Sunday, May 07, 2006

Letter to Lenard Wells, Chairman, Parole Commission

07 April 2003

from:Ronald Schilling
Box 233
Black River Falls, WI

To:Lenard Wells, Chairperson
Wisconsin Parole Commission
2701 International Lane/ Suite 201
Box 7960
Madison, WI 53707-7960

Re: Parole reconsideration and classification appeal

Dear Mr. Wells:

On 01 April 2003 I received copies of the decisions rendered in my parole application as well as the classification decision. It is unusual for the documentation to take this long to arrive; someone up front must have had a purpose in mind. I am requesting your reconsideration/ and will also copy Mr. Puckett with this writing for appellate purposes since both decisions are so intrinsically linked by the substantial causal nexus between classification and parole. I believe having everyone on the same page with all the facts on the table can only be beneficial all the way around.

To begin with, for a number of reasons I was relieved to learn of your appointment to Chair the Commission. First, I feel that your career as a Milwaukee County Detective will prove an asset in being able to marshal the pertinent facts to winnow and sift through that data when rendering a decision in a particular case. Secondly, I was pleasantly surprised to hear of your history with the Benedict Center, with a focus on true justice, as that will doubtless assist in recognizing the incredible potential humans have to change and grow. I have found this especially so when the prisoner's personal initiative is there and they are provided an opportunity to do so. In every case I feel that when people know better, they generally do better. I further feel that recognition of, and reward for one's efforts lies at the heart of the human condition, and failing to account for that would be antithetical to the ultimate responsibility vested upon the Commission. I pray your appointment will be a refreshing prologue to positive change.
I am also hoping to pique your interest in a recurring situation which goes to the heart of the honest and fair administration of parole policy. Particularly where the parole rules and policies conflict with the classification rules and policies. Especially as it affects the conditions of many long-timers/ or people who were incarcerated when policy was considerably more favorable and conducive to the tenets of justice.

Each year since I first became eligible for parole in 1987, the Assistant District Attorney (ADA) has opposed my application for parole via letters and face-to-face meetings with the Commission. In defense of my position on the matter I submitted a copy of my 17 April 2002 letter to the ADA with my parole plan for 2003. For ease of reference, affixed hereto please find a copy of same.

My letter to the ADA clarifies many issues concerning his protestations as well as many pertinent facts surrounding the offense itself. In short, there is a wealth of information contained therein which I feel would be enormously beneficial toward any deliberation made by the Commission.

The Commissioner stated he read part of this document and further stated there was not a letter of opposition from the ADA for 2003. In the past his lack of written opposition has corresponded with personal contact with the Commission. I am not certain whether this occurred for 2003. What I am certain of is that neither he nor the victims' family members have a clear indication of the facts and circumstances surrounding the offense. Alluding that I had a leadership role in the actual offense is ludicrous; a fair reading of the facts depict I had no control of the insanity of that day.

With regard to the fair deliberation in this matter, I could not help but notice that the "D-12" was already typed on the PCA form. Last year, the late Denis Meier also had the decision pre-determined and, when noticing my gaze upon it, he flipped it over like it was supposed to be some kind of surprise. It is unconscionable to even imagine the decisions of the Commission are pre-determined at Commission staff meetings each month prior to the actual interviews. Such a procedure completely undercuts any notion of fairness in due process which should attend parole interviews. There should be meaningful discourse and an exchange of information sufficient to inform the prisoner of any perceived risks to the public, and what the prisoner can do to eliminate or reduce that risk to an acceptable level, as well as a projected date for sufficient time upon which the prisoner could be released once the relevant criteria have been met. Moreover, the use of boilerplate language and rote form decisions where a box is checked, based solely on static and unchanging factors, does not show a reasoned consideration of the facts necessary to comport with minimal due process requirements.

From the onset it has been obvious that the primary considerations were mere historic circumstances; that is, static factors such as the severity of offense, sentence structure etc. Of course, those factors are not only static and unchanging, but factors which the prisoner has absolutely no control over. I offer my case as a prime example; receiving seventeen (1.7) 12-month defers, with each and every one relying upon the time and risk (static influence) factors, when the contrary is the reality.

