AB410: Bill Text

The bill also permits an adult court to impose a juvenile disposition on a juvenile who has been adjudicated delinquent and who is alleged to have committed assault or battery while placed in a secured correctional facility, a secure detention facility or a secured child caring institution or who has been adjudicated delinquent and who is alleged to have committed battery to an aftercare agent if any of the following conditions applies:

1. The adult court finds that the juvenile has committed a lesser offense that is not assault or battery while placed in a secured correctional facility, a secure detention facility or a secured child caring institution, that is not battery to an aftercare agent and that is not a waivable offense.

2. The adult court finds that the juvenile has committed a lesser offense that is assault or battery while placed in a secured correctional facility, a secure detention facility or a secured child caring institution, that is battery to an aftercare agent or that is a waivable offense, and the adult court, after considering the waiver criteria, determines that adjudging the juvenile to be delinquent and imposing a juvenile disposition, rather than convicting the juvenile, would be in the best interests of the juvenile and the public.

In addition, the bill requires an adult court to consider the waiver criteria in determining whether to impose a juvenile disposition in all cases of a juvenile who is alleged to have attempted or committed first-degree intentional homicide or to have committed first-degree reckless homicide or 2nd-degree intentional homicide on or after the juvenile's 15th birthday and who is found to have committed a lesser offense.

Finally, with respect to the original jurisdiction of an adult court over a juvenile, the bill specifies that the burden of proving that a juvenile disposition would be in the best interests of the juvenile and of the public is on the juvenile.

Restitution and forfeitures

Under current law, a juvenile who has committed an act that has resulted in damage to the property of another or in actual physical injury to another, excluding pain and suffering, may be required under a deferred prosecution agreement, consent decree or dispositional order to make reasonable restitution for the damage or injury. Similarly, under current law, a juvenile who has committed a delinquent act or a civil law or municipal ordinance violation may be required to pay a forfeiture. Any deferred prosecution agreement or consent decree that requires the payment of restitution, and any dispositional order that requires the payment of restitution or a forfeiture, must include a finding that the juvenile alone is financially able to pay the restitution or forfeiture. If the juvenile does not pay the restitution or forfeiture as ordered or agreed to, the juvenile court may order that the amount of the restitution or forfeiture unpaid be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile.

This bill requires that any deferred prosecution agreement or consent decree that requires the payment of restitution, and any dispositional order that requires the payment of restitution or a forfeiture, must include a finding that the juvenile, either alone or with the assistance of a parent with custody of the juvenile, is financially able to pay the restitution or forfeiture.

Sanctions and contempt

Under current law, if a juvenile who has been adjudged delinquent or who has been found to have violated a civil law or ordinance violates a condition of his or her dispositional order, the juvenile court may impose the following sanctions on the juvenile:

1. Placement in a secure detention facility or a place of nonsecure detention for not more than 10 days.

2. Suspension or limitation of the juvenile's operating privilege (driver's license) or hunting or fishing license for not more than 3 years.

3. Home detention, with or without electronic monitoring, for not more than 30 days.

4. Not more than 25 hours of uncompensated community service work.

Also under current law, if a juvenile who has been found to be in need of protection or services based on habitual truancy from school violates a condition of his or her dispositional order, the juvenile court may order any combination of the following sanctions:

1. Suspension of the juvenile's driver's license for not more than one year.

2. Counseling or community service work.

3. Home detention.

4. Attendance at an educational program.

5. Revocation of the juvenile's work permit.

6. Placement in a teen court program.

7. Participation of the juvenile's parent, guardian or legal custodian in counseling at his or her own expense.

This bill eliminates the sanctions provided specifically for a juvenile who has been found to be in need of protection or services based on habitual truancy from school and who has violated a condition of his or her dispositional order. Instead, under the bill, such a juvenile, as well as a juvenile who has been found to be in need of protection or services based on being a school dropout, is subject to the same sanctions, including placement in a secure detention facility for not more than 10 days, as a juvenile who has been adjudged delinquent or found to have violated a civil law or ordinance and who has violated a condition of his or her dispositional order.

Under current law, a court, including a juvenile court, may impose a sanction for contempt of court. Also, under current law, if a juvenile upon whom the juvenile court has imposed a sanction under the juvenile justice code commits a 2nd or subsequent violation of a condition specified in his or her dispositional order, the district attorney may file a delinquency petition charging the juvenile with contempt of court and the juvenile court may find the juvenile in contempt of court and order a delinquency disposition to be imposed on the juvenile.

This bill specifies that the sanctions and contempt procedures specified in the juvenile justice code do not preclude a person who is aggrieved by a juvenile's violation of a condition of his or her dispositional order from proceeding against the juvenile for contempt of court under the general contempt of court procedures available to all courts.

Rules of evidence

Under current law, the rules of evidence such as hearsay and relevancy govern the presentation of evidence at fact-finding hearings under the juvenile justice code, but are not binding at waiver, custody, dispositional, change in placement, revision of dispositional order or extension of dispositional order hearings or at hearings to determine whether a juvenile who is accused of sexual assault should undergo a test for the presence of the human immunodeficiency virus (HIV).

This bill provides that the rules of evidence are not binding at any postdispositional hearing under the juvenile justice code. Under current law, those hearings include, in addition to change in placement, revision and extension hearings, hearings on the imposition of a sanction for violating a dispositional order and hearings on the imposition of an original dispositional order that has been stayed.

Disclosure of juvenile court records

Under current law, the disposition imposed on a juvenile, and any record of evidence given in the juvenile court, is not admissible as evidence in any case or proceeding in any other court except for the following:

1. In sentencing proceedings after conviction of a felony or misdemeanor and then only for the purpose of a presentence study and report.

2. In a proceeding in any other juvenile court.

3. In a court of civil or criminal jurisdiction while it is exercising the jurisdiction of a family court (family court) when the family court is considering the custody of a juvenile.

4. In a court of civil or criminal jurisdiction for purposes of setting bail or impeaching a witness.

5. In a court exercising probate jurisdiction the fact that a juvenile has been adjudicated delinquent on the basis of unlawfully and intentionally killing a person is admissible for the purpose of determining whether the juvenile is prevented from inheriting from the decedent on that basis.

Also, under current law, subject to certain exceptions, the records of the juvenile court may not be open to inspection and their contents may not be disclosed except by order of the juvenile court.

This bill requires a juvenile court to open for inspection the records of the juvenile court relating to a juvenile who has been the subject of a proceeding in the juvenile court as follows:

1. Upon the request of the department of corrections or any other person preparing a presentence investigation to review juvenile court records for the purpose of that investigation.

2. Upon request of any other juvenile court, a district attorney or corporation counsel to review that juvenile court's records for the purpose of any proceeding in the other juvenile court.

3. Upon request of the family court or of an attorney for a party or a guardian ad litem in an action affecting the family to review juvenile court records for the purpose of considering the custody of a juvenile.

4. Upon request of a court of criminal jurisdiction or a district attorney to review juvenile court records for the purpose of setting bail or impeaching a witness or upon the request of a court of civil jurisdiction or the attorney for a party to a proceeding in that court to review juvenile court records for the purpose of impeaching a witness.

5. Upon request of the probate court, the attorney general, the personal representative or special administrator of, or an attorney performing services for, the estate of a decedent in a probate proceeding, a person interested in a probate proceeding, for example, a beneficiary or heir, or an attorney, attorney-in-fact, guardian ad litem or guardian of the estate of a person interested in a probate proceeding to review court records for the purpose of determining whether a juvenile has unlawfully and intentionally killed another person and, therefore, is prevented from inheriting from the decedent on that basis.

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:

AB410, s. 1 Section 1. 48.35 (1) (b) (intro.) of the statutes is amended to read:

AB410,8,3 48.35 (1) (b) (intro.) The disposition of a child, and any record of evidence given in a hearing in court, shall not be admissible as evidence against the child in any case or proceeding in any other court except for the following:

AB410, s. 2 Section 2. 48.35 (1) (b) 1. of the statutes is amended to read:

AB410,8,7 48.35 (1) (b) 1. In sentencing proceedings after conviction of a felony or misdemeanor and then only for the purpose of a presentence study and report; investigation.

AB410, s. 3 Section 3. 48.35 (1) (b) 2. of the statutes is amended to read:

AB410,8,10 48.35 (1) (b) 2. In a proceeding in any court assigned to exercise jurisdiction under this chapter and ch. 938; or.

AB410, s. 4 Section 4. 48.35 (1) (b) 3. of the statutes is amended to read:

AB410,8,14 48.35 (1) (b) 3. In a court of civil or criminal jurisdiction while it is exercising the jurisdiction of a over an action affecting the family court and is considering the custody of children a child.

AB410, s. 5 Section 5. 48.396 (2) (dr) of the statutes is created to read:

AB410,8,20 48.396 (2) (dr) Upon request of the department of corrections or any other person preparing a presentence investigation under s. 972.15 to review court records for the purpose of preparing the presentence investigation, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.

AB410, s. 6 Section 6. 48.396 (2) (g) of the statutes is created to read:

AB410,9,2 48.396 (2) (g) Upon request of any other court assigned to exercise jurisdiction under this chapter and ch. 938, a district attorney or corporation counsel to review court records for the purpose of any proceeding in that other court, the court shall open for inspection by any authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.

AB410, s. 7 Section 7. 48.396 (2) (h) of the statutes is created to read:

AB410,9,10 48.396 (2) (h) Upon request of the court having jurisdiction over an action affecting the family or of an attorney for a party or a guardian ad litem in an action affecting the family to review court records for the purpose of considering the custody of a child, the court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for inspection by an authorized representative of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.

AB410, s. 8 Section 8. 48.66 (1) of the statutes is amended to read:

AB410,9,22 48.66 (1) The department shall license and supervise child welfare agencies, as required by s. 48.60, group homes, as required by s. 48.625, shelter care facilities, as required by s. 48.48 and day care centers, as required by s. 48.65. The department may license foster homes or treatment foster homes, as provided by s. 48.62, and may license and supervise county departments in accordance with the procedures specified in this section and in ss. 48.67 to 48.74. The department of corrections may license a child welfare agency to operate a secured child caring institution, as defined in s. 938.02 (15g), for holding in secure custody children juveniles who have been convicted under s. 938.183 or adjudicated delinquent under s. 983.183 or 938.34 (4d), (4h) or (4m) and referred to the child welfare agency by the court or the department of corrections and to provide supervision, care and maintenance for those children.

AB410, s. 9 Section 9. 301.08 (1) (b) 3. of the statutes is amended to read:

AB410,9,25 301.08 (1) (b) 3. Contract with public, private or voluntary agencies for the supervision, maintenance and operation of secured correctional facilities, as defined in s. 938.02 (15m), child caring institutions, as defined in s. 938.02 (2c), and secured child caring institutions, as defined in s. 938.02 (15g), for the placement of juveniles who have been convicted under s. 938.183 or adjudicated delinquent under s. 938.183 or 938.34 (4d), (4h) or (4m). The department may designate a secured correctional facility, child caring institution or a secured child caring institution contracted for under this subdivision as a Type 2 secured correctional facility, as defined in s. 938.02 (20), and may designate a child caring institution or secured child caring institution contracted for under this subdivision as a Type 2 child caring institution, as defined in s. 938.02 (19r).

AB410, s. 10 Section 10. 800.08 (4) of the statutes is amended to read:

AB410,10,12 800.08 (4) Municipal Except as provided in s. 938.17 (2) (h) 3., municipal courts shall be bound by the rules of evidence specified in chs. 901 to 911.

AB410, s. 11 Section 11. 895.035 (2m) (a) of the statutes is amended to read:

AB410,11,7 895.035 (2m) (a) If a child fails to pay restitution under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or 938.345 as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the child will not pay restitution as ordered or agreed to, the victim, the victim's insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the child may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the child be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the victim or the victim's insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim's insurer, or both, from commencing another action seeking compensation from the child or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim's insurer.

AB410, s. 12 Section 12. 895.035 (2m) (b) of the statutes is amended to read:

AB410,11,21 895.035 (2m) (b) If a child fails to pay a forfeiture as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court or if it appears likely that the child will not pay the forfeiture as ordered, the representative of the public interest under s. 938.09, the agency, as defined in s. 938.38 (1) (a), supervising the child or the law enforcement agency that issued the citation to the child may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of the forfeiture unpaid by the child be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.

AB410, s. 13 Section 13. 895.035 (2m) (bm) 1. of the statutes is amended to read:

AB410,12,10 895.035 (2m) (bm) 1. Before issuing an order under par. (a) or (b), the court assigned to exercise jurisdiction under chs. 48 and 938 shall give the child and the parent notice of the intent to issue the order and an opportunity to be heard regarding the order. The court shall give the child and the parent an opportunity to present evidence as to the amount of the restitution or forfeiture unpaid, but not as to the amount of the restitution or forfeiture originally ordered. The court shall also give the child and the parent an opportunity to present evidence as to the reason for the failure to pay the restitution or forfeiture and the ability of the child or the parent, or both, to pay the restitution or forfeiture. In considering the ability of the child or the parent, or both, to pay the restitution or forfeiture, the court may consider the assets, as well as the income, of the child or the parent, or both, and may consider the future ability of the child or parent, or both, to pay the restitution or forfeiture within the time specified in s. 893.40.

AB410, s. 14 Section 14. 895.035 (3) of the statutes is amended to read:

AB410,12,17 895.035 (3) An adjudication under s. 938.31 938.183 or 938.34 that the child violated a civil law or ordinance, is delinquent or is in need of protection and services under s. 938.13 (12), based on proof that the child committed the act, subject to its admissibility under s. 904.10, shall, in an action under sub. (1), stop a child's parent or parents from denying that the child committed the act that resulted in the injury, damage or loss.

AB410, s. 15 Section 15. 938.17 (2) (h) 2. of the statutes is amended to read:

AB410,13,4 938.17 (2) (h) 2. A motion requesting the municipal court to impose or petition for a sanction may be brought by the person or agency primarily responsible for the provision of dispositional services, the municipal attorney or the court that entered the dispositional order. A motion requesting the municipal court to impose or petition for a sanction to be imposed on a juvenile who has been found to have violated an ordinance under s. 118.163 (2) or (2m) and who is alleged to have violated a condition of his or her dispositional order may also be brought by the administrator of the school district in which the juvenile is enrolled or resides. If the court initiates the motion, that court is disqualified from holding a hearing on the motion. Notice of the motion shall be given to the juvenile and the juvenile's parent, guardian or legal custodian.

AB410, s. 16 Section 16. 938.17 (2) (h) 3. of the statutes is amended to read:

AB410,13,9 938.17 (2) (h) 3. Before imposing any sanction, the court shall hold a hearing, at which the juvenile may present evidence. Except as provided in s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing under this subdivision.

AB410, s. 17 Section 17. 938.183 (1) (ar) of the statutes is created to read:

AB410,13,14 938.183 (1) (ar) A juvenile specified in par. (a) or (am) who is alleged to have attempted or committed a violation of any state criminal law in addition to the violation alleged under par. (a) or (am) if the violation alleged under this paragraph and the violation alleged under par. (a) or (am) may be joined under s. 971.12 (1).

AB410, s. 18 Section 18. 938.183 (1m) (c) of the statutes is renumbered 938.183 (1m) (c) (intro.) and amended to read:

AB410,13,22 938.183 (1m) (c) (intro.) If the juvenile is a juvenile described in sub. (1) (a), (am) or (ar) and is convicted of found to have committed a lesser offense than the offense alleged under sub. (1) (a), (am) or (ar) and if any of the following conditions specified in s. 938.183 (2) (a) 1. or 2. applies, the court of criminal jurisdiction may, in lieu of convicting the juvenile, adjudge the juvenile to be delinquent and impose a criminal penalty or a disposition specified in s. 938.34.:

AB410, s. 19 Section 19. 938.183 (1m) (c) 1. of the statutes is created to read:

AB410,14,5 938.183 (1m) (c) 1. The court of criminal jurisdiction finds that the juvenile has committed a lesser offense that is not a violation of s. 940.20 (1) or (2m) or 946.43 under the circumstances described in sub. (1) (a), that is not an attempt to violate s. 940.01 under the circumstances described in sub. (1) (am), that is not a violation of s. 940.02 or 940.05 under the circumstances described in sub. (1) (am) and that is not an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18.

AB410, s. 20 Section 20. 938.183 (1m) (c) 2. of the statutes is created to read:

AB410,14,17 938.183 (1m) (c) 2. The court of criminal jurisdiction finds that the juvenile has committed a lesser offense that is a violation of s. 940.20 (1) or (2m) or 946.43 under the circumstances described in sub. (1) (a), that is an attempt to violate s. 940.01 under the circumstances described in sub. (1) (am), that is a violation of s. 940.02 or 940.05 under the circumstances described in sub. (1) (am) or that is an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18 and the court of criminal jurisdiction, after considering the criteria specified in s. 938.18 (5), determines that the juvenile has proved by clear and convincing evidence that it would be in the best interests of the juvenile and of the public to adjudge the juvenile to be delinquent and impose a disposition specified in s. 938.34.

AB410, s. 21 Section 21. 938.183 (2) (a) (intro.), 1. and 2. of the statutes are consolidated, renumbered 938.183 (2) (a) and amended to read:

AB410,16,2 938.183 (2) (a) Notwithstanding ss. 938.12 (1) and 938.18, courts of criminal jurisdiction have exclusive original jurisdiction over a juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 15th birthday. Notwithstanding ss. 938.12 (1) and 938.18, courts of criminal jurisdiction also have exclusive original jurisdiction over a juvenile specified in the preceding sentence who is alleged to have attempted or committed a violation of any state criminal law in addition to the violation alleged under the preceding sentence if the violation alleged under this sentence and the violation alleged under the preceding sentence may be joined under s. 971.12 (1). Notwithstanding subchs. IV to VI, a juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 15th birthday and a juvenile who is alleged to have attempted or committed a violation of any state criminal law, if that violation and an attempt to commit a violation of s. 940.01 or the commission of a violation of s. 940.01, 940.02 or 940.05 may be joined under s. 971.12 (1), is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for the crime that the juvenile is alleged to have committed, except that the court of criminal jurisdiction shall may, in lieu of convicting the juvenile, adjudge the juvenile to be delinquent and impose a disposition specified in s. 938.34 if any of the following conditions applies: 1. The the court of criminal jurisdiction convicts finds that the juvenile of has committed a lesser offense that is not an attempt to violate s. 940.01, that is not a violation of s .940.02 or 940.05 and that is not an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18. 2. The court of criminal jurisdiction convicts the juvenile of a lesser offense that is an attempt to violate s. 940.01, that is a violation of s. 940.02 or 940.05 or that is an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18 than the offense alleged under this paragraph and the court of criminal jurisdiction, after considering the criteria specified in s. 938.18 (5), determines that the juvenile has proved by clear and convincing evidence that it would be in the best interests of the juvenile and of the public to adjudge the juvenile to be delinquent and impose a disposition specified in s. 938.34.

AB410, s. 22 Section 22. 938.245 (2) (a) 5. a. of the statutes is amended to read:

AB410,16,15 938.245 (2) (a) 5. a. That the juvenile participate in a restitution project if the act for which the deferred prosecution agreement is being entered into has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering. Subject to subd. 5. c., the deferred prosecution agreement may require the juvenile to repair the damage to property or to make reasonable restitution for the damage or injury if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any such deferred prosecution agreement shall include a determination that the juvenile, either alone or with the assistance of a parent with custody, as defined in s. 895.035 (1), of the juvenile, is financially able to pay and may allow up to the date of the expiration of the deferred prosecution agreement for the payment.