SB496: Bill Text

LRB-4037/2

RLR:jld:kjf

2001 - 2002 LEGISLATURE

2001 Senate BILL 496

March 12, 2002 - Introduced by Senators George, Moore and Risser, cosponsored by Representatives Albers, Black, Young, Pocan, Boyle, Miller and Coggs. Referred to Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.

SB496,1,10 An Act to repeal 46.03 (18) (fm), 961.47, 961.472 and 961.475; to amend 20.410 (1) (a), 20.410 (1) (a), 20.410 (1) (b) and 961.438; and to create 51.42 (7) (b) 12., 301.03 (3j), 302.11 (7) (ag), (am) and (ar), 302.113 (9m) and 973.105 of the statutes; relating to: probation and treatment for persons convicted of possession of certain controlled substances or certain other crimes; treatment for persons on parole who violate conditions of parole relating to possession of certain controlled substances or to drug treatment requirements; treatment for persons on extended supervision who violate conditions of extended supervision relating to possession of certain controlled substances or to drug treatment; granting rule-making authority; and making an appropriation.

Analysis by the Legislative Reference Bureau

Penalties for drug possession offenses

1. Current law penalties for drug possession offenses. Current law prohibits possession of various controlled substances. The maximum penalties for possession of these controlled substances vary from a fine not to exceed $500 or imprisonment for not more than 30 days or both to a fine not to exceed $5,000 or imprisonment for not more than two years or both. The greater penalties are for possession of narcotic drugs or certain nonnarcotic drugs including, methamphetamine, ketamine, and flunitrazepam. For possession of many controlled substances, the maximum penalty is greater for a second or subsequent conviction.

Current law provides that a court may allow a person who is convicted for possession of a controlled substance to participate in treatment for drug dependency as an alternative to sentencing if the offender volunteers to participate in treatment and if a treatment facility agrees to provide treatment. The treatment is for the period of time deemed necessary by the treatment facility, but may not exceed the maximum possible sentence length for the possession offense unless the offender consents to a longer term. At the end of the treatment period, the court may waive sentencing for the drug possession offense. However, if treatment is ineffective or if the offender does not comply with treatment, the court may sentence the person for the drug possession offense.

If a person is convicted for possession of heroin, cocaine, or certain hallucinogens or stimulants, including lysergic acid diethylamide (LSD), phencyclidine (PCP), or methamphetamine, the sentencing court must order that the offender submit to an assessment of the offender's drug dependence to determine whether the offender is appropriate for treatment. The county department that is responsible for providing drug treatment services is responsible for providing the assessment, though the offender is required to pay a fee for the assessment.

Conditional discharge is another alternative to sentencing for conviction of a drug possession offense. If a person has no prior drug-related convictions and pleads guilty or is found guilty of a possession offense for which the maximum penalty is a fine of not more than $500 or imprisonment for not more than 30 days or both, and the person successfully completes probation for the offense, the court may discharge the person's sentence without creating a record of conviction.

This bill repeals both the voluntary treatment alternative to sentencing and the conditional discharge alternative.

2. Eligibility for probation and drug treatment for nonviolent drug possession offenses. This bill requires that, if a person is convicted of a nonviolent drug possession offense, the person be placed on probation and ordered to participate in drug use intervention services as a condition of that probation, unless certain exceptions apply. The bill defines a "nonviolent drug possession offense" as possession or attempted possession of a controlled substance, except a so-called "date-rape drug," or possession or attempted possession of drug paraphernalia that is used for taking drugs (drug paraphernalia for personal use). If any of the following exceptions applies, the sentencing court is not required to place a nonviolent drug possession offender on probation or order drug use intervention services for that offender:

a. The person has been convicted of, or served a sentence for, a serious felony (the so-called "three strikes" felonies) at any time during the five years prior to committing the nonviolent drug possession offense.

b. The person is convicted in the same proceeding of a crime other than a nonviolent drug possession offense, or is found to have violated a prohibition against drunk driving for the same act or incident that led to conviction for the nonviolent drug possession offense.

c. The person was incarcerated at the time he or she committed the nonviolent drug possession offense.

d. The person has previously been provided drug use intervention services in connection with a conviction for a nonviolent drug possession offense or while on parole or extended supervision and the court finds by clear and convincing evidence that the person is unamenable to treatment.

e. The person refuses to participate in drug use intervention services.

