AB360: Bill Text

LRB-2385/1

MGD:wlj:pg

2005 - 2006 LEGISLATURE

2005 Assembly BILL 360

April 22, 2005 - Introduced by Representatives Sheridan, Berceau, Kaufert, Hines and Pridemore, cosponsored by Senators Robson, Hansen and Leibham. Referred to Committee on Corrections and the Courts.

AB360,1,7 An Act to renumber 302.11 (4m); to renumber and amend 980.08 (5); to amend 46.10 (2), 51.42 (3) (aw) 1. d., 302.11 (1), 302.116 (1) (a), 302.116 (2), 304.06 (2m) (a), 971.17 (3) (a), 971.17 (3) (e), 971.17 (4) (d), 980.08 (4) (c) and 980.08 (6m); and to create 302.11 (1g) (b) 3., 302.11 (4m) (b), 304.02 (4t), 304.06 (2m) (af), 304.06 (2s), 971.17 (4f), 973.09 (8), 975.10 (1m), 980.08 (4) (b) 3., 980.08 (5) (a) 2. and 980.08 (5) (b) of the statutes; relating to: the residence of sex offenders.

Analysis by the Legislative Reference Bureau

Current law restricts where persons who have been convicted of first or second degree sexual assault, first or second degree sexual assault of a child, repeated sexual assault of a child, incest with a child, or child enticement (a "serious sex offense") may reside if they are living in the community. First, no person who has been convicted of a serious sex offense (a "sex offender") may be paroled to any county where there is a correctional institution that has a specialized sex offender treatment program, unless that county was the person's county of residence at the time of the person's offense. Second, any sex offender who is released to extended supervision must agree, as a condition of extended supervision, to live in a residence that the Department of Corrections (DOC) has approved.

Under this bill, a sex offender who is being placed in the community under the supervision of DOC (through parole, extended supervision, or probation) may not establish or reestablish a residence or, if the person is being placed on probation, remain at his or her residence if it is within one mile of the residence of the victim of the serious sex offense that the person has committed. The bill imposes the same restriction on: 1) a person being placed in the community on conditional release after having been found not guilty by reason of mental disease or defect of a serious sex offense; and 2) a person placed on supervised release after having been committed for treatment as a sexually violent person. (In the latter case, the restriction also applies in cases in which the sexually violent person was committed based on an offense other than a serious sex offense, such as kidnapping.) The bill also broadens the definition of "serious sex offense" so that the residency restrictions described above, including those contained in current law, apply to a person who has committed third- or fourth-degree sexual assault or committed sexual exploitation by a therapist.

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:

AB360, s. 1 Section 1. 46.10 (2) of the statutes is amended to read:

AB360,3,14 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) (c) 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 his or her 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 that person. 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.

AB360, s. 2 Section 2. 51.42 (3) (aw) 1. d. of the statutes is amended to read:

AB360,3,23 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) (d). 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.

AB360, s. 3 Section 3. 302.11 (1) of the statutes is amended to read:

AB360,4,7 302.11 (1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs. (1g), (1m), (1q), (1z), (4m) (b), (7), and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

AB360, s. 4 Section 4. 302.11 (1g) (b) 3. of the statutes is created to read:

AB360,4,10 302.11 (1g) (b) 3. Refusal by the inmate, if the inmate is a sex offender, as defined in s. 302.116 (1) (b), to comply with s. 304.06 (2s).

AB360, s. 5 Section 5. 302.11 (4m) of the statutes is renumbered 302.11 (4m) (a).

AB360, s. 6 Section 6. 302.11 (4m) (b) of the statutes is created to read:

AB360,4,15 302.11 (4m) (b) A sex offender, as defined in s. 302.116 (1) (b), is not entitled to mandatory release on parole under this section unless he or she agrees, as a condition of parole, to comply with s. 304.06 (2s).

AB360, s. 7 Section 7. 302.116 (1) (a) of the statutes is amended to read:

AB360,4,20 302.116 (1) (a) "Serious sex offense" means a violation of s. 940.22 (2), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, or 948.07 or a solicitation, conspiracy, or attempt to commit a violation of s. 940.22 (2), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, or 948.07.

