Recently I went to the jail to speak to a client about whether he should "waive" or give up on the revocation of his extended supervision (probation for people who went to prison). He worried that without a good defense, the Administrative Law Judge would automatically make him return to prison for more time than what his probation agent recommended.
While the administrative law judge does have authority to reconfine a probationer for the maximum amount of reconfinement time (on an extended supervision term), one must also consider all the reasons why we should STILL have the revocation hearing.
First, we might learn facts about the underlying allegations that we wouldn't otherwise learn. Most of the time, a client is only being revoked after he or she commits a new crime. The revocation hearing is much like a trial - witnesses testify, evidence is presented, questions are asks. We use this hearing to test the credibility of witnesses, the strength of the State's case, and learn more about the investigation itself.
Second, a person cannot be revoked just for committing a rules violation. According to Wisconsin law, a person can only be reconfined if it is necessary to (a) control the offender, (b) treat the offender, or (c) hold accountable the offender. That means that if some alternative to revocation would accomplish these goals, then revocation is not the answer. Recently I had a hearing where my client was faced with six allegations. We proved that five of the six were unfounded. The administrative law judge found the sixth allegation occurred--that he did not have a license when he was driving. Nonetheless, the judge determined that the time the client had spent in jail waiting for the hearing held him accountable, that there was no further need to confine him to control the behavior, and that confinement would not help him get his license back. Great decision!
Third, we can ask the administrative law judge for LESS time than what the agent has recommended. Now, this becomes tricky where the allegations are hard to defend. But if we have success disproving some of the allegations, then we can question the agent on whether the recommendation being made is still supported. We can also ask the agent what policies or guidelines have driven the recommendation. Often the Department of Corrections has policies that look at the "seriousness of the offense" without considering many mitigating factors. Either way, the revocation hearing is a chance to make good arguments about a client's positive adjustment on supervision, that he or she should be revoked for less time.
Taken together, we URGE clients to resist signing a revocation hearing waiver. That hearing matters. We will be there. We will be prepared. We will make that hearing call. If you have a family member or friend facing supervision revocation, then call us at Richards & Dimmer, for a free consultation.
Brian P. Dimmer