AB455: Bill Text

LRB-2706/2

GMM:jlg:ch

1997 - 1998 LEGISLATURE

1997 Assembly BILL 455

July 15, 1997 - Introduced by Representatives Goetsch, Ladwig, Dobyns, Ziegelbauer, Olsen, Musser, Turner, Hahn, Freese, La Fave, Powers, Green, Walker, Owens, Vrakas, Gunderson, Otte, Ainsworth, Sykora, Hasenohrl, Staskunas, Springer and Seratti, cosponsored by Senators Drzewiecki, C. Potter, Huelsman, Welch, Darling, Roessler, Schultz, Weeden and Rosenzweig. Referred to Committee on Criminal Justice and Corrections.

AB455,1,11 An Act to renumber 938.245 (2) (a) 5. b., 938.245 (2g), 938.32 (1t) (a) 2. and 938.32 (1t) (b); to renumber and amend 938.245 (2) (a) 3., 938.245 (2) (a) 4., 938.245 (2) (a) 5. a. and c., 938.245 (2) (a) 7., 938.245 (2) (a) 8., 938.32 (1t) (a) 1. and 3. and 938.343 (4); to amend 38.24 (1s), 103.67 (2) (j), 103.70 (1), 938.245 (2) (a) (intro.), 938.245 (2) (c), 938.245 (5), 938.34 (5) (a) and 938.547 (4); and to create 938.245 (2t) (d), 938.245 (2t) (e), 938.245 (2t) (f), 938.245 (2t) (g), 938.245 (2t) (h), 938.32 (1t) (d), 938.32 (1t) (e), 938.32 (1t) (f), 938.32 (1t) (g), 938.32 (1t) (h), 938.34 (5) (d), 938.34 (5) (e), 938.34 (5) (f), 938.34 (5) (g), 938.34 (5) (h), 938.343 (4) (b), 938.343 (4) (c), 938.343 (4) (d), 938.343 (4) (e), 938.343 (4) (f) and 938.343 (4) (g) of the statutes; relating to: the making of restitution by a juvenile.

Analysis by the Legislative Reference Bureau

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, under a deferred prosecution agreement, consent decree or dispositional order, be required to repair the damage to property or to make reasonable restitution for the damage or injury.

This bill changes the law relating to the restitution that a juvenile may be required to make to bring that law into closer conformity with the law relating to the restitution that an adult may be required to make. Specifically, the bill permits a juvenile to be required to make restitution not only when the juvenile's act results in damage to property, but also when the act results in loss or destruction of property, and to make restitution not when the act results in actual physical injury to another, but when the act results in bodily injury to another. The bill also permits a juvenile to be required to make restitution when death results from the juvenile's act.

In addition, the bill specifies what restitution a juvenile may be required to make. Specifically, the bill provides that:

1. If the juvenile's act has resulted in damage to or loss or destruction of property, the juvenile may be required to return the property to the owner or, if return of the property is impossible, impractical or inadequate, to pay the owner the reasonable repair or replacement cost of the property or the greater of the following:

a. The value of the property on the date of its damage, loss or destruction.

b. The current value of the property, less the value of any part of the property returned as of the date of its return.

2. If the juvenile's act has resulted in bodily injury, the juvenile may be required to do any one or more of the following:

a. Pay the cost of the victim's physical, psychiatric and psychological care and treatment.

b. Pay the cost of the victim's physical and occupational therapy and rehabilitation.

c. Reimburse the victim for lost income.

d. If the victim is solely employed as a homemaker, pay an amount sufficient to ensure that the victim's homemaker duties are continued until the victim is able to resume those duties.

3. If the juvenile's act has resulted in death, the juvenile may be required to pay the cost of the victim's funeral expenses, including the cost of a cemetery lot, grave marker and care of the lot.

4. If the juvenile's act constitutes sexual assault, sexual assault of a child, repeated sexual assault of a child, sexual exploitation of a child, incest with a child, child enticement or soliciting a child for prostitution, but the act does not result in bodily injury, the juvenile may be required to pay the cost, not to exceed $10,000, of the victim's psychiatric and psychological care and treatment.

5. In any case, the juvenile may be required to do any one or more of the following:

a. Pay all damages that the victim could recover from the juvenile in a civil action.

b. Pay for the victim's lost income and reasonable out-of-pocket expenses incurred resulting from the filing of a petition or cooperating in the investigation and prosecution of the juvenile's act.

c. Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the juvenile.

d. If justice so requires, reimburse any insurer who has compensated the victim for a loss otherwise compensable as restitution.

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

AB455, s. 1 Section 1. 38.24 (1s) of the statutes is amended to read:

AB455,3,6 38.24 (1s) Additional fees. A district board may establish and charge a fee in addition to the fees under sub. (1m) for a court-approved alcohol or other drug abuse education program offered to individuals under s. 48.245 (2) (a) 4., 48.345 (13) (b), 938.245 (2) (a) 4. (2g), 938.32 (1g) (b), 938.34 (6r) (b) or (14s) (b) 3., 938.343 (10) (c) or 938.344 (2g) (a).

AB455, s. 2 Section 2. 103.67 (2) (j) of the statutes is amended to read:

AB455,3,12 103.67 (2) (j) Minors under 14 years of age may be employed as participants in a restitution project under s. 938.245 (2) (a) 5. (2t), 938.32 (1t) (a), 938.34 (5), 938.343 (4) or 938.345 or a supervised work program or other community service work under s. 938.245 (2) (a) 6., 938.32 (1t) (b) (1v), 938.34 (5g), 938.343 (3) or 938.345.

AB455, s. 3 Section 3. 103.70 (1) of the statutes is amended to read:

AB455,4,3 103.70 (1) Except as otherwise provided in sub. (2) and in ss. 103.21 to 103.31, 103.78, 938.245 (2) (a) 5. b. (2t) (b), 938.32 (1t) (a) 2. (b) and 938.34 (5) (b) and (5g) (c), and as may be provided under s. 103.79, a minor, unless indentured as an apprentice in accordance with s. 106.01, or unless 12 years and over and engaged in agricultural pursuits, or unless 14 years and over and enrolled in a youth apprenticeship program under s. 106.13, shall not be employed or permitted to work at any gainful occupation or employment unless there is first obtained from the department or a permit officer a written permit authorizing the employment of the minor within those periods of time stated in the permit, which shall not exceed the maximum hours prescribed by law.

AB455, s. 4 Section 4. 938.245 (2) (a) (intro.) of the statutes is amended to read:

AB455,4,7 938.245 (2) (a) (intro.) A deferred prosecution agreement may provide for any one or more of the following conditions and for any one or more of the conditions specified in subs. (2d), (2f), (2g), (2m), (2t) and (2x) that are applicable:

AB455, s. 5 Section 5. 938.245 (2) (a) 3. of the statutes is renumbered 938.245 (2f) and amended to read:

AB455,4,22 938.245 (2f) That If the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs and the medical, personal, family or social effects of that use, the deferred prosecution agreement may require that the juvenile submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages, controlled substances or controlled substance analogs and any medical, personal, family or social effects caused by its use, if the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects that use.

AB455, s. 6 Section 6. 938.245 (2) (a) 4. of the statutes is renumbered 938.245 (2g) and amended to read:

AB455,5,10 938.245 (2g) That If an alcohol and other drug abuse assessment conducted under sub. (2f) recommends outpatient treatment, intervention or education, the deferred prosecution agreement may require that the juvenile participate in an alcohol and other drug abuse outpatient treatment program, a court-approved pupil assistance program provided by the juvenile's school board or a court-approved alcohol or other drug abuse education program, if an alcohol and other drug abuse assessment conducted under subd. 3. recommends outpatient treatment, intervention or education. The juvenile's participation in a court-approved pupil assistance program under this subdivision subsection is subject to the approval of the juvenile's school board.

AB455, s. 7 Section 7. 938.245 (2) (a) 5. a. and c. of the statutes are renumbered 938.245 (2t) (a) and (c) and amended to read:

AB455,6,2 938.245 (2t) (a) That the juvenile participate in a restitution project if If the act for which the deferred prosecution agreement is being entered into has resulted in damage to or loss or destruction of the property of another, or in actual physical in bodily injury to another excluding pain and suffering. Subject to subd. 5. c. or in death and 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, the deferred prosecution agreement may require the juvenile to repair the damage to property or, subject to par. (c), 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 or death as provided in pars. (d) to (h). Any such deferred prosecution agreement shall include a determination that the juvenile alone is financially able to pay and may allow up to the date of the expiration of the deferred prosecution agreement for the payment.

AB455,6,5 (c) Under this subdivision subsection, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make more than $250 in restitution.

AB455, s. 8 Section 8. 938.245 (2) (a) 5. b. of the statutes is renumbered 938.245 (2t) (b).

AB455, s. 9 Section 9. 938.245 (2) (a) 7. of the statutes is renumbered 938.245 (2d) and amended to read:

AB455,6,24 938.245 (2d) That the juvenile be placed with a volunteers in probation program under such conditions as the intake worker determines are reasonable and appropriate, if If the juvenile is alleged to have committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under s. 973.11 (2) a volunteers in probation program established in the juvenile's county of residence and if the intake worker determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community, the deferred prosecution agreement may require that the juvenile be placed with a volunteers in probation program under such conditions that the intake worker determines are reasonable and appropriate. The conditions that the intake worker may establish under this subdivision subsection may include, but need not be limited to, a request to a volunteer to provide for the juvenile a role model, informal counseling, general monitoring and monitoring of the conditions established by the intake worker, or any combination of these functions, and any other deferred prosecution condition that the intake worker may establish under this paragraph section.

AB455, s. 10 Section 10. 938.245 (2) (a) 8. of the statutes is renumbered 938.245 (2m), and 938.245 (2m) (intro.), as renumbered, is amended to read:

AB455,7,5 938.245 (2m) (intro.) That The deferred prosecution agreement may require that the juvenile be placed in a teen court program if all of the following conditions apply:

AB455, s. 11 Section 11. 938.245 (2) (c) of the statutes is amended to read:

AB455,7,12 938.245 (2) (c) If the deferred prosecution agreement provides for alcohol and other drug abuse outpatient treatment under par. (a) 4. sub. (2g), the juvenile and the juvenile's parent, guardian or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a deferred prosecution agreement for the provision of alcohol and other drug abuse outpatient treatment.

AB455, s. 12 Section 12. 938.245 (2g) of the statutes is renumbered 938.245 (2x).

AB455, s. 13 Section 13. 938.245 (2t) (d) of the statutes is created to read:

AB455,7,20 938.245 (2t) (d) If the act for which the deferred prosecution agreement is entered into has resulted in damage to or loss or destruction of property, the deferred prosecution agreement may require the juvenile to return the property to the owner or the owner's designee or, if return of the property is impossible, impractical or inadequate, pay the owner or the owner's designee the reasonable repair or replacement cost of the property or the greater of the following:

AB455,7,21 1. The value of the property on the date of its damage, loss or destruction.

AB455,7,24 2. The value of the property on the date of the deferred prosecution agreement, less the value of any part of the property returned as of the date of its return. The value of any retail merchandise shall be its retail value.

AB455, s. 14 Section 14. 938.245 (2t) (e) of the statutes is created to read:

AB455,8,3 938.245 (2t) (e) If the act for which the deferred prosecution agreement is entered into has resulted in bodily injury, the deferred prosecution agreement may require that the juvenile do any one or more of the following:

AB455,8,6 1. Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care and treatment.

AB455,8,8 2. Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation.

AB455,8,10 3. Reimburse the injured person for income lost as a result of the act for which the deferred prosecution agreement is entered into.

AB455,8,13 4. If the injured person's sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to ensure that the duties are continued until the person is able to resume performance of the duties.

AB455, s. 15 Section 15. 938.245 (2t) (f) of the statutes is created to read:

AB455,8,18 938.245 (2t) (f) If the act for which the deferred prosecution agreement is entered into has resulted in death, the deferred prosecution agreement may require that the juvenile pay an amount equal to the cost of necessary funeral and related services under s. 895.04 (5).

AB455, s. 16 Section 16. 938.245 (2t) (g) of the statutes is created to read:

AB455,9,2 973.20 (2t) (g) If the juvenile violated s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.07 or 948.08 and par. (e) 1. does not apply, the deferred prosecution agreement may require that the juvenile pay an amount, not to exceed $10,000, equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment. The $10,000 limit under this paragraph does not apply to the amount of any restitution agreed to under par. (e) or (h) for the cost of necessary professional services relating to psychiatric and psychological care and treatment.

AB455, s. 17 Section 17. 938.245 (2t) (h) of the statutes is created to read: