LRB-2080/1
JEO:skg:aj
1995 - 1996 LEGISLATURE
April 4, 1995 - Introduced by Representatives Walker, Owens, Grothman, Dobyns,
Schneiders, Foti, Musser, Hahn, Kreibich, Hoven, Ainsworth, Nass, Duff,
Urban, Ourada, Handrick and Seratti, cosponsored by Senators Rosenzweig,
Petak and Darling. Referred to Committee on Criminal Justice and
Corrections.
AB295,1,7
1An Act to renumber 971.15 (1) and 971.15 (2);
to renumber and amend
2971.165 (2);
to amend 48.30 (5) (c) (intro.), 51.37 (8) (a), 971.16 (3), 973.09 (2)
3(a) 1. and 973.09 (2) (b) 1.; and
to create 51.20 (19) (am), 51.37 (8m), 302.11
4(6m), 971.06 (1) (am), 971.15 (1g) (b), 971.15 (2m), 971.163, 971.165 (2) (b),
5971.165 (2) (c), 971.165 (3) (am), 973.017, 973.09 (2) (c) and 973.09 (6) of the
6statutes;
relating to: creating a plea and verdict of guilty but mentally ill in
7criminal cases.
Analysis by the Legislative Reference Bureau
Under current law, a person is not responsible for criminal conduct if at the time
of such conduct the person was suffering from a mental disease or defect that
resulted in the person lacking substantial capacity either to appreciate the
wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of law. To raise this defense, a person who is charged with a crime
pleads not guilty by reason of mental disease or defect. After a person pleads not
guilty by reason of mental disease or defect, the court appoints at least one physician
or psychologist to examine the person and to testify at trial concerning the person's
ability to appreciate the wrongfulness of his or her conduct or to conform his or her
conduct to the requirements of law at the time the person committed the criminal
offense charged. The person may also be examined by a physician, psychologist or
other expert of his or her choice.
At a trial for a person who has pleaded not guilty by reason of mental disease
or defect, the judge or jury first determines whether the person is guilty of the offense
charged. If the judge or jury finds the person guilty, the judge or jury then determines
whether the person is not responsible for his or her criminal conduct due to mental
disease or defect. If the judge or jury finds the person not responsible for his or her
criminal conduct due to mental disease or defect, the person is not guilty by reason
of mental disease or defect and is committed for treatment to the department of
health and social services for a period of time not exceeding two-thirds of the
maximum term of imprisonment that could be imposed for the crime charged. If the
judge or jury finds the person responsible for his or her criminal conduct, the person
is convicted of the offense and is sentenced for the offense by the judge.
Also, under current law any person who has been convicted and sentenced to
imprisonment may be involuntarily committed for treatment in a state treatment
facility if he or she is mentally ill, drug dependent or developmentally disabled, is a
proper subject for treatment and is in need of treatment. In addition, if the person
is a jail inmate, he or she must be dangerous to himself, herself or others, and if the
person is a prison inmate, the person must need treatment that cannot be provided
at the prison. To involuntarily commit for treatment a person who has been convicted
and sentenced to imprisonment, a petition must be filed alleging that the person
meets the criteria for involuntary commitment and, after an examination of the
person, a hearing must be held before a judge or jury to determine whether the
person meets the criteria for involuntary commitment. If the person is committed
for treatment, the initial commitment may not exceed 6 months and subsequent
consecutive commitment orders may not exceed one year.
This bill provides for a plea and verdict of guilty but mentally ill. Under the bill,
a person who pleads not guilty by reason of mental disease or defect may be found
guilty but mentally ill after a trial if, after determining that the person is guilty of
the offense charged, a judge or jury determines that the person suffered from a
mental illness at the time of his or her criminal conduct but the mental illness did
not result in the person lacking substantial capacity either to appreciate the
wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of law. In addition, under the bill a person who pleads not guilty by
reason of mental disease or defect may change his or her plea to guilty but mentally
ill after being examined by a physician or psychologist as provided under current law.
The district attorney must consent to the person changing his or her plea and the
judge must find, after reviewing the examinations of the person and holding a
hearing, that the person suffered from a mental illness at the time of his or her
criminal conduct.
Under the bill, a person who is found guilty but mentally ill is convicted of the
offense and is sentenced for the offense by the judge. If a judge sentences a person
who has been found guilty but mentally ill to the custody of the department of
corrections (DOC) by sentencing the person to prison or by placing the person on
probation, the court must also order DOC to evaluate the person for treatment and
provide or arrange for the provision of any necessary treatment, and the person may
be required to receive treatment as a condition of probation or parole. Finally, a
person found guilty but mentally ill and imprisoned may also be committed to a state
facility for treatment in the same manner as provided under current law for a person
who has been convicted and sentenced to imprisonment.
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:
AB295, s. 1
1Section
1. 48.30 (5) (c) (intro.) of the statutes is amended to read:
AB295,3,52
48.30
(5) (c) (intro.) If the court finds that the child was not responsible by
3reason of mental disease or defect, as described under s. 971.15
(1) and (2) (1g) (a)
4and (1r), the court shall dismiss the petition with prejudice and shall also do one of
5the following:
AB295, s. 2
6Section
2. 51.20 (19) (am) of the statutes is created to read:
AB295,3,107
51.20
(19) (am) If an individual who was found guilty but mentally ill under
8s. 971.163 or 971.165 was involuntarily committed under this section, the
9department shall, upon the individual's discharge, prepare a report for the
10department of corrections that contains all of the following:
AB295,3,1111
1. The individual's diagnosis.
AB295,3,1312
2. A description of the individual's behavior before and while he or she was in
13the treatment facility.
AB295,3,1514
3. The course of treatment of the individual while he or she was in the
15treatment facility.
AB295,3,1716
4. The prognosis for the remission of symptoms and the potential for recidivism
17and for presenting a danger to himself or herself or others.
AB295,3,1818
5. Recommendations for future treatment.
AB295, s. 3
19Section
3. 51.37 (8) (a) of the statutes is amended to read:
AB295,4,820
51.37
(8) (a) Rights to reexamination under s. 51.20 (16) apply to a prisoner or
21inmate who is found to be mentally ill or drug dependent except that the petition
1shall be made to the court that made the finding or, if the prisoner or inmate is
2detained by transfer, to the circuit court of the county in which he or she is detained.
3If upon rehearing it is found that the standards for recommitment under s. 51.20 (13)
4(g) no longer apply to the prisoner or inmate or that he or she is not in need of
5psychiatric or psychological treatment, the prisoner or inmate shall be returned to
6the prison or county jail or house of correction unless it is past his or her release date
7as determined under s. 302.11, in which case he or she shall be discharged
, subject
8to s. 973.017 (3) (b), if applicable.
AB295, s. 4
9Section
4. 51.37 (8m) of the statutes is created to read:
AB295,4,1310
51.37
(8m) If an individual who was found guilty but mentally ill under s.
11971.163 or 971.165 was transferred to or detained in a state treatment facility under
12sub. (5), the department shall, upon the individual's discharge, prepare a report for
13the department of corrections that contains all of the following:
AB295,4,1414
(a) The individual's diagnosis.
AB295,4,1615
(b) A description of the individual's behavior before and while he or she was in
16the treatment facility.
AB295,4,1817
(c) The course of treatment of the individual while he or she was in the
18treatment facility.
AB295,4,2019
(d) The prognosis for the remission of symptoms and the potential for
20recidivism and for presenting a danger to himself or herself or others.
AB295,4,2121
(e) Recommendations for future treatment.
AB295, s. 5
22Section
5. 302.11 (6m) of the statutes is created to read:
AB295,5,423
302.11
(6m) An inmate who was found guilty but mentally ill under s. 971.163
24or 971.165 and who is released on parole under sub. (1) or (1g) (b) or s. 304.02 or
25304.06 (1) shall be required as a condition of his or her parole to continue or to seek
1treatment recommended by the department or by the department of health and
2social services. In determining whether treatment should be a condition of the
3inmate's parole, the department shall consider any reports prepared by the
4department of health and social services under s. 51.20 (19) (am) or 51.37 (8m).
AB295, s. 6
5Section
6. 971.06 (1) (am) of the statutes is created to read:
AB295,5,66
971.06
(1) (am) Guilty but mentally ill, subject to s. 971.163.
AB295, s. 7
7Section
7. 971.15 (1) of the statutes is renumbered 971.15 (1r).
AB295, s. 8
8Section
8. 971.15 (1g) (b) of the statutes is created to read:
AB295,5,119
971.15
(1g) (b) In ss. 971.15 to 971.165, "mental illness" or "mentally ill" means
10a substantial disorder of thought, mood or behavior that afflicted a person at the time
11that he or she engaged in criminal conduct and that impaired the person's judgment.
AB295, s. 9
12Section
9. 971.15 (2) of the statutes is renumbered 971.15 (1g) (a).
AB295, s. 10
13Section
10. 971.15 (2m) of the statutes is created to read:
AB295,5,1814
971.15
(2m) A person is not relieved of criminal responsibility and may be
15found guilty but mentally ill if, at the time the person engaged in criminal conduct,
16he or she was suffering from a mental illness but did not lack substantial capacity
17either to appreciate the wrongfulness of his or her conduct or conform his or her
18conduct to the requirements of law as a result of mental disease or defect.
AB295, s. 11
19Section
11. 971.16 (3) of the statutes is amended to read:
AB295,6,1320
971.16
(3) Not less than 10 days before trial, or at any other time that the court
21directs, any physician or psychologist appointed under sub. (2) shall file a report of
22his or her examination of the defendant with the judge, who shall cause copies to be
23transmitted to the district attorney and to counsel for the defendant.
The Except as
24provided in s. 971.163 (2) (a) and (3), the contents of the report shall be confidential
25until the physician or psychologist has testified or at the completion of the trial. The
1report shall contain an opinion regarding the ability of the defendant to appreciate
2the wrongfulness of the defendant's conduct or to conform the defendant's conduct
3with the requirements of law at the time of the commission of the criminal offense
4charged and, if sufficient information is available to the physician or psychologist to
5reach an opinion, his or her opinion on whether the defendant needs medication or
6treatment and whether the defendant is not competent to refuse medication or
7treatment for the defendant's mental condition. The defendant is not competent to
8refuse medication or treatment if, because of mental illness, developmental
9disability, alcoholism or drug dependence, the defendant is incapable of expressing
10an understanding of the advantages and disadvantages of accepting medication or
11treatment, and the alternatives to accepting the particular medication or treatment
12offered, after the advantages, disadvantages and alternatives have been explained
13to the defendant.
AB295, s. 12
14Section
12. 971.163 of the statutes is created to read:
AB295,6,19
15971.163 Entry of plea of guilty but mentally ill. (1) If a defendant has
16entered a plea of not guilty by reason of mental disease or defect and has been
17examined under s. 971.16, the defendant may waive his or her right to a trial under
18s. 971.165 and, with the approval of the district attorney, enter a plea of guilty but
19mentally ill in lieu of a plea of guilty or no contest.
AB295,6,21
20(2) The court may accept a plea of guilty but mentally ill under sub. (1) only
21if all of the following apply:
AB295,6,2322
(a) The court, with the defendant's consent, has reviewed the reports of all the
23examinations conducted under s. 971.16.
AB295,6,2524
(b) The court holds a hearing on the issue of the defendant's mental illness at
25which the parties may present evidence.
AB295,7,3
1(c) Based on the review of reports under par. (a) and the hearing held under par.
2(b), the court is satisfied that the defendant was mentally ill at the time that he or
3she committed the criminal offense charged.
AB295,7,5
4(3) If the court reviews a report under sub. (2) (a), the court shall make the
5report a part of the record of the case.
AB295, s. 13
6Section
13. 971.165 (2) of the statutes is renumbered 971.165 (2) (intro.) and
7amended to read:
AB295,7,98
971.165
(2) (intro.) If the plea of not guilty by reason of mental disease or defect
9is tried to a jury, the court shall inform the jury
that of all of the following:
AB295,7,15
10(a) That the effect of a verdict of not guilty by reason of mental disease or defect
11is that, in lieu of criminal sentence or probation, the defendant will be committed to
12the custody of the department of health and social services and will be placed in an
13appropriate institution unless the court determines that the defendant would not
14pose a danger to himself or herself or to others if released under conditions ordered
15by the court.
AB295,7,17
16(2m) No verdict on the plea of not guilty by reason of mental disease or defect
17may be valid or received unless agreed to by at least five-sixths of the jurors.
AB295, s. 14
18Section
14. 971.165 (2) (b) of the statutes is created to read:
AB295,7,2019
971.165
(2) (b) That the jury may find the defendant guilty but mentally ill if
20the jury finds all of the following:
AB295,7,2321
1. That, beyond a reasonable doubt, the defendant did not lack substantial
22capacity either to appreciate the wrongfulness of his or her conduct or conform his
23or her conduct to the requirements of law as a result of mental disease or defect.
AB295,7,2524
2. That, to a reasonable certainty by the greater weight of the credible evidence,
25the defendant was mentally ill at the time that he or she committed the offense.
AB295, s. 15
1Section
15. 971.165 (2) (c) of the statutes is created to read:
AB295,8,42
971.165
(2) (c) That the effect of a verdict of guilty but mentally ill is that the
3defendant will receive a criminal sentence or probation and may be required to
4undergo treatment for his or her mental illness.
AB295, s. 16
5Section
16. 971.165 (3) (am) of the statutes is created to read:
AB295,8,86
971.165
(3) (am) If a defendant is found guilty but mentally ill, the court shall
7enter a judgment of conviction and shall either impose or withhold sentence under
8s. 973.017.
AB295, s. 17
9Section
17. 973.017 of the statutes is created to read:
AB295,8,16
10973.017 Sentence of person found guilty but mentally ill. (1) If a
11defendant is found guilty but mentally ill under s. 971.163 or 971.165, the court, by
12order, may impose sentence under this chapter, withhold sentence, or impose
13sentence under s. 973.15 and stay its execution. Except as provided in s. 973.09 (1)
14(c) or if probation is prohibited for a particular offense by statute, if the court
15withholds sentence or imposes sentence and stays its execution for an offense, the
16court may place the person on probation under s. 973.09.
AB295,8,18
17(2) If the court places a defendant who is found guilty but mentally ill in the
18custody of the department of corrections, the court shall order all of the following:
AB295,8,2119
(a) That the department of corrections, or a person designated by the
20department of corrections, evaluate the defendant to determine the defendant's
21treatment needs.
AB295,8,2322
(b) That the department of corrections provide or arrange for the provision of
23appropriate treatment, if necessary, for the defendant's mental illness.