. Modifies the following definitions: collateral, conditions, discharge, division, extension, intoxicating substance, offender, region, regional chief, reporting, rules, supervisor, and working day.
7. Creates the following definitions: abscond, advocate, alternative to revocation, bodily harm, body contents search, commitment term or term, community supervision or supervision, contraband, deadly force, extended supervision, financial resources, force, great bodily harm, hearing examiner, incapacitating agent, nondeadly force, pat-down, personal search, school, standard business hours, supervision fees, and tolled time.
8. Updates the recitation of responsibilities of the agent and the offender during the course of community supervision.
9. Removes the rule provision which set forth the minimum contact requirements for maximum, medium, and minimum offenders and the provision for reassessment.
10. Removes the provision in this chapter which stated the possible consequences for a violation of the rules or conditions of supervision.
11.
Removes the rule provisions which addressed administrative or minimum supervision of an offender by a vendor. (Section 304.073, Stats., which provided for vendor supervision, was repealed by
2003 Wis. Act 33.)
12. Consolidates the rule provisions concerning payment of supervision fees by an offender.
13. Clarifies the provision concerning an offender's failure to pay his or her financial obligations, whether they are court ordered or a consequence of supervision.
14. Clarifies the provision governing temporary travel out of the state of WI.
15. Removes the provision which addresses intrastate transfer.
16. Simplifies the provision which addresses interstate transfer.
17. Simplifies the provision concerning the department's authority to purchase goods or services for an offender.
18. Renames the complaint process to an administrative review process. Removes the timeframes for offenders filing requests for review and the timeframes for responding to the requests for review.
19. Clarifies the provision which addresses an offender's voluntary return to an institution.
20. Removes the provision which addresses ethics, fraternization, gifts and gratuities.
21. Clarifies the provision addressing contraband.
22. Removes the provision which addresses use of non-prescription controlled substances (medication and alcohol).
23. Simplifies the provision which addresses discharge from supervision.
24. Creates a new provision to address early discharge.
25. Clarifies the provisions which address use of force, mechanical restraints, and incapacitating agents.
26. Creates a new section on the use of firearms or other weapons.
27. Clarifies the provision which addresses search and seizure.
28. Creates a provision to address tolled time.
29. Creates a provision to address reinstatement of supervision.
30. Removes the provision of transporting offenders in custody.
31. Removes the provisions which address presentence investigation reports and recordkeeping.
32. Creates a provision which permits the department to conduct an administrative hearing to determine if an offender should be required to comply with prescribed psychotropic medications as part of his or her supervision. The provision provides for an annual review of the decision.
33. Repeals chapter DOC 328 Appendix.
Summary of and comparison with existing or proposed federal regulations
There are no federal regulations that regulate the activities addressed by the proposed rule.
Comparison of similar rules in adjacent states
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:
1) there is a substantial risk that he will not conform to reasonable conditions of parole,
2) his release at that time would depreciate the seriousness of his offense or promote disrespect for the law, or
3) is release would have a substantially adverse effect on institutional discipline. DOC 328 does not include general considerations for parole eligibility, but simply states that after the inmate and institution staff have prepared a proposed release plan, the responsible parole agent will investigate the plan, comment on its appropriateness, and suggest modifications if necessary.
