State ex rel. Plotkin v. Department of Health and Social Services, 507

• Decision Date: 20 May 1974
• Docket Number: No. 507,507
• Citation: 63 Wis.2d 535,217 N.W.2d 641
• Parties: STATE ex rel. David J. PLOTKIN, Appellant, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES et al., Respondents.
• Court: Wisconsin Supreme Court

Page 641

217 N.W.2d 641

63 Wis.2d 535

STATE ex rel. David J. PLOTKIN, Appellant, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES et al., Respondents.

No. 507.

Supreme Court of Wisconsin.

May 20, 1974.

Shellow & Shellow, Stephen M. Glynn, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Repasky, Asst. Atty. Gen., Madison, for respondents.

HEFFERNAN, Justice.

The only question before the court is whether the Department of Health and Social Services abused its discretion in revoking Plotkin's probation. On this appeal Plotkin acknowledges that he was afforded full substantive and procedural due process in respect to the notices and hearings that led up to the revocation of his probation. A claim that he was denied due process because he was not given an opportunity to respond to a separate memorandum of the Bureau of Probation and Parole to the Secretary subsequent to the hearing has been specifically abandoned on this appeal.

It is Plotkin's contention that a revocation of probation can be made only where the administrative officer has specifically found that the defendant was not a 'good risk' for continued probation. He predicates this argument basiscally upon the language of the Wisconsin statute which confers the power of revocation on the Department of Health and Social Services under certain circumstances. That statute, this argument basically upon the language

'If a probationer violates the conditions of his probation, the department may order him brought before the court for sentence which shall then be imposed without further stay or if he has already been sentenced, may order him to prison; and the term of the sentence shall begin on the date he enters the prison.'

Plotkin argues that by the use of the word, 'may,' the legislature clearly indicated its intention that the decisions to order a probation hearing or to order a revocation of the probation after a hearing were to be discretionary acts--that revocation does not follow of course a finding that a condition of probation has been violated. That position is correct. The discretion whether to hold a hearing or whether to revoke probation rests within the sound discretion of the Department, and there must be evidence that the Department acted with full knowledge of the facts on a basis consistent with the purposes of probation and consistent with the applicable law.

The argument that there must be a specific finding that the defendant is not a 'good risk' and that such a finding must be a specific element discussed in the order of the secretary comes initially from Morrissey v. Brewer (1972), 408 U.S. 471, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484, wherein the court stated:

'Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in society without committing additional anti-social acts.'

In that case, the United States Supreme Court, addressing itself specifically to the revocation of either parole or probation after it has once been granted, stated:

'Implicit in the system's concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.' (Pp. 479, 480, 92 S.Ct. p. 2599)

State v. Fuller (1973), 57 Wis.2d 408, 414, 204 N.W.2d 452, 454, also uses the term, 'good risk.' In Fuller, where it was evident that the terms of the probation had been violated, we said:

'The only question before Judge Coffey was whether or not the defendant, given his past conduct of violating the conditions of his probation, was still a 'good risk."

While this term has been used in Wisconsin cases and has been used in numerous other cases throughout the country, no case which we have found or which has been brought to our attention clearly explains the meaning of the term, 'good risk.' We do not consider the term, 'good risk,' a word of art that encompasses within it any concept of a clearly defined nature. The most that can be said for the term is that it is a shorthand expression which admonishes courts or administrative agencies that, before revoking probation, there should be the exercise of discretion in respect to whether the rehabilitation of the criminal can continue to successfully be accomplished outside of the prison walls. The Department of Health and Social Services contends in its brief that:

'. . . the 'risk' envisioned is broader than a risk that the probationer will commit more crime, or not obtain work, or violate other conditions. The 'risk' encompasses all of these as well as the public interests in the imposition of punishment and specific and general deterrence. . . .' (P. 6)

We have no dispute with the Department's definition as far as it goes, but we also believe that the additional question is posed: Will the continued probation be likely to further the rehabilitation of the criminal or will that rehabilitation be furthered by placing him in a...