304.06 Paroles from state prisons and house of correction.
(1)
(a) In this subsection:
1. “Member of the family" means spouse, domestic partner under ch. 770, child, sibling, parent or legal guardian.
2. “Victim" means a person against whom a crime has been committed.
(b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m) or s. 302.045 (3), 302.05 (3) (b), 973.01 (6), or 973.0135, the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in a county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25 percent of the sentence imposed for the offense, or 6 months, whichever is greater. Except as provided in s. 939.62 (2m) (c) or 973.014 (1) (b) or (c), (1g) or (2), the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11 (1) and subject to extension under s. 302.11 (1q) and (2), if applicable. The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing.
(c) If an inmate applies for parole under this subsection, the parole commission shall make a reasonable attempt to notify the following, if they can be found, in accordance with par. (d):
1. The office of the court that participated in the trial or that accepted the inmate's plea of guilty or no contest, whichever is applicable.
2. The office of the district attorney that participated in the trial of the inmate or that prepared for proceedings under s. 971.08 regarding the inmate's plea of guilty or no contest, whichever is applicable.
3. The victim of the crime committed by the inmate or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian, upon submission of a card under par. (f) requesting notification.
(d)
1. The notice under par. (c) shall inform the offices and persons under par. (c) 1. to 3. of the manner in which they may provide written statements under this subsection, shall inform persons under par. (c) 3. of the manner in which they may attend interviews or hearings and make statements under par. (eg) and shall inform persons under par. (c) 3. who are victims, or family members of victims, of crimes specified in s. 940.01, 940.03, 940.05, 940.225 (1), (2), or (3), 948.02 (1) or (2), 948.025, 948.06, or 948.07 of the manner in which they may have direct input in the parole decision-making process under par. (em). The parole commission shall provide notice under this paragraph for an inmate's first application for parole and, upon request, for subsequent applications for parole.
2. The notice shall be by 1st class mail to an office's or a person's last-known address sent at least 3 weeks before the interview or hearing upon the application for parole.
3. The notice shall state the name of the inmate, the date and term of the sentence and the date when the written statement must be received in order to be considered. If the notice is to an office under par. (c) 1. or 2., the notice shall also state the crime of which the inmate was convicted.
3g. If applicable, the notice shall state the date of the interview or hearing that the person may attend.
3m. If applicable, the notice shall state the manner in which the person may have direct input in the decision-making process for parole.
4. If the notice is for a first application for parole, the notice shall inform the offices and persons under par. (c) 1. to 3. that notification of subsequent applications for parole will be provided only upon request.
(e) The parole commission shall permit any office or person under par. (c) 1. to 3. to provide written statements. The parole commission shall give consideration to any written statements provided by any such office or person and received on or before the date specified in the notice. This paragraph does not limit the authority of the parole commission to consider other statements or information that it receives in a timely fashion.
(eg) The parole commission shall permit any person under par. (c) 3. to attend any interview or hearing on the application for parole of an applicable inmate and to make a statement at that interview or hearing.
(em) The parole commission shall promulgate rules that provide a procedure to allow any person who is a victim, or a family member of a victim, of a crime specified in s. 940.01, 940.03, 940.05, 940.225 (1), (2), or (3), 948.02 (1) or (2), 948.025, 948.06, or 948.07 to have direct input in the decision-making process for parole.
(f) The parole commission shall design and prepare cards for persons specified in par. (c) 3. to send to the commission. The cards shall have space for these persons to provide their names and addresses, the name of the applicable prisoner and any other information the parole commission determines is necessary. The parole commission shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in par. (c) 3. These persons may send completed cards to the parole commission. All commission records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1). Before any written statement of a person specified in par. (c) 3. is made a part of the documentary record considered in connection with a parole hearing under this section, the parole commission shall obliterate from the statement all references to the mailing addresses of the person. A person specified in par. (c) 3. who attends an interview or hearing under par. (eg) may not be required to disclose at the interview or hearing his or her mailing addresses.
(g) Before a person is released on parole under this subsection, the parole commission shall so notify the municipal police department and the county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the parole commission a written statement waiving the right to be notified. If applicable, the department shall also comply with s. 304.063.
