Police Abuse

Get Acquitted on Gun Possession Charges. Get Sent To Prison for Over 3 Years Anyway.

That happened to Wisconsin man Damien Payne, because he was on parole.

|

Damien Payne was arrested when he was pulled over for speeding in a car that had his girlfriend's gun in glove box. He was on parole and had a past felony conviction, so was charged with carrying a concealed weapon and being a felon illegally possessing a firearm.

Milwaukee Journal-Sentinel

The gun was not his, and he insisted he didn't even know it was there. A jury believed him and acquitted him. (His girlfriend, the gun's legal owner, had a concealed carry permit.)

But because he was on parole, he was subject to the far looser rules that apply to punishing people for violating parole obligations, and the state Department of Corrections decided to send him back to jail for 39 months over the matter anyway.

The Milwaukee Journal-Sentinel has the whole terrible story, in which it points out that to the Department of Corrections, mere preponderance of evidence is enough to lock the man up again, a looser standard than the "beyond a reasonable doubt" of a real criminal case.

Payne hadn't done much to seem a continuing danger to the community, from the Journal-Sentinel report:

At the time Payne's supervision was revoked, he had been living in the community crime-free for nearly seven years, according to his attorney. He had not previously violated any of the rules of his supervision (aside from traffic violations), never missed an appointment with his agent and never tested positive for drugs.

Payne ran his own medical transportation business. His 3-year-old son, Tyson, stayed with him three nights a week.

The ray of possible light, the Journal-Sentinel reports, is that "Milwaukee County Circuit Judge Stephanie Rothstein has agreed to review Payne's revocation case and decide whether the department acted 'erroneously, arbitrarily, capriciously and contrary to law,' as his attorney, Jessica A. Klein, contends."

But for now Payne is in prison, as he's been ever since his arrest. Judge Rothstein will consider the issue in April.

Those on parole to whom this sort of thing happens can only appeal the decision to send them back to prison without having been adjudicated guilty of a crime:

at a hearing before an administrative law judge, a lawyer who works for the state Department of Administration.

Having a jury or circuit judge hear the revocation case at that point is not an option. Instead, ex-offenders who wish to appeal must do so via the Wisconsin Division of Hearings and Appeals…

In addition to lower standards of proof, people accused of violating probation, parole or extended supervision do not have the right to have a jury decide their cases. They are not provided with legal help for their appeals but must hire and pay their own lawyers.

Finally, while circuit judges may choose to review a department's decision — as Rothstein did by issuing what is known as a writ of certiorari — they are not required to do so.

That's just one example of the potential injustices hanging over the heads of those stuck in the parole system. Payne's not alone in this crummy situation:

About 70% of some 3,000 ex-offenders sent back to prison without being convicted of new crimes in 2015, the most recent year available, were "suspected of criminal activity," department statistics show.

One of the reasons the administrative law judge thought 39 months in prison for this crime he did not commit was just was because Payne had admitted to having consumed alcohol, also forbidden by his parole obligations. (He was far below the legal drunk driving limit, however.)

Payne's original crime for which he was on parole was being "party to..burglary while armed with a dangerous weapon" when he was 19. (He is now 35.) He testified against co-defendants in that case, one of whom shot a man in the leg in the course of the burglary.

The Journal-Sentinel quotes Payne: "I'm not a criminal anymore, I'm not even much of a rule breaker. Truthfully, the 9 years I previously served in prison successfully helped eliminate any aberrant inclinations I may have had…To think that a mistake, outside of my control, could take me away from my son for 3 years, force me to fold my business, and liquidate my assets, tarnish my business reputation I'd worked so hard to build, is disheartening."

Reason on parole.

NEXT: Carbon Dividends: Solve Man-Made Climate Change While Shrinking Government?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Massie proposes bill to eliminate DOE

    I done and told ya’ll, them libertarians is crazy!

    1. Massie is somebody Bill Gates would noogie for looking so nerdy.

    2. Isn’t DOE usually used for Energy?

      I guess they could get rid of that DOE too, put the nuclear stuff back under the DOD, and change its name back to the Department of War.

  2. One of the reasons the administrative law judge thought 39 months in prison for this crime he did not commit was just was because Payne had admitted to having consumed alcohol, also forbidden by his parole obligations. (He was far below the legal drunk driving limit, however.)

    Well, there you go. Don’t drink the beer if you can’t do three years.

    1. He’s not allowed to drink alcohol after 7 years? Geez, and I thought not being able to own a weapon was bad. Can he go to the bathroom by himself?

    2. Not allowed to drink beer in Wisconsin? That’s cruel and unusual punishment.

    3. The no drinking condition is always put in because it is so easy to violate someone for that. Almost every probationer on earth drinks during the years they are out.

      My father (a PO) laughed because during his career all the indians on the local reservation hated him for being a hard ass. When he retired, he said they would come up and tell him how much they missed him. They said his replacements didn’t understand “indian time” and expected them to show up on the dot for their office visits and also thought the no drinking condition really meant no drinking at all.

    1. I’ll start the Trump Kill List website.

    2. They’re unhinged. Poor snowflakes, give em a break, they’re suffering greatly.

      1. Isn’t it funny that only a few short months ago this sort of rhetoric was the domain of Breitbart conspiracy nutters, and now it’s being squawked by lefty mouthpieces on national TV.

        1. That’s pretty much what I said when they ran with the ‘Putin hacked our democracy’ tinfoil hat bullshit. They’ve jumped the shark. It was only a matter of time.

    3. Trump killed Michael Hastings?

      1. Well, at least he didn’t grab him by the pussy.

      2. And Seth Rich just to throw everyone off the case.

  3. “But for now Payne is in prison, as he’s been ever since his arrest. Judge Rothstein will consider the issue in April.”

    Well, I’m sure they’re going to give him back this next few months of his life if this gets overturned. Also, 7 years this guy has not committed a crime and he sill cannot legally own a gun? Are you fucking kidding me? So he did his time, but is still being stripped of his constitutionally guaranteed rights? And it’s probably near impossible for him to get a decent job. Good thing ex-cons are still allowed to start their own business. But I’m sure some enterprising congress critter will propose a bill soon enough to stop that. Also, her girlfriend is lucky she wasn’t arrested too for giving a gun to a felon.

    Man, this is still the greatest nation on earth due to every other country being horrible.

    1. ‘his’

    2. thats what i was kinda surprised about. I figured they would have rail roaded her too

  4. Payne’s original crime for which he was on parole was being “party to..burglary while armed with a dangerous weapon” when he was 19. He testified against co-defendants in that case, one of whom shot a man in the leg in the course of the burglary.

    I’d have to know more about this original crime before searching for sympathy. The parole was part of his sentence and may have been just.

    1. Shut up, Fist. All ex cons are heroes.

    2. Almost seven years of parole, after 9 years in prison? I’m thinking that may not exactly be just. Granted, more details could persuade me otherwise, but I’m gonna go with no for now.

      1. yea fist needs to fuck off on this one. That’s ridiculous amount of time for being a party to something.

        Parole is such a terrible system meant to get you thrown back in.

  5. Those on parole to whom this sort of thing happens can only appeal the decision to send them back to prison without having been adjudicated guilty of a crime:
    at a hearing before an administrative law judge, a lawyer who works for the state Department of Administration.
    Having a jury or circuit judge hear the revocation case at that point is not an option. Instead, ex-offenders who wish to appeal must do so via the Wisconsin Division of Hearings and Appeals…
    In addition to lower standards of proof, people accused of violating probation, parole or extended supervision do not have the right to have a jury decide their cases. They are not provided with legal help for their appeals but must hire and pay their own lawyers.
    Finally, while circuit judges may choose to review a department’s decision ? as Rothstein did by issuing what is known as a writ of certiorari ? they are not required to do so.

    Yes, that is how administrative law works.

    1. You don’t have to be a parolee to see it, just get into trouble with the EPA, the FDA, OSHA, the IRS, or any other executive-branch agency that doesn’t make laws (because only Congress can make laws) but merely rules and regulations. SCOTUS, for the most part except for Scalia and Thomas, are cool with the idea that these agencies should be deferred to in making rules, interpreting those rules, judging whether you violated their rules, and prescribing your punishment for violating their interpretation of their rules. That’s what’s known as due process.

      1. Or as your local PD calls it, “procedures”. You can shoot puppies and flashbang babies and taze Alzheimer’s patients all day long – as long as no procedures were violated, everything’s cool.

  6. Nut.

    Punch.

  7. My father was a probation/parole officer for 30+ years. There is a lot of leeway when it comes to recommending revocation. I know that my father caught a lot of heat for not revoking probation very often when they failed a drug test. If the guy was doing all right in other aspects he pretty much let it go.

    On the other hand, if you beat on your wife, girlfriend or kids, you were probably going to go back to jail on the slightest of violations if you were on his case load.

    This is such an overreaction that it makes me think that there is something else going on. Either this guy is super shady and they finally got him on something or that he did something to really piss off his PO or some LEO and this is payback.

    1. I hope this is the case.

    2. ” I know that my father caught a lot of heat for not revoking probation very often when they failed a drug test. If the guy was doing all right in other aspects he pretty much let it go”

      And you see what happened? Now his son is hanging around on shady libertarian sites conversing with dopers, pussy grabbers, and SugarFree.

      1. Whoa!

        I’ll cop to the pussy grabbers and dopers, but SF? No way! That is a rock bottom story if I ever heard one.

  8. He was on parole. Sucks that they were so petty about no alcohol but parole is in lieu of prison and has restrictions. 3 years seems like a government we’ll get you anyway because you fought type deal though.

    People should not take the probation or parole unless they can keep their nose clean. You waive your 4th Amendment rights and rights to jury trial. Not to mention probation and parole violation hearing use easy standards to get you back in custody. It’s one of the reasons they offer probation, to get you on the hook if you are accused of another charge in the future.

    After he’s off parole he should get all his rights back including 2nd amendment, if the government would follow the constitution.

    1. “After he’s off parole he should get all his rights back including 2nd amendment, if the government would follow the constitution.”

      He won’t, and they won’t. Unfortunately.

  9. Land of the 90% free, 10% on probation, home of the pants-shitting police.

  10. This guy was on parole for an armed offense and was caught with a gun.

    How is that not grounds for a parole violation?

Please to post comments

Comments are closed.