AB366: Bill Text

LRB-3085/1

JEO:kaf:jf

1997 - 1998 LEGISLATURE

1997 Assembly BILL 366

May 20, 1997 - Introduced by Representatives Owens, Ainsworth, Albers, Brandemuehl, Dobyns, Duff, Grothman, Huebsch, Kaufert, Kelso, Kreibich, Ladwig, F. Lasee, Lazich, Musser, Nass, Olsen, Ott, Otte, Robson, Ryba, Schafer, Seratti, Skindrud, Staskunas, Underheim, Urban, Walker and Ziegelbauer, cosponsored by Senators Darling, Clausing, Drzewiecki, Farrow, Huelsman, A. Lasee, Roessler, Rosenzweig and Welch. Referred to Committee on Criminal Justice and Corrections.

AB366,1,8 An Act to renumber and amend 303.065 (1); to amend 51.20 (1) (ar) (intro.), 51.20 (13) (g) 2m., 51.37 (8) (a), 51.37 (8) (b), 301.13, 301.16 (1p), 301.17, 302.045 (3), 302.11 (1), 302.11 (1g) (am), 302.11 (1i), 302.11 (6), 302.11 (7) (a), 302.11 (9), 302.45 (1), 303.068 (1) (intro.), 303.19 (3), 304.06 (1) (b), 304.06 (1m) (intro.), 304.06 (2), 304.071 (2), 971.11 (6), 973.0135 (2) (intro.), 978.07 (1) (c) 2. and 978.07 (1) (c) 3.; and to create 302.075, 302.11 (1z), 303.065 (1) (c), 304.02 (6), 304.06 (1s) and 973.0135 (2m) of the statutes; relating to: institutional placement and parole eligibility of certain sex offenders.

Analysis by the Legislative Reference Bureau

A person serving a sentence of imprisonment to a state prison (other than a sentence of life imprisonment) usually has 3 possible ways of being released on parole: discretionary parole granted by the parole commission (for which a person is usually eligible after serving 25% of the sentence or 6 months, whichever is greater); mandatory release on parole (usually granted automatically after the person serves two-thirds of the sentence); or special action parole release by the secretary of corrections (a program designed to relieve prison crowding).

However, current law also provides different parole eligibility provisions for certain serious felony offenders. If a serious felony offender has one or more prior convictions for a serious felony, a judge may set a discretionary parole eligibility date for the offender that is later than 25% of the sentence or 6 months but not later than the mandatory release date of two-thirds of the sentence. In addition, certain serious felony offenders need not be automatically released when they reach their mandatory release dates. Instead, the parole commission may deny mandatory release to such an offender in order to protect the public or because the offender refused to participate in counseling or treatment. The serious felony offenders covered by these parole provisions include persons convicted of serious violations such as homicide, battery, sexual assault, mayhem, kidnapping, taking hostages, arson, armed burglary, armed robbery, carjacking, assault by a prisoner, unlawful manufacture, sale or delivery of controlled substances (dangerous drugs) and crimes against children.

This bill changes parole eligibility for persons sentenced to prison for serious sex offenses. Specifically, the bill eliminates both mandatory release on parole and special action parole release for a person convicted of a serious sex offense. The bill also provides that a person convicted of a serious sex offense may not be granted discretionary parole release by the parole commission until he or she has served at least two-thirds of his or her sentence or 12 months, whichever is greater.

The bill also provides that the department of corrections (DOC) may not transfer a person serving a sentence for a serious sex offense to a minimum security correctional institution until the person has reached his or her discretionary parole eligibility date. Currently, DOC may transfer an inmate between maximum, medium and minimum security correctional institutions based on the inmate's security classification, which is based, in part, on the length of the person's sentence and how much of the sentence the inmate has served.