AB360, s. 8 Section 8. 302.116 (2) of the statutes is amended to read:

AB360,5,2 302.116 (2) As a condition of extended supervision, a sex offender shall live in a residence that the department has approved. The department may not approve a residence that a sex offender is establishing or reestablishing if it is within one mile of the residence of the victim of the serious sex offense for which the sex offender is serving a sentence.

AB360, s. 9 Section 9. 304.02 (4t) of the statutes is created to read:

AB360,5,6 304.02 (4t) Notwithstanding subs. (1) to (3), a sex offender, as defined in s. 302.116 (1) (b), may not be paroled under this section unless he or she agrees, as a condition of parole, to comply with s. 304.06 (2s).

AB360, s. 10 Section 10. 304.06 (2m) (a) of the statutes is amended to read:

AB360,5,11 304.06 (2m) (a) In this subsection, "serious sex offense" means a violation of s. 940.22 (2), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, or 948.07 or a solicitation, conspiracy, or attempt to commit a violation of s. 940.22 (2), 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, or 948.07.

AB360, s. 11 Section 11. 304.06 (2m) (af) of the statutes is created to read:

AB360,5,15 304.06 (2m) (af) Neither the parole commission nor the department may parole a prisoner serving a sentence for a serious sex offense unless he or she agrees, as a condition of parole, comply with s. 304.06 (2s).

AB360, s. 12 Section 12. 304.06 (2s) of the statutes is created to read:

AB360,5,19 304.06 (2s) As a condition of parole, a person serving a sentence for a serious sex offense may not establish or reestablish a residence that is within one mile of the residence of the victim of that offense.

AB360, s. 13 Section 13. 971.17 (3) (a) of the statutes is amended to read:

AB360,6,9 971.17 (3) (a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If or that the person refuses to comply with sub. (4f), if applicable. Otherwise, the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

AB360, s. 14 Section 14. 971.17 (3) (e) of the statutes is amended to read:

AB360,7,13 971.17 (3) (e) An order for conditional release places the person in the custody and control of the department of health and family services. A conditionally released person is subject to the conditions set by the court and , to the rules of the department of health and family services, and, if applicable, to sub. (4f). Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health and family services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health and family services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 hours after the detention. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department of health and family services may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.

AB360, s. 15 Section 15. 971.17 (4) (d) of the statutes is amended to read:

AB360,8,4 971.17 (4) (d) The court, without a jury, shall hear the petition 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). The court shall grant the petition unless it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released. In making this determination or that the person refuses to comply with sub. (4f), if applicable. In determining whether the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

AB360, s. 16 Section 16. 971.17 (4f) of the statutes is created to read:

AB360,8,10 971.17 (4f) Residency of sex offenders on conditional release. A person who has been found not guilty by reason of mental disease or defect of a serious sex offense, as defined in s. 302.116 (1) (a), and who is conditionally released under sub. (3) or (4) (e) may not, as a condition of the person's release, establish or reestablish a residence that is within one mile of the residence of the victim of that offense.

AB360, s. 17 Section 17. 973.09 (8) of the statutes is created to read:

AB360,8,18 973.09 (8) If the court places a person on probation for a serious sex offense, as defined in s. 302.116 (1) (a), the court shall prohibit the probationer, as a condition of probation, from moving to a residence that is within one mile of the residence of the victim of that offense. If, at the time he or she is placed on probation, the probationer resides within one mile of the residence of the victim, the court shall require the probationer, as a condition of probation, to move to a residence that is at least one mile from the residence of the victim.

AB360, s. 18 Section 18. 975.10 (1m) of the statutes is created to read:

AB360,8,24 975.10 (1m) A person who is released on parole under sub. (1) may not establish or reestablish a residence that is within one mile of the residence of the victim of any crime that formed a basis for the person's commitment under this chapter. A person may not be released on parole under sub. (1) unless he or she agrees to comply with this prohibition as a condition of parole.

AB360, s. 19 Section 19. 980.08 (4) (b) 3. of the statutes is created to read:

AB360,9,2 980.08 (4) (b) 3. That the person who is the subject of the petition refuses to comply with sub. (5) (a) 2.