Under this bill, the coroner or medical examiner is required to conduct an
autopsy of every individual who dies while he or she is in the legal custody of DOC
and is an inmate in a correctional facility located in this state. If the coroner or
medical examiner determines that the person's death was the result of any of the
circumstances that could result in the district attorney ordering an inquest, the bill
requires the coroner or medical examiner to notify the district attorney and request
an inquest.
If an individual dies while he or she is in the legal custody of DOC and confined
to a correctional facility in another state under a contract with DOC, the bill requires
DOC to have an autopsy performed on the individual. Under the bill, the autopsy
must be performed by either a coroner or medical examiner of the county from which
the individual was sentenced or by an appropriate authority in the other state. If a
coroner or medical examiner of the county from which the individual was sentenced
determines that the individual's death may have been the result of any of the
circumstances that would permit the district attorney to order an inquest, a copy of
the results of the autopsy must be sent to the appropriate authority in the other state.
The bill requires DOC to pay the costs of an autopsy.
This bill gives DOC authority to establish medium security correctional
institutions at Redgranite and New Lisbon. Funding for the building of these
institutions was included in the state building program in the 1997 budget act.
The bill also specifies that any correctional institution that has been
constructed by a private person and leased or purchased by the state for use by DOC
is a state prison and names the medium security penitentiary located near Black
River Falls the "Jackson Correctional Institution."
This bill increases the number of members of the parole commission from six
to eight until June 30, 2003. After that date, the parole commission reverts back to
six members. The parole commission determines if a person may be released on
parole from an adult correctional facility. The chairperson of the parole commission
appoints the other members of the parole commission.
Under current law, DOC may require a prisoner in a correctional institution to
pay a deductible, a copayment, coinsurance, or a similar charge if the prisoner
receives medical or dental care and the prisoner earns wages while he or she resides
in the correctional institution. Currently, DOC may exempt or waive the payment
of those charges under criteria that DOC establishes by rule. This bill deletes the
requirement that the prisoner must earn wages while he or she resides in the
correctional institution before he or she may be required to pay a deductible, a
copayment, coinsurance, or a similar charge.
Under current law, as interpreted in State ex rel. Speener v. Gudmanson, 234
Wis. 2d 461 (2000), the definition of "correctional institution" for purposes of the laws
relating to prisoner litigation does not include an out-of-state jail. As a result of that
decision, persons who are in the custody of DOC and placed in a jail or prison that
is located outside of this state are not subject to the requirements of the laws relating
to prisoner litigation. This bill overrides that decision by defining a "prisoner" for
purposes of prisoner litigation to include any person who is incarcerated,
imprisoned, or otherwise detained and who is in the custody of DOC or of the sheriff,
superintendent, or other keeper of a jail or house of corrections. All persons who are
placed in a jail or prison outside this state by DOC are in the custody of DOC.
Under current law, until July 1, 2001, DOC may operate the juvenile
correctional facility at Prairie du Chien as a state prison for nonviolent offenders who
are not more than 21 years of age. This bill extends that authority to July 1, 2003.
Juvenile correctional system
Under current law relating to community youth and family aids, generally
referred to as "youth aids," DOC is required to allocate various state and federal
moneys to counties to pay for state-provided juvenile correctional services and local
delinquency-related and juvenile justice services. DOC charges counties for the
costs of services provided by DOC according to per person daily cost assessments
specified in the statutes. Currently, those assessments include assessments of
$154.08 for care in a juvenile correctional facility or a treatment facility, $76.71 for
corrective sanctions services, and $18.62 for aftercare services. This bill increases
those assessments for fiscal year 2001-02 to $171.16 for care in a juvenile
correctional facility or a treatment facility, $82.89 for corrective sanctions services,
and $23.25 for aftercare services and for fiscal year 2002-03 to $176.06 for care in
a juvenile correctional facility or a treatment facility, $84.87 for corrective sanctions
services, and $23.80 for aftercare services. The bill also eliminates statutorily set
assessments for care in a child caring institution, group home, foster home, or
treatment foster home.
Under current law, a court assigned to exercise jurisdiction under the juvenile
justice code (juvenile court) may place a juvenile ten years of age or over who has
committed a Class A felony, which is a crime punishable by life imprisonment if
committed by an adult, or may place a juvenile 14 years of age or over who has
committed a Class B felony, which is a crime punishable by imprisonment for 60
years if committed by an adult, in the Serious Juvenile Offender Program (SJOP) if
the juvenile court finds that the only other disposition that would be appropriate for
the juvenile would be placement in a juvenile secured correctional facility. The SJOP
contains various component phases for its participants, including placement in a
juvenile secured correctional facility or, if the participant is 17 years of age or over,
an adult prison. The SJOP also includes a component phase of intensive or other field
supervision, including juvenile corrective sanctions supervision, juvenile aftercare
supervision or, if the participant is 17 years of age or over, adult intensive sanctions
supervision. Also, under current law, DOC may transfer a juvenile who is placed in
a juvenile secured correctional facility to the Racine Youthful Offender Correctional
Facility, which is a medium security adult correctional institution for offenders 15
to 21 years of age, if the juvenile is 15 years of age or over and the conduct of the
juvenile in the juvenile secured correctional facility presents a serious problem to the
juvenile or others.
The Wisconsin supreme court recently held, however, in State of Wisconsin v.
Hezzie R., 219 Wis. 2d 849 (1998), that subjecting a juvenile who has no right to a trial
by jury under the juvenile justice code to placement in an adult prison violates the
juvenile's constitutional right to a trial by jury because placement in an adult prison
constitutes criminal punishment rather than juvenile rehabilitation. Accordingly,
this bill eliminates the authority of DOC to transfer a juvenile who has been
adjudicated delinquent to an adult prison, including the Intensive Sanctions
Program, which is defined in the statutes as a state prison.
Current law contains conflicting provisions relating to the age under which a
juvenile who has been sentenced to an adult prison (juvenile prisoner) must be placed
in a juvenile secured correctional facility and the age at which a juvenile prisoner
may be transferred to an adult prison. One provision requires DOC to keep juvenile
prisoners under 15 years of age in a juvenile secured correctional facility, another
provision requires DOC to keep juvenile prisoners under 16 years of age in a juvenile
secured correctional facility, and another provision does not permit DOC to transfer
a juvenile prisoner to an adult prison until the juvenile attains 17 years of age. This
bill provides a uniform age of 15 years at which DOC may transfer a juvenile prisoner
to an adult prison.
Under current law, a participant in the SJOP who has committed a Class A
felony may be placed in a juvenile secured correctional facility or an adult prison
until the participant has reached 25 years of age and a participant in the SJOP who
has committed a Class B felony may be placed in such a facility or prison for not more
than three years. This bill permits the juvenile court to extend the period for which
a participant in the SJOP may be placed in a juvenile secured correctional facility
for not more than an additional two years if the juvenile court finds that the
participant is in need of the supervision, care, and rehabilitation that a placement
in a juvenile secured correctional facility provides and that public safety
considerations require that the participant be placed in such a facility. The bill also
permits DOC to extend the period for which a participant in the SJOP may be placed
in a juvenile secured correctional facility for not more than an additional 30 days
without a hearing, unless DOC provides for a hearing by rule. In addition, the bill
specifies that a 30-day extension under the bill does not preclude a two-year
extension under the bill, and vice versa.
Under current law, a juvenile may be taken into custody under circumstances
in which a law enforcement officer believes, on reasonable grounds, that the juvenile
has violated the terms of supervision ordered by the juvenile court or the terms of
aftercare supervision administered by DOC or a county department of human
services or social services (county department). A juvenile who has been taken into
custody on that ground may be held in custody if probable cause exists to believe that
the juvenile will run away so as to be unavailable for proceedings of the juvenile court
or proceedings for revocation of aftercare supervision. This bill permits a juvenile
who has violated a condition of the juvenile's placement in a Type 2 secured
correctional facility or a Type 2 child caring institution (Type 2 CCI) or a condition
of the juvenile's participation in the Intensive Sanctions Program to be taken into
custody by a law enforcement officer and held in custody if the juvenile is at risk of
running away so as to be unavailable for action by DOC or a county department
relating to that violation.
Type 2 secured correctional facilities consist of the Corrective Sanctions
Program, under which DOC places a juvenile in the community and provides the
juvenile with intensive surveillance and community-based treatment services, the
SJOP, and CCIs that DOC has designated as Type 2 secured correctional facilities
for the placement of certain juveniles who have been adjudged delinquent. Similarly,
Type 2 CCIs consist of CCIs that DOC has designated for the placement of certain
juveniles who have been adjudged delinquent and placed under the supervision of
a county department. The Intensive Supervision Program is a program under which
a juvenile is placed in the community and the county department provides the
juvenile with intensive surveillance and community-based treatment services.
Under current law, DOC must provide a juvenile boot camp program for
juveniles who have been adjudged delinquent and placed under the supervision of
DOC. This bill eliminates that program.