The serious sex offenses covered by the bill include the following: sexual exploitation by a therapist; sexual assault; sexual assault of a child; sexual exploitation of a child; causing a child to view or listen to sexual activity; incest with a child; child enticement; soliciting a child for prostitution; sexual assault of a student by a school instructional staff person; exposing a child to harmful material; possession of child pornography; and working with children after being convicted of a serious child sex offense.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB366, s. 1 Section 1. 51.20 (1) (ar) (intro.) of the statutes is amended to read:

AB366,3,12 51.20 (1) (ar) (intro.) If the individual is an inmate of a state prison, the petition may allege that the inmate is mentally ill, is a proper subject for treatment and is in need of treatment. The petition shall allege that appropriate less restrictive forms of treatment have been attempted with the individual and have been unsuccessful and it shall include a description of the less restrictive forms of treatment that were attempted. The petition shall also allege that the individual has been fully informed about his or her treatment needs, the mental health services available to him or her and his or her rights under this chapter and that the individual has had an opportunity to discuss his or her needs, the services available to him or her and his or her rights with a licensed physician or a licensed psychologist. The petition shall include the inmate's sentence and his or her expected date of release as determined under s. 302.11 or, if the inmate is not entitled to release under s. 302.11, the expiration date of the inmate's sentence. The petition shall have attached to it a signed statement by a licensed physician or a licensed psychologist of a state prison and a signed statement by a licensed physician or a licensed psychologist of a state treatment facility attesting either of the following:

AB366, s. 2 Section 2. 51.20 (13) (g) 2m. of the statutes is amended to read:

AB366,3,17 51.20 (13) (g) 2m. In addition to the provisions under subds. 1., 2. and 2g., no commitment ordered under par. (a) 4. or 4m. may continue beyond the inmate's date of release as determined under s. 302.11 or, if the inmate is not entitled to release under s. 302.11, the expiration date of the inmate's sentence.

AB366, s. 3 Section 3. 51.37 (8) (a) of the statutes is amended to read:

AB366,4,4 51.37 (8) (a) Rights to reexamination under s. 51.20 (16) apply to a prisoner or inmate who is found to be mentally ill or drug dependent except that the petition shall be made to the court that made the finding or, if the prisoner or inmate is detained by transfer, to the circuit court of the county in which he or she is detained. If upon rehearing it is found that the standards for recommitment under s. 51.20 (13) (g) no longer apply to the prisoner or inmate or that he or she is not in need of psychiatric or psychological treatment, the prisoner or inmate shall be returned to the prison or county jail or house of correction unless it is past his or her release date as determined under s. 302.11 or, if the prisoner or inmate is not entitled to release under s. 302.11, the expiration date of the inmate's sentence, in which case he or she shall be discharged.

AB366, s. 4 Section 4. 51.37 (8) (b) of the statutes is amended to read:

AB366,4,20 51.37 (8) (b) If the condition of any prisoner or inmate committed or transferred under this section requires psychiatric or psychological treatment after his or her date of release as determined under s. 302.11 or, if the prisoner or inmate is not entitled to release under s. 302.11, the expiration date of the inmate's sentence, the director of the state treatment facility shall, within a reasonable time before the release date of the prisoner or inmate, make a written application to the court which committed the prisoner or inmate under sub. (5) (a). Thereupon, the proceeding shall be upon application made under s. 51.20, but no physician or psychologist who is connected with a state prison, Winnebago or Mendota mental health institute or any county jail or house of correction may be appointed as an examiner. If the court does not commit the prisoner or inmate, it may dismiss the application and order the prisoner or inmate returned to the institution from which he or she was transferred until the release date of the prisoner or inmate. If the court commits the prisoner or inmate for the period commencing upon his or her release date, the commitment shall be to the care and custody of the county department under s. 51.42 or 51.437.

