LRB-4334/1
JEO:jlg&mfd:lp
1997 - 1998 LEGISLATURE
December 17, 1997 - Introduced by Senators Darling, Roessler, Welch, Farrow
and A. Lasee, cosponsored by Representatives Skindrud, Porter, Green,
Sykora, Plale, Jensen, Ladwig, Dobyns, Urban, Freese, F. Lasee, Ainsworth,
Huber, Kreibich, Otte, Musser, Kelso, Schafer, Walker and Handrick.
Referred to Committee on Judiciary, Campaign Finance Reform and
Consumer Affairs.
SB382,1,4
1An Act to amend 301.08 (1) (b) 1. and 972.13 (6); and
to create 20.410 (1) (gh),
2301.03 (3b), 939.615, 971.17 (1j) and 973.125 of the statutes;
relating to:
3lifetime supervision for persons who commit certain sex offenses, granting
4rule-making authority and providing a penalty.
Analysis by the Legislative Reference Bureau
Under current law, a person convicted of committing a sex offense may be
sentenced to a period of imprisonment in a jail or the state prisons or sentenced to
pay a fine or both. A court may also place a person convicted of a sex offense on
probation, except that in certain cases involving repeat offenders a court must
impose a prison sentence and may not place the repeat offender on probation.
In addition, 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. A person found by a judge or jury to be not responsible for his
or her criminal conduct due to mental disease or defect is not guilty by reason of
mental disease or defect and is committed for treatment to the department of health
and family services (DHFS) for a period of time not exceeding two-thirds of the
maximum term of imprisonment that could be imposed for the crime charged.
This bill provides that, if a person is convicted of certain serious sex offenses or
is found not guilty of certain sex offenses by reason of mental disease or defect, the
court may, in addition to sentencing the person, placing the person on probation or
committing the person to DHFS, order that the person be placed on lifetime
supervision by the department of corrections (DOC) unless the person is already on
lifetime supervision because of a prior offense. A court may place a person on lifetime
supervision under the bill only if the court first determines that doing so is necessary
to protect the public. The serious sex offenses covered by this requirement include
sexual exploitation by a therapist, sexual assault (nonconsensual sexual contact or
sexual intercourse), 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, possession of child pornography, exposing a child
to harmful materials and working with children after having been convicted of a
serious child sex offense. In addition, the bill allows a court to place a person on
lifetime supervision if he or she commits any crime against life, bodily security,
children, sexual morality or property and the court determines that the crime was
sexually motivated.
If a person is placed on lifetime supervision under the bill, the period of lifetime
supervision begins when the person's sentence or period of probation ends or, if the
person was found not guilty by reason of mental disease or defect, when the person's
commitment to DHFS ends. A person placed on lifetime supervision may petition for
the termination of lifetime supervision if he or she has been on lifetime supervision
for at least 15 years and has not been convicted of a crime while on lifetime
supervision.
Before conducting a hearing on a person's petition to terminate lifetime
supervision, the person must be examined by a physician or psychologist, who must
report on the examination to the court and provide an opinion as to whether the
person is a danger to the public. In addition, DOC may submit a report to the court
that includes information concerning the person's conduct while on lifetime
supervision and an opinion as to whether lifetime supervision of the person is still
necessary to protect the public. At a hearing on a person's petition to terminate
lifetime supervision, the court must take evidence concerning the dangerousness of
the person and the need to continue lifetime supervision. The court may grant the
petition if it determines that lifetime supervision is no longer necessary to protect the
public.
A person placed on lifetime supervision under the bill must abide by conditions
established by the court and rules established by DOC. The bill provides that DOC
may temporarily take a person on lifetime supervision into custody if DOC has
reasonable grounds to believe that the person has violated a condition or regulation
of lifetime supervision. The person may be kept in custody only as long as is
reasonably necessary to investigate whether the person violated a condition or
regulation of lifetime supervision and, if warranted, to refer the person to the
appropriate prosecuting agency to be prosecuted for violating a condition or rule of
lifetime supervision. If a person is convicted of knowingly violating a condition or
rule of lifetime supervision, he or she may be fined not more than $10,000 or
imprisoned for not more than 9 months or both, except that if the conduct that
constituted the violation also constitutes a felony offense the person may be fined not
more than $10,000 or imprisoned for not more than 2 years or both.
