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The Problems with Revocation, Part 1: The Hold

| November 27, 2017

Having pled guilty to a misdemeanor nearly a year ago, you find yourself as a passenger in a car driven by a co-worker when you notice the sirens behind you.  License, registration, and a quick dog sniff later, your co-worker is taken into custody for possessing marijuana found in his pocket.  The officer learns that you are on probation and makes contact with your probation officer.  Your probation officer wants to investigate any wrongdoing on your part further and places a hold on you.  Now, you and co-worker are off to the county jail.

More than 68,000 Wisconsinites are on some form of supervision. Wisconsin uses three different systems to supervise people in the community; parole, extended supervision, and probation.  For purposes of a hold, all three are treated substantially the same.  The Department of Corrections has the authority to detain supervisees for a variety of reasons, including investigating a potential violation of supervision.  The detention can last up to five business days  but a supervisor can extend that for further five days.  And that too can be extended yet another five days by another supervisor.

Once a DOC agent decides to move forward with revocation, the offender is informed of the allegations, their rights, and will remain in custody while the process continues.  One of the rights is the right to a preliminary hearing.  The hearing is not the same as the preliminary hearing one finds in felony criminal cases.  Instead, the purpose of the revocation is to make sure the allegations are actually violations as opposed to allegations that, even if proven true, are not against the rules of supervision.  The preliminary hearing examiner will also decide if the supervisee should remain in prison.  The magistrate for the preliminary hearing is a DOC administrator.

However, there’s a catch: a preliminary hearing is not required in certain situations.  Most importantly, a preliminary hearing is not required if the supervisee admits any violation in writing.  A standard rule of community supervision is one must provide a full, written statement to the agent at any time about any circumstance.  Failure to do so is a violation of the rules of supervision.  The result is very few revocations ever qualify for a preliminary hearing, the one and only opportunity to ask for a release from custody.

Perhaps most shockingly, the authority for holds and the timelines required are almost exclusively found in the administrative code.  This means the Department of Corrections that wields incredible powers to detain and oversee the detention process promulgated the rules; not the legislature- an embodiment of the peoples’ will.

Going back to our example at the beginning, your co-worker will appear before a court commissioner or judge likely within a day to be able to ask for bail.  That’s only if the arresting officer decides not to issue a citation and release him.  You, on the other hand, will be in custody for the foreseeable future at your agent’s will.  It could be a day.  It could be a week.  Only time will tell.

Supervision holds occupy many jail beds.  The question policymakers need to ask is the blanket jailing based on holds without independent oversight the best use of resources and is it making the community safer.

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THOMAS LYONS entered the legal field after receiving an undergraduate degree from the University of Illinois and a law degree from Marquette University. Working in offices in Kewaunee and Sheboygan Counties, Tom’s practice focused primarily on criminal defense, juvenile, and mental health law. Switching to the world of policy, Tom started as a legislative aide to a member of the Wisconsin State Assembly, followed by a State Senator, and for a brief time Governor Scott Walker before joining Right on Crime on 2017.

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