Currently, DOC must provide an average of $3,000 per year per slot to purchase
community-based treatment services for each participant in the Corrective
Sanctions Program. This bill requires DOC to provide an average of
not more than
$3,000 per year per slot to purchase those services.
Courts and procedure
Public defender
Under current law, the state public defender may not provide legal services or
assign an attorney to an adult in a criminal case if the adult is not in custody and has
not been charged with a crime. Likewise, the state public defender may not provide
legal services or assign an attorney to a child in a juvenile case if the child is not in
custody and is not yet subject to a proceeding under the children's code or the juvenile
justice code in which an attorney must or may be appointed. This bill eliminates both
of those prohibitions.
Under current law, judges may sentence misdemeanor offenders to pay a fine
not to exceed $10,000 or to serve up to nine months in jail, or both, for each criminal
violation classified as a misdemeanor. This bill directs the public defender board, in
conjunction with the director of state courts and the Wisconsin District Attorneys
Association, to submit to DOA by July 1, 2002, a proposal recommending alternative
charging and sentencing options for misdemeanor offenders and, if DOA approves
the proposal, to implement the portions of the proposal that do not require changes
to state law. The bill permits DOA to earmark up to $2,000,000 in fiscal year 2002-03
for implementation of portions of the proposal approved by DOA.
Circuit courts
Under current law, if a court knows that a person, including one charged with
a crime, subject to juvenile court proceedings, or subject to mental health
proceedings, is unable to communicate and understand English because of a
language difficulty or a disability, the court must tell the person that he or she has
the right to an interpreter. If the person is indigent, the court must provide an
interpreter at the public's expense. Current law also allows courts to use interpreters
in other court proceedings and allows agencies to use interpreters in contested cases.
Under this bill, the court must provide a qualified interpreter to those persons
who are eligible for an interpreter. A "qualified interpreter" is one who is able to
readily communicate with the person, translate the meaning of statements to and
from English in the court-related proceedings, and accurately interpret, in a manner
that conserves the meaning, tone, and style of the original statement. Under the bill,
the clerk of court may provide a qualified interpreter to assist a person with limited
English proficiency when that person asks the court for assistance regarding a legal
proceeding, such as how to bring an action to obtain a domestic abuse injunction. The
bill allows a person with limited English proficiency to waive the appointment of an
interpreter if the court determines on the record that the waiver has been made
knowingly, intelligently, and voluntarily, and allows the person to retract that waiver
at any time during the court proceedings for good cause.
Currently, a special prosecution fee of $2 is collected by the Milwaukee County
clerk of circuit court whenever a circuit court fee is imposed in civil actions to pay the
costs of clerks in Milwaukee County in violent crime cases and cases involving felony
drug violations. This bill deletes this fee.
Other courts and procedure
Current law prohibits trial, conviction, and sentencing of a person accused of
committing an offense if the person lacks sufficient mental capacity to understand
the proceeding and to assist in his or her own defense. If there is reason to doubt a
person's mental capacity, the court presiding over the proceeding must appoint a
mental health expert to examine the defendant. Current law requires that DHFS
provide $484,300 annually to Milwaukee County to pay for competency
examinations in that county.
This bill eliminates the designation of Milwaukee County as the recipient
agency of DHFS funding for competency examinations, leaving DHFS discretion to
select the recipient agency or agencies. The bill also removes the specification of a
dollar amount that DHFS must provide for competency examinations in Milwaukee
County.
Under current law, if there are no heirs of a decedent in an intestate estate (an
estate in which the decedent did not leave a will), or if a legacy or distributive share
in an estate cannot be paid to the distributee or is not claimed by the distributee
within 120 days after entry of the final judgment, the property escheats to the state
and is paid or delivered to the state treasurer (treasurer). The treasurer must
publish notice in the official state newspaper with information concerning the estate
and the escheated property. Within ten years after the notice is published, a person
may make a claim against the escheated property by filing a petition with the probate
court that settled the estate and sending copies of the petition to DOR and the
attorney general. If the person establishes his or her claim in a court hearing, the
court certifies the claim to DOA, which audits the claim; issues an order for any death
tax due; and issues an order distributing the estate. The treasurer pays the claim.
Under this bill, the treasurer must publish a notice regarding escheated
property at least annually (current law specifies no time requirement); a person
filing a petition with the probate court must send a copy of the petition to the
treasurer, instead of to DOR; the court is no longer required to certify a claim to DOA,
which is no longer required to audit claims; and the court is no longer required to
issue an order for any death tax due.