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:
SB382, s. 1
1Section
1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
2the following amounts for the purposes indicated:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
SB382, s. 2
3Section
2. 20.410 (1) (gh) of the statutes is created to read:
SB382,3,74
20.410
(1) (gh)
Supervision of persons on lifetime supervision. The amounts in
5the schedule for the supervision of persons placed on lifetime supervision under s.
6939.615. All moneys received under s. 939.615 (5) (b) shall be credited to this
7appropriation account.
SB382, s. 3
8Section
3. 301.03 (3b) of the statutes is created to read:
SB382,3,129
301.03
(3b) Establish regulations for persons placed on lifetime supervision
10under s. 939.615, supervise and provide services to persons placed on lifetime
11supervision under s. 939.615 and promulgate rules for the administration of matters
12relating to lifetime supervision under s. 939.615.
SB382, s. 4
13Section
4. 301.08 (1) (b) 1. of the statutes is amended to read:
SB382,4,714
301.08
(1) (b) 1. Contract with public, private or voluntary agencies for the
15purchase of goods, care and services for persons committed or sentenced to a state
1correctional or penal institution, placed on probation
or lifetime supervision to the
2department by a court of record, or released from a state correctional or penal
3institution. Services shall include, but are not limited to, diagnostic services,
4evaluation, treatment, counseling, referral and information, day care, inpatient
5hospitalization, transportation, recreation, special education, vocational training,
6work adjustment, sheltered employment, special living arrangements and legal and
7protective services.
SB382, s. 5
8Section
5. 939.615 of the statutes is created to read:
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9939.615 Lifetime supervision of serious sex offenders. (1) Definitions. 10In this section:
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(a) "Department" means the department of corrections.
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(b) "Serious sex offense" means any of the following:
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1. A violation, or the solicitation, conspiracy or attempt to commit a violation,
14of s. 940.22 (2), 940.225 (1), (2) or (3), 948.02 (1) or (2), 948.025 (1), 948.05 (1), 948.055
15(1), 948.06, 948.07, 948.08, 948.11 (2) (a), 948.12 or 948.13.
SB382,4,1916
2. A violation, or the solicitation, conspiracy or attempt to commit a violation,
17under ch. 940, 943, 944 or 948 other than a violation specified in subd. 1., if the court
18determines that one of the purposes for the conduct constituting the violation was
19for the actor's sexual arousal or gratification.
SB382,5,2
20(2) When lifetime supervision may be ordered. (a) Except as provided in par.
21(b), if a person is convicted of a serious sex offense or found not guilty of a serious sex
22offense by reason of mental disease or defect, the court may, in addition to sentencing
23the person, placing the person on probation or, if applicable, committing the person
24under s. 971.17, place the person on lifetime supervision by the department if notice
25concerning lifetime supervision was given to the person under s. 973.125 and if the
1court determines that lifetime supervision of the person is necessary to protect the
2public.
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(b) A court may not place a person on lifetime supervision under this section
4if the person was previously placed on lifetime supervision under this section for a
5prior conviction for a serious sex offense or a prior finding of not guilty of a serious
6sex offense by reason of mental disease or defect and that previous placement on
7lifetime supervision has not been terminated under sub. (6).
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(c) If the prosecutor is seeking lifetime supervision for a person who is charged
9with committing a serious sex offense specified in sub. (1) (b) 2., the court shall direct
10that the trier of fact find a special verdict as to whether the conduct constituting the
11offense was for the actor's sexual arousal or gratification.
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12(3) When lifetime supervision begins. Subject to sub. (4), the period of lifetime
13supervision on which a person is placed under this section shall begin at whichever
14of the following times is applicable:
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(a) If the person is placed on probation for the serious sex offense, upon his or
16her discharge from probation.
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(b) If the person is sentenced to prison for the serious sex offense, upon his or
18her discharge from parole.
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(c) If the person is sentenced to prison for the serious sex offense and is being
20released from prison because he or she has reached the expiration date of his or her
21sentence, upon his or her release from prison.