(1m) The parole commission may waive the 25 percent or 6-month service of sentence requirement under sub. (1) (b) under any of the following circumstances:
(a) If it determines that extraordinary circumstances warrant an early release and the sentencing court has been notified and permitted to comment upon the proposed recommendation.
(b) If the department recommends that the person be placed on parole that includes the condition under sub. (1x) and the commission orders that condition.
(1q)
(a) In this subsection, “serious child sex offender" means a person who has been convicted of committing a crime specified in s. 948.02 (1) or (2) or 948.025 (1) against a child who had not attained the age of 13 years.
(b) The parole commission or the department may require as a condition of parole that a serious child sex offender undergo pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. This paragraph does not prohibit the department from requiring pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen as a condition of probation.
(c) In deciding whether to grant a serious child sex offender release on parole under this subsection, the parole commission may not consider, as a factor in making its decision, that the offender is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or that the offender is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.
(1r) A person released under this section, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of parole. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department.
(1x) The parole commission may require as a condition of parole that the person is placed in the intensive sanctions program under s. 301.048. In that case, the person is in the legal custody of the department under that section and is subject to revocation of parole under sub. (3).
(1y) If a person is sentenced under s. 973.032, he or she is eligible for a release to parole supervision under this section and remains in the intensive sanctions program unless discharged by the department under s. 301.048 (6) (a).
(2) No prisoner under sub. (1) may be paroled until the parole commission is satisfied that the prisoner has adequate plans for suitable employment or to otherwise sustain himself or herself. The paroled prisoner shall report to the department in such manner and at such times as it requires.
(2m)
(a) In this subsection, “serious sex offense" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06 or 948.07 or a solicitation, conspiracy or attempt to commit a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06 or 948.07.
(b) Except as provided in par. (c), no prisoner who is serving a sentence for a serious sex offense may be paroled to any county where there is a correctional institution that has a specialized sex offender treatment program.
(c) A prisoner serving a sentence for a serious sex offense may be paroled to a county where there is a correctional institution that has a specialized sex offender treatment program if that county is also the prisoner's county of residence.
(d) The parole commission or the department shall determine a prisoner's county of residence for the purposes of this subsection by doing all of the following:
1. The parole commission or the department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
2. The parole commission or the department shall apply the criteria for consideration of residence and physical presence under subd. 1. to the facts that existed on the date that the prisoner committed the serious sex offense that resulted in the sentence the prisoner is serving.
(3) Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department. If the department alleges that any condition or rule of parole has been violated by the prisoner, the department may take physical custody of the prisoner for the investigation of the alleged violation. If the department is satisfied that any condition or rule of parole has been violated it shall afford the prisoner such administrative hearings as are required by law. Unless waived by the parolee, the final administrative hearing shall be held before a hearing examiner from the division of hearings and appeals in the department of administration who is licensed to practice law in this state. The hearing examiner shall enter an order revoking or not revoking parole. Upon request by either party, the administrator of the division of hearings and appeals shall review the order. The hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10). If the parolee waives the final administrative hearing, the secretary of corrections shall enter an order revoking or not revoking parole. If the examiner, the administrator upon review, or the secretary in the case of a waiver finds that the prisoner has violated the rules or conditions of parole, the examiner, the administrator upon review, or the secretary in the case of a waiver, may order the prisoner returned to prison to continue serving his or her sentence, or to continue on parole. If the prisoner claims or appears to be indigent, the department shall refer the prisoner to the authority for indigency determinations specified under s. 977.07 (1).
(3d) Upon demand prior to a revocation hearing under sub. (3), the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.
(3e) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each parole revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
(3g) If a paroled prisoner signs a statement admitting a violation of a condition or rule of parole, the department may, as a sanction for the violation, confine the prisoner for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the prisoner in a county jail under this subsection, the department shall reimburse the county for its actual costs in confining the prisoner from the appropriations under s. 20.410 (1) (ab) and (b). Notwithstanding s. 302.43, the prisoner is not eligible to earn good time credit on any period of confinement imposed under this subsection.
(3m) If the convicting court is informed by the department that a prisoner on parole has absconded and that the prisoner's whereabouts are unknown, the court may issue a capias for execution by the sheriff.