The bill also provides a new, optional procedure for making a claim against
escheated property that does not exceed $5,000. Rather than filing a petition with
the probate court, a person claiming such property may, within ten years after
publication by the treasurer of notice regarding the estate and the escheated
property, file a claim with the treasurer. If the treasurer allows the claim, the
treasurer files written notice of the allowed claim, as well as written consent of the
attorney general, with the probate court, which must issue an order requiring the
treasurer to pay the claim. If the treasurer disallows a claim or does not act on a claim
within 90 days after it is filed, the person who filed the claim may file an action in
the probate court that settled the estate to establish the claim.
Under current law, DATCP administers, investigates, and enforces certain
consumer protection and trade practice laws and prosecutes violations of these laws.
A person found to have violated one of these laws may be subject to a forfeiture (civil
monetary penalty) or a fine. If a court imposes a fine or forfeiture, current law
requires the court to impose an assessment equal to 15% of the fine or forfeiture. This
bill raises the assessment to 25% of the fine or forfeiture. Currently, the assessments
are used by DATCP to pay for providing consumers with information and education.
This bill expands the purpose for which these assessments may be used to include
all other consumer protection activities conducted by DATCP.
Crimes
Criminal sentences
The structure of felony sentences under current law
Under current law, if a person committing a felony before December 31, 1999,
is sentenced to prison for a term of years, the person receives an indeterminate
sentence, which typically consists of a term of confinement followed by parole. The
person's term of confinement is not fixed when the sentence is imposed. He or she
may be released on parole after serving as little as one-fourth of the sentence.
Current law provides a separate system for prison sentences for crimes
committed on or after December 31, 1999. If a court chooses to sentence a felony
offender to imprisonment in a state prison (other than through a life sentence) for
a felony committed on or after December 31, 1999, the court must do so by imposing
a bifurcated sentence, under which the offender initially serves a fixed term of
confinement in prison of at least one year. The maximum term of confinement under
a bifurcated sentence for felonies classified in the criminal code ranges from two to
40 years. If the person is being sentenced to prison for an unclassified felony, the
term of confinement in prison portion of the sentence may not exceed 75% of the total
length of the bifurcated sentence.
An offender is not eligible for parole under a bifurcated sentence. Instead, after
serving the term of confinement portion of the bifurcated sentence, he or she serves
a fixed term of extended supervision as the second part of the bifurcated sentence.
Concurrent and consecutive sentences
Under current law, a court may order any sentence to be served concurrent with
or consecutive to any other sentence imposed at the same time or previously. This
bill specifies how the person will serve the periods of confinement and the periods of
extended supervision and parole under the sentences under the following
circumstances: 1) when the court requires a sentence under which the person may
be placed on extended supervision (a "determinate sentence") to be served concurrent
with or consecutive to another determinate sentence; 2) when the court requires a
determinate sentence to be served concurrent with or consecutive to an
indeterminate sentence; or 3) when the court requires an indeterminate sentence to
be served concurrent with or consecutive to a determinate sentence. The bill also
requires that a person sentenced to consecutive indeterminate and determinate
sentences serve the term of extended supervision under the determinate sentence
before serving the period of parole under the indeterminate sentence, regardless of
the order in which the crimes were committed or the sentences imposed.
Penalties for criminal attempts
Current law specifies that the maximum penalty for an attempt to commit a
felony (other than certain felonies having separate penalties for attempts) is
one-half of the maximum penalty for the completed crime. This bill specifies that
the maximum term of confinement under a bifurcated sentence imposed for an
attempt to commit a classified felony is one-half of the maximum term of
confinement for the completed crime. The bill also specifies that the maximum term
of confinement under a bifurcated sentence imposed for an attempt to commit an
unclassified felony is 75% of the maximum length of the bifurcated sentence for the
attempt.
Other sentencing changes
This bill specifies that, if a court, through the application of one or more
sentence enhancers, decides to sentence a misdemeanant to prison, the court must
impose a bifurcated sentence. In such a case, the term of confinement in prison may
not constitute more than 75% of the bifurcated sentence.
Under current law, the maximum term of probation for a misdemeanor is two
years, and the maximum term of probation for a felony is the maximum sentence
length for the crime or three years, whichever is greater. Under this bill, the
maximum term of probation for a felony or for a misdemeanor for which a court may
impose a bifurcated sentence is the maximum term of confinement in prison for the
crime or three years, whichever is greater.
Under current law, if a person is found not guilty of a crime by reason of mental
disease or mental defect and the crime is not punishable by life imprisonment, the
person may be committed to DHFS for a maximum term of two-thirds of the
maximum sentence length for the crime. Under this bill, the maximum term of
commitment for a felony other than one punishable by life imprisonment or for a
misdemeanor for which a court may impose a bifurcated sentence is the maximum
term of confinement that could be imposed on a person convicted of the crime.
Other criminal law
Crimes related to computers
Under current law no person may willfully, knowingly, and without
authorization modify, destroy, copy, take possession of, or access computer data,
computer programs, or supporting documentation of a computer system. This bill
increases the penalties for violations of these prohibitions that occur under specified
circumstances.
This bill also prohibits intentionally interrupting computer service by sending
to a computer, computer program, computer system, or computer network a message
that is too complex, or multiple messages that are too voluminous, for the computer,
computer program, computer system, or computer network to process. Penalties for
violating this prohibition are the same as those applicable to the computer crime
described above.
In addition, the bill authorizes courts to enhance the penalties for violations of
either of the prohibitions described above if the person committing the violation
accesses another person's computer to commit the violation with the intent to make
it less likely that the offender will be identified with the crime.
Crimes related to images depicting nudity
Current law prohibits producing, possessing, or distributing a photograph,
motion picture, videotape, or other visual representation or reproduction that
depicts nudity if the person depicted nude did not consent to the representation or
reproduction and if the person who makes, possesses, or distributes the
representation or reproduction knows or should know that the person depicted nude
did not consent to the nude depiction. The Wisconsin supreme court has found this
prohibition unconstitutional because it prohibits all depictions of nudity made
without consent, including artistic, political, or newsworthy depictions that are
protected by the First Amendment. State v. Stevenson, 236 Wis. 2d 86 (2000).
This bill narrows the scope of the prohibition against making an original
representation that depicts nudity by requiring that, at the time the representation
is made, the subject of the depiction be both nude and in a place and circumstance
in which he or she can reasonably expect privacy. Reproducing such an original
without the subject's consent is also prohibited if the reproducer knows or should
know that the original was unlawfully made. The bill treats the prohibitions against
possessing and distributing representations depicting nudity similarly to the
prohibition against making reproductions.
Crimes relating to providing and describing harmful material to children
Current law prohibits providing and describing harmful material to a child and
possessing harmful material with intent to transfer the harmful material to a child.
Harmful material includes nudity, sexually explicit images, and images of torture
and brutality. Current law does not require that the state prove that the defendant
knows or should know that the recipient of the materials is a child. The law, however,
establishes an affirmative defense under which the defendant may avoid criminal
liability by proving that he or she reasonably believed that the recipient was 18 years
of age or older. The Wisconsin supreme court has ruled that prohibiting exposure of
a child to harmful materials is unconstitutional in cases in which the defendant does
not have face-to-face contact with the recipient. State v. Weidner, 235 Wis. 2d 306
(2000). The supreme court based its decision on the chilling effect that the
prohibition would have on communication protected by the First Amendment.
This bill makes knowledge of the recipient's status as a child an element of the
crime if the defendant does not have a face-to-face contact with the child. The bill
does not add the knowledge-of-age element for cases in which the defendant has
face-to-face contact with the recipient, maintaining for those cases the affirmative
defense requiring the defendant to prove that he or she reasonably believed that the
recipient was at least 18 years of age.
Computer images and current law crimes
Several criminal laws prohibit activities related to images of nudity, or images
and sounds of obscenity or of children engaged in sexually explicit conduct. Those
crimes are: 1) making, possessing, reproducing or distributing images of nudity; 2)
importing, printing, selling, transferring, exhibiting, or possessing for publication,
sale, exhibition, or transfer, obscene material; 3) photographing, filming,
videotaping, or making a sound recording of a child engaged in sexually explicit
conduct, or enticing a child to go into a secluded place to take a picture or make a
sound recording of the child engaged in sexually explicit conduct; 4) exposing a child
to harmful images and sounds; and 5) producing, performing in, profiting from,
importing, possessing, and other activities related to child pornography. These
prohibitions do not specifically apply to stored data version of images or sounds. In
addition, these prohibitions do not uniformly cover digital or magnetic tape
recordings. This bill expands the prohibitions related to images of nudity, and
images or sounds of obscenity or of children engaged in sexually explicit conduct, to
include images and sounds recorded in any manner as well as the data that
represents an image or a sound.
Obscene e-mail
