A recent report argued too many people are sent to prison in Wisconsin for breaking conditions of their paroles, rather than engaging in new criminal activity. But Dane County officials don’t believe revocations of parole are a problem in the county, and Wisconsin Department of Corrections officials said most revocations do involve criminal activity, even if there is no new conviction.
The report said that thousands of people, many of them with mental illnesses, are sent to prison each year in Wisconsin without breaking the law. It argued that this has serious consequences for the offenders, their families and the state.
The report, "Excessive Revocations in Wisconsin: The Health Impacts of Locking People Up Without a New Conviction," was produced by the California-based research group Human Impact Partners. WISDOM, a collective religious social justice organization, and its off-shoot Ex-Prisoners Organizing (EXPO) commissioned the study.
Revocation refers to sending an individual back to prison for violating their post-imprisonment supervision arrangement, like parole, probation or extended supervision. When individuals are revoked for breaking these technical rules, but not breaking any law, this is known as “revocation without a new conviction” or “revocation-only admissions.”
Revocation-only admissions can occur when individuals commit minor infractions like missing meetings with a parole officer, leaving their home county, breaking curfew, refusing to take prescribed medications or consuming alcohol, according to the report.
The report said that almost 3,000 people were imprisoned in Wisconsin without new convictions in 2015, and that this cost the state $147 million.
But Matt Moeser, deputy district attorney for Dane County, said he doesn’t think excessive revocations are a problem, noting that in his experience, most revocations in Dane County are tied to a new crime or ongoing pattern of breaking supervision rules.
DOC data shows that over the past few years, revocations without a new conviction have consistently made up about 30 percent of all prison admissions in Dane County.
The DOC refers to “revocations without a new conviction” as “revocation-only” prison admissions. It classifies prison admissions into four categories: revocation only, new sentence only, revocation/new sentence and other.
In 2015, 169 out of 544 Dane County prison admissions were revocation-only, or 31.1 percent of total admissions. The previous two years also hovered around 30 percent, with 169 out of 558 revocation-only prison admissions in 2013 and 175 out of 559 in 2014.
This is slightly lower than recent statewide data. In 2014, revocations-only admissions made up 43 percent of total prison admissions in Wisconsin, according to the DOC. This represents a decrease from 2006 and 2007, when revocation-only admissions accounted for slightly over 50 percent of prison admissions.
Although revocations without a new conviction are sometimes referred to as “crimeless revocations,” DOC data points out that the above admission percentages don’t reflect the fact that 33.5 percent of original revocation-only admissions eventually receive new criminal sentences for the behavior that led to revocation. Additionally, over 70 percent of revocation-only admissions were for criminal behavior, although no new criminal sentence was given, the DOC said.
Mark Rice, an organizer for EXPO, argued that the seriousness of the alleged criminal offense that leads to revocation should be taken into consideration.
“Almost 100 percent of people break some type of law every day, especially if we consider speeding,” Rice said. “It’s just not whether someone has broken the law, but whether the law has been serious enough that someone should be incarcerated for it.”
The report also argued that because those 70 percent are not formally charged with a crime, they face the revocation process’ lower standard of due process, as opposed to the stricter standard used in criminal court.
According to the DOC, the standard of proof for a revocation hearing is a preponderance of evidence. A preponderance of evidence is the standard of proof used in civil cases, and entails proving there is a greater than 50 percent chance that the defendant is in the wrong. The higher criminal court standard is “beyond a reasonable doubt.”
“If a prosecutor does believe that a serious violent offence has been committed, it would be unethical for them not to bring a charge and give the person an opportunity to defend themselves in court,” Rice said. Instead, “(We) just incarcerate them without ever having a chance to go through the formal legal process.”
At the front end of revocation process, the DOC said revocation is not a parole agent’s go-to option when an individual breaks the rules of their supervision.
“Revocation should not be the disposition for a rules violation,” Tristan Cook, communications director for the Wisconsin DOC, said in an email, unless:
- Confinement is necessary to protect the public from further criminal activity by the offender;
- The offender is in need of correctional treatment, which can be most effectively provided if they are confined; or
- It would unduly depreciate the seriousness of the violation if supervision were not revoked
Moeser’s impression of the process is in agreement with this DOC policy.
“I think (DOC’s) first impulse is to figure out if there’s something they can do to work with the person,” Moeser said. “It’s not that they’re shy about revoking people if there’s a reason to, but I don’t think that’s their first reaction.”
The report said that the revocation process is applied inconsistently across parole officers, who can utilize a range of responses to technical violations, including written assignments, reprimands, electronic monitoring, inpatient treatment or incarceration. A 2015 Journal Sentinel investigation showed that whether or not an individual is revoked depends greatly on their assigned parole agent.
In the revocation process outlined by the DOC, if an agent believes a supervision violation has occurred after making an investigation into the violation, they must consult both a violation staffing guide and their supervisor.
If the agent decides to revoke an offender, a preliminary hearing by a magistrate is sometimes required, and then an administrative law judge (ALJ) presides over the revocation hearing, making the ultimate decision as to whether to re-incarcerate the offender.
Dane County Circuit Judge Pete Anderson, Branch 17, oversaw revocation hearings in his former role as an administrative law judge. He said that judges look for alternatives to revocations, and can actually be more favorable to an offender than the offender's agent, as they don’t have the history of interaction that an agent does. Even so, agents want individuals to succeed, he said.
“The agents would love it if your person obeyed the law and got a job,” he said.
Ultimately, Anderson said, the DOC, rather than ALJs, is in charge of making policies concerning revocation. Whether those policies are too strict or too loose is a complex question, Anderson said.
“Where you set the policy dial?” Anderson said. “How much do you want to use incarceration as a matter of social control?”
Rice argued that incarceration policy should be dialed back.
“We need to use more community-based responses for people that are suspected of breaking rules of supervision,” he said. “There are still better alternatives to these lower-level offenses than immediately incarcerating people.”