State ex rel. Hauser v. Carballo
| Decision Date | 03 January 1978 |
| Docket Number | Nos. 77-054,75-870 and 76-317,s. 77-054 |
| Citation | 261 N.W.2d 133,82 Wis.2d 51 |
| Parties | STATE ex rel. Monroe Lake HAUSER, Jr., Petitioner, v. Manual CARBALLO, Secretary, Department of Health and Social Services, Respondent. STATE ex rel. Carlos B. BROWN, Jr., Petitioner-Appellant, v. James W. MATHEWS, Warden, Wisconsin State Prison, Respondent. STATE ex rel. Nathaniel S. DRUMMER, Petitioner-Appellant, v. John R. GAGNON, Respondent. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, and Melvin F. Greenberg, Asst. State Public Defender, on brief, for petitioners.
Bronson C. La Follette, Atty. Gen., and James H. Petersen, Asst. Atty. Gen., on brief, for respondents.
Elizabeth Alexander, Correction Legal Services, Madison, on briefs, for petitioner-appellant. ABRAHAMSON, Justice.
These cases have been consolidated for decision because they raise common questions concerning the procedures which must be followed by the Department of Health and Social Services (hereinafter Department) in determining whether to forfeit a parole violator's good time credits. The specific issues we are called upon to determine are:
1. Does this court's decision in Putnam v. McCauley, 70 Wis.2d 256, 234 N.W.2d 75 (1975) require that a mandatory release parole violator be given a due process hearing before forfeiture of any of his good time or before forfeiture of only that part of his good time successfully served on parole (i. e., "street time")?
2. Does the policy under which the Department forfeits no part of the discretionary parole violator's good time contravene the requirements of sec. 53.11(2a), Stats.?
In order to place these issues into context, we shall define at the outset the statutory and administrative procedures which govern parole and good time credit in Wisconsin. We shall then summarize the facts of these cases and discuss the specific legal issues presented.
There are two categories of parole in Wisconsin, discretionary parole and mandatory release parole, governed respectively by secs. 57.06(1)(a) 1 and 53.11(7) (a), 2 Stats. Under both categories, parole is viewed as an extension of the prison walls, and the parolee remains under the control and supervision of the Department until his entire sentence is completed. 3
A mandatory release parolee is a prisoner released pursuant to sec. 53.11(7) (a) when he has served his sentence less good time granted and not forfeited under the provisions of ch. 53, described below. When a prisoner has served his sentence less his good time credit, he is entitled to release as a matter of right. The Department has no discretion to deny a sec. 53.11(7)(a) release.
An inmate who has forfeited all of his good time through institutional misbehavior 4 or who has elected, pursuant to sec. 53.11(4), Stats. 5 to waive his good time (usually because he is unwilling to submit to supervision and face the risk of loss involved in the revocation of mandatory release parole 6) will remain in the institution until his final discharge date (the date the sentence pronounced by the trial court terminates 7).
As has been noted, a prisoner's right to mandatory release is dependent upon his good time credits. Good time credit is described in secs. 53.11(1), 53.11(2a) and 53.12(1), Stats. Inmates and parolees who "conduct (themselves) in a proper manner" are "entitled to good time or diminution of sentence" at the rate of one month the first year, two months the second year, and so on, up to six months for the sixth and all following years. Sections 53.11(1) 8 and 53.11(2a), 9 Stats. These credits are variously referred to as "regular," "state" or "statutory" good time. Inmates, in addition, are "entitled to a diminution of time at the rate of one day for each six days" during which they show "diligence" in work or study. Sec. 53.12(1), Stats. 10 These credits are commonly referred to as "industrial" good time. Pursuant to these statutory entitlements, the Department assigns each entering prisoner a projected mandatory release date, calculated by subtracting from the maximum term to which the prisoner was sentenced the entire credit under secs. 53.11(1) and 53.12(1), Stats. for which he is eligible. Since the projected mandatory release date assumes that all "state" and "industrial" good time is earned, the mandatory release date must be recalculated when "state" good time is forfeited or "industrial" good time is disapproved. 11 Recalculation is also necessary when a prisoner is released on discretionary parole, to reflect the fact that he earns only "statutory" good time, not "industrial" good time, on parole. 12
A discretionary parolee is a prisoner released pursuant to sec. 57.06(1)(a), Stats. as a result of an exercise of discretion by the Department. Because the legislature has established no statutory exclusions on parole eligibility, the Department may grant discretionary parole to any prisoner at any time following the minimum incarceration prescribed in sec. 57.06(1)(a), Stats. The discretionary parolee who reaches his mandatory release date while on discretionary parole (and who is thereby entitled to parole as of right) is deemed from that point forward a mandatory release parolee. Sec. 53.11(7)(a), Stats. This automatic change in parole status has led this court to note that the only real difference between the discretionary parolee and the mandatory release parolee is that the mandatory release parolee is relatively closer to his final discharge date. Putnam v. McCauley, 70 Wis.2d 245, 262, 234 N.W.2d 75 (1975).
