Should Courts have the Authority to Reduce Probation? That's Unclear

The Wisconsin Supreme Court released one new opinion last week — State v. Dowdy, authored by Justice Ziegler. Justice Prosser did not participate.

In Dowdy, the court held that circuit courts have no statutory authority to reduce the length of a criminal defendant’s probation. The court declined to address whether courts have the inherent authority to do so, concluding that the defendant had waived that argument by failing to bring it at the circuit court level.

Probation is an alternative to prison or jail time, and is imposed after a guilty verdict or plea by the sentencing judge. The relevant statutes grants circuit courts the authority to "extend probation for a stated period or modify the terms and conditions thereof."  The defendant argued that "modify the terms" meant the court could reduce the length of probation. The court disagreed for numerous reasons:

• The Legislature used the word "extend" explicitly; if they wanted to grant the authority to "reduce," they would have used that term.
• If "modify" could be read expansively to permit reducing, it would also permit extending, making the "extend" language superfluous.
• "Terms," as a plural noun, is different than "term." The latter would refer to the length of something while the former means provisions.
• The statute elsewhere distinguishes between periods and conditions of probation.
• The Department of Corrections has explicit authority to discharge a probationer after 50 percent of the period is completed — the court has no such explicit authority.
• The history of the law showed that the legislature originally included the court’s ability to reduce the length of probation, but the governor used his line item veto to prohibit that portion from becoming law.

The Chief Justice and Justice Bradley each wrote a dissent. They both criticized the majority for not deciding whether courts have the inherent authority to reduce the length of probation (ironically failing to opine on courts' statutory authority), and went on to conclude that courts do have that authority. They differed as to the standard they would ask court’s to apply to such a decision.

So can judges reduce probation? The answer's not clear yet.