AB861: Bill Text

2003 - 2004 LEGISLATURE

2003 Assembly BILL 861

February 19, 2004 - Introduced by Representatives Stone, Cullen, Montgomery, Owens, Jeskewitz, Gottlieb, LeMahieu, Kreibich and Ott, cosponsored by Senators Darling, Hansen and Lazich. Referred to Committee on Criminal Justice.

AB861,1,7 An Act to renumber 46.055; to renumber and amend 980.08 (4), 980.08 (5) and 980.08 (6m); to amend 20.435 (2) (bj), 46.03 (1), 46.055 (title), 46.058 (2m), 46.10 (2), 51.42 (3) (aw) 1. d., 980.01 (7), 980.065 (1m), 980.08 (3), 980.09 (1) (c) and 980.09 (2) (c); and to create 46.055 (2), 980.01 (1m), 980.08 (4) (b) 2. to 6., (d) and (e), 980.08 (5) (a) 5. and 6. and (b) and (6), 980.08 (6m) (b) 2. and 980.085 of the statutes; relating to: standard for commitment and supervised release of sexually violent persons.

Analysis by the Legislative Reference Bureau

Under current law, a person who commits a sexually violent offense may be committed to the Department of Health and Family Services (DHFS) after serving a sentence or disposition for the offense if a court finds that the person is a sexually violent person. Current law defines a "sexually violent person" as a person: 1) who has been convicted of, or adjudicated delinquent for, a sexually violent offense or who has been found not guilty of a sexually violent offense by reason of mental disease, defect, or illness; and 2) who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that he or she will engage in acts of sexual violence.

A person committed to DHFS as a sexually violent person is initially placed in institutional care. After 18 months, a sexually violent person may petition the court for supervised release, which allows the person to reside in the community subject to the conditions set by the court and to the rules of DHFS. 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.

If a court determines that supervised release is appropriate, DHFS must make its best effort to place the person in the county in which the person lived at the time of the sexually violent offense. DHFS and the county in which the person is to be placed must then prepare a plan for treating and monitoring the person upon his or her release. Current law specifies what the plan must contain (such as what services the person will receive in the community). In addition, current law requires DHFS, when developing the supervised release plan, to consider the proximity of the person's proposed residence to the homes of certain other sex offenders. Then, within 60 days after the court's determination that supervised release is appropriate, DHFS and the county in which the person is to be placed must submit the supervised release plan to the court for its approval. (This two-part hearing process, in which the court determines whether supervised release is appropriate before reviewing the supervised release plan, is sometimes referred to as a bifurcated hearing.)

This bill makes a number of changes relating to the commitment, release, and placement of sexually violent persons. First, the bill changes the second part of the definition of "sexually violent person." As a result of the change, 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) that he or she will engage in acts of sexual violence.

Second, the bill substantially modifies the existing bifurcated hearing process. Under the bill, the court considers whether the person may be appropriate for supervised release as a first step, but only with respect to certain issues. Specifically, the court must assess: 1) whether it is still likely that the person will engage in acts of sexual violence if the person is not continued in institutional care; 2) whether the person has demonstrated significant or satisfactory progress in his or her treatment or the person has refused treatment; 3) whether there is appropriate treatment that is reasonably available in the community; 4) whether the person has agreed to comply with conditions, rules, and requirements for supervised release and whether the person is likely to violate such conditions, rules, or requirements; 5) whether a major discipline report was issued regarding the person during the six months immediately preceding the hearing; and 6) whether supervised release is in the best interest of the person. If the state proves by clear and convincing evidence that the person is not appropriate for supervised release under any of these criteria, the court must deny the petition.

If the court does not deny the petition at that stage of the process, it refers the case to DHFS for the preparation of a supervised release plan, which, under the bill, must identify where the person will live. If the county in which the person will be placed has a transitional facility for the placement of sexually violent persons, the plan must provide for the placement of the person in that facility. (See below for additional discussion of the bill's requirements regarding the siting of such a facility.) If the person is to be placed in anywhere else, DHFS and the county must follow the procedure established under the bill regarding selecting the placement. Initially, DHFS and the county must consider the proximity of any proposed residence to residential subdivisions and to certain types of facilities for children, including schools, day care providers, group homes, foster homes, and youth centers. In doing so, DHFS and the county must: 1) prepare a list and a map of residential subdivisions and relevant facilities for children in consultation with affected municipalities; 2) submit the list and map, along with the address of the proposed residence, to the local common councils and village or town boards; and 3) consider any comments from the municipalities regarding the proposed placement before finalizing the supervised release plan. Then, when DHFS and the county submit the supervised release plan to the court (which they must do within 90 days after the court refers the case to DHFS), DHFS and the county must provide the map, the list, and any comments from affected municipalities to the court and to the chief elected official, the police chief, and the sheriff for the community in which the proposed placement is located.

After the court receives a plan for supervised release, it must hold a hearing to determine whether to approve the plan and whether to grant the petition for supervised release. The bill requires that the court notify the chief elected official, the police chief, and the sheriff for the community in which the proposed placement is located of the hearing at least five days beforehand. After reviewing the plan, the court must: 1) order DHFS and the county to modify the plan; 2) deny the petition for supervised release, but only if the state proves by clear and convincing evidence that the community would not be adequately protected under the plan; or 3) approve the plan and grant the petition.

Third, the bill requires any person who is on supervised release to actively participate in treatment as a condition of supervised release.

Fourth, the 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 specifies the factors that the committee must consider in making its recommendation and specifies that the location must be suitable for the development of a facility that can house the number of people that DHFS expects to be on supervised release in Milwaukee County.

Fifth, if DHFS establishes a transitional facility of the type described in the preceding paragraph, it must move any sexually violent person who is on supervised release in the county in which the facility is located into the facility if it has a vacancy there for that person.

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:

AB861, s. 1 Section 1. 20.435 (2) (bj) of the statutes, as affected by 2003 Wisconsin Act 33, is amended to read:

AB861,4,9 20.435 (2) (bj) Competency examinations and conditional and supervised release services. Biennially, the amounts in the schedule for outpatient competency examinations and for payment by the department of costs for treatment and services for persons released under s. 980.06 (2) (c), 1997 stats., s. 980.08 (5), 2001 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (5) (6) (c) 3., for which the department has contracted with county departments under s. 51.42 (3) (aw) 1. d., with other public agencies, or with private agencies to provide the treatment and services.

AB861, s. 2 Section 2. 46.03 (1) of the statutes is amended to read:

AB861,4,13 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.

AB861, s. 3 Section 3. 46.055 (title) of the statutes is amended to read:

AB861,4,16 46.055 (title) Secure mental health facility Facilities for sexually violent persons.

AB861, s. 4 Section 4. 46.055 of the statutes is renumbered 46.055 (1).

AB861, s. 5 Section 5. 46.055 (2) of the statutes is created to read:

AB861,4,24 46.055 (2) The department shall submit a report each February 1 to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), regarding the effectiveness of its efforts to find and maintain appropriate placements for persons on supervised release under s. 980.06, 1997 stats., or s. 980.08 and its anticipated need for finding additional placements in the 5 years following the date of the report.

AB861, s. 6 Section 6. 46.058 (2m) of the statutes is amended to read:

AB861,5,11 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.

AB861, s. 7 Section 7. 46.10 (2) of the statutes is amended to read:

AB861,6,14 46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., and s. 975.17, 1977 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12) and (13), 55.05, 55.06, 971.14 (2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (5) (6m) (a) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

AB861, s. 8 Section 8. 51.42 (3) (aw) 1. d. of the statutes is amended to read:

AB861,6,23 51.42 (3) (aw) 1. d. Provide treatment and services that are specified in a conditional release plan approved by a court for a person who is a county resident and is conditionally released under s. 971.17 (3) or (4) or that are specified in a supervised release plan approved by a court under s. 980.06 (2) (c), 1997 stats., or s. 980.08 (5), 2001 stats., or s. 980.08 (6) (c) 3. If the county department provides treatment and services under this subdivision, the department of health and family services shall, from the appropriation under s. 20.435 (2) (bj), pay the county department for the costs of the treatment and services.

AB861, s. 9 Section 9. 980.01 (1m) of the statutes is created to read:

AB861,6,25 980.01 (1m) "Likely" means more likely than not.

AB861, s. 10 Section 10. 980.01 (7) of the statutes is amended to read:

AB861,7,7 980.01 (7) "Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable likely that the person will engage in acts of sexual violence.

AB861, s. 11 Section 11. 980.065 (1m) of the statutes is amended to read:

AB861,7,12 980.065 (1m) The department shall place a person committed under s. 980.06 at the secure mental health facility established under s. 46.055 (1), the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2).

AB861, s. 12 Section 12. 980.08 (3) of the statutes is amended to read:

AB861,7,25 980.08 (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If any such examiner believes that the person is appropriate for supervised release under the criterion criteria specified in sub. (4) (b), the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection as provided under s. 51.20 (18) (a).

AB861, s. 13 Section 13. 980.08 (4) of the statutes is renumbered 980.08 (4) (a) and amended to read:

AB861,8,6 980.08 (4) (a) The court, without a jury, shall hear the petition proceed under par. (b) within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d).

AB861,8,9 (b) The court shall grant deny the petition unless if the state proves any of the following by clear and convincing evidence that the person is still a sexually violent person and that:

AB861,8,11 1. That it is still substantially probable likely that the person will engage in acts of sexual violence if the person is not continued in institutional care.

AB861,8,19 (c) In making a decision under this subsection par. (b), the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, where the person will might live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender.

AB861,8,25 (6g) A decision under this subsection sub. (4) (b) or (6) (c) on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

AB861, s. 14 Section 14. 980.08 (4) (b) 2. to 6., (d) and (e) of the statutes are created to read:

AB861,9,3 980.08 (4) (b) 2. That the person has not demonstrated significant or satisfactory progress in his or her treatment or the person has refused treatment.

AB861,9,5 3. That there is no treatment reasonably available in the community that meets all of the following requirements:

AB861,9,6 a. The treatment will meet the person's ongoing treatment needs.

AB861,9,7 b. The treatment will be provided by a department-approved provider.

AB861,9,11 c. The treatment provider has presented a specific course of treatment to the department, has agreed to provide the treatment, will report progress to the department on a regular basis, and will report violations immediately to the department, consistent with the treatment and supervision needs of the person.

AB861,9,15 4. That the person has not agreed to comply with the conditions of, or department rules regarding, supervised release or the requirements of the treatment provider, or the person is likely to violate such conditions, rules, or requirements.

AB861,9,17 5. That a major discipline report was issued regarding the person during the 6 months immediately preceding the hearing.

AB861,9,18 6. That supervised release is not in the best interest of the person.

AB861,9,21 (d) The court may defer hearing evidence or making a finding regarding whether the state has met its burden under par. (b) 1., 3., or 6. until it conducts a hearing under sub. (6) (b).

AB861,9,23 (e) If the court does not deny the petition under par. (b), the court shall notify the department and proceed under sub. (6).

AB861, s. 15 Section 15. 980.08 (5) of the statutes is renumbered 980.08 (5) (a) and amended to read:

AB861,10,8 980.08 (5) (a) If the court finds that the person is appropriate for supervised release does not deny the petition under sub. (4) (b), the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and, except as provided in par. (c), the county department under s. 51.42 in the person's county of residence of the person shall make its best effort to prepare a supervised release plan that identifies for the person that does all of the following:

AB861,10,10 1. Identifies the treatment and services, if any, that the person will receive in the community. The plan shall address

AB861,10,19 2. Addresses the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). If the person is a serious child sex offender, the plan shall address

AB861,10,24 3. Addresses the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify if the person is a serious child sex offender.

