AB410: Bill Text

LRB-3175/2

GMM:kaf:jf

1997 - 1998 LEGISLATURE

1997 Assembly BILL 410

June 10, 1997 - Introduced by Representatives Ladwig, Huebsch, Ainsworth, Albers, Baumgart, Dobyns, Goetsch, Green, Gunderson, Hahn, Handrick, Hasenohrl, Hoven, Kelso, Krusick, Olsen, Ott, Owens, Porter, Powers, Seratti, Staskunas, Sykora and Vrakas, cosponsored by Senators C. Potter, Drzewiecki, Fitzgerald, Roessler, Rosenzweig and Welch. Referred to Committee on Children and Families.

AB410,2,18 An Act to repeal 938.355 (6m), 971.31 (13) (a) 1., 971.31 (13) (a) 2. and 971.31 (13) (a) 3.; to renumber and amend 938.183 (1m) (c) and 971.31 (13) (a) (intro.); to consolidate, renumber and amend 938.183 (2) (a) (intro.), 1. and 2.; to amend 48.35 (1) (b) (intro.), 48.35 (1) (b) 1., 48.35 (1) (b) 2., 48.35 (1) (b) 3., 48.66 (1), 301.08 (1) (b) 3., 800.08 (4), 895.035 (2m) (a), 895.035 (2m) (b), 895.035 (2m) (bm) 1., 895.035 (3), 938.17 (2) (h) 2., 938.17 (2) (h) 3., 938.245 (2) (a) 5. a., 938.275 (1) (c), 938.299 (4) (b), 938.32 (1t) (a) 1., 938.34 (5) (a), 938.34 (8), 938.343 (2), 938.343 (4), 938.35 (1) (a), 938.35 (1) (c), 938.355 (6) (a), 938.355 (6) (b), 938.355 (6) (d) 2., 938.396 (2) (d), 938.78 (2) (e), 970.032 (title), 970.032 (1), 970.032 (2) (intro.), 970.032 (2) (a), 970.032 (2) (c), 970.035, 971.31 (13) (b), 972.14 (2), 972.15 (2s), 980.015 (2) (b) and 980.02 (2) (ag); and to create 48.396 (2) (dr), 48.396 (2) (g), 48.396 (2) (h), 938.183 (1) (ar), 938.183 (1m) (c) 1., 938.183 (1m) (c) 2., 938.355 (6) (e), 938.355 (6g) (c), 938.396 (2) (dr), 938.396 (2) (g), 938.396 (2) (h) and 938.396 (2) (i) of the statutes; relating to: original adult court jurisdiction over a juvenile who is alleged to have attempted or committed a violation of any state criminal law if that violation may be joined with an alleged assault, battery, homicide or attempted homicide over which the adult court has original jurisdiction, the elimination of reverse waiver for a juvenile who is once waived always waived, the imposition of a juvenile adjudication and disposition by an adult court on a juvenile who has been found to have committed a lesser offense, the financial ability of a juvenile, either alone or with the assistance of a parent with custody of the juvenile, to make restitution for any damage or injury resulting from the juvenile's act or to pay a forfeiture imposed on the juvenile, sanctions for a juvenile in need of protection or services based on habitual truancy or being a school dropout who violates a condition of his or her dispositional order and sanctions for contempt of court by a juvenile who violates a condition of his or her dispositional order, the rules of evidence at postdispositional hearings under the juvenile justice code and the disclosure of juvenile court records to other juvenile courts for the purposes of preparing a presentence investigation, determining custody of a juvenile, setting bail, impeaching a witness and determining whether a juvenile who would otherwise be an heir has intentionally killed the decedent.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the juvenile justice code.

Original adult court jurisdiction

Under current law, a court assigned to exercise jurisdiction under the juvenile justice code (juvenile court), subject to certain exceptions, has exclusive jurisdiction over a juvenile who is alleged to have violated a criminal law. Currently, however, a court of criminal jurisdiction (adult court) has exclusive original jurisdiction over the following:

1. A juvenile who has been adjudicated delinquent and who is alleged to have committed assault or battery while placed in a secured correctional facility, a secure detention facility or a secured child caring institution or who has been adjudicated delinquent and who is alleged to have committed battery to an aftercare agent.

2. A juvenile who is alleged to have attempted or committed first-degree intentional homicide or to have committed first-degree reckless or 2nd-degree intentional homicide.