AB366, s. 5 Section 5. 301.13 of the statutes is amended to read:

AB366,5,17 301.13 Minimum security correctional institutions. The department may establish and operate minimum security correctional institutions. The secretary may allocate and reallocate existing and future facilities as part of these institutions. The institutions are subject to s. 301.02 and are state prisons as defined in s. 302.01. Inmates Subject to s. 302.075, inmates from Wisconsin state prisons may be transferred to these institutions and they shall be subject to all laws pertaining to inmates of other penal institutions of the state. Officers and employes of the institutions shall be subject to the same laws as pertain to other penal institutions. Inmates shall not be received on direct commitment from the courts. In addition to the exemptions under s. 13.48 (13), construction or establishment of facilities at institutions which are community correctional residential centers initially established prior to July 2, 1983, shall not be subject to the ordinances or regulations relating to zoning, including zoning under ch. 91, of the county and municipality in which the construction or establishment takes place. The department shall establish a procedure for soliciting responses from interested communities and persons regarding potential sites for the institutions under this section, except the procedure does not apply to the 125-bed community correctional center in the city of Waupun. The department shall consider locations proposed under this procedure and may consider any other locations on its own initiative. The department need not promulgate rules regarding the site consideration procedures under this section.

AB366, s. 6 Section 6. 301.16 (1p) of the statutes is amended to read:

AB366,5,24 301.16 (1p) Inmates Subject to s. 302.075, inmates from the Wisconsin state prisons may be transferred to the institutions under this section and they shall be subject to all laws pertaining to inmates of other penal institutions of this state. Officers and employes of the institutions shall be subject to the same laws as pertain to other penal institutions. Inmates shall not be received on direct commitment from the courts.

AB366, s. 7 Section 7. 301.17 of the statutes is amended to read:

AB366,6,6 301.17 Minimum security corrections institutions. The department may, with the approval of the joint committee on finance, increase staffing levels at minimum security institutions sufficiently to allow, subject to s. 302.075, temporary placement of medium security inmates at existing minimum security institutions as may be necessary to relieve medium security overcrowding. The temporary placement under this section may constitute a partial use of the institution.

AB366, s. 8 Section 8. 302.045 (3) of the statutes is amended to read:

AB366,6,14 302.045 (3) Parole eligibility. Except as provided in sub. (4), if the department determines that an inmate has successfully completed the challenge incarceration program, the parole commission shall parole the inmate under s. 304.06, regardless of the time the inmate has served, unless the inmate is subject to s. 304.06 (1s). When the parole commission grants parole under this subsection, it must require the parolee to participate in an intensive supervision program for drug abusers as a condition of parole.

AB366, s. 9 Section 9. 302.075 of the statutes is created to read:

AB366,6,19 302.075 Institutional placement of certain sex offenders. (1) In this section, "serious sex crime" means a violation of s. 940.22 (2), 940.225 (1), (2) or (3), 948.02 (1), (2) or (3), 948.025 (1), 948.05 (1) or (2), 948.055 (1), 948.06, 948.07, 948.08, 948.095 (2), 948.11 (2) (a), 948.12 or 948.13 (2).

AB366,6,23 (2) The department may not transfer an inmate serving a sentence for a serious sex crime to a minimum security correctional institution until the inmate has reached parole eligibility under s. 304.06 (1) or (1s) or 973.0135 (2) (b), whichever is applicable.

AB366, s. 10 Section 10. 302.11 (1) of the statutes is amended to read:

AB366,7,6 302.11 (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), (1z), (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. (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

AB366, s. 11 Section 11. 302.11 (1g) (am) of the statutes is amended to read:

AB366,7,10 302.11 (1g) (am) The Except as provided in sub. (1z), the mandatory release date established in sub. (1) is a presumptive mandatory release date for an inmate who is serving a sentence for a serious felony committed on or after April 21, 1994.

AB366, s. 12 Section 12. 302.11 (1i) of the statutes is amended to read:

AB366,7,15 302.11 (1i) An Except as provided in sub. (1z), an inmate serving a sentence to the intensive sanctions program is entitled to mandatory release. The mandatory release date under sub. (1) is established at two-thirds of the sentence under s. 973.032 (3) (a).

AB366, s. 13 Section 13. 302.11 (1z) of the statutes is created to read:

AB366,7,19 302.11 (1z) (a) In this subsection, "serious sex crime" means a violation of s. 940.22 (2), 940.225 (1), (2) or (3), 948.02 (1), (2) or (3), 948.025 (1), 948.05 (1) or (2), 948.055 (1), 948.06, 948.07, 948.08, 948.095 (2), 948.11 (2) (a), 948.12 or 948.13 (2).

AB366,7,24 (b) An inmate who is sentenced to imprisonment for a serious sex crime that is committed on or after the effective date of this paragraph .... [revisor inserts date], is not entitled to mandatory release on parole under sub. (1) or presumptive mandatory release under sub. (1g) (b) but may be paroled by the parole commission as provided in s. 304.06 (1s).

AB366, s. 14 Section 14. 302.11 (6) of the statutes is amended to read:

AB366,8,9 302.11 (6) Any inmate released on parole under sub. (1) or (1g) (b) or s. 304.02 or 304.06 (1) or (1s) is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department. Except as provided in ch. 304, releases from prison shall be on the Tuesday or Wednesday preceding the release date. The department may discharge a parolee on or after his or her mandatory release date or after 2 years of supervision. Any inmate sentenced to the intensive sanctions program who is released on parole under sub. (1) or s. 304.02 or 304.06 (1) remains in the program unless discharged by the department under s. 301.048 (6).

AB366, s. 15 Section 15. 302.11 (7) (a) of the statutes is amended to read:

AB366,8,18 302.11 (7) (a) The division of hearings and appeals in the department of administration, upon proper notice and hearing, or the department of corrections, if the parolee waives a hearing, may return a parolee released under sub. (1) or (1g) (b) or s. 304.02 or 304.06 (1) or (1s) to prison for a period up to the remainder of the sentence for a violation of the conditions of parole. The remainder of the sentence is the entire sentence, less time served in custody prior to parole. The revocation order shall provide the parolee with credit in accordance with ss. 304.072 and 973.155.

AB366, s. 16 Section 16. 302.11 (9) of the statutes is amended to read:

AB366,8,22 302.11 (9) Except as provided in sub. subs. (1g) (am) and (1z), this section applies to persons committing offenses occurring on or after June 1, 1984, or persons filing requests in accordance with 1983 Wisconsin Act 528, section 29 (2) or (3).

AB366, s. 17 Section 17. 302.45 (1) of the statutes is amended to read:

AB366,9,8 302.45 (1) The department and any county or group of counties may contract for the cooperative establishment and use of state-local shared correctional facilities. Inmates sentenced to the Wisconsin state prisons, a county jail, a county reforestation camp or a county house of correction may be transferred to a shared facility by the department, sheriff or superintendent, respectively, under the agreement covering use of the facility. Any inmate confined in a state-local shared correctional facility shall be deemed to be serving time in the penal institution to which he or she was sentenced and shall be eligible to earn good time credit against his or her sentence as provided under ss. s. 302.11, if applicable, 302.12;, 302.43;, 303.07 and 303.19 for that institution.

AB366, s. 18 Section 18. 303.065 (1) of the statutes is renumbered 303.065 (1) (intro.) and amended to read:

AB366,9,12 303.065 (1) (intro.) The department may grant work release privileges to any person incarcerated within the state prisons, except that no as follows:

AB366,9,15 (a) No person serving a life sentence may be considered for work release until he or she has reached parole eligibility under s. 304.06 (1) (b) or 973.014 (1) (a) or (b), whichever is applicable, and no.

AB366,9,17 (b) No person serving a life sentence under s. 939.62 (2m) or 973.014 (1) (c) may be considered for work release.

AB366, s. 19 Section 19. 303.065 (1) (c) of the statutes is created to read:

AB366,9,22 303.065 (1) (c) No person serving a sentence for a serious sex crime, as defined in s. 304.06 (1s) (a), that is committed on or after the effective date of this paragraph .... [revisor inserts date], may be considered for work release until he or she has reached parole eligibility under s. 304.06 (1s) (b).

AB366, s. 20 Section 20. 303.068 (1) (intro.) of the statutes is amended to read:

AB366,10,3 303.068 (1) (intro.)  An inmate eligible for confinement in a minimum security institution as established by the department, subject to s. 302.075, may be allowed by the department to leave confinement for one of the following purposes:

AB366, s. 21 Section 21. 303.19 (3) of the statutes is amended to read:

AB366,10,13 303.19 (3) The superintendent shall keep a true record of the conduct of each prisoner, specifying each infraction of the rules of discipline; and at the end of each month shall give a certificate of good conduct to each prisoner against whom no such infraction is recorded, subject to annulment by the department for subsequent misconduct. Upon each such certificate issued to any such prisoner serving sentence for a misdemeanor the prisoner may be credited, at the discretion of the superintendent, with a diminution of the sentence not exceeding 5 days. Each such prisoner serving sentence for a felony shall receive time credits as provided in s. 302.11, if applicable.

AB366, s. 22 Section 22. 304.02 (6) of the statutes is created to read:

AB366,10,16 304.02 (6) Notwithstanding subs. (1) to (3), a prisoner who is subject to s. 304.06 (1s) is not eligible for release to parole supervision under this section.

AB366, s. 23 Section 23. 304.06 (1) (b) of the statutes is amended to read:

AB366,11,6 304.06 (1) (b) Except as provided in sub. (1m) or (1s) or s. 302.045 (3), 961.49 (2) or 973.0135, the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in a county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater. Except as provided in s. 939.62 (2m) or 973.014, the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11 (1) and subject to extension using the formulas under s. 302.11 (2). The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing.

AB366,11,8 NOTE: NOTE: Par. (b) is shown as affected by 1995 Wis. Act 352 and 1995 Wis. Act 448, s. 333, both eff. 7-1-96 and as merged by the revisor under s. 13.93 (2) (c).

AB366, s. 24 Section 24. 304.06 (1m) (intro.) of the statutes is amended to read:

AB366,11,12 304.06 (1m) (intro.)  The Except as provided in sub. (1s), the parole commission may waive the 25% or 6-month service of sentence requirement under sub. (1) (b) under any of the following circumstances:

AB366, s. 25 Section 25. 304.06 (1s) of the statutes is created to read:

AB366,11,16 304.06 (1s) (a) In this subsection, "serious sex crime" means a violation of s. 940.22 (2), 940.225 (1), (2) or (3), 948.02 (1), (2) or (3), 948.025 (1), 948.05 (1) or (2), 948.055 (1), 948.06, 948.07, 948.08, 948.095 (2), 948.11 (2) (a), 948.12 or 948.13 (2).

AB366,11,21 (b) The parole commission may not grant release on parole under this section to an inmate who is serving a sentence for a serious sex crime committed on or after the effective date of this paragraph .... [revisor inserts date], until the inmate has served two-thirds of the sentence imposed for the offense or 12 months, whichever is greater.

AB366,11,23 (c) Paragraph (b) does not apply if the inmate is not eligible for parole under s. 939.62 (2m).

AB366, s. 26 Section 26. 304.06 (2) of the statutes is amended to read:

AB366,12,2 304.06 (2) No prisoner under sub. (1) or (1s) may be paroled until the parole commission is satisfied that the prisoner has adequate plans for suitable employment or to otherwise sustain himself or herself. The paroled prisoner shall report to the department in such manner and at such times as it requires.

AB366, s. 27 Section 27. 304.071 (2) of the statutes is amended to read:

AB366,12,6 304.071 (2) If a prisoner is not eligible for parole under s. 304.06 (1s), 939.62 (2m), 961.49 (2), 973.014 (1) (c) or 973.032 (5), he or she is not eligible for parole under this section.

AB366, s. 28 Section 28. 971.11 (6) of the statutes is amended to read:

AB366,12,16 971.11 (6) The prisoner shall be delivered into the custody of the sheriff of the county in which the charge is pending for transportation to the court, and the prisoner shall be retained in that custody during all proceedings under this section. The sheriff shall return the prisoner to the prison upon the completion of the proceedings and during any adjournments or continuances and between the preliminary examination and the trial, except that if the department certifies a jail as being suitable to detain the prisoner, he or she may be detained there until the court disposes of the case. The prisoner's existing sentence continues to run and he or she receives time credit under s. 302.11, if applicable, while in custody.