The Problems with Revocation Part 2: The Hearing
Taking away a person’s liberty is serious business. Our common law, Constitution, and statutes set up a rigorous process designed to get to the truth of the matter and only deliver punishment to the verifiably guilty. In Wisconsin, people who have been found guilty through the criminal justice system, and placed on community supervision, find themselves on a short leash. The underlying philosophy is a convicted criminal who receives the benefit of community supervision should be held to a higher standard than the average citizen. However, for revocation hearings in Wisconsin, the potential for abuse because of lax due process rights goes too far.
The list of rights found in a criminal proceeding but not in revocation hearings is long. For example, the right to remain silent, embodied in the 5th Amendment of the US Constitution, does not apply in the revocation process. In a criminal proceeding, remaining silent cannot be used against you. For people on community supervision, they must provide a complete and true statement upon demand of their supervising agent. The information gained from the statement can be used against the defendant. And, as I discussed in an earlier post, the failure to provide a full statement is a violation.
Hearsay and confrontation rights also do not apply. Hearsay (statements made by someone other than the witness) is explicitly permitted within the administrative code that governs the hearings. The right to confrontation (the ability to physically face any witness) is non-existent and procedures are provided on how the magistrate can introduce absent witnesses. The combination of allowing hearsay and removing confrontation rights greatly hampers the ability to challenge evidence.
The high burden of proof beyond reasonable doubt used in criminal proceedings is also watered down. The Department of Corrections needs only submit evidence that shows by a preponderance of the evidence (meaning it is more likely than not) the accused violated the terms of their supervision.
The reason we place great emphasis on procedural protections for people accused of crimes is to instill confidence in the system and to safeguard against government overreach into individual liberty. But, in a criminal case, being incarcerated is just one of three possible outcomes. In revocation proceedings, it is the only punishment. Because of the high risks, due process in revocation hearings need to be strengthened to reflect a proper respect for individual liberty. Policy makers should ask themselves if they would be outraged by a criminal justice system that permits convictions based on coerced statements, hearsay evidence, at a low burden of proof, why they would allow supervision revocations to lack these basic rights.