AB945: Bill Text

2. Dangerousness criterion. The bill changes the dangerousness criterion so that a person who has committed a sexually violent offense may be committed to DHFS if the state merely shows that the person is dangerous because he or she suffers from a mental disorder that makes it more likely than not (as opposed to substantially probable or much more likely than not) that he or she will engage in acts of sexual violence.

3. When may a petition be filed. Current law requires the state to allege and prove that the date on which the petition was filed coincides with, or precedes by no more than 90 days, the date on which the person is to be released from the confinement resulting from his or her sexually violent offense (which is generally in a state prison). This bill replaces that requirement with a requirement that the petition be filed before the person is released.

4. Who may file a petition. Under current law, a petition alleging that a person is a sexually violent person may be filed by DOJ at the request of the agency that has custody of the person or, if DOJ elects not to file, by the district attorney for the county in which the person committed the sexually violent offense or the district attorney for the county in which the person will reside after being released from confinement for the offense. Under the bill, the district attorney for the county in which the person is being confined is also authorized to file a petition if DOJ elects not to do so.

5. Expert examinations of persons who are subject to sexually violent person petitions. Under current law, if a person who is the subject of a sexually violent person petition or who has been committed as a sexually violent person is required to submit to an examination, he or she may retain experts or professional persons to perform an examination. If the person is indigent, the court must, upon the person's request, appoint a qualified and available expert or professional person to perform an examination of the person on the person's behalf.

This bill maintains the current provision concerning retention of an expert by a person who is subject to a petition or appointment of an expert for the person. The bill also provides that, if a person who is subject to a sexually violent person petition denies the facts alleged in the petition, the court may appoint at least one expert to conduct an examination of the person and testify at the trial on the petition. The bill also provides that the state may retain an expert to examine a person who is subject to a sexually violent person petition and testify at the trial on the petition or at other proceedings. Finally, the bill provides that an expert retained or appointed under any of these provisions must be a licensed physician, licensed psychologist, or other mental health professional.

6. Access to confidential records. Under current law, with certain exceptions, a person's medical records (including mental health treatment records) are confidential. Also, if a juvenile has been subject to a delinquency proceeding or a proceeding to determine whether he or she is in need of protection or services, the records concerning the court proceeding and any placement or treatment resulting from the proceeding are generally confidential. Among the exceptions to the confidentiality requirements that apply to medical and juvenile records are exceptions allowing access to certain persons for use in connection with proceedings to commit a person as a sexually violent person. Specifically, current law allows access to these records by an expert who is examining a person for purposes of providing an opinion as to whether the person may meet the criteria for commitment as a sexually violent person. Current law also provides access to the records by DOJ or a district attorney for purposes of prosecuting a sexually violent person commitment proceeding.

This bill modifies the current exceptions to medical and juvenile records confidentiality by broadening the provisions concerning who may have access to the records and by clarifying how those persons may use information obtained from the records. Under the bill, the records must be released to authorized representatives of DHFS, DOJ, the Department of Corrections (DOC), or a district attorney for use in the evaluation or prosecution of a sexually violent person proceeding if the records involve or relate to an individual who is the subject of or who is being evaluated for the proceeding. The bill also provides that the court in which the proceeding is pending may issue any protective orders that it determines are appropriate concerning the records and that any representative of DHFS, DOJ, or DOC or a district attorney may disclose information obtained from the records for any purpose consistent with any sexually violent person proceeding. In addition, the bill specifies that a person who is subject to sexually violent person commitment proceedings has access to certain other mental health records in order to prepare for those proceedings.

The bill also allows for access to other confidential records and reports which, under current law, are not generally available for use in connection with a sexually violent person commitment proceeding. Specifically, the bill allows access to law enforcement records concerning juveniles, records concerning required reports of abused or neglected children, court records of other civil commitment proceedings, pupil records maintained by a school, and presentence investigation reports prepared by DOC in connection with the sentencing of a person convicted of a crime. As with the exception for medical and juvenile records, the bill provides that these records and reports must be released to authorized representatives of DHFS, DOJ, DOC, or a district attorney for use in the evaluation or prosecution of a sexually violent person proceeding if the records involve or relate to an individual who is the subject of or who is being evaluated for the proceeding. The bill also provides that the court in which the proceeding is pending may issue any protective orders that it determines are appropriate concerning the records and that any representative of DHFS, DOJ, or DOC or a district attorney may disclose information obtained from the records for any purpose consistent with any sexually violent person proceeding.

7. Timing of probable cause hearing. Under current law, the court in which a sexually violent person petition has been filed must conduct a probable cause hearing on the petition within a reasonable period of time after the filing of the petition, except that the probable cause hearing must be held within 72 hours after the petition is filed (excluding Saturdays, Sundays, and legal holidays) if the person is being held in custody pending trial on the petition.

This bill provides that the probable cause hearing generally must be held within 30 days after the filing of the petition, excluding Saturdays, Sundays, and legal holidays, unless that time limit is extended by the court for good cause. However, if the person who is subject to the petition is in custody under a criminal sentence, a juvenile dispositional order, or a commitment order that is based on the person's commission of a sexually violent offense and the probable cause hearing is scheduled to be held after the date on which the person is scheduled to be released or discharged from the sentence, dispositional order or commitment order, then the probable cause hearing must be held no later than ten days after the person's scheduled date of release or discharge, excluding Saturdays, Sundays, and legal holidays, unless that time limit is extended by the court for good cause.

8. Timing of the trial on a sexually violent person petition. Under current law, a trial to determine whether the person who is the subject of a petition is a sexually violent person must commence no later than 45 days after the date of the probable cause hearing, unless the court grants a continuance of the trial date for good cause. The bill provides that the trial must begin no later than 90 days after the date of the probable cause hearing, except that the court may grant one or more continuances for good cause.

9. Rights of a person who is subject to a petition. Under current law, the rules of evidence applicable at a criminal trial apply to a trial on a sexually violent person petition and a person who is subject to a sexually violent person petition generally has the same constitutional rights available to a defendant in a criminal proceeding. Current law also specifically provides that the person has the right to counsel, the right to remain silent, the right to present and cross-examine witnesses, and the right to have the allegations in the petition proven beyond a reasonable doubt.

This bill eliminates the requirement that the rules of evidence applicable at a criminal trial apply also at a trial on a petition. In addition, the bill eliminates the general provision affording a person who is subject to a petition the same constitutional rights as are available to a defendant in a criminal proceeding. The bill does not eliminate the person's specified rights to counsel, to present and cross-examine witnesses, and to have the petition proven beyond a reasonable doubt. Likewise, the bill does not eliminate the person's specified right to remain silent; however, the bill does provide that the state may present evidence that a person who is the subject of a petition refused to participate in an examination that was conducted for the purpose of evaluating whether to file a petition against the person or for the purpose of evaluating the person after a petition had been filed.

10. Reexaminations of persons found to be sexually violent persons. Under current law, a person who has been committed as a sexually violent person must be examined by DHFS within six months after the initial commitment and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged from the commitment. This bill provides that DHFS is not required to examine the person until 18 months after the person's initial commitment. The bill does not affect the requirement that DHFS conduct further evaluations at least once each 12 months thereafter or the court's authority to order an evaluation at any time.

The bill also establishes new requirements regarding the preparation of the examiner's report. First, whenever an evaluation is to be conducted, DHFS must prepare a treatment report based on its treating professionals' evaluation of the person's progress in treatment and of whether that progress has been sufficient and their description of the type of treatment that the person would need in the community if supervised release were ordered. DHFS must then provide that report to the examiner. Second, the bill specifies that the examiner's report must include an assessment of:

a. The risk that the person will reoffend.

b. Whether the risk can be safely managed in the community if reasonable conditions of supervision and security are imposed.

c. Whether the treatment that the person needs is available in the community.

Third, the bill requires the examiner to complete the report within 30 days after the examination. Fourth, after receiving the report, DHFS is required to send it, along with its own treatment report and a written statement recommending either continued institutional care, supervised release, or discharge, to the court, the prosecutor, and the person's attorney.

11. Supervised release proceedings. The bill eliminates the process by which a person may petition the court to authorize supervised release. Instead, under the bill, the court reviews the appropriateness of supervised release for a person in institutional care in connection with periodic evaluations conducted on the person by DHFS (as opposed to reviewing the appropriateness of discharge in connection with those reports as provided under current law). Under the bill, if DHFS recommends supervised release, or if it recommends continued institutional care and a party files an objection advocating supervised release within 30 days after DHFS makes its recommendation, the court must consider whether the person should remain in institutional care, and, if the person should be placed on supervised release, where he or she should be placed. (If a person advocates discharge through his or her objection, the court shall consider the objection only if the person files a separate discharge petition.) If the committed person is indigent and is unrepresented, the court must appoint an attorney to represent the person.

Within 30 days after the deadline for objections, the court must hold a hearing (at which DHFS, through its agency counsel, may appear and be heard) to decide whether to authorize supervised release and, if it authorizes supervised release, where the person should be placed. (This requirement does not apply if DHFS recommends continued institutional care and no party objects.) In making those decisions, the court may consider: the nature and circumstances of the behavior that led to the person's commitment; the person's mental history and present mental condition; the person's progress or lack of progress in treatment; and, if the court were to authorize supervised release, where the person would live, how the person would support himself or herself, and what arrangements would be available to ensure that the person would have access to and would participate in necessary treatment.

In the process, the court must select a county — generally the person's county of residence — to prepare a report, either independently or with DHFS, identifying prospective residential options for community placement (unless the court determines that the person has not made sufficient progress in treatment to warrant supervised release). In identifying prospective residential options, the county must consider the proximity of any potential placement to the residence of certain other sex offenders. If the court determines that the prospective residential options identified in the county's report are inadequate, the court may, but is not required to, select one or more other counties to prepare another placement report.

12. Standard for granting supervised release. As noted above, under current law, if a person petitions the court for supervised release, the court must grant the petition unless the state proves that it is still substantially probable that the person will engage in future acts of sexual violence if institutionalized care is not continued. Under the bill, the court may not order that a person be placed on supervised release unless it finds, based on all of the reports, trial records, and evidence presented, that all of the following apply:

a. The person who will be placed on supervised release has made sufficient progress in treatment such that the risk that the person will reoffend can be safely managed in the community.

b. The person who will be placed on supervised release will be treated by a qualified treatment provider.

c. The provider presents a specific course of treatment for the person, agrees to provide for the person's treatment, agrees to comply with the rules and conditions of supervision imposed by the court and DHFS, agrees to report on the person's progress to the court on a regular basis, and agrees to report violations of supervised release immediately to the court and the prosecutor.

d. The person who will be placed on supervised release has housing arrangements that are sufficiently secure to protect the community, and the person or agency that is providing the housing to the person who will be placed on supervised release agrees, among other things, to report the unauthorized absence of the person immediately to the court and the prosecutor.

e. The person who will be placed on supervised release will comply with the provider's treatment requirements and all of the requirements that are imposed by DHFS and the court.

f. DHFS has made provisions for the necessary services, including sex offender treatment, other counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment.

13. Implementing a supervised release order. If the court authorizes supervised release, the court must order the county in which the person will be placed to assist DHFS in implementing the supervised release placement. If DHFS imposes rules governing supervised release beyond the conditions set by the court, it must file them with the court within 10 days of imposing the rule. In addition, the rules may not conflict with the conditions imposed by the court. If DHFS wishes to change a rule of supervision imposed by the court, it must obtain the court's approval.

14. Revoking supervised release. This bill makes the following changes related to revoking an order granting supervised release:

a. Under current law, if DHFS alleges that a person on supervised release has violated a condition or rule of supervised release or that the safety of others necessitates revocation, DHFS is authorized, but not required, to detain the person and file a revocation petition. This bill requires DHFS to detain a person on supervised release and file a revocation petition if it concludes that the person is a threat to the safety of others.

b. The bill permits DHFS to detain a person and file a revocation petition based on the person threatening to violate a rule or condition.

c. Under current law, if DHFS detains a person pending a revocation hearing, it may detain the person in the county jail; in certain hospitals (such as one that is approved by DHFS for use as a detention facility); with certain treatment agencies (such as those operating under DHFS's direction and control or providing treatment through a contract with DHFS); at a center for the developmentally disabled; in a state mental health treatment facility; or in an approved private treatment facility, if the facility agrees to detain the individual. Under the bill, DHFS may detain a person who is the subject of a revocation petition in the county jail or return him or her to institutional care.

d. Current law permits, but does not require, the court to revoke supervised release if the state proves: 1) that the person violated a condition or rule of supervised release; or 2) that the safety of others requires that supervised release be revoked. This bill requires the court to revoke supervised release if the latter condition applies. In addition, the bill permits the court to revoke extended supervision in the former case only if it finds that the violation of the rule or condition merits revocation.

e. The bill specifies that supervised release may be revoked even if the person has not yet been placed in the community.

f. The bill requires the court to make a decision on a revocation petition within 90 days after it was filed. Current law contains no such deadline.

15. Discharge proceedings. The bill changes the procedures by which a person in institutional care or on supervised release may be discharged from DHFS's custody and supervision in the following ways:

a. The bill eliminates the requirement that the court review a person's eligibility for discharge whenever DHFS conducts a periodic evaluation of the person. Under the bill, the court conducts discharge proceedings only upon the filing of a discharge petition.

b. If DHFS determines that a committed person should be discharged, DHFS — not the person — files a petition with the court.

c. The bill eliminates the probable cause hearing for discharge petitions that are filed without DHFS's approval. Instead, the court bases its determination on whether to conduct a discharge hearing on the petition, the prosecutor's written response, and any supporting documentation that either party files.

d. The bill requires that discharge hearings be held within 90 days after DHFS files the discharge petition or within 90 days after the court determines that a hearing on a petition brought by a committed person is warranted, whichever is appropriate. (Current law requires that a discharge petition filed with DHFS's approval be heard within 45 days after its filing but does not set a deadline for other discharge hearings.)

e. The bill gives DHFS the right to appear and be heard (through its agency counsel) at any discharge hearing.

f. The bill permits the prosecutor or the committed person to request that a discharge hearing be held before a six-person jury. Five members of the jury must agree to a verdict on the discharge petition for it to be valid.

16. Miscellaneous procedural provisions. Current law does not explicitly address various procedural issues relating to sexually violent person commitment and discharge proceedings. This bill creates new procedural provisions addressing a number of these issues. Among the issues addressed by new procedural provisions are the following:

a. Making motions to challenge the jurisdiction of the court or the timeliness of the filing of a petition.

b. Methods by which one party may discover and inspect material in the possession of the other party.

c. Changing the place where the trial on the petition is held.

d. Jury selection.

e. Filing a motion for relief from a commitment order and appeals of other orders.

The bill also provides that the rules applicable to appeals in criminal, juvenile and other civil commitment cases will generally apply in an appeal from an order committing a person as a sexually violent person.

17. Codification of certain case law interpretations. The bill codifies certain Wisconsin appellate court decisions relating to the sexually violent person commitment procedure, including the following:

a. The bill provides that a person may be subject to a sexually violent person commitment proceeding at the time that he or she is being paroled under or discharged from a commitment under a previous sex crimes commitment law that was repealed in 1980. This codifies a holding of State v. Post, 197 Wis. 2d 279 (1995).

b. The bill provides that, for purposes of determining the proper time to file a petition, confinement under a sentence of imprisonment that was imposed for a sexually violent offense includes confinement that was imposed consecutively to any sentence for a sexually violent offense. This codifies a holding of State v. Keith, 216 Wis. 2d 61 (Ct. App. 1997).

c. The bill provides that a person committed as a sexually violent person must be afforded the right to request a jury for a hearing on his or her petition for a discharge from the commitment. This codifies a holding of State v. Post, 197 Wis. 2d 279 (1995).

18. Enforceability of time limits. The bill specifies that a party's failure to comply with a time limit relating to proceedings involving sexually violent persons does not affect the court's jurisdiction or its ability to exercise that jurisdiction, nor is it a ground for an appeal.

Reimbursement for Brown County and Milwaukee County prosecutors

Current law requires the district attorneys for Brown County and Milwaukee County to each assign an assistant district attorney to work exclusively on sexually violent person commitment cases. These specialized prosecutors may prosecute cases in any other county at the request of the district attorney for that county. This bill requires, in those cases, that the district attorney for the county in which the case is being heard reimburse the specialized prosecutor's home county (i.e., Brown County or Milwaukee County) for reasonable costs incurred by the specialized prosecutor, including expert witness fees.

Transitional facility for supervised release of sexually violent persons

This bill creates a committee composed of officials from the city of Milwaukee and Milwaukee County and individual residents of Milwaukee County to prepare recommendations regarding the location of a proposed transitional facility for persons who have been committed to the custody of DHFS as sexually violent persons. The bill also requires DHFS to pay annually to the municipality in which the transitional facility is ultimately located a sum in lieu of property taxes for the services, improvements, or facilities that the municipality furnishes to the transitional facility. The amount of the payment may not exceed the amount that the municipality would have otherwise levied upon the transitional facility. DHFS must also make an annual grant of $100,000 to the municipality for the cost of providing additional security near the facility.

Escape

Current law provides penalties for escaping from certain types of custody, including actual physical custody in a jail, state prison, or juvenile correctional institution, actual physical custody of a law enforcement officer or institution guard, and constructive custody of prisoners and juveniles temporarily outside an institution for the purpose of work, school, medical care, or other authorized temporary leave. A person who is convicted of escape is subject to fines or imprisonment or both. The maximum term of imprisonment that may be imposed depends on the type of custody from which the person escapes. For instance, a person who escapes after being arrested for, charged with, or sentenced for a crime may be imprisoned for not more than six years or fined not more than $10,000 or both, while a person who escapes after being arrested for, charged with, or convicted of a violation of a law that is penalized with a forfeiture (a civil monetary penalty) may be imprisoned for not more than nine months or fined not more than $10,000 or both.

This bill provides that the maximum term of imprisonment for escape is 12.5 years if the person escapes while he or she is in custody in connection with a sexually violent person commitment proceeding or while he or she is in institutional care or on supervised release after having been found to be a sexually violent person.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB945, s. 1 Section 1. 20.435 (2) (bm) of the statutes is amended to read:

AB945,13,6 20.435 (2) (bm) Secure mental health units or facilities; payments relating to transitional facilities. The amounts in the schedule for the general program operations of secure mental health units or facilities under s. 980.065 for persons committed under s. 980.06 and placed in a secure mental health unit or facility and for making payments to municipalities under s. 46.055 (2) (b) and grants to municipalities under s. 46.055 (2) (c).

AB945, s. 2 Section 2. 46.03 (1) of the statutes is amended to read:

AB945,13,10 46.03 (1) Institutions governed. Maintain and govern the Mendota and the Winnebago mental health institutes; the secure mental health facility established under s. 46.055 (1); and the centers for the developmentally disabled.

AB945, s. 3 Section 3. 46.055 (title) of the statutes is amended to read:

AB945,13,13 46.055 (title) Secure mental health facility Facilities for sexually violent persons.

AB945, s. 4 Section 4. 46.055 of the statutes is renumbered 46.055 (1).

AB945, s. 5 Section 5. 46.055 (2) of the statutes is created to read:

AB945,13,19 46.055 (2) (a) In this subsection, "transitional facility" means the facility that is enumerated in 2001 Wisconsin Act 16, section 9107 (1) (d) 1., and that will be a transitional facility for the housing of persons committed to the custody of the department under ch. 980.

AB945,13,25 (b) Annually, from the appropriation under s. 20.435 (2) (bm), the department shall pay a municipality in which a transitional facility is located a sum in lieu of taxes for the services, improvements, or facilities that the municipality furnishes to the transitional facility. The municipality shall determine the amount that the department shall pay, but it may not exceed the amount that would be levied as the annual property tax of the municipality upon the transitional facility.

AB945,14,4 (c) Annually, from the appropriation under s. 20.435 (2) (bm), the department shall make a grant of $100,000 to a municipality in which a transitional facility is located to reimburse the municipality for the cost of providing additional security for the area in which the transitional facility is located.

AB945, s. 6 Section 6. 46.058 (2m) of the statutes is amended to read:

AB945,14,16 46.058 (2m) The superintendents of the secure mental health facility established under s. 46.055 (1), the Wisconsin resource center established under s. 46.056 and any secure mental health unit or facility provided by the department of corrections under s. 980.065 (2) shall adopt proper means to prevent escapes of persons detained or committed to the facility, center or unit under ch. 980 and may adopt proper means to pursue and capture persons detained or committed to the facility, center or unit under ch. 980 who have escaped. In adopting means under this subsection to prevent escape and pursue and capture persons who have escaped, a superintendent may delegate to designated staff members of the facility, center or unit the power to use necessary and appropriate force, as defined by the department by rule, to prevent escapes and capture escaped persons.

AB945, s. 7 Section 7. 48.396 (1) of the statutes is amended to read:

AB945,15,12 48.396 (1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of the adult expectant mothers of unborn children shall be kept separate from records of other adults. Law enforcement officers' records of children and the adult expectant mothers of unborn children shall not be open to inspection or their contents disclosed except under sub. (1b), (1d) or, (5), or (6) or s. 48.293 or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child or expectant mother involved, to the confidential exchange of information between the police and officials of the school attended by the child or other law enforcement or social welfare agencies or to children 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under s. 118.125 and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and s. 938.396 (1). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under ss. 48.78 and 938.78.

AB945, s. 8 Section 8. 48.396 (5) (a) (intro.) of the statutes is amended to read:

AB945,15,17 48.396 (5) (a) (intro.) Any person who is denied access to a record under sub. (1), (1b) or, (1d), or (6) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:

AB945, s. 9 Section 9. 48.396 (6) of the statutes is created to read:

AB945,16,6 48.396 (6) Records of law enforcement officers and of the court assigned to exercise jurisdiction under this chapter and ch. 938 shall be open for inspection by and production to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subsection. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this subsection for any purpose consistent with any proceeding under ch. 980.

AB945, s. 10 Section 10. 48.78 (2) (e) of the statutes is created to read:

AB945,16,19 48.78 (2) (e) Notwithstanding par. (a), an agency shall, upon request, disclose information to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the information involves or relates to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

AB945, s. 11 Section 11. 48.981 (7) (a) 8s. of the statutes is created to read: