ON THE DEFENSIVE: Wisconsin’s disastrous probation revocation system

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

By state law, probation must be the first consideration at sentencing. Because of this, and because many everyday crimes do not warrant incarceration, thousands of defendants are placed on probation every year in Wisconsin. At sentencing, the judge will impose a series of conditions that the agent is charged with putting into effect. For a variety of reasons, however, the state’s probation system rarely fulfills the intentions behind it.

Rehabilitation should be the primary goal of probation. After all, the majority of defendants suffer from mental illnesses or substance abuse. But, because most probation agents lack a degree – or even advanced training — in social work, they are generally ill equipped to provide meaningful guidance or treatment to those who are suffering from these afflictions. More often than not, an agent will simply instruct a probationer to undergo an alcohol-and-drug assessment and to follow through with treatment. Probationers with serious troubles often lack the motivation or insight to obtain meaningful treatment and can be discharged from probation without any significant improvement.

The probation system is particularly broken when it comes to handling alleged violations of supervision. When a probationer is alleged to have violated a rule, the reflexive response by the Department of Corrections is to incarcerate the offender while the agent conducts an “investigation.” The investigation often involves nothing more than taking a statement from the probationer and obtaining police reports. During that time, the probationer is housed in the county jail. Those who have employment usually lose their jobs — given that it typically takes an agent more than a week to deal with alleged rule violations.

If an agent concludes that probation should be revoked, the affected person is almost always kept in jail until a final hearing. The agent is the only one authorized to make official decisions in these matters. Although the law permits out-of-custody revocations, those almost never happen.

Once an agent has directed a probationer to remain in custody until revocation, there is no meaningful oversight outside that provided by the Department of Corrections. The probationer, for instance, may not appeal the decision to an Administrative Law Judge. And, since revocation hearings usually do not occur for about 60 days, many probationers will waive their right to a hearing in order to expedite their release.

Compare this with the federal system. In that system, most probationers are allowed to remain out of jail until a final hearing. Not only does this save money, but it also ensures the probationer has time to change his behavior before a judge makes a decision about revoking supervision. Most defendants can be counted on to show up for revocation hearings, largely because failing to do so would guarantee a revocation.

The probation system needs serious reform. Because substance abuse is involved in most cases, probation departments should be equipped with in-house counselors who regularly run group and individual treatment sessions.

The default rule, moreover, should be to conduct outside-of-custody revocations. This will reduce jail overcrowding while also ensuring that probationers don’t waive their final revocation hearings for the sake of expediency.