3. A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation under the original jurisdiction of the adult court or following waiver by the juvenile court of its jurisdiction over the juvenile or if criminal proceedings are still pending on a previous violation under the original jurisdiction of the adult court or following waiver by the juvenile court of its jurisdiction over the juvenile (once waived always waived).

Under current law, an adult court may transfer to the juvenile court its jurisdiction over a juvenile who is subject to the original jurisdiction of the adult court if the adult court funds that, if convicted, the juvenile could not receive adequate treatment in the criminal justice system and that retaining jurisdiction is not necessary as a deterrent (reverse waiver). This bill eliminates reverse waiver for a juvenile who is once waived always waived.

The bill also grants to an adult court exclusive original jurisdiction over a juvenile who is alleged to have attempted or committed a violation of any state criminal law if that violation can be joined in the same complaint, information or indictment as an assault, battery, homicide or attempted homicide over which the adult court has jurisdiction under current law. Currently, 2 or more crimes may be joined if the crimes charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Currently, an adult court has jurisdiction over an assault, battery, homicide or attempted homicide allegedly committed by a juvenile, but not over any other violations to which the assault, battery homicide or attempted homicide may be joined if committed by an adult. As such, those violations currently must be tried in a separate proceeding in juvenile court.

Currently, subject to certain exceptions, a juvenile who is subject to adult court jurisdiction is subject to the criminal penalties provided for the crime that the juvenile is alleged to have committed. The adult court, however, may impose a juvenile disposition on a juvenile described in item 1. or 2., above, who committed the act before his or her 15th birthday and must impose a juvenile disposition on a juvenile described in item 2., above, who committed the act on or after his or her 15th birthday if any of the following conditions applies:

1. The adult court convicts the juvenile of a lesser offense that is not attempted first-degree intentional homicide, that is not first-degree reckless homicide or 2nd-degree intentional homicide and that is not an offense for which the juvenile court may waive its jurisdiction (waivable offense). (Currently, a juvenile court may waive its jurisdiction if the juvenile is alleged to have committed felony murder, 2nd-degree reckless homicide, first-degree or 2nd-degree sexual assault, taking hostages, kidnapping, armed burglary, armed robbery or the manufacture, delivery or distribution of a controlled substance on or after the juvenile's 14th birthday; if the juvenile is alleged to have committed, on or after the juvenile's 14th birthday, a violation, at the request of or for the benefit of a criminal gang, that would be a felony if committed by an adult; or if the juvenile is alleged to have violated any criminal law on or after the juvenile's 15th birthday.)

2. The adult court convicts the juvenile of a lesser offense that is attempted first-degree intentional homicide, that is first-degree reckless homicide or 2nd-degree intentional homicide or that is a waivable offense and the adult court, after considering the personality and prior record of the juvenile, the type and seriousness of the offense, the adequacy and suitability of facilities, services and procedures available for the treatment of the juvenile and the protection of the public in the juvenile justice system and the desirability of trial and disposition in one court (waiver criteria), determines that a juvenile disposition would be in the best interests of the juvenile and the public.

This bill specifies that when an adult court imposes a juvenile disposition, the juvenile is considered to have been adjudged to be delinquent rather than convicted of a crime.

In addition, the bill permits, rather than requires, an adult court to impose a juvenile disposition on a juvenile who 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 15th birthday and who is found to have committed a lesser offense if any of the conditions specified in items 1. or 2., above, applies.

The bill also permits an adult court to impose a juvenile disposition on a juvenile who has been adjudicated delinquent and who is alleged to have committed assault or battery while placed in a secured correctional facility, a secure detention facility or a secured child caring institution or who has been adjudicated delinquent and who is alleged to have committed battery to an aftercare agent if any of the following conditions applies:

1. The adult court finds that the juvenile has committed a lesser offense that is not assault or battery while placed in a secured correctional facility, a secure detention facility or a secured child caring institution, that is not battery to an aftercare agent and that is not a waivable offense.

2. The adult court finds that the juvenile has committed a lesser offense that is assault or battery while placed in a secured correctional facility, a secure detention facility or a secured child caring institution, that is battery to an aftercare agent or that is a waivable offense, and the adult court, after considering the waiver criteria, determines that adjudging the juvenile to be delinquent and imposing a juvenile disposition, rather than convicting the juvenile, would be in the best interests of the juvenile and the public.

In addition, the bill requires an adult court to consider the waiver criteria in determining whether to impose a juvenile disposition in all cases of a juvenile who 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 15th birthday and who is found to have committed a lesser offense.

Finally, with respect to the original jurisdiction of an adult court over a juvenile, the bill specifies that the burden of proving that a juvenile disposition would be in the best interests of the juvenile and of the public is on the juvenile.

Restitution and forfeitures

Under current law, a juvenile who has committed an act that has resulted in damage to the property of another or in actual physical injury to another, excluding pain and suffering, may be required under a deferred prosecution agreement, consent decree or dispositional order to make reasonable restitution for the damage or injury. Similarly, under current law, a juvenile who has committed a delinquent act or a civil law or municipal ordinance violation may be required to pay a forfeiture. Any deferred prosecution agreement or consent decree that requires the payment of restitution, and any dispositional order that requires the payment of restitution or a forfeiture, must include a finding that the juvenile alone is financially able to pay the restitution or forfeiture. If the juvenile does not pay the restitution or forfeiture as ordered or agreed to, the juvenile court may order that the amount of the restitution or forfeiture unpaid be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile.

This bill requires that any deferred prosecution agreement or consent decree that requires the payment of restitution, and any dispositional order that requires the payment of restitution or a forfeiture, must include a finding that the juvenile, either alone or with the assistance of a parent with custody of the juvenile, is financially able to pay the restitution or forfeiture.

Sanctions and contempt

Under current law, if a juvenile who has been adjudged delinquent or who has been found to have violated a civil law or ordinance violates a condition of his or her dispositional order, the juvenile court may impose the following sanctions on the juvenile:

1. Placement in a secure detention facility or a place of nonsecure detention for not more than 10 days.

2. Suspension or limitation of the juvenile's operating privilege (driver's license) or hunting or fishing license for not more than 3 years.

3. Home detention, with or without electronic monitoring, for not more than 30 days.

4. Not more than 25 hours of uncompensated community service work.

Also under current law, if a juvenile who has been found to be in need of protection or services based on habitual truancy from school violates a condition of his or her dispositional order, the juvenile court may order any combination of the following sanctions:

1. Suspension of the juvenile's driver's license for not more than one year.

2. Counseling or community service work.

3. Home detention.

4. Attendance at an educational program.

5. Revocation of the juvenile's work permit.

6. Placement in a teen court program.

7. Participation of the juvenile's parent, guardian or legal custodian in counseling at his or her own expense.

This bill eliminates the sanctions provided specifically for a juvenile who has been found to be in need of protection or services based on habitual truancy from school and who has violated a condition of his or her dispositional order. Instead, under the bill, such a juvenile, as well as a juvenile who has been found to be in need of protection or services based on being a school dropout, is subject to the same sanctions, including placement in a secure detention facility for not more than 10 days, as a juvenile who has been adjudged delinquent or found to have violated a civil law or ordinance and who has violated a condition of his or her dispositional order.

Under current law, a court, including a juvenile court, may impose a sanction for contempt of court. Also, under current law, if a juvenile upon whom the juvenile court has imposed a sanction under the juvenile justice code commits a 2nd or subsequent violation of a condition specified in his or her dispositional order, the district attorney may file a delinquency petition charging the juvenile with contempt of court and the juvenile court may find the juvenile in contempt of court and order a delinquency disposition to be imposed on the juvenile.

This bill specifies that the sanctions and contempt procedures specified in the juvenile justice code do not preclude a person who is aggrieved by a juvenile's violation of a condition of his or her dispositional order from proceeding against the juvenile for contempt of court under the general contempt of court procedures available to all courts.

Rules of evidence

Under current law, the rules of evidence such as hearsay and relevancy govern the presentation of evidence at fact-finding hearings under the juvenile justice code, but are not binding at waiver, custody, dispositional, change in placement, revision of dispositional order or extension of dispositional order hearings or at hearings to determine whether a juvenile who is accused of sexual assault should undergo a test for the presence of the human immunodeficiency virus (HIV).

This bill provides that the rules of evidence are not binding at any postdispositional hearing under the juvenile justice code. Under current law, those hearings include, in addition to change in placement, revision and extension hearings, hearings on the imposition of a sanction for violating a dispositional order and hearings on the imposition of an original dispositional order that has been stayed.

Disclosure of juvenile court records

Under current law, the disposition imposed on a juvenile, and any record of evidence given in the juvenile court, is not admissible as evidence in any case or proceeding in any other court except for the following: