The case: Jorge Vela v. Jon Erpenbach
Case no.: 24AP304
Filed in: District II, Wisconsin Court of Appeals
Circuit Judge: David Paulson, Racine County
Filing Attorneys: Gregory Wiercioch and law student Lauren Felder
"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. I'll try to post excerpts from the responses as they are filed. That can be months after filing of the the appellate brief.
A 63-year-old man who has more than half his life in prison on a homicide sentence was improperly denied parole because the Parole Commission's decision relied on its members will, not substantial evidence, as is required, representatives for the man argue in an appeal.
Jorge Vela stabbed his wife to death in December 1990 and a year later was sentenced to life in prison with the possibility of parole after 25 years, in 2016, attorney Gregory Wiercioch and law student Lauren Felder of the University of Wisconsin's Frank J. Remington Center wrote in an appellate brief filed in District II of the Court of Appeals.
At Mr. Vela’s first meeting with the Parole Commission in 2016, Commissioner Douglas Drankiewicz deferred Mr. Vela’s case for 36 months, noting that the violent nature of the crime indicated that Mr. Vela was still a danger to the public and more time in prison was warranted so as not to depreciate the seriousness of the offense. At each of Mr. Vela’s meetings with the Parole Commission since then, the reasons given for deferral have been the same.
The commission denied Vela parole for the sixth time in October 2022, and Vela asked Racine County Circuit Judge David Paulson in 2023 to overturn the decision. The action named as defendants Drankiewicz, Parole Commission Chair Jon Erpenbach, and Commission member Christopher Blythe, who was later dismissed from the case.
Paulson, though found that "the Parole Commission’s decision to defer Mr. Vela’s parole for another 12 months was reasonable and not willful, arbitrary, or capricious."
Under the law, the Vela team said,
" 'this Court must determine “whether (1) the commission kept within in its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) the evidence was such that it might reasonably make the order or determination in question. ' ”
When considering whether to approve a parole request, state administrative code requires the commission to consider whether the person has developed an adequate reentry plan, served sufficient time in prison so that release would not depreciate the seriousness of the offense, completed required programming, maintained satisfactory conduct in prison, and would not pose an unreasonable risk to the public if released.
The commission is required to meet the "substantial evidence" test, Wiercioch and Felder said.
The administrative agency’s decision must be based on less than a preponderance of evidence but more than a mere scintilla of evidence, and more than conjecture and speculation.
In Vela's case, however,
The Parole Commission exercised its will, not its judgment, when it increased Mr. Vela’s parole deferral from six months to 12 months. ...
A deferral is the length an incarcerated must wait before seeking parole again.
The commission noted that Mr. Vela has satisfied three of the five main criteria it considered: he has established an adequate reentry plan, demonstrated satisfactory program performance, and shown excellent institutional conduct. However, the commission also determined that Mr. Vela has not yet served sufficient time in prison for punishment and that his release would pose an unreasonable risk to the public.
This decision is not reasonable. Mr. Vela has maintained excellent conduct while in prison, including completing treatment and changing the behavior patterns that led to the commission of the crime. The commission improperly inserted its will into deciding whether to parole Mr. Vela because it did not engage in the winnowing and sifting process, improperly considered whether Mr. Vela would illegally return to the United States, and assigned improper weight to the former chairperson’s rejection of recommended deferral periods. Moreover, the commission engaged in speculation that Mr. Vela might return to the United States after being paroled and deported. ...
At every subsequent hearing after Mr. Vela’s initial appearance before the Parole Commission in 2016, the reasons for deferral were always the same with edits only to reflect additional programming and/or potential transitions through institution security levels. ...
Mr. Vela completed all institutional programming requested of him years ago and has not had a major conduct report in nearly 16 years. ...
Mr. Vela’s COMPAS scores in his April 2022 Inmate Classification Report show his low likelihood of both violent recidivism and general recidivism. The COMPAS scores also indicate that his recommended supervision level is low. The parole commissioner supported a transition to a minimum-security facility, but a detainer placed on Mr. Vela in 1992 makes that transition impossible. He will be released to the custody of Immigration and Customs Enforcement (ICE) when he is paroled, and will likely be deported to Mexico. Despite this restriction, Mr. Vela has created an acceptable release plan in anticipation of parole.
***
The Parole Commission is required to advise an inmate, in writing, of its parole deferral decision, the reasons for that decision, and the date of the inmate’s next parole consideration. Pro forma language that an inmate’s release would depreciate the seriousness of his offense is not a sufficient reason for denial of parole. ... In Mr. Vela’s case, the Parole Commission provided only this reasoning: “Based on the nature and severity of the case … it is clear that you continue to present as an unreasonable risk and that more time is warranted so as not to depreciate the severity of your offending behaviors…."
The Parole Commission’s reasons for denying Mr. Vela parole have never changed. Because the commission has no formal guidelines for determining the length of a parole deferral, there is no certainty as to when Mr. Vela will have served sufficient time so as not to depreciate the seriousness of the offense. ...Such conclusory language provides no means for this Court “to ascertain whether an abuse of discretion has been committed” or for Mr. Vela “to know why he has been denied parole and what he can do to better regulate his future conduct.”
***
The nature of the crime, when viewed alongside the additional factors of Mr. Vela’s case, is not sufficient to warrant spending more time than he already has in prison. By keeping Mr. Vela incarcerated, the Parole Commission is imposing its will rather than its judgment. Furthermore, by focusing only on the nature of the crime, the Parole Commission fails to engage meaningfully in the winnowing and sifting process.
***
Drankiewicz, at some of Vela's parole hearings, expressed disagreement with some of former Commission Chair John Tate's reduction in Vela's deferral periods, Wiercioch and Felder said.
Commissioner Drankiewicz’s comments indicate insertion of the commission’s will to keep Mr. Vela incarcerated, rather than a reasonable judgment about whether Mr. Vela should be paroled. Current Chairperson Jon Erpenbach has done so as well through affirmation of the increased deferral. ...
Drankiewicz
also speculated about whether Mr. Vela would return to the United States illegally if he were deported or allowed to reside in Mexico as part of his parole plan.
Vela, though, has said he has no plans to return to the United States if he is deported, Wiercioch and Felder wrote.
The decision to grant parole remains in the hands of the Parole Commission as long as that decision is reasonable and based on facts found in the record. Conjecture and speculation cannot take the place of a logical, fact-based decision. Commissioner Drankiewicz imposed his will when he denied Mr. Vela parole and increased the deferral. Moreover, the effect of Mr. Vela’s crime on the victim’s family and the nature of the offense will never change. Continuing to rely on those factors after nearly 34 years creates an unbreakable loop that indefinitely keeps Mr. Vela in prison.
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