(4)
(a) If any person convicted of a misdemeanor or traffic offense, any person convicted of a criminal offense and sentenced to 2 years or less in a house of correction or any person committed to a house of correction for treatment and rehabilitation for addiction to a controlled substance or controlled substance analog under ch. 961, during the period of confinement or treatment appears to have been rehabilitated or cured to the extent, in the opinion of the superintendent of the house of correction or the person in charge of treatment and rehabilitation of a prisoner at that institution, that the prisoner may be released, the prisoner may be released upon conditional parole. Before a person is released on conditional parole under this paragraph, the superintendent or person in charge of treatment and rehabilitation shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department a written statement waiving the right to be notified.
(b) Application for such conditional parole shall be made in writing by the superintendent of the house of correction to the court of commitment stating the facts justifying the application. The court shall proceed to take testimony in support of the application. If the judge is satisfied from the evidence that there is good reason to believe that the prisoner has been rehabilitated or cured to the extent that he or she may be released and that proper provision for employment and residence has been made for the prisoner, the judge may order the prisoner's release on parole to the superintendent of the house of correction, on such conditions to be stated in the order of release as the judge determines. In the event of violation of any such conditions by the prisoner, he or she shall be returned to the court and may be recommitted to the house of correction to serve the remainder of his or her sentence or for further treatment.
History: 1971 c. 125, 219; 1973 c. 90, 198, 333; 1975 c. 156, 199; 1977 c. 29, 353, 418, 449; 1979 c. 356; 1981 c. 266; 1983 a. 27, 64, 197, 528, 538; 1985 a. 262 s. 8; 1987 a. 244 ss. 1 to 3, 7; 1987 a. 412; 1989 a. 31 ss. 1699 to 1700p; Stats. 1989 s. 304.06; 1989 a. 107, 122; 1991 a. 39; 1993 a. 79, 89, 97, 178, 194, 227, 289, 377, 479, 491; 1995 a. 27, 77, 352, 387, 444, 448; 1997 a. 133, 181, 237, 275, 283, 284, 326; 1999 a. 32; 2001 a. 109; 2003 a. 33; 2005 a. 42; 2009 a. 28, 276; 2011 a. 38; 2013 a. 79, 196.
A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS, 64 Wis. 2d 367, 219 N.W.2d 267 (1974).
Refusal by the parole board to grant discretionary parole is subject to judicial review. Failure to notify the prisoner of the standards and criteria applied to a parole application constituted a denial of due process. State ex rel. Tyznik v. DHSS, 71 Wis. 2d 169, 238 N.W.2d 66 (1976).
Every violation of probation or parole does not result in automatic revocation. Snajder v. State, 74 Wis. 2d 303, 246 N.W.2d 665 (1976).
A parole revocation hearing is not part of a criminal prosecution. Thus the full panoply of rights, including Miranda warnings and the exclusionary rule, are not applicable. State ex rel. Struzik v. DHSS, 77 Wis. 2d 216, 252 N.W.2d 660 (1977).
Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds that the parolee's conduct related to an alleged crime for which the parolee was charged and acquitted. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727 (1978).
Presentence incarceration due to indigency must be credited to a life sentence for the purpose of determining eligibility for parole. Wilson v. State, 82 Wis. 2d 657, 264 N.W.2d 234.
A parole agent's failure to act on knowledge of similar prior violations did not preclude revocation. Van Ermen v. DHSS, 84 Wis. 2d 57, 267 N.W.2d 17 (1978).
Due process rights given to individuals facing parole revocation by Morrissey v. Brewer, 408 U.S. 471, and Gagnon v. Scarpelli, 411 U.S. 778, are required before a parole, granted but not yet executed, may be rescinded. This protection extends to the determination of the factual basis for rescission and, when the factual basis is misconduct, this protection includes the opportunity to present to the parole board evidence in justification or mitigation of the misconduct that may make rescission inappropriate. State ex rel. Klinke v. DHSS, 87 Wis. 2d 110, 273 N.W.2d 379 (Ct. App. 1978).