Another point worthy of mention is the fact that on the Notice form (DOC-1204)/ pertaining to the "Sufficient Time for Punishment" criteria/ subsection (b) was eliminated. Last year it read, "(b) Time served compared to others with the same sentence." The elimination of this enormously important criteria severely disadvantages prisoners who have already served incredible amounts of time compared with others who have already been paroled for similar sentences. Again/ I use my own situation as a prime example. For those imprisoned for this offense (my two co-defendants) I was probably the least culpable, responsible because of the seizure I suffered just prior to the incident; I was the only one who, in the words of my co-defendant, was "just along for the ride on that day" (because of my post-ictal state). And yet Zelenka was paroled in 1992, and Stanton received a PPI from Chairman Smith on 08.08.00 and is currently at minimum, and here I sit locked into a perpetual "catch-22" medium classification.

As compared to other offenses committed by Lifers, my few moments of unintentional indiscretion are mild by comparison. I am not attempting to diminish the seriousness of the offense itself, but merely trying to offer some perspective. I have read about truly gruesome murders with the most heinous intent, sick-sex murderers, multiple cop-killers, who. were convicted after my offense, but who have been released for some time now. There have been a surprising number of them, actually. I am at a loss to imagine what makes my offense so inordinate and worthy of such disproportionate punishment. The Legislature equated the time factor at eleven (11) years, three (3) months; thirteen (13) years was the mean average 28 years ago, absent extenuating circumstances such as bad conduct, etc. I feel, as do many members of the public and DOC staff who know me, that I have more than satisfied my obligation of time, as well as establishing a low risk factor. Christ, while I was at MCC I was attending church in Rhinelander without staff excort; it doesn't get much lower than that.
Also enclosed for your perusal is a "Social Service Chronological Recording," submitted by the Social Worker, Ms. Penny Adrian (also affiliated with the Benedict Center), wherein she provides that "Mr. Schilling has a keen mind and a good heart. If he is not a successful candidate for restoration to the community, then no one on my caseload could possibly be!"

When I requested less than a 12-month defer for classification purposes, the Commissioner stated that he "doesn't believe in getting involved with classification matters." I agree, there is no provision lawfully authorizing DOC to delegate its ultimate supervisory classification duty to any other person or entity such as the Commission. And for good reason, I might add. DOC staff have invaluable hands-on information about the prisoner; his or her character and demeanor, academic achievements and spiritual advancements, attitude toward the crime, remorsefulness, and other personal factors, and can more readily compare the individual's case with those prisoners having similar offenses. In short, they can better anticipate whether the individual is re^ady for reduced classification and security. With regard to classification, should be the ultimate arbiter.

The Commissioner correctly stated that classification should be the exclusive province of the PRC but, as it turns out, §DOC 302.07(12), provides for the PRC to consider the "stated expectations" of the Commission in determining classification. Additionally, that classification rule is worded with double-ended phraseology, that "in the absence of any stated expectations," the PRC is then to "anticipate the likelihood of release during the next review period," which is now a one-year period per the new rules. For a Lifer that release can never occur because §PAC 1.06(7)(e) mandates that a Lifer meet that minimum status criteria to reduce the risk factor prior to obtaining parole release. Hence, a minimum classification will be denied per §DOC 302.07(12)/ and a parole or release during the next review period will never occur because of §PAC 1.06(7)(e), solely because of the classic "catch-22" created when those rules are used in combination with one another.

The bottom line is that this identical problem has plagued my properly earned classification since 1989. Prior to that, I was guaranteed minimum by PRC once I completed the college degree program. After 1989 the combined use of the rules prohibited that. I was allowed to proceed to minimum some five (5) times after prevailing in Dane County Circuit Court, where the Judge acknowledged that the problem arises because there is a definite and substantial causal nexus between classification and parole. He agreed that the manner in which the PRC and PC rules combine to create the "catch-22," completely eliminates the possibility of ever being paroled due exclusively to misclassification. He also cited to the fact that PRC's predecessor rule, §DOC 302.145 (requiring the PPI) was originally intended to be properly and lawfully grandfathered prospectively, and not applied retrospectively. The same should be true for §DOC 302.07(12). Such vindictive legislation clearly should not be applied to those who are already serving their sentences, or to those who have had their classification reduced prior to its enactment.

Concerning my proper classification, with a derivative of concern for the prospect of fairness I have been, forced to maintain a vain reliance upon systemic process. I desire more than most for the system to function fairly. I say this with the knowledge and under the premise that the classification rules and parole rules at issue have always produced the same result. Not only does there seem to be some failure to communicate on the same page between the departments, but there is a definite abject failure to apply common sense and logic to the necessary facts surrounding my proper classification in accordance with the proper and relevant criteria. I mean, meaningful punishment in the interest of justice is one thing, but the inordinate treatment my case has received from both departments is just plain cruel and inhumane. It is certainly not serving the interests of justice, or societal needs, especially given the fiscal shortages and overpopulated conditions DOC is currently facing.

The history of this case speaks loudly for the manner in which the rules affect a prisoner's proper classification. Even after prevailing in the circuit court in 1990, I suffered another two years of retaliation before finally obtaining my proper minimum classification. On 7/21/92 I was first transferred to JCBCC after having had a minimum rating at KMCI since 29 May 1992. This was after serving nearly seventeen (17) years of incarceration, and just after one of my co-defendants obtained a parole. On 8/12/92 I was transferred to GCC. On 10/15/92 I was taken out of GCC and placed in the county jail through no action on my part; ostensibly because I was somehow deemed an "escape risk." On 10/28/92 I was returned to GCC because the alleged risk was unsubstantiated. On 9/15/93 I was again placed in the county jail through no action on my part; again, ostensibly as an "escape risk."

I was subsequently transferred to FLCI on 10/7/93. After many letters to Mr. Puckett, I was transferred to OCI on 5/11/94, where I was placed in the hole for some sixteen (16) days through no action on my part before being returned to FLCI on 5/27/94. These return transfers were made without any misconduct on my part and absent any conduct reports or due process.
Some time later I discovered a "written memo" from John Husz to the folks at GCC stating that I would not be "considered" for parole for "5+ years" (tantamount to a five-year defer)/ despite the fact that my PCA form only depicted a 12-month defer. Hence, the real reason for being transferred back to medium three times finally came to light. I also discovered a letter from Husz in 1996 to the folks at FLCI stating that he was going to get "25 years" out of me, which was tantamount to a four-year defer at that time, placing true FED at 2000.
Not long after that I was transferred to JCI for a guaranteed "smooth transition" through minimum at BRCC. The PRC coordinator assured me this action was taken only after contacting Husz, Leik/ Verhagen, Kingston, Sondalle, et al., to be certain "they crossed all their T's and dotted all their I's." However, it quickly became apparent that because I complained that my prior three returns to medium should not have occurred absent a conduct report and the required due process, the last two returns from minimum were facilitated with false-charge conduct reports. I was at BRCC from 10/10/96 through 2/3/97, and at MCC from 2/19/97 through 7/25/97. The proof of the retaliatory acts lies in the documentation; that the PRC process was initiated even prior to the conduct reports being written. That pretty much encapsulates the "failures" at minimum, as referenced in the current PCA form. To date, I have yet to have a fair chance at minimum, and since the last return I have been stuck at JCI per the new rules.

What I am attempting to shed light on is the fact that I have had my risk factor reduced numerous times in the past. Yet each and every time I was administratively returned to medium purely because of the implied recommendations from the Commission. Each and every opportunity at minimum was used wisely by working harder than ten (10) men, by pointedly obeying each and every rule, remaining cheerful in the face of perverse adversity, and attempting to make a positive showing of my parolability. Each time/ however, any favorable consideration was sabotaged by the Commission through the classification office, and not through any action on my part. This is especially perplexing in light of the Commission's continued suggestion that I Dmehow "re-earn (minimum) status."
With regard to the alleged "escape risk," there has been much ado about two walk-aways in 1970. I have continually informed all concerned people that the alleged escape in 1972 was actually the date when I turned myself in, and not yan escape at all. The only escape history consists of two walk-aways in 1970. lat's it. How such a fact "cannot be ignored" some 33 years later is beyond me; it flies in the face of the IMP provisions prohibiting such consideration after this amount of time. And it is especially perplexing since that factor-is rightfully rated "LOW" on the risk assessment form, and has been deemed appropriately exhausted for reduction in classification numerous times since 1992. To be sure, the escape history has not become worse in the past eleven years.

Facts that are truly relevant concerning any "escape risk" are things which afford opportunity to do so; that it/ opportunities presented in the past. As early as 1991/ while at KMCI/ I was driving from- the institution without escort to work at the gun range quite some distance from the institution. And while working at JCBCC, I was working at the State garage as a mechanic, working on and test-driving various vehicles daily. While at GCC, we were going in excess of 50 miles from the camp for work in neighboring counties, going to Solon Springs and Marshfield for medical appointments, and to Hayward for dental appointments. I was continually presented with virtually thousands of opportunities to escape; cars with keys in them, loaded guns during hunting season, people frequently stopping for directions or information. While at BRCC I worked on the same sort of work crew prior to accepting a job here, at JCI, working in the garage out front. We would drive through Black River Falls twice a day. And on one occasion I even attended an evening play at the high school in Black River Falls. While at MCC, the work crew would travel many miles from the camp for work at various locations in the community. And/ as mentioned earlier, I was also attending church services in Rhinelander many miles from the camp without staff escort. Things of this sort are relevant in determining whether a person might have a propensity or desire to escape. Considering two walk-aways from 33 years ago is pure folly.

The same rationale should attend any consideration of such static and unchanging factors as the "significant offense," and "criminal history." The former is rated "HIGH" on the risk assessment form and cannot ever change; the latter is rated "LOW," and is equally as static and unchanging. Neither of which, like the escape factor, have become worse 'in the past eleven years.
There is no genuine question that the appropriate criteria for reduction of classification are all rated "LOW," and that there is no articulable reason for not returning my rightfully earned minimum classification. Moreover, there is no basis for the continued reference to "LIFER-CATEGORY I," or "NO PRE-PAROLE REQUESTED," as that categorical reference was repealed, as was the PPI requirement contained in §DOC 302.145.

Given that all aforementioned factual averments are true, and they are, the only imaginable reason for the situation being what it is must fall squarely on the rules at issue. Application in this instance cannot pass even the most lenient ethical and moral smell test. It allows for such ambiguity where last year the PRC unanimously recommended I be returned to my rightfully earned minimum classification, and this year they recommend I stay here for another year period. It is patently ridiculous. Viewing the situation charitably, I should have been returned to minimum years ago. Viewing the situation less charitably, the rules are repugnant to the Constitution and offensive inasmuch as it is obnoxious to the Constitutional inhibition upon ex post facto law.

Few would argue that rehabilitation and the notion of true repentance used to be central to the philosophy of "corrections." Similarly/ few could argue that such ideals have suffered tremendously as the prison industry continues its unbridled expansion. The retributive model of criminal justice , the purely putative warehousing of prisoners evidences a system more interested in vengeance than true justice. It serves no valid sociological or penological interest to continue punishment after the rehabilitative operation has run its course. Moreover/ a better design on justice would be to have the system function more in concert with social concerns/ with a resolution of the entire problem or the root causes of crime in mind/ and not merely focusing on the symptoms of crime. To not do so allows the system to continue failing all societal objectives. What I am driving at is that once a person has demonstrated his worthiness for parole/ the commission should give due consideration for release and not defer parole purely for static and unchanging historical factors.

DOC statistical data suggests this is a time for positive change. You have the power and opportunity to affect necessary and meaningful changes. People will notice how you perform/ as well as which policies you choose to revamp. People cannot help but notice that policies and customs are not only found in an affirmative proclamation of policy/ but also in the failure of an official to take the necessary remedial steps once a problematic policy is brought to light. What is clear even to the lay person/ is that the old retributive policies are not concerned with honest justice/ and cannot function in the new system/ nor do they adequately serve the public interest in the fair administration of justice.

I earnestly pray you will set more lofty goals for the Commission, to include consideration of a person's personal characteristics, traits, talents, spiritual evolution, educational achievements and other personal accomplishments. I further pray that the Commission would subsequently release those who have made substantial and honest efforts at redeeming themselves. Those who partake of endeavors which would assist in their becoming productive and law-abiding citizens should be dealt with compassionately, and with the same level of dignity and grace you would desire in the same circumstance.

In closing,I am requesting your reconsideration of the parole determination in my case. I am not realistically anticipating a parole grant, but I feel something less than a 12-month defer would provide the necessary impetus so I can resume my progress through the system to a point where I can be found qualified for parole. I do expect to be at a minimum setting for some time to prove my worthiness. I am asking for one honest chance.

I thank you in advance your your time and consideration.

Ronald Schilling Enclosures
cc: Stephen M. Puckett, Director
Office of Offender Classification

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