If discretionary and mandatory release parolees do not violate the conditions of their parole, they will be entitled to absolute final discharge when their sentences terminate. In other words, their parole time will be credited against their sentences in the same manner as would time served within the institution.
If the Department finds that a discretionary or a mandatory release parolee has violated a condition of his parole, it has the authority under sections 57.06(3) and 53.11(7)(b) to revoke parole and return the parole violator to prison. Under secs. 53.11(2a) and 53.11(7)(b), respectively, the Department has the authority to deprive the discretionary parole violator and the mandatory release parole violator of some or all of his good time credits. The statutory and administrative procedures which govern the forfeiture of good time credits after the revocation of discretionary and mandatory release parole are at issue in these cases and will be discussed below. 13 For the present we shall note only the disparate effects of good time forfeiture upon discretionary and mandatory release parole violators.
Because the mandatory release parole violator was released on parole when he had only good time left to serve, he cannot be returned to prison unless the Department can "take back" some or all of that good time. The period of time the mandatory release parole violator can be required to serve in prison following the revocation of his parole is therefore directly dependent upon the number of his good time credits which can be forfeited. If all or a sufficiently large portion of his good time credits are forfeited, the mandatory release parole violator can be, in effect, denied sentence credit for the portion of his good time successfully served on parole and thus required to serve beyond the final discharge date originally pronounced by the court.
The mandatory release parole violator's good time has been colloquially divided into two parts: (1) that part of good time successfully served on parole ("street time"); and (2) that part of good time not yet served on parole ("non-street time"). The phrase "good time" will be used in this opinion to refer to both types of good time, namely "street time" and "non-street time." The discretionary parolee's good time cannot be divided into "street time" and "non-street time." The discretionary parolee is serving "prison time" on parole, not good time, for once he has only good time left to serve, he becomes a mandatory release parolee. The discretionary parole violator (unlike the mandatory release parole violator) receives automatic sentence credit for the time he has successfully served on parole; 14 the discretionary parole violator thus cannot be required to serve beyond the period of sentence originally pronounced by the court. Good time forfeiture will nonetheless affect the period of time the discretionary parole violator must serve within the institution, for to the extent that the Department punishes him for parole violation by forfeiting his good time credits, the violator's mandatory release parole date will be postponed.
In 1971 and 1972, Monroe Lake Hauser, Jr. was sentenced to four concurrent terms for burglary and a further consecutive term for escape. Pursuant to that sentencing structure, he was assigned a maximum discharge date of April 10, 1977 and a mandatory release parole date of May 23, 1975. Following his release on mandatory release parole, Hauser's parole was revoked and he was returned to prison. On September 23, 1976 Hauser was granted a hearing in which the Department decided to forfeit four months, twenty-two days of his "street time." The Department forfeited, without hearing, Hauser's "non-street time." Hauser has filed an original action in this court, asking that we issue a writ of mandamus requiring the Secretary of the Department to reinstate the "non-street time" credits which were forfeited by the Department without the hearing required by the Putnam case. It appears that Hauser has reached his final discharge date on the convictions and sentences in issue.
Carlos B. Brown, Jr. was convicted of various offenses in the circuit court for Milwaukee County in 1970 and 1972. He was sentenced to prison and assigned a maximum discharge date of January 23, 1976 and a mandatory release parole date of December 27, 1974. Three months thirteen days after the...
To continue reading
Request your trial
-
Peterson v. State
...and perhaps most important, the individualizing of justice in a sometimes rigid system of criminal law. State ex rel. Hauser v. Carballo, 1978, 82 Wis.2d 51, 261 N.W.2d 133; Holland v. Fla. Real Estate Comm., Fla.Dist.Ct.App.1977, 352 So.2d 914; Gillespie v. State, 1977, 17 Wash.App. 363, 5......
-
Penjuke v. Pa. Bd. of Prob. & Parole, 1304 C.D. 2017
...; Anderson , 472 A.2d at 1171 ; see also Cardona v. Bledsoe , 681 F.3d 533, 537 n.8 (3d Cir. 2012) ; State ex rel. Hauser v. Carballo , 82 Wis.2d 51, 261 N.W.2d 133, 140-42 (1978). As just stated, section 6138(c)(2) clearly declares that the TPV "shall be given credit for the time served on......
-
Felce v. Fiedler
...drugs during a period of parole. In the Wisconsin scheme, parole is "an extension of the prison walls," Hauser v. Carballo, 82 Wis.2d 51, 261 N.W.2d 133, 135 (1978), and the basic responsibility of the Department of Corrections toward the inmate is no less during that period than during inc......
-
State v. Brown
...rehabilitative needs. Wis. Admin. Code § DOC 331.14(3)(b); McCleary, 49 Wis.2d at 276, 182 N.W.2d 512. ¶ 35 State ex rel. Hauser v. Carballo, 82 Wis.2d 51, 261 N.W.2d 133 (1978), also identifies additional factors that provide some guidance to circuit courts in making reconfinement decision......