Judges can't prohibit home monitoring

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“The legislature has left county jail oversight to the sheriff, and the trial court’s decision to prevent home monitoring when jail time is ordered as a probation condition interferes with those responsibilities.” Judge Thomas Cane Wisconsin Court of Appeals

A circuit court may not prohibit a sheriff from granting home monitoring to a probationer ordered to serve jail time as a condition of probation, the Wisconsin Court of Appeals held on March 11.

In December 2001, La Rae J. Schell was convicted of three counts of encouraging a probation violation and one count of negligently allowing escape. Outagamie County Circuit Court Judge John A. Des Jardins withheld sentence and placed Schell on three years’ probation.

As a condition of probation, Des Jardins gave Schell a total of 100 days in jail with Huber privileges. During the sentencing hearing, Schell requested home monitoring, because she was a former jail employee and was concerned for her safety. However, while the judge did not specifically preclude Schell’s placement on home monitoring, he did not order it either.

After Schell reported to begin her time in jail, the sheriff determined she was appropriate for home monitoring and placed her on Outagamie County’s new Global Positioning System program.

Shortly thereafter, Schell’s ex-husband’s wife complained to the court that Schell was on home monitoring. The court then ordered Schell off the program, saying it never intended to allow Schell the option of home monitoring as part of her probation. Schell appealed, and the court of appeals reversed in a decision by Judge Thomas Cane.

Section 302.425

The court began by stating that its analysis was governed not by sec. 973.03, upon which the trial court relied, and which governs county jail sentences, but by sec. 973.09, which governs probation.

The other statute governing the court’s analysis was sec. 302.425, which states that a sheriff has the authority to place in a home monitoring program “any person confined in jail who has been arrested for, charged with, convicted of or sentenced for a crime.”

The court noted that the issue of whether a sheriff can place a probationer ordered to serve jail time on home monitoring was left unresolved in the case of State v. Eastman, 220 Wis. 2d 330, 339, 582 N.W.2d 749 (Ct. App. 1998).

In Eastman, the court of appeals held that a court cannot order home monitoring instead of jail when it is required to order jail as a probation condition under sec. 973.09(1)(d), because of mandatory minimums.

Addressing the question left open in Eastman, the court determined the plain language of sec. 302.425 allows the sheriff to place persons on home monitoring when they are given jail time as a probation condition.

Noting that the statute allows the sheriff to place on home monitoring “any person confined in jail who has been … convicted of … a crime,” the court concluded that Schell, and any other person ordered to serve jail time as a probation condition, falls within the statute’s plain language.

Separation of Powers

The court acknowledged the broad powers that courts have over the terms and conditions of probation, allowing the court to set any terms “which appear to be reasonable and appropri
ate” and to modify these terms and conditions “for cause and by order,” citing sec. 973.09(1)(a) & (3)(a).

Courts may also order a probationer to serve time in jail as a probation condition, or order a probationer placed on home monitoring, except for the situation in Eastman.

Conducting a separation of powers analysis, however, the court concluded that, given the language in sec. 302.425, permitting a court to preclude home monitoring would interfere with the sheriff’s powers to manage the county jail.

The court also noted that, in Skow v. Goodrich, 162 Wis. 2d 448, 451, 469 N.W.2d 888 (Ct. App. 1991), the court upheld the power of the Department of Corrections to release prisoners who had not reached their parole dates, in order to relieve overcrowding.

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Extending the holding in Skow to the case at bar, the court held, “Similarly, Wis. Stat. sec. 302.425 allows the sheriff to regulate the manner in which persons serve time in county jails. Although it could be argued that the court required Schell to actually serve her jail time in jail and the sheriff’s release unconstitutionally usurps the court’s authority, we disagree. The corrections program in Skow allowed the department to shorten confinement time to less than the court’s sentence. Id. at 451. There, the department’s actions would directly undermine the sentencing court’s authority, but did not violate the separation of powers doctrine. Here, the legislature has authorized sheriffs to release persons confined in county jails on home monitoring. Arguably, this undermines the court’s authority to require, among other things, that a probationer’s jail time actually be served in jail. It does not, however, violate the separation of powers doctrine.”

Finally, the court relied on public policy to support its holding. The court noted that the sheriff, more than any other person, is in the best position to determine the particular safety, budgetary and space constraints of each sheriff’s office and county jail.

The court added, “The legislature has determined that the judiciary is best situated to determine whether and how to place a person on probation. It is not similarly well suited to oversee the various decisions attendant to the execution of a county jail term. The legislature has left county jail oversight to the sheriff, and the trial court’s decision to prevent home monitoring when jail time is ordered as a probation condition interferes with those responsibilities.”

Accordingly, the court reversed.

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David Ziemer can be reached by email.