The process of a probation revocation
A big part of our practice involves representing people who are being revoked from probation or extended supervision. This post discusses the process of revocation and how an attorney can help at each stage.
THE HOLD & INVESTIGATION
Most revocations begin with a simple allegation that could be anything from a positive drug test, missed meeting, or new criminal charges. The agent places a hold on the person (they call them offenders), who is held in jail until the Department of Corrections investigates. An agent will commonly come to interview the client in jail and take a written statement. It is important to note that a person on probation is not free to refuse a statement to his agent. Since a statement to an agent is compelled, it cannot be used to prosecute the client in any criminal prosecution. There is very little that the person on supervision can do to get out of jail at this stage, but an agent only has ten business days to make a decision on whether or not to revoke the client.
NOTICE OF VIOLATION AND PRELIMINARY HEARING
Eventually the agent and her supervisor will make a decision on whether to revoke a client’s supervision. If they decide to revoke a client, the agent will draft a notice of violations, generally alleging violations of certain rules of supervision. Agents tend to go overboard at this stage and allege as many possible violations as they can. For example, if a client admits to smoking marijuana, the agent will allege 1. Violation by possession, 2. Violation by use, 3. Violation by failing to comply with terms of their AODA programming, and 4. Violation for conduct that is not consistent with rehabilitation.
In certain cases a client is entitled to a preliminary hearing. Those that are familiar with a preliminary hearing in criminal court might expect live witnesses, a neutral magistrate, and procedural due process…but, surprise, this isn’t criminal court and clients aren’t entitled to traditional due process. There is a ‘magistrate,’ but it isn’t an elected judge, it’s not an administrative law judge, and it isn’t even an attorney. The ‘magistrate’ is another probation agent. The agent seeking revocation does not have to present live testimony and is not placed under oath. While a client has a right to an attorney at this hearing, he does not have the right to reschedule if an attorney is unavailable. The magistrate issues a written decision by email shortly after the hearing and has sole discretion on (1) whether there are grounds for the revocation to proceed and (2) if so, whether the client is required to stay in jail pending a final revocation hearing.
By statute a client has a right to a final revocation hearing within 50 calendar days after a preliminary hearing, but the Wisconsin Court of Appeals has determined that this timeline is more of a suggestion than a mandatory timeline. However, the Sheriff of a county has the authority to release a person on probation if his or her final hearing isn’t held within these timelines, and will do so in rare cases.
THE REVOCATION PACKET & INVESTIGATION
At some point the agent will put together a revocation packet. The contents vary depending on the client and case, but this packet is usually a worst-case view of a client’s life and history on supervision. It will contain the alleged violations, prior violations of probation, prior violations of other periods of probation, violations of prison rules if the client has previously served time, a Plotkin analysis that addresses a client’s need for rehabilitation, the need to protect the community, and the need to punish the offender, and relevant witness statements & police reports to support the violation.
If a client does not have an attorney involved at this stage it is important to get one involved as soon as possible. An attorney can draft and submit the proper waivers to get access to the client’s entire supervision record, not just the bad stuff. This is necessary to defend against the alleged violations and put together realistic proposals for alternatives to revocation. An attorney will also interview witnesses, subpoena necessary evidence, and arrange for favorable witnesses to appear at the revocation hearing.
ALTERNATIVES TO REVOCATION
Many clients hope for an alternative to revocation (“ATR”) before the reach the final hearing. Agents will sometimes agree to an ATR before this point and allow the client to go to treatment, reside in a halfway house, or participate in a program like drug court rather than face revocation. Good attorneys will be proactive in this process and engage the agent and her supervisor early on. However, even if the agent does not agree to an ATR, the attorney can still develop a plan and submit a proposal for the final revocation hearing.
THE FINAL REVOCATION HEARING
The final revocation hearing is, legally speaking, a total free for all. Hearsay is admissible to a near-unlimited extent, the rules of evidence largely don’t apply to either side, and the probation agent acts as attorney for the Department of Corrections. The judge is not an elected official, but rather an administrative law judge (“ALJ”), an employee hired by the Division of Hearings and Appeals. The client has no right to substitution of judge or trial by jury. The ALJ appears by video link from his or her office in either Madison or Milwaukee and is not present to personally assess the credibility of witnesses.
At the hearing, the ALJ has to decide three primary issues: First, whether the client committed the violations alleged. The agent bears the burden of proving all violations by the preponderance of the evidence. Second, if the ALJ decides that a violation has been committed, she must determine whether it is serious enough to require revocation. This is where ATRs come in. An ALJ is required to consider an ATR at this hearing and has the power to grant one even if the agent refuses to agree. Finally, if a client is being revoked on extended supervision the ALJ has the power to decide how much time the client will be sent back to prison for.
Revocation hearings typically last one hour and the ALJ has ten business days from the end of the hearing to issue a written decision.
Either party can appeal an ALJ’s decision to revoke or not revoke, as well as the length of time a person is sent back to prison for. This appeal is made to the Administrator of the Division of Hearings and Appeals and must be done within ten days of the revocation decision. An appeal is usually just a letter and can address legal mistakes and factual corrections, but also allows a client to ask the administrator to reconsider the ALJ’s initial determination. This process is very informal and the Administrator is required to issue a written decision within 21 business days of an appeal.
WRIT OF CERTIORARI
If the Administrator denies an appeal the next step is to ask the circuit court judge to reverse the revocation in a process known as a writ of certiorari, or writ of cert. A writ of cert is technically a civil lawsuit against the Division of Hearings and Appeals. The sentencing judge has to decide whether the hearing was “arbitrary and capricious,” or in other words whether the Department of Corrections and the ALJ followed proper procedure. This review is done completely on paper and is limited solely to the facts and issues already in the record. While some clients choose to pursue this option on their own, the process can be highly technical, and for that reason I highly recommend that clients choosing to pursue this option hire an attorney to assist them. A client must pursue a writ of cert within 45 days of the final administrative appeal.