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(d) If the person has been committed to the department of health and family
23services under s. 971.17 for the serious sex offense, upon the termination of his or her
24commitment under s. 971.17 (5) or his or her discharge from the commitment under
25s. 971.17 (6), whichever is applicable.
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1(e) If par. (a), (b), (c) or (d) does not apply, upon the person being sentenced for
2the serious sex offense.
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3(4) Only one period of lifetime supervision may be imposed. If a person is being
4sentenced for more than one conviction for a serious sex offense, the court may place
5the person on one period of lifetime supervision only. A period of lifetime supervision
6ordered for a person sentenced for more than one conviction begins at whichever of
7the times specified in sub. (3) is the latest.
SB382,6,12
8(5) Status of person placed on lifetime supervision; powers and duties of
9department. (a)
A person placed on lifetime supervision under this section is subject
10to the control of the department under conditions set by the court and regulations
11established by the department that are necessary to protect the public and promote
12the rehabilitation of the person placed on lifetime supervision.
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(am) The department may temporarily take a person on lifetime supervision
14into custody if the department has reasonable grounds to believe that the person has
15violated a condition or regulation of lifetime supervision. Custody under this
16paragraph may last only as long as is reasonably necessary to investigate whether
17the person violated a condition or regulation of lifetime supervision and, if
18warranted, to refer the person to the appropriate prosecuting agency for
19commencement of prosecution under sub. (7).
SB382,7,320
(b) The department shall charge a fee to a person placed on lifetime supervision
21to partially reimburse the department for the costs of providing supervision and
22services. The department shall set varying rates for persons placed on lifetime
23supervision based on ability to pay and with the goal of receiving at least $1 per day,
24if appropriate, from each person placed on lifetime supervision. The department
25may decide not to charge a fee while a person placed on lifetime supervision is exempt
1as provided under par. (c). The department shall collect moneys for the fees charged
2under this paragraph and credit those moneys to the appropriation account under
3s. 20.410 (1) (gh).
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(c) The department may decide not to charge a fee under par. (b) to any person
5placed on lifetime supervision while he or she meets any of the following conditions:
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1. Is unemployed.
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2. Is pursuing a full-time course of instruction approved by the department.
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3. Is undergoing treatment approved by the department and is unable to work.
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4. Has a statement from a physician certifying to the department that the
10person should be excused from working for medical reasons.
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11(6) Petition for termination of lifetime supervision. (a) Subject to par. (b),
12a person placed on lifetime supervision under this section may file a petition
13requesting that lifetime supervision be terminated. A person shall file a petition
14requesting termination of lifetime supervision with the court that ordered the
15lifetime supervision.
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(b) 1. A person may not file a petition requesting termination of lifetime
17supervision if he or she has been convicted of a crime that was committed during the
18period of lifetime supervision.
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2. A person may not file a petition requesting termination of lifetime
20supervision earlier than 15 years after the date on which the period of lifetime
21supervision began. If a person files a petition requesting termination of lifetime
22supervision at any time earlier than 15 years after the date on which the period of
23lifetime supervision began, the court shall deny the petition without a hearing.
SB382,8,824
(c) Upon receiving a petition requesting termination of lifetime supervision,
25the court shall send a copy of the petition to the district attorney responsible for
1prosecuting the serious sex offense that was the basis for the order of lifetime
2supervision. Upon receiving a copy of a petition sent to him or her under this
3paragraph, a district attorney shall conduct a criminal history record search to
4determine whether the person has been convicted of a criminal offense that was
5committed during the period of lifetime supervision. No later than 30 days after the
6date on which he or she receives the copy of the petition, the district attorney shall
7report the results of the criminal history record search to the court and may provide
8a written response to the petition.
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(d) After reviewing the report of the district attorney submitted under par. (c)
10concerning the results of a criminal history record search, the court shall do
11whichever of the following is applicable:
SB382,8,1512
1. If the report of the district attorney indicates that the person filing the
13petition has been convicted of a criminal offense that was committed during the
14period of lifetime supervision, the court shall deny the person's petition without a
15hearing.
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2. If the report of the district attorney indicates that the person filing the
17petition has not been convicted of a criminal offense that was committed during the
18period of lifetime supervision, the court shall order the person to be examined under
19par. (e), shall notify the department that it may submit a report under par. (em) and
20shall schedule a hearing on the petition to be conducted as provided under par. (f).
SB382,9,821
(e) A person filing a petition requesting termination of lifetime supervision who
22is entitled to a hearing under par. (d) 2. shall be examined by a person who is either
23a physician or a psychologist licensed under ch. 455 and who is approved by the court.
24The physician or psychologist who conducts an examination under this paragraph
25shall prepare a report of his or her examination that includes his or her opinion of
1whether the person petitioning for termination of lifetime supervision is a danger to
2public. The physician or psychologist shall file the report of his or her examination
3with the court within 60 days after completing the examination, and the court shall
4provide copies of the report to the person filing the petition and the district attorney
5who received a copy of the person's petition under par. (c). The contents of the report
6shall be confidential until the physician or psychologist testifies at a hearing under
7par. (f). The person petitioning for termination of lifetime supervision shall pay the
8cost of an examination required under this paragraph.
SB382,9,199
(em) After it receives notification from the court under par. (d) 2., the
10department may prepare and submit to the court a report concerning a person who
11has filed a petition requesting termination of lifetime supervision. If the department
12prepares and submits a report under this paragraph, the report shall include
13information concerning the person's conduct while on lifetime supervision and an
14opinion as to whether lifetime supervision of the person is still necessary to protect
15the public. When a report prepared under this paragraph has been received by the
16court, the court shall, before the hearing under par. (f), disclose the contents of the
17report to the attorney for the person who filed the petition and to the district attorney.
18When the person who filed the petition is not represented by an attorney, the
19contents shall be disclosed to the person.
SB382,9,2520
(f) A hearing on a petition requesting termination of lifetime supervision may
21not be conducted until the person filing the petition has been examined and a report
22of the examination has been filed as provided under par. (e). At the hearing, the court
23shall take evidence it considers relevant to determining whether lifetime supervision
24should be continued because the person who filed the petition is a danger to the
25public. The person who filed the petition and the district attorney who received the
1petition under par. (c) may offer evidence relevant to the issue of the person's
2dangerousness and the continued need for lifetime supervision.
SB382,10,53
(g) The court may grant a petition requesting termination of lifetime
4supervision if it determines after a hearing under par. (f) that lifetime supervision
5is no longer necessary to protect the public.
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(h) If a petition requesting termination of lifetime supervision is denied after
7a hearing under par. (f), the person may not file a subsequent petition requesting
8termination of lifetime supervision until at least 3 years have elapsed since the most
9recent petition was denied.
SB382,10,13
10(7) Penalty for violation of a condition of lifetime supervision. (a) No
11person placed on lifetime supervision under this section may knowingly violate a
12condition or regulation of lifetime supervision established by the court or by the
13department.
SB382,10,1514
(b) 1. Except as provided in subd. 2., whoever violates par. (a) is guilty of a Class
15A misdemeanor.
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2. Whoever violates par. (a) is guilty of a Class E felony if the same conduct that
17violates par. (a) also constitutes a crime that is a felony.
SB382,10,2018
(c) If a person is convicted of violating par. (a) for the same conduct that resulted
19in the person being convicted of another crime, the sentence imposed for the violation
20of par. (a) shall be consecutive to any sentence imposed for the other crime.
SB382, s. 6
21Section
6. 971.17 (1j) of the statutes is created to read:
SB382,10,2322
971.17
(1j) Sexual assault; lifetime supervision. (a) In this subsection,
23"serious sex offense" has the meaning given in s. 939.615 (1) (b).
SB382,11,424
(b) If a person is found not guilty by reason of mental disease or defect of a
25serious sex offense, the court may, in addition to committing the person to the
1department of health and family services under sub. (1), place the person on lifetime
2supervision under s. 939.615 if notice concerning lifetime supervision was given to
3the person under s. 973.125 and if the court determines that lifetime supervision of
4the person is necessary to protect the public.
SB382, s. 7
5Section
7. 972.13 (6) of the statutes is amended to read:
SB382,11,66
972.13
(6) The following forms may be used for judgments:
SB382,11,77
STATE OF WISCONSIN
SB382,11,1010
The State of Wisconsin
SB382,11,1212
....(Name of defendant)
SB382,11,1313
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,