Wisconsin case over parole extension brings to fore Seventh Circuit's ideological divides

CHICAGO (CN) — The full Seventh Circuit heard a case Tuesday over what one former Wisconsin parolee called an illegal extension of his supervised release. The man blames Wisconsin corrections staff for the mistake and for violating to his constitutional rights, an assertion that split the appellate court between its conservative and liberal leanings.

John Sabo, the Wisconsin resident at the center of the case, was convicted of felony intoxicated driving in 2004. He was initially sentenced to three years incarceration and two years of probation; as he had other sentences to work through, the sentencing court changed this to five years of probation. He began serving that supervised release term in July 2014, though he noticed an issue after he was reincarcerated on a misdemeanor charge in December 2017.

According to Wisconsin sentencing law at the time of his intoxicated driving conviction, the maximum probation period the court could order was three years, not five — meaning Sabo should have been off supervised release months before he endured renewed jail time for violating parole. Sabo’s lawyer brought the issue to his parole officer in April 2018 and the court rectified its mistake three weeks later.

The state released Sabo from custody in early May. Two years later he sued several Wisconsin Department of Corrections staff members for failing to rectify the state court’s illegal sentence. He argued the employees — particularly Central Records Bureau employees Debra Haley and Sheri Hicks, whose job it was to be on alert for sentencing errors — violated his Eighth and Fourteenth Amendment rights to just punishment and due process.

Hicks’ and Haley’s negligence and deliberate indifference, Sabo said, resulted in him spending 291 more days on probation than he should have, including 133 extra days in jail.

“They realized [in 2005] that there were judgments of convictions that they had analyzed in 2004 and earlier in 2005 that contained unlawfully long terms of probation,” Sabo wrote in an August 2020 amended complaint. “Despite this knowledge, they took no steps to find and correct the unlawful judgments of conviction that they had allowed to stand uncorrected in 2004 and early 2005.”

An Eastern District of Wisconsin judge thought otherwise, finding in November 2020 that little evidence supported the idea that Hicks and Haley had been deliberately indifferent. The court also found that the pair were immune as to Sabo’s negligence claims.

“Although Haley and Hicks allegedly repeatedly failed to identify errors in probationary sentences, that was a product of a single common error regarding how to calculate the maximum sentences, which is not evidence of a pattern of errors. And their failure to review past judgments once they realized their error, although likely affecting many probationers, was again a single act,” U.S. Magistrate Judge William Duffin wrote in his opinion dismissing the pair as defendants in the case.

Sabo appealed that decision and at first met with success in the Seventh Circuit. A liberal-majority three-judge panel heard arguments in his case in September 2022 and in April 2024 returned a majority opinion overturning Duffin’s dismissal of Hicks and Haley.

“As alleged, Hicks’s and Haley’s jobs involved reviewing and correcting unlawfully long probation terms. Yet when they discovered their error — one that might affect more than a thousand sentences — they did nothing, not even tell someone else of the problem. Given their responsibilities and knowledge, their decision to do nothing at all was both egregious and unreasonable,” U.S. Circuit Judge Candace Jackson-Akiwumi, a Joe Biden appointee, wrote for the majority, joined by former Chief U.S. Circuit Judge Diane Wood, a Bill Clinton appointee.

U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee, dissented. She laid blame partially at Sabo’s and his attorney’s feet, saying they could have noticed the sentencing error themselves in the 13 years between Sabo’s conviction and the end of his probation.

“Hicks and Haley may have been a but-for cause of the excessive probation term appearing in prison records (although the blame ultimately rests with the sentencing judge), but in the intervening years, Sabo or his attorney could have asked the state court to correct his sentence,” St. Eve wrote.

Other Seventh Circuit judges apparently agreed, or at least thought the case was worth another look. In June the court vacated Jackson-Akiwumi and Wood’s ruling and agreed that all the judges on the court would sit for renewed arguments on the matter. At those arguments on Tuesday, the case once again made apparent the divide between liberal judges and conservatives on inmates’ constitutional rights, qualified immunity and carceral laws.

Several conservative circuit judges, including Donald Trump appointee Michael Brennan, challenged Sabo’s attorney Jeff Olson numerous times during his arguments. They pushed him to show why Hicks and Haley should be held to the level of blame Sabo wanted, doubting his specific situation was enough to trigger a constitutional violation on their part.

“They were on notice that there was this group of prisoners at serious risk of constitutional injury due to being kept in custody for an overlong period of time,” Olson said of Hicks and Haley.

“How big does that group have to be before it’s a duty? One, ten, 1000, 1500?” Brennan asked at one point.

“One is big enough,” Olson rebutted. “But the fact it’s more than one doesn’t relieve the actors of that duty.”

Olson also told the skeptical U.S. Circuit Court Judge Frank Easterbrook, a Ronald Reagan appointee, that he didn’t expect Hicks and Haley to save his client outright from the sentencing court’s mistakes — just that they should have done more than they did. He drew a parallel to cases involving unlawful court warrants.

“Where a police officer gets a warrant signed by a judge and he realizes the warrant is clearly unlawful, he’s liable if he executes that warrant. But we don’t need to go that far because all Hicks and Haley had to do was something,” Olson said.

The more liberal judges had more questions for Wisconsin Assistant Attorney General Karla Keckhaver, who insisted that Hicks and Haley had no constitutional duty to correct a state court mistake.

“They had no constitutional duty to do that, and without a constitutional duty they could not be deliberately indifferent to Sabo and his Eighth Amendment claim fails,” Keckhaver said.

U.S. Circuit Judge John Lee, another Joe Biden appointee, challenged this assertion.

“So if Mr. Sabo’s attorney sent a letter to Hicks and Haley saying that ‘my client’s term of probation is calculated incorrectly, would you look into this?’ and they decided not to, is it your position that even in that factual scenario that Hicks and Haley had no duty to do anything in response to that letter?” Lee asked.

“I would agree that they have no constitutional duty to do that,” Keckhaver reiterated. “Because they have no constitutional duty to discover sentencing court errors and prevent them. Only under state law and under the Department of Corrections policy did they have a duty, because of their jobs, to review judgments of conviction.”

The full court took the case under advisement but did not say when it would issue a ruling.

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