SB624: Bill Text

LRB-4546/2

GMM:mkd:kat

1995 - 1996 LEGISLATURE

1995 Senate BILL 624

March 14, 1996 - Introduced by Senators Panzer, C. Potter and Huelsman, cosponsored by Representative Ladwig. Referred to Committee on Judiciary.

SB624,2,13 An Act to repeal 48.396 (1m), 304.06 (1z), 938.18 (2r) and 938.38 (5m); to renumber 15.197 (23) (title), 15.197 (23) (a) 1., 2., 3., 4., 5., 6. and 7., 15.197 (23) (a) 9., 15.197 (23) (a) 10. and (b), 48.396 (1g) and 938.355 (6) (an); to renumber and amend 15.197 (23) (a) (intro.), 15.197 (23) (a) 8., 48.983, 118.127 (3), 938.183 (1m) and 938.51 (4); to amend 46.215 (1m), 46.22 (1) (dm), 46.23 (3) (e), 48.023 (4), 48.396 (2) (am), 48.66 (1), 48.78 (2) (ag), 48.78 (2) (am), 51.42 (3) (e), 103.70 (1), 111.35 (2) (d), 118.125 (1) (a), 118.125 (2) (e), 118.125 (3), 118.125 (5) (b), 118.127 (title), 118.127 (1), 118.127 (2), 118.127 (3), 118.163 (2) (intro.), 118.163 (2) (a), 118.163 (2) (b), 118.163 (2) (c), 118.163 (2) (d), 118.163 (2) (e), 118.163 (2) (f), 118.163 (2m), 134.66 (2) (a), 134.66 (2) (b), 146.81 (5), 301.26 (4) (cm) 1., 304.06 (1) (b), 778.25 (1) (a) 4., 895.035 (2m) (a), 895.034 (2m) (b), 938.02 (15m), 938.02 (19), 938.02 (20), 938.065 (3) (f), 938.08 (3), 938.18 (7), 938.183 (1) (a), 938.183 (1) (b), 938.185 (1) (c), 938.208 (1) (intro.), 938.209 (3), 938.24 (5), 938.245 (2) (a) 5. b., 938.245 (2g), 938.245 (4), 938.245 (5), 938.245 (7) (a), 938.25 (2) (a), 938.25 (2) (b), 938.29 (1g), 938.299 (1) (ar), 938.299 (1) (b), 938.315 (3), 938.32 (1t) (a) 2., 938.34 (4h) (a), 938.34 (5) (b), 938.34 (5g) (c), 938.34 (8), 938.34 (16), 938.342, 938.343 (2), 938.355 (4), 938.355 (6) (title) and (a), 938.355 (6) (d) (intro.), 938.355 (6m) (a), 938.357 (1), 938.357 (3), 938.357 (4) (a), 938.365 (6), 938.371, 938.396 (2) (am), 938.396 (2m) (a), 938.396 (7) (c), 938.396 (8), 938.51 (2), 938.538 (5) (a), 938.59 (1), 938.595, 938.78 (2) (ag), 938.78 (2) (am), 938.78 (2) (d) (intro.), 946.42 (3) (c), 946.44 (2) (c), 946.44 (2) (d), 946.45 (2) (c), 946.45 (2) (d) and 970.032 (2) (intro.); to repeal and recreate 48.396 (1), 118.125 (2) (d), 938.357 (4) (b) and (c) and 946.42 (1) (a); and to create 15.147 (title), 48.396 (1d), 51.437 (4r) (b), 103.67 (2) (j), 301.08 (1) (b) 3., 938.02 (19r), 938.028, 938.17 (2) (h) 4., 938.18 (2m), 938.183 (1m) (a), 938.183 (1m) (c), 938.208 (6), 938.299 (1) (av), 938.315 (1) (dm), 938.34 (4d), 938.355 (6) (an) 2., 938.396 (1m) (am), 938.51 (1) (d), 938.51 (4) (b), 938.539, subchapter XVIII (title) of chapter 938 [precedes 938.795] and subchapter XX (title) of chapter 938 [precedes 938.983] of the statutes; relating to: juvenile justice and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes various changes relating to the new juvenile justice code (code) that is to go into effect on July 1, 1996. Those changes are as follows:

1. Dispositions. The current code provides for various dispositions for a juvenile who has been adjudicated delinquent. Those dispositions include placement in a secured correctional facility (Ethan Allen school or Lincoln Hills school) or a secured child caring institution (CCI) under the supervision of the department of corrections (DOC) if the juvenile has committed as act that would be punishable by a sentence of 6 months or more if committed by an adult and if the juvenile has been found to be a danger to the public and to be in need of restrictive custodial treatment. Those dispositions also include placement in the serious juvenile offender program under the supervision of DOC if the juvenile has committed an act that would be a Class A or Class B felony if committed by an adult and if the only other disposition that would be appropriate for the juvenile would be placement in a secured correctional facility. The current code requires DOC to operate the component phases of the serious juvenile offender program that do not involve placement at Ethan Allen school or Lincoln Hills school as a "Type 2 secured correctional facility". A juvenile placed in a Type 2 secured correctional facility is under the supervision and control of DOC, is subject to the rules and discipline of DOC and is considered to be in custody for purposes of the law against escape.

This bill creates a new disposition, specifically, placement in a Type 2 CCI, as defined in the bill, under the supervision of the county department of human services or social services (county department) and subject to Type 2 status, as described in the bill, if the juvenile has committed an act that would be punishable by a sentence of 6 months or more if committed by an adult and if the juvenile has been found to be a danger to the public and to be in need of restrictive custodial treatment. Under the bill, a "Type 2 CCI" is a CCI that is designated by DOC to provide care and maintenance for juveniles who have been placed under this new disposition. Under the bill, a juvenile who is placed in a Type 2 CCI or who, having been so placed, is replaced in a less restrictive placement, is under the supervision and control of the county department, is subject to the rules and discipline of the county department and is considered to be in custody for purposes of the law against escape.

Under the current code, ordinarily when a party wishes to change the placement of a juvenile, the party must request the court assigned to exercise jurisdiction under the code (juvenile court) to change that placement. The current code, however, permits DOC to change the placement of a juvenile who is under the supervision of DOC without requesting a change in placement from the juvenile court. The current code also permits DOC, on receiving notice from a child welfare agency operating a secured CCI in which a juvenile is placed, to return the juvenile to a secured correctional facility or place the juvenile in a secure detention facility for not more than 30 days, without requesting a change in placement from the juvenile court, if the juvenile violates a condition of his or her placement in the secured CCI. The current code also permits a child welfare agency that is operating a secured CCI to place a juvenile in a less restrictive placement and replace that juvenile in a secured CCI without requesting a change in placement from the juvenile court.

This bill permits DOC, on receiving notice from a child welfare agency operating a Type 2 secured correctional facility in which a juvenile is placed under the supervision of DOC and after consulting with the child welfare agency, to place the juvenile at Ethan Allen school or Lincoln Hills school, without requesting a change in placement from the juvenile court, if the juvenile violates a condition of his or her placement in the Type 2 secured correctional facility. The bill also permits DOC, on receiving notice from a child welfare agency operating a Type 2 CCI in which a juvenile is placed under the supervision of a county department and after consulting with the child welfare agency, to place the juvenile at Ethan Allen school or Lincoln Hills school for not more than 10 days, without requesting a change in placement from the juvenile court, if the juvenile violates a condition of his or her placement in the Type 2 CCI and if the county department having supervision over the juvenile agrees to the change in placement.

The bill also permits DOC, after consulting with the child welfare agency operating the CCI in which DOC has placed a juvenile, to place the juvenile in a less restrictive placement, without requesting a change in placement from the juvenile court, if it appears that a less restrictive placement would be appropriate for the juvenile. Finally, the bill permits the child welfare agency operating a Type 2 CCI in which a juvenile is placed under the supervision of a county department, to place the juvenile in a less restrictive placement, without requesting a change in placement from the juvenile court, if it appears that a less restrictive placement would be appropriate for the juvenile and if the county department agrees to the less restrictive placement.

Under the current code, a juvenile court, after imposing a disposition on a juvenile, may enter an additional order staying the execution of that disposition contingent on the juvenile's satisfactory compliance with the conditions of the dispositional order. If the juvenile court finds, however, to a reasonable certainty by the greater weight of the credible evidence that the juvenile has violated a condition of his or her dispositional order, the juvenile court may impose the original dispositional order. This bill changes the burden of proof for imposing the original dispositional order to a preponderance of the evidence.

Under the current code, the parole commission may grant a participant in the serious juvenile offender program parole at any time after the participant has completed 2 years of participation in the program. This bill provides instead that the juvenile offender review program in the division of youth corrections in DOC may release a participant in the serious juvenile offender program to aftercare supervision at any time after the participant has completed 2 years of participation in the program.

Under the current code, a juvenile court may impose as a disposition, or a juvenile may agree to under a deferred prosecution agreement or consent decree, restitution for damage to property or actual physical injury to another or participation in a supervised work program. Under current law, however, minors under 14 years of age, subject to certain exceptions, are not permitted to work and the employer of a minor of any age who does work must obtain a work permit for the minor. This bill permits a minor 10 to 13 years of age to participate in a restitution project or in a supervised work program or in other community service work as part of a deferred prosecution agreement, consent decree or dispositional order. The bill also exempts a minor participating in a restitution project or in a supervised work program or in other community service work from the work permit requirement under current law.

Under the current code, the person or agency primarily responsible for implementing a dispositional order; the juvenile; his or her parent, guardian or legal custodian; or any person or agency primarily bound by the dispositional order may request that the juvenile court order a change in placement. This bill permits the district attorney to request a change in placement.

2. Jurisdiction and venue. Under the current code, a court of criminal jurisdiction (criminal court), rather than a juvenile court, has exclusive original jurisdiction over a juvenile who: 1) has been adjudicated delinquent and is alleged to have committed assault or battery while placed in a secured correctional facility, secured CCI or a secure detention facility; 2) is alleged to have attempted or committed first-degree intentional homicide or to have committed first-degree reckless homicide or 2nd-degree intentional homicide on or after the juvenile's 10th birthday; 3) is alleged to have violated any state criminal law if the juvenile has previously been convicted following waiver of juvenile court jurisdiction or if criminal proceedings are still pending following waiver of juvenile court jurisdiction (once waived/always waived); 4) is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation over which the criminal court had original jurisdiction or if criminal proceedings on a previous violation over which the criminal court had original jurisdiction are still pending. Under the current code, a juvenile who is under the original jurisdiction of a criminal court is subject to adult criminal procedures and to adult criminal penalties unless the criminal court transfers jurisdiction to the juvenile court (reverse waiver).

This bill provides that, notwithstanding that a juvenile who is under the original jurisdiction of the criminal court is subject to adult criminal procedures and penalties, a juvenile under 15 years of age who is subject to the original jurisdiction of the criminal court may be held in secure custody only in a juvenile secure detention facility or in the juvenile portion of a county jail and, if a juvenile who is subject to the original jurisdiction of the criminal court is convicted of a lesser offense, the criminal court may impose a juvenile disposition rather than an adult criminal penalty.

The bill also provides that, for a juvenile who is once waived/always waived, the previous waiver may be a waiver under the predecessor to the code, that is, the children's code.

Also, the bill provides that the burden of proof in a reverse waiver proceeding is on the juvenile to prove by a preponderance of the evidence that jurisdiction should be transferred to the juvenile court.

Under the current code, if a juvenile absconds and does not appear at his or her waiver hearing, the juvenile court may waive its jurisdiction in the juvenile's absence and the juvenile may contest the waiver when he or she is apprehended. This bill provides that the juvenile may contest the waiver by showing the criminal court good cause for his or her failure to appear. If the criminal court finds good cause for the juvenile's failure to appear, the criminal court must transfer jurisdiction back to the juvenile court for purposes of holding the waiver hearing.

Under the current code, in a waiver proceeding, if it appears that the juvenile may be suitable for participation in the serious juvenile offender program or in the adult intensive sanctions program, the judge must order DOC to submit a report recommending whether the juvenile should be placed in either of those programs. This bill eliminates that requirement and instead permits the juvenile court to designate DOC, the county department or a child welfare agency to submit a report analyzing the criteria on which the juvenile court must base its waiver decision. The bill also permits the juvenile court to rely on facts stated in that report in making its findings with respect to those criteria.

Under the current code, if a juvenile violates a state law, venue for the proceeding is in the county where the violation occurred, except that, after the juvenile is adjudged delinquent, the juvenile court of that county may transfer venue to the juvenile's county of residence for disposition, if the juvenile court of the county of residence agrees to the transfer and the transferring juvenile court agrees to the disposition. This bill applies the same venue law to a violation of a county, town or municipal ordinance. The bill also eliminates the requirement that the transferring juvenile court agree to the disposition of the juvenile court of the county of residence.

