SB550: Bill Text

LRB-2444/1

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2003 - 2004 LEGISLATURE

2003 Senate BILL 550

March 11, 2004 - Introduced by Senators Moore and Coggs, cosponsored by Representatives Turner, Taylor and Young. Referred to Committee on Judiciary, Corrections and Privacy.

SB550,2,2 An Act to repeal 46.03 (18) (fm), 302.113 (9) (at) and 961.472; to renumber 973.10 (2) (a) and 973.10 (2) (b); to renumber and amend 302.113 (9) (am), 961.47 (title), 961.47 (1), 961.47 (2) and 973.10 (2) (intro.); to amend 20.410 (1) (ge), 302.113 (7), 302.113 (9) (b), 302.113 (9) (c), 808.075 (4) (g) 3., 961.475, 973.09 (4) (a), 973.09 (4) (b), 973.10 (1), 973.15 (2m) (a) 3. and 973.15 (2m) (e); and to create 51.49, 301.08 (1) (c) 1., 302.113 (9) (am) 2., 302.113 (9) (am) 3., 302.113 (9) (ar), 304.06 (3b), 304.074 (1d), 971.41 (1), 971.41 (2) (title) and (a) 1. to 3., 971.41 (2) (b), 971.41 (2) (c), 971.41 (3), 971.41 (5), 971.41 (6), 971.41 (7) to (12), 973.10 (2) (bm), 973.10 (2) (c), 973.10 (2b) and 973.10 (2e) of the statutes; relating to: alternatives to prosecution and incarceration for persons who commit certain drug-related or alcohol-related offenses, violations of extended supervision, parole, or probation related to the use of alcohol or other drugs or to substance abuse treatment, providing an exemption from emergency rule procedures, requiring the exercise of rule-making authority, and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill permits, and in some cases requires, a nonviolent offender who is charged with an offense related to the person's use of drugs or alcohol to be provided substance abuse treatment as an alternative to prosecution or incarceration. It also authorizes treatment in lieu of revocation of probation, parole, or extended supervision.

Substance abuse treatment as an alternative to prosecution or incarceration

1. Alternatives to prosecution and incarceration under current law. Current law generally prohibits the manufacture, distribution, delivery, and possession of controlled substances. The penalties for violating these prohibitions depend on the conduct, the drug, and the amount of the drug involved. Maximum terms of imprisonment range from as high as 46 years in cases involving repeat offenders who manufacture, distribute, or deliver large quantities of certain drugs to as low as 30 days for simple possession of certain nonnarcotic drugs. Maximum fines vary in a similar way. Current law also prohibits certain other conduct (such as the possession, manufacture or delivery of drug paraphernalia or maintaining a drug house) that is related to the unlawful use of drugs.

Current law, however, provides prosecutors significant discretion in whether and how to prosecute such offenses (as well as all other offenses). For example, a prosecutor may defer or suspend the prosecution of a person in exchange for his or her agreement to complete a substance abuse treatment program, refrain from committing other crimes, or comply with any other requirement. If the person abides by the agreement, the prosecutor never files a criminal complaint or, if a complaint has been filed, dismisses the case. In addition, courts have alternatives to sentencing in certain drug cases. First, a court may allow a person who pleads guilty to or is found guilty of drug possession to participate in a drug treatment program as an alternative to sentencing if the person volunteers to participate and if a treatment facility agrees to provide it. At the end of treatment, the court may waive sentencing for the drug possession offense. Second, if a person with no prior drug convictions pleads guilty to or is found guilty of possession of certain nonnarcotic drugs, the court, without entering a judgment of conviction, may enter a conditional discharge order, which places the person on probation. If the person successfully completes probation, the court dismisses the case. Finally, a court may sentence a person to probation but require that the person submit to an assessment or participate in treatment as a condition of probation.

2. Automatic eligibility. Under this bill, if a Wisconsin resident pleads guilty or no contest to or is found guilty of a simple drug offense (defined as unlawful possession of a controlled substance, keeping a drug house, fraudulently obtaining a controlled substance, or possession of drug paraphernalia that is unrelated to the production or use of methamphetamine), the court must, in general, order the person to submit to a substance abuse assessment and enter a conditional discharge order. This requirement does not apply if the person does not consent or if: 1) the person has two or more prior simple drug offense convictions; 2) at least one of those simple drug offenses was committed within the preceding ten years; and 3) the person was offered an opportunity to receive substance abuse treatment and rehabilitation services, through the program created by this bill, in connection with one of those offenses.

The conditional discharge order must require that the person participate in substance abuse treatment and rehabilitation services, and the court and the Department of Corrections (DOC) must monitor the person's compliance with the order. Unless revoked, the order must remain in effect until the court determines that the person has successfully completed his or her treatment and for at least an additional six months thereafter.

As under current law, if the person complies with the conditions of the order, the court discharges the person and dismisses the criminal case. How the court responds to violations of the order depends on the nature of the violation. If the violation is unrelated to the person's substance abuse treatment or use of alcohol or drugs, the court may revoke the order, enter a judgment of conviction, and sentence the person. But if the violation is related to the person's substance abuse treatment or the person's use of alcohol or other drugs, any sanctions that the court imposes must be graduated sanctions. The court may revoke the conditional discharge order for that type for violation only if it has already used other sanctions.

If the court revokes the conditional discharge order for a violation related to the person's substance abuse treatment or the person's use of alcohol or other drugs, the court must enter a judgment of conviction and place the person on probation. An order placing a person on probation under the bill is similar to a conditional discharge order. It must require that the person participate in substance abuse treatment; the court and DOC monitor the person's compliance with the order; and, unless revoked, the order remains in effect until the court determines that the person has successfully completed his or her treatment and for at least an additional six months thereafter. If the person successfully completes probation, the court must vacate the judgment of conviction. If the person violates a condition of probation that is unrelated to the person's substance abuse treatment or the person's use of alcohol or other drugs, the court may revoke the person's probation. If the violation is related to the treatment or the person's use of alcohol or other drugs, any sanctions that the court imposes must be graduated sanctions. Unlike the case with a conditional discharge order, however, graduated sanctions for a violation of probation may include incarceration. The bill specifies that the first period of incarceration may not exceed two weeks and the second may not exceed 30 days.

The court may revoke a person's probation order for a violation related to the person's substance abuse treatment or the person's use of alcohol or other drugs only if the court finds that there is no reasonable likelihood that the person will abstain from illegal activity for the rest of his or her probation and that either: 1) the violation occurred after the court modified the treatment and rehabilitation conditions of the probation order or imposed graduated sanctions; or 2) there are no reasonable treatment and rehabilitation services options other than the services originally ordered by the court. If the court revokes a person's probation, the court must sentence the person.

3. Discretionary eligibility. The bill also allows a court to enter a conditional discharge order in a case in which a Wisconsin resident commits an offense other than a simple drug offense. The court may do so, however, only after the person completes a substance abuse assessment and the court finds that: 1) the offense was significantly motivated by the person's substance abuse; 2) neither the victim of the offense nor the public will be harmed by the entry of a conditional discharge order; 3) entering a conditional discharge order is in the best interests of the public; and 4) entering a conditional discharge order will not unduly depreciate the seriousness of the offense. But the court may not enter a conditional discharge if the person committed a Class A, B, C, D, or E felony or a weapon offense specified in the bill or operated a motor vehicle, motorboat, snowmobile, or all-terrain vehicle with a prohibited alcohol content, while intoxicated, or while having a restricted controlled substance in his or her blood (a disqualifying offense). Moreover, even if the court makes the findings described in the previous paragraph, the court is not required to enter a conditional discharge order. As an alternative, the court may place the person directly on probation (unless the person committed a disqualifying offense). Other provisions of the bill regarding conditional discharge and probation apply to this group of people in the same way as they do to a person who is automatically eligible for conditional discharge.

4. Violent offenders. The bill specifies that the court may not use a conditional discharge order or probation in the manner described above in a case involving a violent offender. The bill defines a violent offender as a person to whom one of the following applies: 1) the person has been charged with or convicted of an offense in a pending case and, during the course of the offense, the person carried, possessed, or used a dangerous weapon, the person used force against another person, or a person died or suffered serious bodily harm; or 2) the person has one or more prior convictions for a felony involving the use or attempted use of force against another person with the intent to cause death or serious bodily harm.

5. Expungement. If a person successfully completes his or her treatment under a conditional discharge or probation order entered under the bill, the person may petition the court to expunge the record of the case. The court may expunge the record if it determines that the person will benefit and society will not be harmed by the expungement.

