AB945: Bill Text

LRB-4158/1

CH/MD:kg/cs/jd:rs/jf/pg

2003 - 2004 LEGISLATURE

2003 Assembly BILL 945

March 11, 2004 - Introduced by Representatives Staskunas, Krug, Molepske, Hubler, Cullen, Richards, Taylor, Zepnick, Sinicki and Huber, cosponsored by Senators Plale, Hansen, Moore, Reynolds and Carpenter, by request of Attorney General Peg Lautenschlager. Referred to Committee on Rules.

AB945,2,17 An Act to repeal 51.30 (4) (b) 10m., 980.02 (2) (ag), 980.03 (5), 980.05 (1m), 980.09 (1) (title), 980.09 (2) and 980.10; to renumber 46.055, 978.13 (2) and 980.01 (1); to renumber and amend 938.396 (2) (e), 978.043, 980.015 (1), 980.015 (4), 980.03 (4), 980.04 (2), 980.07 (1), 980.09 (1) (a), 980.09 (1) (b) and 980.09 (1) (c); to amend 20.435 (2) (bm), 46.03 (1), 46.055 (title), 46.058 (2m), 48.396 (1), 48.396 (5) (a) (intro.), 51.30 (3) (a), 51.30 (3) (b), 51.30 (4) (b) 8m., 51.30 (4) (b) 11., 51.375 (1) (a), 109.09 (1), 146.82 (2) (c), 301.45 (1g) (dt), 301.45 (3) (a) 3r., 301.45 (3) (b) 3., 301.45 (5) (b) 2., 756.06 (2) (b), 801.52, 808.04 (3), 808.04 (4), 808.075 (4) (h), 905.04 (4) (a), 911.01 (4) (c), 938.396 (1), 938.396 (5) (a) (intro.), 938.78 (2) (e), 946.42 (1) (a), 950.04 (1v) (xm), 967.03, 972.15 (4), 978.03 (3), 978.045 (1r) (intro.), 978.05 (6) (a), 978.05 (8) (b), 980.01 (5), 980.01 (6) (a), 980.01 (6) (b), 980.01 (6) (c), 980.01 (7), 980.015 (2) (intro.), 980.015 (2) (a), 980.015 (2) (b), 980.015 (2) (c), 980.02 (1) (a), 980.02 (2) (c), 980.02 (4) (intro.), 980.03 (2) (intro.), 980.03 (3), 980.04 (1), 980.04 (3), 980.05 (1), 980.05 (3) (a), 980.05 (3) (b), 980.065 (1m), 980.07 (2), 980.07 (3), 980.09 (title), 980.101 (2) (a), 980.11 (2) (intro.) and 980.12 (1); to repeal and recreate 809.10 (1) (d), 809.30 (1) (c), 809.30 (1) (f) and 980.08; and to create 46.055 (2), 48.396 (6), 48.78 (2) (e), 48.981 (7) (a) 8s., 51.30 (3) (bm), 51.30 (4) (b) 8s., 118.125 (2) (ck), 146.82 (2) (cm), 756.06 (2) (cm), 814.61 (1) (c) 6., 938.35 (1) (e), 946.42 (3m), 972.15 (6), 973.155 (1) (c), 978.043 (2), 978.13 (2) (a), 980.01 (1g), 980.01 (1m), 980.01 (6) (am), 980.01 (6) (bm), 980.015 (1) (b), 980.015 (2) (d), 980.02 (1) (b) 3., 980.02 (1m), 980.02 (6), 980.031 (title), 980.031 (1) and (2), 980.034, 980.036, 980.038, 980.04 (2) (b), 980.05 (2m), 980.07 (1) (b), 980.07 (1g), 980.07 (1m), 980.07 (4) to (7), 980.093, 980.095, 980.14 (title) and 980.14 (1) of the statutes; relating to: the definition of sexually violent person, sexually violent person commitment proceedings, criteria for supervised release, escape from custody by a person who is subject to a sexually violent person commitment proceeding, creating a committee to make recommendations regarding the location of a facility for the treatment of sexual predators, payments in lieu of taxes and grants for a municipality in which such a facility is located, making an appropriation, and providing penalties.

Analysis by the Legislative Reference Bureau

Sexually violent person commitment proceedings

Current law provides a procedure for involuntarily committing sexually violent persons to the Department of Health and Family Services (DHFS) for control, care and treatment. A sexually violent person is a person who has committed a sexually violent offense (the offense criterion) and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable (much more likely than not) that the person will engage in acts of sexual violence (the dangerousness criterion).

A proceeding for the involuntary commitment of a sexually violent person is begun by the filing of a petition that alleges that the person is a sexually violent person. The petition may be filed by a prosecutor representing the state — either the Department of Justice (DOJ) or, if DOJ does not file a petition, by a district attorney. The petition must be filed before the person is released from the confinement that resulted from the commission of a sexually violent offense. The court in which the petition is filed must review the petition and decide whether to hold the person in custody pending a trial on the petition. The court must also hold a hearing to determine whether there is probable cause to believe that the person is a sexually violent person. If the court finds that there is probable cause to believe that the person is a sexually violent person, the court must schedule a trial on the petition and order the person to be sent to an appropriate facility for an evaluation.

If, after the trial on a sexually violent person petition, a judge or jury finds the person to be a sexually violent person, the person must be committed to the custody of DHFS and placed in institutional care.

After 18 months of institutional care (and periodically thereafter), 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.)

If a person is placed on supervised release, the person remains in DHFS's legal custody and is subject to the conditions set by the court and to the rules of the DHFS. If the person violates a condition or rule or if the safety of others requires that supervised release be revoked, DHFS may take custody of the person and request that the court revoke supervised release. If the state proves, by clear and convincing evidence, that any rule or condition of release has been violated or that the safety of others requires that supervised release be revoked, the court may revoke supervised release and return the person to institutional care.

If a person remains in or is returned to institutional care after revocation, DHFS must periodically reexamine the person to assess the need for continued institutional care.

Finally, under current law, these are three ways by which a person committed as a sexually violent person and who is in institutional care or on supervised release can obtain a hearing to determine whether he or she can be released (discharged) from his or her commitment. First, if DHFS determines that the person is no longer a sexually violent person, it authorizes the person to file a petition with the court, which must conduct a hearing on whether to discharge the person from the commitment (a discharge hearing) within 45 days. Second, unless the person waives his or her right to such a hearing, the court, after each evaluation that DHFS conducts of the person (that is, at least every 12 months), must hold a hearing (a probable cause hearing) to determine whether facts exist to warrant a discharge hearing. The committed person has a right to have an attorney represent him or her at a probable cause hearing but does not have the right to be present. If the court determines that there is probable cause to believe that the person is no longer a sexually violent person, the court holds a discharge hearing. Third, the committed person may petition the court for discharge, but only if: 1) the person has not previously filed a petition for discharge without DHFS's approval; or 2) the petition contains new facts that may warrant discharge. If one of those requirements is met, the court conducts a probable cause hearing and, if there is probable cause, a discharge hearing.

At any discharge hearing, the prosecutor may oppose discharge and may require the person to be examined by an expert or professional person of its choice. At the hearing (at which the committed person has the right to be present), the state has the burden of proving by clear and convincing evidence that the person is still a sexually violent person. If the state does not meet its burden, the court must discharge the person from DHFS's custody and supervision. If the court meets its burden, the court may authorize supervised release for the person if appropriate.

This bill makes numerous changes to the current sexually violent person commitment procedure. Among the changes made by the bill are the following:

1. Definition of sexually violent offenses. The bill modifies the offense criterion, which needs to be satisfied to show that someone is a sexually violent person. Currently, the list of sexually violent offenses that may be used to satisfy that criterion includes such offenses as first and second degree sexual assault, first and second degree sexual assault of a child, incest with a child, and child enticement. This bill adds third degree sexual assault to the list. The current list of sexually violent offenses also includes offenses such as homicide, certain battery offenses, kidnapping and burglary, if the offense is found to have been sexually motivated. Under the bill, the following crimes are considered to be sexually violent crimes if they are found to have been sexually motivated: a) felony murder; b) administering a dangerous or stupefying drug with the intent to facilitate the commission of a crime; c) robbery; and d) physical abuse of a child. In addition, the bill provides that an offense that was a crime under an earlier law of this state that is comparable to any of the sexually violent offenses included in the list is also considered to be a sexually violent offense.

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.