3. Juvenile court procedures. Under the current code, certain actions, such as referring a case to the district attorney for the filing of a petition, filing a petition and holding fact-finding, dispositional and extension hearings, must take place within certain time limits. If a time limit is not met, the juvenile court may grant a continuance, dismiss the petition with or without prejudice, release the juvenile from secure or nonsecure custody or grant any other relief that the juvenile court considers appropriate. This bill provides that failure to object to a time limit not being met waives that time limit.

Under the current code, certain time periods are excluded in computing time limits under the code. Those time periods include periods of delay resulting from other legal actions concerning the juvenile, from a continuance or from the absence or unavailability of the juvenile. This bill adds to the time periods that are excluded in computing time limits under the code any period of delay resulting from juvenile court congestion or scheduling.

Under the current code, information indicating that a juvenile should be referred to the juvenile court as delinquent, in need of protection or services or in violation of a civil law or municipal ordinance must be referred to the juvenile court intake worker (intake worker) who must conduct an intake inquiry to determine what action should be taken. Currently, an intake worker must recommend that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days after receipt of the referral. This bill requires the intake worker to request, rather than recommend, that a petition be filed.

Under the current code, if a deferred prosecution agreement is entered into, the juvenile court may terminate the agreement upon the request of the juvenile, parent, guardian or legal custodian. This bill permits a juvenile, parent, guardian or legal custodian to terminate a deferred prosecution agreement, other than a deferred prosecution agreement placing the juvenile in a youth village program, without requesting the juvenile court to do so.

Under the current code, the district attorney, corporation counsel or other appropriate official may refer a case back to the intake worker for further investigation. This bill permits the district attorney, corporation counsel or other appropriate official to refer a case directly back to the law enforcement agency investigating the case.

Under the current code, subject to certain exceptions, the general public is excluded from hearings under the code and the records of the juvenile court are not open to inspection and their contents may not be disclosed. The current code, however, permits the general public to attend a hearing and permits the records of the juvenile court to be open for inspection by a requester if the hearing or records relate to a juvenile who is alleged to be delinquent for committing an act that would be a serious felony for purposes of increased penalties for repeat criminal offenders (3 strikes and you're out), or for abducting another person's child or for conspiracy to commit any violation. This bill eliminates public hearings and open records relating to juveniles who are alleged to be delinquent for committing those violations and instead provides for public hearings and open records relating to juveniles who are alleged to have committed a delinquent act for which a juvenile may be placed in the serious juvenile offender program, that is, a Class A or Class B felony if committed by an adult. The bill also provides that if a public hearing is held, any person may disclose to anyone any information obtained at the public hearing.

Under the current code, upon the request of the parent, guardian or legal custodian of a juvenile who is the subject of a record of the juvenile court, or upon the request of the juvenile, if 14 years of age or over, the juvenile court must open for inspection by the parent, guardian, legal custodian or juvenile the records of the juvenile court relating to the juvenile, unless the juvenile court finds that inspection by the juvenile, parent, guardian or legal custodian would result in imminent danger to the juvenile. Under the current code, on the written permission of the parent, guardian or legal custodian of a juvenile who is the subject of a record of the juvenile court, or on the written permission of the juvenile, if 14 years of age or over, the juvenile court must open for inspection by the person named in the permission the records of the juvenile court relating to the juvenile. This bill permits a juvenile court to refuse to open its records to a person named in such a permission if the juvenile court finds that inspection by the person named in the permission would result in imminent danger to the juvenile.

Similarly, the current code permits the department of health and family services (DHFS), a county department or a child welfare agency to open its records relating to a juvenile, upon the request of the juvenile's parent, guardian or legal custodian or upon the request of the juvenile, if 14 years of age or over, for inspection by the parent, guardian, legal custodian or juvenile and to open its records relating to a juvenile, on the written permission of the juvenile's parent, guardian or legal custodian or on the written permission of the juvenile, if 14 years of age or over, for inspection by the person named in the written permission. This bill permits DHFS, a county department or a child welfare agency to refuse to open its records for inspection under the circumstances described in this paragraph if that inspection would result in imminent danger to the juvenile.

Under the current code, subject to certain exceptions, a juvenile and his or her parent, guardian or legal custodian may request the substitution of a judge in a proceeding under the code. The current code, however, prohibits a juvenile in a delinquency proceeding and a juvenile and his or her parent, guardian or legal custodian in a proceeding for a juvenile in need of protection or services under the code from requesting the substitution of a judge if the juvenile, parent, guardian or legal custodian has requested the substitution of a judge in a previous proceeding under the code or if the judge assigned to the proceeding has entered a dispositional order with respect to the juvenile in a previous proceeding under the code. This bill also prohibits the substitution of a judge if the juvenile, parent, guardian or legal custodian has requested the substitution of a judge in a previous proceeding under the children's code or if the judge assigned to the proceeding has entered a dispositional order with respect to the juvenile in a previous proceeding under the children's code.

4. Sanctions. Under the current code, if a juvenile who has been adjudged delinquent, to be in need of protection or services based on habitual truancy or to have violated a civil law or municipal ordinance violates a condition of his or her dispositional order, the juvenile court may impose certain sanctions on the juvenile. Those sanctions include placement in a secure detention facility for not more than 10 days, suspension or limitation of the juvenile's operating privilege (driver's license) for up to 3 years, home detention for not more than 30 days, with or without electronic monitoring, and not more than 25 hours of community service work. This bill permits a juvenile court to impose those sanctions on a juvenile adjudged to be in need of protection or services for uncontrollability, truancy from home, being a dropout, being under 10 years of age and committing a delinquent act or being not responsible for a delinquent act by reason of mental disease or defect, if the juvenile violates a condition of his or her dispositional order. The bill also specifies that the juvenile court must find by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order before the juvenile court may impose a sanction. Finally, the bill requires that, if the juvenile court orders secure detention or home detention with electronic monitoring for a juvenile who has violated a condition of a municipal court dispositional order, the juvenile court must order the municipality of the municipal court to pay the county for the cost of providing the secure detention or electronic monitoring.

5. Other. Under the current code, a juvenile who has been taken into custody may be held in a secure detention facility if the intake worker determines that certain conditions apply. One of those conditions is that probable cause exists to believe that the juvenile has committed a delinquent act and presents a substantial risk of physical harm to another person or of running away so as to be unavailable for a court hearing or a revocation of aftercare hearing. Currently, for a juvenile on aftercare supervision, that is, supervision following release from a secured correctional facility, the delinquent act may be the act for which the juvenile was adjudged delinquent. This bill provides that for all juveniles who have been adjudged delinquent, not just juveniles on aftercare, the delinquent act may be the act for which the juvenile was adjudged delinquent.

Under current law, effective July 1, 1996, if a child fails to pay restitution as ordered by a juvenile court or municipal court or as agreed to in a deferred prosecution agreement, or if it appears unlikely that the child will pay, the victim, the victim's insurer, the district attorney, corporation counsel or municipal attorney or the agency supervising the child under the dispositional order may petition the juvenile court to order that the amount of restitution unpaid be entered and docketed as a judgment against the child and the parent with custody of the child. This bill provides that such an order is entered and docketed not only against the child and parent, but also in favor of the victim or victim's insurer, or both. The bill also provides that the rendering of a judgment for restitution does not bar the victim or victim's insurer from commencing another action seeking compensation from the child or parent, or both, if the amount of restitution ordered is less than the total amount of damages claimed.

Similarly, if a child fails to pay a forfeiture, the amount of the forfeiture may be entered and docketed as a judgment against the child and parent with custody of the child. This bill provides that such an order is entered and docketed not only against the child and parent, but also in favor of the county or appropriate municipality.

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:

SB624, s. 1 Section 1. 15.147 (title) of the statutes is created to read:

SB624,9,2 15.147 (title) Same; councils.

SB624, s. 2 Section 2. 15.197 (23) (title) of the statutes is renumbered 15.147 (1) (title).

SB624, s. 3 Section 3. 15.197 (23) (a) (intro.) of the statutes is renumbered 15.147 (1) (a) (intro.) and amended to read:

SB624,9,8 15.147 (1) (a) (intro.) There is created a gang violence prevention council, attached to the department of health and family services corrections under s. 15.03. The council shall consist of the following members:

SB624, s. 4 Section 4. 15.197 (23) (a) 1., 2., 3., 4., 5., 6. and 7. of the statutes are renumbered 15.147 (1) (a) 1., 2., 3., 4., 5., 6., and 7.

SB624, s. 5 Section 5. 15.197 (23) (a) 8. of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 15.147 (1) (a) 8. and amended to read:

SB624,9,14 15.147 (1) (a) 8. The secretary of health and social services corrections or the secretary's designee, who shall serve as chairperson of the council.

SB624, s. 6 Section 6. 15.197 (23) (a) 9. of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 15.147 (1) (a) 9.

SB624, s. 7 Section 7. 15.197 (23) (a) 10. and (b) of the statutes are renumbered 15.147 (1) (a) 10. and (b).