The secretary's authority to revoke under s. 57.06 (3), 1987 stats. [now s. 304.06 (3)] cannot be bound by an agent's representations. State ex rel. Lewis v. H&SS Dept. 89 Wis. 2d 220, 278 N.W.2d 232 (Ct. App. 1979).
A parole violation may not be proved entirely by unsubstantiated hearsay testimony. State ex rel. Henschel v. H&SS Dept. 91 Wis. 2d 268, 280 N.W.2d 785 (Ct. App. 1979).
Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108 (Ct. App. 1979).
A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. 1979).
An inmate who entered into Mutual Agreement Program (MAP) “contract" for discretionary parole may not bring a civil action for breach of contract. Coleman v. Percy, 96 Wis. 2d 578, 292 N.W.2d 615 (1980).
A mandatory release parole violator may be required to serve beyond the final discharge date originally set by the trial court. State ex rel. Bieser v. Percy, 97 Wis. 2d 702, 295 N.W.2d 179 (Ct. App. 1980).
Because courts have exclusive criminal jurisdiction, criminal charges against a defendant were not collaterally estopped even though a parole revocation hearing examiner concluded that the defendant's acts did not merit parole revocation. State v. Spanbauer, 108 Wis. 2d 548, 322 N.W.2d 511 (Ct. App. 1982).
Due process was not violated by holding two revocation hearings dealing with the same conduct when the first hearing was based on facts and the second hearing was based on a conviction. State ex rel. Leroy v. DHSS, 110 Wis. 2d 291, 329 N.W.2d 229 (Ct. App. 1982).
The doctrine of issue preclusion should not be applied to findings in parole and probation revocation hearings to prevent criminal prosecutions on the same issue. State v. Terry, 2000 WI 250, 239 Wis. 2d 519, 620 N.W.2d 217.
Sub. (3) does not provide authority to the department of corrections to make and enforce rules binding on the division of hearings and appeals regarding the revocation of parole or period of reincarceration in contested cases. The decision to impose reincarceration time is solely that of the division of hearings and appeals, and a department of corrections manual has no binding effect upon it. George v. Schwarz, 2001 WI App 72, 242 Wis. 2d 450, 626 N.W.2d 57, 00-2711.
Sub. (1m) permits the waiver of the minimum sentence service requirement if certain conditions are met. Such a determination removes the parole eligibility conditions that would otherwise apply under sub. (1) (b), but it does not eliminate the necessity for a parole hearing. While the grant of parole might logically follow from a determination of extraordinary circumstances, the statute does not dictate that result. State ex rel. Szymanski v. Gamble, 2001 WI App 118, 244 Wis. 2d 272, 630 N.W.2d 570, 00-2272.
A rule that inmates must always be released from physical custody before any revocation is commenced would elevate form over substance. When inmates violate probation terms immediately and simultaneously with their scheduled mandatory release dates, the department of corrections may maintain continuous custody, even though that person's status changes from a prisoner serving a sentence to a parolee detained on a parole hold. Riesch v. Schwarz, 2005 WI 11, 278 Wis. 2d 24, 692 N.W.2d 219, 03-0920.
2011 Wis. Act 38 repealed or modified ss. 302.113 (2) (b) and 304.06 (1) (bg) 1., 2009 stats., which afforded certain prisoners convicted of Class F to Class I felonies an opportunity to earn early release from confinement, resulting in the petitioner being required to serve the full term of the initial confinement portion of his sentence. Because the law in effect when he was convicted afforded him the opportunity to be released earlier and the 2011 Act 38 modifications resulted in a significant risk of prolonging the defendant's incarceration, the portions of Act 38 that eliminated the defendant's eligibility for early release under the 2009 law violated the ex post facto clauses when applied to the defendant's offenses. Singh v. Kemper, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820, 13-1724.
Affirmed in part, reversed in part. Singh v. Kemper, 2016 WI 67, 371 Wis. 2d 127, 883 N.W.2d 86, 13-1724.
When required by the right to effectively present a defense, the state must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.
When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.
A convict has no constitutional right to be paroled. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979).
A state administrative rule imposing an absolute bar on international travel by parolees is constitutional. Williams v. State, 336 F.3d 576 (2003).
Probation and parole revocation in Wisconsin. 1977 WLR 503.