Seventh Circuit Allows Lawsuit Against Probation Officers Over Erroneous Sentence 

June 4, 2024 – The U.S. Court of Appeals for the Seventh Circuit has allowed a lawsuit to proceed against two Wisconsin Department of Corrections officials who failed to correct an erroneous probation sentence.

The decision in Sabo v. Erickson, et al., No. 21-3332 (April 30, 2024) came on a 2-1 vote. Judge Candace Jackson-Akiwumi wrote the majority opinion, joined by Judge Diane Wood. Judge Amy St. Eve dissented.

Erroneous Sentence

In 2004, John Sabo pled guilty to operating while intoxicated (OWI) in Milwaukee County Circuit Court. The circuit court sentenced him to five years’ probation, consecutive to other sentences.

At the time, the maximum statutory penalty for Sabo’s conviction was three years’ probation.

Sheri Hicks and Debra Haley worked in the Wisconsin Department of Corrections (DOC) when Sabo was sentenced.

Hicks and Haley reviewed and corrected sentences whose lengths exceeded relevant statutory maximums.

Widespread Problem

In 2005, Hicks and Haley learned that since 2003, they’d been overstating maximum terms of probation.

Someone gave Hicks and Haley a chart that listed the correct maximum probation sentences for a range of offenses. But neither did anything to investigate the errors or correct them.

Sabo Jailed

Sabo began serving his probation in 2014.

Five months after Sabo’s three-year maximum probation sentence should have ended, in December 2017, the police arrested Sabo after a domestic dispute.

Megan Erickson, a probation officer, began the process of revoking Sabo’s probation.

After conferring with Barb Hanson, another probation officer, Erickson placed a hold on Sabo. Because of the hold, Sabo was jailed until his revocation hearing.

Court Informed of Error

While Sabo was in jail, he learned that his probation sentence exceeded the statutory maximum. Sabo’s attorney informed Erickson of that fact.

A DOC official told Erickson that Sabo’s attorney appeared to be correct about Sabo’s probation sentence exceeding the maximum.

Sabo’s attorney and the DOC official both wrote to the circuit court, indicating that Sabo’s probation sentence exceeded the statutory maximum.

On May 3, 2018, Sabo was released from jail. Because of the sentencing mistake, Sabo spent 291 days on probation more than he should have – 133 of them in jail.

Federal Lawsuit

In 2020, Sabo sued Hicks, Haley, Hanson and Erickson in the U.S. District Court for the Eastern District of Wisconsin under 42 U.S.C. section 1983.

Sabo claimed that all four defendants violated the Eighth Amendment by failing to investigate and correct his sentence.

He also claimed that Erickson and Hanson violated the Fourth Amendment’s Search and Seizure Clause by failing to release him from jail once they realized his probation sentence was erroneous.

The district court dismissed the claims against Hicks and Hailey for failure to state a claim and granted summary judgment for Erickson and Hanson on the claims filed against them. Sabo appealed.

Hicks and Haley Claims

Judge Jackson-Akiwumi began her opinion by explaining that to succeed on his claims against Hicks and Haley, Sabo must show that Hicks and Haley: 1) acted under color of state law to 2) deprived him of a constitutional right.

Jackson-Akiwumi concluded that Sabo’s claims posed a question of material fact as to whether Hicks and Haley acted under the color of state law.

“Hicks and Haley were responsible for correcting sentences that exceeded the statutory maximum,” Judge Jackson-Akiwumi wrote.

“That fact … gives rise to the reasonable inference that they were similarly responsible for some part of correcting past sentencing errors once they were aware of those errors.”

Jackson-Akiwumi also concluded that Sabo had alleged that Hicks and Haley had deprived him of a constitutional right.

Judge Jackson-Akiwumi pointed out that Sabo had alleged that Hicks and Haley were deliberately indifferent because they realized there was a substantial risk he’d serve a sentence longer than the maximum one allowed by law but ignored the risk.

“The fact that [Hicks’ and Haley’s] responsibilities included correcting sentencing errors gives rise to the inference that they could have done something to prompt the correction of Sabo’s sentence once they realized their mistake,” Jackson-Akiwumi wrote.

As a result, the district court erred by dismissing the claims against Hicks and Haley.

Erickson and Hanson Claims

Judge Jackson-Akiwumi concluded that the district court did not err in granting summary judgment to Erickson and Hanson.

She concluded that Erickson did not show deliberate indifference to Sabo’s plight and pointed to the following: 1) Erickson asked the DOC records office to review Sabo’s judgment of conviction; and 2) forwarded an email to Sabo’s attorney – an email that advised the attorney to contact the sentencing court.

“Erickson’s actions … were prompt and efficient, not indifferent,” Jackson-Akiwumi wrote.

On Sabo’s Fourth Amendment claims, Judge Jackson-Akiwumi explained that the Seventh Circuit has held that a state official is not liable for holding a person in custody pursuant to a facially valid court order, unless: 1) the official knows that the judge refused to make an independent decision in the case; or 2) doubt existed about the identity of the prisoner.

The Seventh Circuit vacated and remanded the district court’s dismissal of Sabo’s deliberate indifference claims against Hicks and Haley.

Dissent: No Constitutional Violation

Judge St. Eve argued in her dissent that the Eighth Amendment does not impose a duty on state officials to check thousands of sentences to make sure a state court imposed an erroneous sentence.

“Even if this was part of the defendants’ job description, failure to fully perform the duties of one’s job does not, on its own, create a constitutional violation,” St. Eve wrote.

Judge St. Eve also argued that Sabo’s complaint failed for legal sufficiency on the Eighth Amendment claims of deliberate indifference against Hicks and Haley.

“Neither we nor any other court has ever said that an administrative corrections employee tasked with reviewing sentences owes a duty to every person under sentence such that a failure to correct a miscalculation, without any notice of a specific mistake in a particular person’s record, amounts to a constitutional violation,” St. Eve wrote.