In addition, if a person is convicted in the same proceeding of a misdemeanor that is not a crime against life or bodily security, a crime against children, or a crime involving a firearm and the court finds that the person's drug dependence significantly contributed to the commission of that misdemeanor, the court must place the person on probation for that misdemeanor as well. However, if the court does not find that drug dependence significantly contributed to commission of the misdemeanor, the court may sentence the person for the misdemeanor and order that the person serve probation for the nonviolent drug possession offense either concurrently with the sentence for the misdemeanor, or after serving the sentence for the misdemeanor.

The bill provides that a sentencing court may order an offender to undergo an assessment of his or her drug dependence before determining a disposition or sentence for the offender. Any assessments ordered by the court must be completed by a provider who is certified by the department of health and family services (DHFS) to conduct assessments of drug dependence.

3. Drug use intervention services. Under the bill, the department of corrections (DOC) must arrange for the provision of any drug use intervention services ordered by the court. Drug use intervention services ordered by the court may consist of drug treatment (including hospitalization, inpatient or outpatient treatment, detoxification, narcotic replacement therapy, transitional residential treatment, or day treatment), drug education, or any other service intended to address a person's drug dependence or drug use. The bill requires that drug treatment services be provided by a certified treatment provider, and requires that DHFS promulgate rules prescribing the standards for drug education ordered as a component of drug use intervention services. If the nonviolent drug possession offender is a medical assistance (MA) or badger care recipient, DOC is required to arrange for a certified MA provider to furnish any court-ordered service that is covered by MA or badger care, as long as such a provider is available. The bill permits DOC to contract with counties to provide the required drug use intervention services.

A court may order drug use intervention services for up to 12 months, or for the length of the probation period, whichever is less. Thirty days before the expiration of a probationer's drug use intervention services, the provider of the services must submit a report to the court recommending whether the person should receive aftercare services. The court may modify the person's probation to require up to six months of aftercare.

4. Violation of a condition of probation. Under the bill, if a person on probation for a nonviolent drug possession offense violates a condition of probation that is related to drug use intervention services or if the person commits another nonviolent drug possession offense, the conditions of the person's probation may be modified, but the person's probation may not be revoked unless a hearing examiner or DOC, if the person waives a hearing, finds by clear and convincing evidence that the person is a danger to himself, herself, or others or that the person is unamenable to treatment. The bill provides that a person is unamenable to treatment if the person has repeatedly committed serious violations of service program rules that inhibit the person's ability to function in services; the person has continually refused to participate in services; or the person has asked to be removed from services. If a person violates a condition of probation that is not related to drug use intervention services or a nonviolent drug possession offense, the probation may be revoked.

5. Expunging the record of a nonviolent drug possession offense. The bill provides that, if a person successfully completes probation for a nonviolent drug possession offense or a misdemeanor for which the offender's drug dependence was a significant contributing factor, without revocation, the record of the conviction is expunged and the offense for which the person served probation cannot be counted as a prior conviction for subsequent penalty enhancers or for other disabilities or disqualifications related to convictions.

6. Discretionary treatment. The bill also grants courts discretion to order DOC to provide drug use intervention services to a person who is convicted of any crime other than a crime against life or bodily security, a crime against children, or a crime involving a firearm, if the sentencing court finds that the person is drug dependent. The court may require that DOC provide drug use intervention services to such a person while he or she is in prison, jail, or otherwise confined, or while the person is on extended supervision or probation.

7. Payment for services. Under the bill, a court must order a recipient of an assessment or drug use intervention services to pay, to the extent of his or her ability, for those services that are not covered by private insurance or MA or badger care. DOC must pay for those services that are not covered by insurance, MA, or badger care or paid for by the recipient.

Parole and extended supervision

Under current law, a person on parole must comply with a standard set of conditions of parole, including that the person may not commit any crimes. (A person released from prison to supervision under a sentence for a crime committed before December 31, 1999 is placed on parole.) If a parolee violates a condition of parole, for example by committing a crime, the person's parole may be revoked and the person may be returned to prison.

Similarly, a person on extended supervision must comply with conditions of extended supervision. (A person released from prison to supervision under a sentence for a crime committed on or after December 31, 1999, is released to extended supervision.) Conditions of extended supervision are set by the sentencing court and DOC, and may include individualized requirements, such as participation in drug treatment. If a person violates a condition of extended supervision, the person's extended supervision may be revoked and the person may be returned to prison.

The bill provides that, if a person on parole or extended supervision commits a nonviolent drug possession offense, or if a person on extended supervision commits a violation of a condition related to drug treatment, the person's parole or extended supervision, whichever is applicable, may not be revoked for the violation unless one of the following circumstances apply:

a. In the five years prior to the violation, the person either committed or was serving a sentence for a so-called three-strikes offense.

b. The person is serving a sentence for a firearms offense or a drunk driving offense.

c. The person has previously been provided drug use intervention services in connection with a nonviolent drug possession offense or as a condition of parole or extended supervision, and the administrative law judge, or DOC, if the person waives a revocation hearing, finds by clear and convincing evidence that the person is unamenable to treatment.

d. The person refuses to participate in drug use intervention services.

Instead of revoking parole or extended supervision, the administrative law judge, or DOC, if the person waives a revocation hearing, may require that the person participate in drug use intervention services, or if the person is already required to participate in such services, may modify the requirements for participation in drug use intervention services. Before modifying conditions of parole or extended supervision, an administrative law judge, or DOC, if a revocation hearing is waived, may require that the person on parole or extended supervision submit to an assessment of the person's drug use or drug dependence.

Under the bill, DOC must arrange for the provision of drug use intervention services ordered as a condition of parole or extended supervision. The drug use intervention services for parolees and for persons on extended supervision are the same services as those available under the bill for persons placed on probation for a nonviolent drug possession offense. The requirements related to treatment providers and the responsibilities for paying for services are also the same as those provided under the bill for probation.

Study of drug use intervention services

The bill requires that DHFS, after consultation with DOC, commission a study of the effects of providing drug use intervention services to nonviolent drug possession offenders and other offenders who are drug dependent. DHFS must issue an interim report two and one-half years after the drug use intervention services provisions of this bill, if enacted as an act, are instituted, and must issue a final report five and one-half years after the provisions are instituted. The bill requires that DOC pay for the study.

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:

SB496, s. 1 Section 1. 20.410 (1) (a) of the statutes is amended to read:

SB496,6,8 20.410 (1) (a) General program operations. The amounts in the schedule to operate institutions and, to provide field services and administrative services, to provide drug use intervention services under s. 973.105 to persons who are incarcerated, and for a study of the effects of drug use intervention services provided under ss. 302.11 (7) (ag), 302.113 (9m), and 973.105. No payments may be made under this paragraph for payments in accordance with other states party to the interstate corrections compact under s. 302.25.

SB496, s. 2 Section 2 . 20.410 (1) (a) of the statutes, as affected by 2001 Wisconsin Act .... (this act), is amended to read:

SB496,6,17 20.410 (1) (a) General program operations. The amounts in the schedule to operate institutions, to provide field services and administrative services, and to provide drug use intervention services under s. 973.105 to persons who are incarcerated, and for a study of the effects of drug use intervention services provided under ss. 302.11 (7) (ag), 302.113 (9m), and 973.105. No payments may be made under this paragraph for payments in accordance with other states party to the interstate corrections compact under s. 302.25.

SB496, s. 3 Section 3. 20.410 (1) (b) of the statutes is amended to read:

SB496,7,5 20.410 (1) (b) Services for community corrections. The amounts in the schedule to provide services related to probation, extended supervision and parole, the intensive sanctions program under s. 301.048, the community residential confinement program under s. 301.046, programs of intensive supervision of adult offenders and, minimum security correctional institutions established under s. 301.13, and drug assessments under s. 302.11 (7) (am), 302.113 (9m) (b), or 973.105 (4). No payments may be made under this paragraph for payments in accordance with other states party to the interstate corrections compact under s. 302.25.

SB496, s. 4 Section 4. 46.03 (18) (fm) of the statutes is repealed.

SB496, s. 5 Section 5. 51.42 (7) (b) 12. of the statutes is created to read: