SB550: Bill Text

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:

SB550,9,16 302.113 (7) Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision until the expiration of the term of extended supervision portion of the bifurcated sentence. The department may set conditions of extended supervision in addition to any conditions of extended supervision required under s. 302.116, if applicable, or set by the court under sub. (7m) or (9) (ar) 2. or 3. or s. 973.01 (5) if the conditions set by the department do not conflict with the court's conditions. The reviewing authority, as defined in sub. (9) (ag), may set or modify conditions under sub. (9) (am) 2. or 3.

SB550, s. 6 Section 6. 302.113 (9) (am) of the statutes, as affected by 2001 Wisconsin Act 109, is renumbered 302.113 (9) (am) (intro.) and amended to read:

SB550,9,21 302.113 (9) (am) (intro.) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke do one of the following:

SB550,9,22 1. Revoke the extended supervision of the person.

SB550,9,25 (ap) If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence reviewing authority shall make a recommendation to the court concerning the period of time for which the person should be returned to prison. The recommended time period may not exceed the time remaining on the bifurcated sentence, which is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. A court order returning a person to prison under this subdivision shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

SB550, s. 7 Section 7. 302.113 (9) (am) 2. of the statutes is created to read:

SB550,10,16 302.113 (9) (am) 2. If the violation relates to the person's use of alcohol or other drugs and subd. 3. does not apply, order the person to submit to a substance abuse assessment or substance abuse treatment or both under s. 51.49 in the person's county of residence as a condition of extended supervision.

SB550, s. 8 Section 8. 302.113 (9) (am) 3. of the statutes is created to read:

SB550,10,22 302.113 (9) (am) 3. If the person is required to participate in a substance abuse treatment program as a condition of extended supervision and the violation relates to the person's participation in the program, establish, maintain, or modify conditions of extended supervision relating to the person's participation in the program.

SB550, s. 9 Section 9. 302.113 (9) (ar) of the statutes is created to read:

SB550,10,25 302.113 (9) (ar) If a person is returned to court under par. (ap) after revocation of extended supervision, the court shall do one of the following:

SB550,11,5 1. Order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence, as calculated under par. (ap). A court order returning a person to prison under this subdivision shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

SB550,11,10 2. If the violation relates to the person's use of alcohol or other drugs and subd. 3. does not apply, vacate the reviewing authority's decision to revoke the person's extended supervision and order the person to submit to a substance abuse assessment or substance abuse treatment or both under s. 51.49 in the person's county of residence as a condition of extended supervision.

SB550,11,16 3. If the person is required to participate in a substance abuse treatment program as a condition of extended supervision and the violation relates to the person's participation in the program, vacate the reviewing authority's decision to revoke the person's extended supervision and establish, maintain, or modify conditions of extended supervision relating to the person's participation in the program.

SB550, s. 10 Section 10. 302.113 (9) (at) of the statutes, as created by 2001 Wisconsin Act 109, is repealed.

SB550, s. 11 Section 11. 302.113 (9) (b) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB550,12,3 302.113 (9) (b) A person who is returned to prison after revocation of extended supervision shall be incarcerated for the entire period of time specified by the court under par. (am) (ar) 1. The period of time specified under par. (am) (ar) 1. may be extended in accordance with sub. (3). If a person is returned to prison under par. (am) (ar) 1. for a period of time that is less than the time remaining on the bifurcated sentence, the person shall be released to extended supervision after he or she has served the period of time specified by the court under par. (am) (ar) 1. and any periods of extension imposed in accordance with sub. (3).

SB550, s. 12 Section 12. 302.113 (9) (c) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB550,12,14 302.113 (9) (c) A person who is subsequently released to extended supervision after service of the period of time specified by the court under par. (am) (ar) 1. is subject to all conditions and rules under subs. (7) and, if applicable, (7m) until the expiration of the remaining extended supervision portion of the bifurcated sentence. The remaining extended supervision portion of the bifurcated sentence is the total length of the bifurcated sentence, less the time served by the person in confinement under the bifurcated sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the bifurcated sentence.

SB550, s. 13 Section 13. 304.06 (3b) of the statutes is created to read:

SB550,12,18 304.06 (3b) (a) In this subsection, "reviewing authority" means the division of hearings and appeals in the department of administration or, if the parolee waives the final administrative hearing, the secretary of corrections.

SB550,12,23 (b) If a parolee violates a condition of parole, the violation relates to the parolee's use of alcohol or other drugs, and par. (c) does not apply, the reviewing authority may, in lieu of revoking parole, order the parolee to submit to a substance abuse assessment or substance abuse treatment or both under s. 51.49 in the person's county of residence as a condition of parole.

SB550,13,5 (c) If a parolee is required to participate in a substance abuse treatment program as a condition of parole and the parolee violates a condition of parole that relates to the parolee's participation in the program, the division of hearings and appeals in the department of administration or, if the parolee waives the final administrative hearing, the secretary of corrections may, in lieu of revoking parole, establish, maintain, or modify conditions of parole relating to the parolee's participation in the program.

SB550, s. 14 Section 14. 304.074 (1d) of the statutes is created to read:

SB550,13,7 304.074 (1d) In this section:

SB550,13,10 1. "Discharge," with respect to a person subject to a conditional discharge order or on probation under s. 971.41, means a discharge and dismissal under s. 971.41 (4) or an order vacating a judgment of conviction under s. 971.41 (6) (b).

SB550,13,13 2. "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. 15 Section 15. 808.075 (4) (g) 3. of the statutes is amended to read:

SB550,13,16 808.075 (4) (g) 3. Imposition of sentence upon revocation of probation under s. 973.10 (2) (2b) (c) 1. or (2e) (a).

SB550, s. 16 Section 16. 961.47 (title) of the statutes is renumbered 971.41 (title) and amended to read:

SB550,13,20 971.41 (title) Conditional discharge for possession or attempted possession as first offense Alternatives to incarceration for drug offenders.

SB550, s. 17 Section 17. 961.47 (1) of the statutes is renumbered 971.41 (2) (a) (intro.) and amended to read:

SB550,14,13 971.41 (2) (a) (intro.) Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state or of any county ordinance relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, is a resident of this state pleads guilty or no contest to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g) (b) one or more offenses in a simple drug offense case and there are no other charges against the person pending in that case, the court, without entering a judgment of guilt and with the consent of the accused, may shall defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. order the person to submit to a substance abuse assessment. Upon receipt of the assessment report, the court shall, with the consent of the accused, enter a conditional discharge order under sub. (3), unless the assessment report indicates that the person is not amenable to treatment or all of the following apply:

SB550,14,22 (4) Compliance with conditional discharge order. Upon fulfillment of the terms and conditions of a conditional discharge order entered under sub. (2), the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of prohibitions, disqualifications or, disabilities, increased penalties, or other adverse or unfavorable treatment imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under s. 961.48. There may be only one discharge and dismissal under this section with respect to any person.

SB550, s. 18 Section 18. 961.47 (2) of the statutes is renumbered 971.41 (2) (c) and amended to read:

SB550,15,6 971.41 (2) (c) Within 20 days after probation is granted a conditional discharge order is entered under this section subsection, the clerk of court shall notify the department of justice of the name of the individual granted probation who is subject to the order and any other information required by the department under rules promulgated by the department. This report shall be upon forms provided by the department.

SB550, s. 19 Section 19. 961.472 of the statutes, as affected by 2003 Wisconsin Act 49, is repealed.

SB550, s. 20 Section 20. 961.475 of the statutes is amended to read:

SB550,16,2 961.475 Treatment option. Whenever any person pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g), the court may, upon request of the person and with the consent of a treatment facility with special inpatient or outpatient programs for the treatment of drug dependent persons, allow the person to enter the treatment programs voluntarily for purposes of treatment and rehabilitation. Treatment shall be for the period the treatment facility feels is necessary and required, but shall not exceed the maximum sentence allowable unless the person consents to the continued treatment. At the end of the necessary and required treatment, with the consent of the court, the person may be released from sentence. If treatment efforts are ineffective or the person ceases to cooperate with treatment rehabilitation efforts, the person may be remanded to the court for completion of sentencing. The court may then enter a conditional discharge order under s. 971.41 (2) with respect to the person if he or she meets the requirements under sub. (2) (b) 2. a. to d. and is not a violent offender. Otherwise, the court shall sentence the person. Sentencing may include placing the person on probation under s. 971.41 (6) if the person is not a violent offender. This section does not apply if the court is required to enter a conditional discharge order under s. 971.41 (2).

SB550, s. 21 Section 21. 971.41 (1) of the statutes is created to read:

SB550,16,4 971.41 (1) Definitions.

SB550,16,5 (a) "Disqualifying offense" means any of the following:

SB550,16,6 1. A Class A, B, C, D, or E felony.

SB550,16,7 2. An offense under s. 941.20, 941.21, 941.23, 941.235, 941.237, or 941.29.

SB550,16,8 3. An offense under s. 23.33 (4c), 30.681, 346.63, 350.101, or 940.25.

SB550,16,10 (b) "Drug" means a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m).

SB550,16,13 (c) "Simple drug offense" means an offense or an attempt to commit an offense under s. 961.41 (3g), 961.42, 961.43 (1) (a), or 961.573 (1), but does not include conduct that constitutes a violation of s. 961.573 (3).

SB550,16,15 (d) "Simple drug offense case" means a case in which a person is charged with one or more simple drug offenses but not with any other offense.

SB550,16,16 (e) "Violent offender" means a person to whom one of the following applies:

SB550,16,20 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.

SB550,16,23 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.

SB550, s. 22 Section 22. 971.41 (2) (title) and (a) 1. to 3. of the statutes are created to read:

SB550,16,25 971.41 (2) (title) Conditional discharge.

SB550,17,3 (a) 1. The person has 2 or more prior convictions for a simple drug offense or for an offense committed in another jurisdiction that would be a simple drug offense if committed in this state.

SB550,17,5 2. At least one of the offenses under subd. 1. was committed in the 10-year period immediately before the person committed the current offense.