AB861,11,5 4. Specifies who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan.

AB861,11,17 (c) The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, and order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.

AB861, s. 16 Section 16. 980.08 (5) (a) 5. and 6. and (b) and (6) of the statutes are created to read:

AB861,11,20 980.08 (5) (a) 5. Identifies where the person shall live.

AB861,11,25 6. Includes a written agreement from the person providing the housing described in subd. 5. to accept the person who will reside there, to provide the level of security required by the court, and to immediately report to the department if the person leaves the housing without authorization. This subdivision does not apply to a person to whom s. 980.085 applies.

AB861,12,3 (b) Before submitting a supervised release plan to the court under sub. (6) (a) for a person other than one to whom s. 980.085 applies, the department and county department shall do all of the following in the order specified:

AB861,12,6 1. Identify a proposed placement. In identifying any proposed placement, the department and the county department shall consider the proximity of the placement to all of the following:

AB861,12,7 a. The residence of other persons on supervised release.

AB861,12,10 b. The residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am).

AB861,12,12 c. Any facility for children described in subd. 2. of which the department or the county department is aware.

AB861,12,13 d. Any residential subdivision.

AB861,12,23 2. Prepare a list and a map of all public or private schools, group homes, as defined in s. 48.02 (7), residential care centers for children and youth, as defined in s. 48.02 (15d), shelter care facilities, as defined in s. 48.02 (17), foster homes, as defined in s. 48.02 (6), treatment foster homes, as defined in s. 48.02 (17q), day care centers licensed under s. 48.65, day care programs established under s. 120.13 (14), day care providers certified under s. 48.651, youth centers, as defined in s. 961.01 (22), and residential subdivisions that are located within one mile of any proposed residence. The department and the county department shall work with the municipality in which the residence is located and each municipality within one mile of the residence in preparing the list and the map.

AB861,13,6 3. Submit the address of the proposed placement, the list, and the map to the common council or the village or town board for the municipality in which the residence is located and each municipality within one mile of the residence. Each such common council or village or town board shall review the list and map and may provide the department and the county department comments regarding the risks that the use of the proposed placement might entail for the community based on its proximity to any residential subdivision or any facility for children described in subd. 2. included in the list.

AB861,13,7 4. Consider any comments that it receives under subd. 3.

AB861,13,23 (6) (a) The department and the county department shall present the plan for supervised release prepared under sub. (5) and, unless s. 980.085 (1) applies, the list and map of facilities for children and residential subdivisions prepared under sub. (5) (b) 2. and the comments submitted under sub. (5) (b) 3. to the court no less than 90 days after the notification under sub. (4) (e), unless the department, county department, and person to be released request additional time to develop the plan. When the department and county department submit the plan to the court, the department and county department shall notify the individuals identified under par. (b) 1. to 3. of the residence identified in the plan. Unless s. 980.085 (1) applies, the department and the county department shall also provide those individuals copies of the list and map of facilities for children and residential subdivisions compiled under sub. (5) (b) 2. and the comments submitted under sub. (5) (b) 3. If any of those individuals receiving the list notifies the department in writing of a facility or residential subdivision that the department and county department are required to include on the list, but that is not on the list, the department shall notify the court of the additional facility or residential subdivision before the hearing under par. (b).

AB861,14,3 (b) After receiving the plan, the court shall hold a hearing regarding the plan. The court shall notify all of the following of the hearing at least 5 days before the hearing:

AB861,14,5 1. The sheriff for the county in which the residence identified under sub. (5) (a) 5. is located.

AB861,14,7 2. The police chief for the municipality in which the residence identified under sub. (5) (a) 5. is located.

AB861,14,9 3. The chief elected official, as defined in s. 229.821 (3), of the municipality in which the residence identified under sub. (5) (a) 5. is located.