Pre-Sentence Reports For Consideration

1. the severity of the offense

2. the character of the defendant

3. the need to protect the public

For felony convictions, a pre-sentence report (PSI) is prepared by probation agents that, in theory, are unbiased arms of the court. In reality, they are pro-government and usually write reports that are quite unfavorable to the defendant. While the court is not bound by that recommendation, it usually weighs heavily in the court's decision.

To counter that state PSI, the criminal defense team at Birdsall Law Offices always prepares an independent "defense PSI" for the judge. The purpose is to show the defendant in the best possible light. The defense report will explain mitigating factors such as childhood trauma, mental illness, or strong character. It will also discuss extenuating circumstances such as the defendants minimal role in the offense, the lack of severe violence or weapon, the information given as a cooperating witness, etc. The report might also include information about positive steps taken by the defendant since being arrested, such as seeking counseling or drug treatment.

Pre-sentencing reports are not binding on the court, but often mean the difference between probation and prison. 

Bifurcated Sentence

• a portion to be served in prison (called "confinement") and
• a portion to be served in the community on "extended supervision"

This structure was instituted with the passage of as the "truth-in-sentencing" law. Bifurcated sentences may also include fines or probation as part of the sentence. As a technical matter, you are in "prison" the entire time of the bifurcated sentence. They are referred to as Type I (confinement) and Type II (ES) prisons. In each part you are under the custody of the Department of Corrections and subject to their control.

Confinement

Jail vs. Prison

"Jail" refers to a county or local jail, which are reserved for misdemeanor offenses for which the maximum penalty is one year or less. "Prison" refers to the Wisconsin State Prison system which is strictly for felonies which, by definition, carry sentences of more than a year. The prison system is divided into Camps (which are used as transitional facilities and treatment centers), Minimum, Medium, Maximum, and SuperMax. Which facility a person is sent to is determined by the Department of Corrections (DOC), not the courts. They take into account the severity of the offense and the risk that they determine that a person presents (prior record, etc.)

Probation

Under Wisconsin law, judges are required to consider probation as a punishment and reject it only if it would "depreciate the seriousness of the offense" or the community would be in danger if the person was not confined. Probation is a period of supervision in the community and the person on probation, called the probationee, is allowed to live at home, or another residence, outside of jail or prison. Probation can be ordered by a court at the time of sentencing instead of, or in addition to, jail or prison. The supervisor is called a probation officer ("PO"). Probation is conditional, however, which means it can be revoked if the probationee does not comply with the terms as specified in the sentence. Those terms can include drug treatment, employment, no contact with a victim, report to PO, etc.

Parole

Parole is the same as probation but supervision is imposed after release from prison. The person paroled is called the parolee. The parolee is still under the custody of the DOC but is not "confined." Technically, "parole" has been abolished in Wisconsin after 12/31/1999 with the institution of Truth-in-Sentencing. In reality it was just replaced by Extended Supervision.

 If your crime was prior to 12/31/1999, you may apply for parole after 25% of your sentence has been served. Parole applications are handled by the parole commission (also known as the parole board). If a prisoner is released from prison parole is conditional, which means that the parolee is afforded his freedom so long as he meets the specific conditions set by parole board, the court, and the PO. If the conditions are not met, the person can be sent back to prison.

 If a person is sentenced to prison and no eligibility for parole is defined either the prisoner will not ever become eligible for parole or the prisoner may become eligible for parole based on time served.

Conditions and Revocations of Probation or Parole

If you are placed on probation instead of going to jail or prison, you are subject to certain standard conditions and may have additional conditions specific to your case. In theory, the conditions of probation or parole must be reasonably related to your offense and rehabilitation. For example, those convicted of drug crimes may be required to have random urine screens. In sexual assault cases, conditions may include restrictions on who a person can have contact with or date (for example, no contact with children). Failure to comply with any and all conditions can lead to probation or parole being revoked and a person being sent to (or sent back to) jail or prison.

 When you are on probation keep the following in mind:

• A PO can search you, your home, or any of your property at any time to ensure compliance with the rules. They do not need a warrant. Anyone living with you is subject to the same conditions.
• If you have any police contact (even a traffic stop), you must inform your PO.
• If you are accused of or arrested for an additional crime, you are required to give a statement regarding the subject if your PO asks. Failure to do so is a violation for which you could be revoked. Your PO does not have to give you Miranda warnings about the right to remain silent but will advise you that the statement itself is not admissible in a criminal trial unless you would testify differently.
• If you are accused of a new crime, you can be charged for that crime and the accusation may be used to revoke your probation. This is true even if you go to trial and are found not guilty. The burden of proof in a revocation hearing is "preponderance of the evidence" (51%) versus "beyond a reasonable doubt" in a criminal case.
• When accused of a violation your PO may have you taken into custody and put a "hold" on you, which means you don't get bail. When they begin their "investigation," they may try to get you to waive your right to a hearing. DO NOT waive your right to a hearing, which must begin within 50 days of being put in jail.
• The PO may use hearsay to revoke you as long as the judge finds it to be "reliable."
• A revocation hearing is not held in the circuit court - it is an administrative proceeding started by the Department of Corrections and presided over by the Division of Hearings and Appeals and an Administrative Law Judge (ALJ).
• The PO is required to consider "Alternatives to Revocation" (ATR) before seeking revocation. The ALJ may order an alternative, especially in drug cases where serious treatment is needed rather than jail. In reality, this is usually just given lip service.
• At the hearing on whether to revoke a person, the ALJ decides:
  • Who is truthful and believable
  • Whether or not you actually violated the rules of probation
  • Whether you have been given sufficient notice of the violations
  • Whether you had a chance to have an attorney and call witnesses
  • If you did violate, whether it is severe enough to justify putting you in jail

If you are revoked, you will be returned to the county where you were originally convicted of the crime for which you were put on probation to be sentenced by the same judge. In many cases, the judge ordered "imposed and stayed" time, which means you may have been sentenced to time in jail or prison, but that time is put on hold so you can serve a sentence of probation. If you are revoked, the "stay" is lifted and you automatically are sentenced to the time that was already ordered.

The Truth-in-Sentencing (TIS) law provides different sanctions for convicted felons who are on probation or parole. For example, a PO may put you in custody – without a hearing – for any increment up to 90 days if he or she thinks you have violated a rule.

Deferred Prosecution Agreement

This is referred to as a DPA that requires you to enter a plea of guilty but entry of a judgment of conviction is "deferred" for a period of time (usually 1-2 years) with conditions that must be abided by. If those conditions are met, the case is dismissed at the completion of the deferment period. If they are not, the judgment of conviction is entered and you are sentenced as if the agreement never existed. These are used for youthful first time offenders and for nonviolent drug cases.

Mandatory Minimum Sentences

Many statutes require that a certain amount of jail/prison be served in the event of conviction. This occurs most commonly with OWI repeat offenders, sex crimes and drug cases. What this means is that, upon conviction by plea or trial, the judge is required to sentence you to the minimum time designated by statute. These are particularly harsh and essentially rob the judges of any discretion in the case.

Restitution

As part of a sentence for a criminal conviction, restitution typically involves return of stolen goods to the victim or payment to the victim for harm caused (such as costs of counseling or medical expenses). Restitution may be a condition of granting a defendant probation or giving him/her a shorter sentence than would have been imposed without restitution.

No Contact Order

This is imposed routinely in a bail bond pending trial and at sentencing. It prohibits contact with a victim, codefendants or certain persons or groups (gang members, children). You may not have contact by mail, email, phone, in person, through a 3rd party or in any way, shape or form. Violation of this rule before trial can result in bail jumping charges or, after trial, in revocation of probation/parole/Extended Supervision.