6. Miscellaneous provisions. The bill also: 1) requires DOC to contract for the supervision of persons who reside in a first class city and who are subject to a conditional discharge or probation order; 2) specifies that the provisions relating to conditional discharge and probation do not apply if a person is given the opportunity to participate in certain county drug court programs in existence when the bill takes effect; and 3) requires DOC and the department of health and family services (DHFS) to report periodically to the legislature regarding the effectiveness of the conditional discharge/probation program.

Drug treatment as an alternative to revocation

Under current law, a person on probation or extended supervision (ES) must comply with conditions imposed by the court or DOC; a person on parole must comply with conditions imposed by DOC. If a person violates one of those conditions, DOC may seek to revoke the person's probation, ES, or parole through a proceeding before the Division of Hearings and Appeals (DHA) in the Department of Administration (DOA). If the person waives a hearing, the DOC secretary decides whether to revoke the person's probation, ES, or parole. Otherwise, after a hearing before a hearing examiner, the DHA administrator decides whether to revoke the person's probation, ES, or parole. In any event, current law requires that alternatives to revocation be considered.

Post-revocation proceedings vary between probation, ES, and parole. If probation is being revoked, the person is returned to the court for sentencing or DOC implements any sentence that was already imposed but that was stayed (postponed) while the person was on probation. If ES is being revoked, the person is returned to the sentencing court, which determines the length of time for which the person should be returned to prison. If parole is being revoked, the person resumes serving his or her sentence in prison.

This bill specifies that, if a person violates probation, ES, or parole and the violation relates to the person's use of alcohol or other drugs, DHA or DOC (the reviewing authority) may require the person to submit to a substance abuse assessment or treatment as an alternative to revoking the person's probation, ES, or parole. If the person is already required to participate in a substance abuse treatment program as a condition of probation, ES, or parole, the reviewing authority may establish, maintain, or modify conditions of probation, ES, or parole relating to the person's participation. In addition, the bill specifies that if the reviewing authority revokes a person's probation for a violation related to the person's use of alcohol or other drugs or participation in a court-ordered or DOC-ordered substance abuse treatment program, DOC must return the person to court, even if the court has already imposed (and stayed) a sentence. The court must then decide whether the revocation order should remain in effect, in which case the person is sent to prison; or be vacated in conjunction with the court entering an order requiring the person to submit to a substance abuse assessment or treatment or, if the person is already required to participate in a substance abuse treatment program as a condition of probation, establishing, maintaining, or modifying conditions of probation relating to the person's participation. Under the bill, the court has similar authority to vacate an order revoking a person's ES when the person is returned to court.

County development of substance abuse treatment programs

Under current law, county departments of community programs (county departments) provide certain services relating to the assessment and treatment of alcohol and other drug abuse. This bill requires DHFS to promulgate rules specifying: 1) the services that county departments must make available to persons who participate in the conditional discharge/probation program or who are to be provided substance abuse assessments or treatment as an alternative to revocation; 2) minimum standards for those services; 3) requirements for substance abuse assessments ordered under the bill; and 4) the qualifications of service providers. County departments must then develop a network of substance abuse treatment and rehabilitation services, including the services required by DHFS's rules. They must also provide the services (including assessments ordered by the court) to persons who participate in the conditional discharge/probation program (from whose insurers the county departments may be able to obtain reimbursement) or who are to be provided substance abuse assessments or treatment as an alternative to revocation. The services must include different options for substance abuse treatment, be consistent with the best practices in substance abuse treatment, and be evaluated for the purpose of determining their effectiveness. County departments may provide the required assessments and services themselves or may do so by contract with others.

The bill requires each county department to submit a plan to DHFS, on a one-time basis, specifying who will provide its substance assessments and treatment and describing how and where they will be provided. The bill requires each county to create a community corrections committee (with the committee's membership specified in the bill) to advise its county department in developing the plan of services.

Funding for implementing the bill

The changes made by the bill regarding alternatives to prosecution and incarceration are contingent upon the state having sufficient resources to facilitate the implementation of those changes. Under the bill, by November 15, 2004, each county must submit an estimate to DOA of the amount of additional money that it will need (for example, for its county department of community programs and its court system) and the amount of money that it will save (for example, in incarceration costs) to implement the bill. By December 1, 2004, DOA must prepare a similar estimate for state agencies. In consultation with the attorney general and the secretaries of corrections and health and family services, the secretary of administration must then determine the amount of funding that the state and counties would need to implement the bill. (The secretary of administration must consider counties' estimates in making that determination but need not rely on them.)

The secretary of DOA must then periodically assess whether there are adequate resources available to enable the state and counties to implement the bill. If the secretary determines that there are adequate resources available, the secretary must provide written notice of that fact to the revisor of statutes, who then publishes that notice in the Wisconsin Administrative Register. The provisions of the bill regarding alternatives to prosecution, incarceration, and revocation take effect on the first day of the seventh month beginning after that certification.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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:

SB550, s. 1 Section 1. 20.410 (1) (ge) of the statutes, as affected by 2003 Wisconsin Act 33, is amended to read:

SB550,7,10 20.410 (1) (ge) Administrative and minimum supervision. The amounts in the schedule for the supervision of probationers persons placed on probation under s. 973.09, parolees, and persons on extended supervision, and, as determined by the department under s. 971.41 (10m), persons subject to a conditional discharge order or on probation under s. 971.41 under minimum or administrative supervision and for the department's costs associated with contracts under s. 301.08 (1) (c) 2. All moneys received from vendors under s. 301.08 (1) (c) 4. shall be credited to this appropriation account.

SB550, s. 2 Section 2. 46.03 (18) (fm) of the statutes is repealed.

SB550, s. 3 Section 3. 51.49 of the statutes is created to read:

SB550,7,17 51.49 Treatment intervention program. (1) Definition. In this section, "reviewing authority," in the context of proceedings to revoke a person's extended supervision, parole, or probation, means the division of hearings and appeals in the department of administration or, if the person waives the final administrative hearing, the secretary of corrections.

SB550,8,3 (1m) County responsibility. (a) The county department of community programs shall provide substance abuse assessments that are ordered by the circuit court under s. 302.113 (9) (ar) 2., 971.41 (2), or 973.10 (2e) (c) or by the reviewing authority under s. 302.113 (9) (am) 2., 304.06 (3b) (b), or 973.10 (2) (bm). The assessments shall comply with standards established by the department of health and family services under sub. (2). The assessor shall report the results of each assessment to the court or the reviewing authority.

SB550,8,12 (b) The county department of community programs shall develop a network of substance abuse treatment and rehabilitation services, including the services required by rule under sub. (2) and any other services that the county elects to provide, and shall provide the services, as ordered by the circuit court under s. 302.113 (9) (ar) 2. or 3., 971.41 (3), or 973.10 (2e) (c) or (d) or by the reviewing authority under s. 302.113 (9) (am) 2. or 3., 304.06 (3b) (b) or (c), or 973.10 (2) (bm) or (c). The services shall include different options for substance abuse treatment, be consistent with the best practices in substance abuse treatment, and be evaluated for the purpose of determining their effectiveness.

SB550,8,15 (c) The county department of community programs may directly provide the assessments and services that are required under this subsection or may contract with another person to provide the assessments and services.

SB550,8,17 (2) Rules. The department of health and family services shall promulgate rules specifying all of the following:

SB550,8,23 (a) The services that county departments of community programs must make available to persons under s. 302.113 (9) (am) 2. or 3. or (ar) 2. or 3., 304.06 (3b) (b) or (c), 971.41 (2), (3), or (6), or 973.10 (2) (bm) or (c) or (2e) (c) or (d). The rules shall require that the services include, at the least, treatment for substance abuse, education concerning the effects of substance abuse, tests to determine if a person has used alcohol or other drugs, and employment support.

SB550,8,24 (b) Minimum standards for the services specified under par. (a).

SB550,8,25 (c) Requirements for substance abuse assessments ordered under s. 961.41 (2).

SB550,9,2 (d) Qualifications of providers of the services required under par. (a) and for the providers of assessments ordered under s. 961.41 (2).

SB550, s. 4 Section 4. 301.08 (1) (c) 1. of the statutes is created to read:

SB550,9,6 301.08 (1) (c) 1. In this paragraph, "probationer" includes a person subject to a conditional discharge order or on probation under s. 971.41 if so determined by the department under s. 971.41 (10m).

SB550, s. 5 Section 5. 302.113 (7) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read: