New rules for an old law could change the revocation landscape

By Alexandria Staubach
 
The Wisconsin Department of Corrections will hold a virtual hearing on July 8 for public comments on proposed new rules that could improve supervision and avoid revocations, though an advocate says the rules could be even better.
 
More than a decade ago, the Legislature passed 2013 Wisconsin Act 196, which says the DOC “shall” create rules for a system of short-term sanctions for violations of supervision conditions, with “a list of sanctions to be imposed for the most common violations.” The rules were to give flexibility in imposing sanctions while providing “offenders with clear and immediate consequences for violations.”
 
Implementation of the law had the potential to eliminate harsh revocation prison sentences and dramatically reduce the prison population.
 
Instead, in 2019, the DOC created an administrative rule that an advocate says gives lip service to the law and continues opaque standards that prop up incarceration as the primary vehicle for revocation sanctions.
 
“The rule was one sentence,” WISDOM’s Tom Gilbert recently told WJI. “It said they will adopt an evidence-based response to violations, which is what they had before the law was passed.” Gilbert calls the current administrative rule “wasted words and paper.” He strongly believes that the current rule does little to address the requirements imposed by the law.
 
“I understand the difference between the word ‘shall’ and the word ‘may,'" Gilbert said.  
 
“When I learned about Act 196 and its potential for changing the way things are done and the consequences, I thought this could be a game changer,” said Gilbert. On behalf of WISDOM, Gilbert has been meeting with DOC about the law and rule since 2019.

WISDOM is a statewide network of faith-based organizations and others advocating for racial, social and economic justice.
 
In 2024, more than 8,000 people were admitted to Wisconsin’s prisons, and roughly 60% of those admissions were based on revocations, per DOC data.
 
Act 196 was designed to ensure that short-term sanctions for individuals who violate the rules of their probation, parole, deferred sentence, or community supervision are tailored and take several individual factors into account.
 
While correcting the offender’s behavior, providing proportionate consequences, and protecting the public are all objectives, the law requires DOC also to ensure “that efforts to minimize the impact on an offender’s employment” and “efforts to minimize the impact on an offender’s family” are made when imposing sanctions.
 
Gilbert said that if DOC followed the law and considered the impacts on a person’s employment and family, it would be a radical departure from its current Electronic Case Reference Manual, which “says very little about these things.”

​The statute also requires DOC to be transparent about specific sanctions for the common types of rule violations.
 
Before Act 196 passed, and continuing today, DOC has determined revocation sanctions using an evidenced-based, but proprietary, tool called “the Compass,” Gilbert said. “Because it’s a proprietary tool, no one can see how (DOC) arrives at their decisions." Defendants and defense attorneys have no way of knowing what sanctions will be imposed for what violations or how decisions to revoke are made, he said.
 
Proper implementation of Act 196 through an improved rule could require DOC to set forth a clear list of sanctions for the most common offenses.
 
“People would know in advance,” and “that kind of transparency is sadly lacking in supervision today,” said Gilbert. 
 
This year, DOC proposed new rules, which are the subject of the July 8 public hearing. After the hearing, interested individuals will have 30 days to submit written comments.
 
Gilbert said the proposed rules “still will not implement the law” because they merely quote the eight requirements of Act 196 and fail to develop the mandated system of short-term sanctions. He called this a “conscious omission, not an oversight.”

However, “the release of the proposed Act 196 rules for public comment provides a real opportunity to communicate our vision of a community corrections system that focuses on restoration, both of affected individuals and the communities in which they and we live,” Gilbert told WJI.
 
More information about the hearing and how to make public comments can be found here.