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
This bill makes it a crime to send an unsolicited e-mail message that contains
obscenity or depicts sexually explicit conduct, if the person sending the e-mail
message does not label the e-mail message as "Adult advertisement" in the subject
line.
Statute of limitations for sexual assault
Under current law, the state must prosecute first and second degree sexual
assault within six years of the date of the crime. The state must prosecute first and
second degree sexual assault of a child, as well as repeated sexual assault of the same
child, before the victim reaches the age of 31.
This bill creates an exception to the time limits for prosecuting the crimes of
sexual assault, sexual assault of a child, and repeated sexual assault of the same
child in certain circumstances if the state has deoxyribonucleic acid (DNA) evidence
related to the crime. If the state collects DNA evidence related to the crime before
the time for prosecution expires and does not link the DNA evidence to an identified
person until after that time expires, the state may initiate prosecution for the crime
within one year of making the match.
Club drugs
Current law places restrictions on manufacturing, distributing, delivering, or
possessing with intent to manufacture, distribute, or deliver, many drugs. With
certain limited exceptions, this bill prohibits manufacturing, distributing,
delivering, or possessing with intent to manufacture, distribute, or deliver,
4-methylthioamphetamine (4-MTA or flatliner) or counterfeit versions of 4-MTA.
The bill assigns the same penalties for violating this prohibition as are currently
assigned to crimes involving phencyclidine (PCP).
The bill also increases the penalties for unlawfully manufacturing,
distributing, delivering, and possessing with intent to manufacture, distribute, or
deliver, gamma-hydroxybutyric acid (GHB), gamma-butyrolactone (GBL), 3,
4-methylenedioxymethamphetamine (MDMA or ecstasy), 4-bromo-2,
5-dimethoxy-beta-phenylethylamine (2-CB or nexus), ketamine, and
flunitrazepam to the penalty levels for PCP. In addition, the bill increases the
penalties for unlawfully manufacturing, distributing, delivering, and possessing
with intent to manufacture, distribute, or deliver, counterfeit versions of PCP,
lysergic acid diethylamide (LSD), methamphetamine, GHB, GBL, ecstasy, nexus,
ketamine, and flunitrazepam to the same level as violations involving the genuine
drugs.
Theft of rented or leased motor vehicle
Under current law, a theft occurs when a person intentionally fails to return
rented or leased personal property within ten days after the written rental
agreement or lease agreement ends. This bill provides that with respect to a rented
or leased motor vehicle a theft occurs when a person intentionally fails to return the
rented or leased property at any time after the written rental agreement or lease
agreement ends.
Education
Primary and secondary education
This bill requires DPI to designate a school district as a school district with
expanded flexibility if its pupils' scores on the fourth, eighth, and tenth grade
assessments, the third grade reading test, and the high school graduation
examination equaled or exceeded the statewide average scores; its high school
graduation rate at least equaled the statewide average high school graduation rate;
and its attendance rate at least equaled the statewide average attendance rate.
A school district with expanded flexibility is free from many of the
requirements that apply to regular school districts, may create school governance
councils to advise principals, and may reassign staff members without regard to
seniority. Such a reassignment is a prohibited subject of collective bargaining. In
return, a school district with expanded flexibility must, among other things, allocate
85% of all school district revenues for use by principals at their respective schools;
ensure that at least 95% of the school district's pupils who are eligible takes the
fourth, eighth, and tenth grade assessments and the high school graduation
examination; and ensure that each school in the school district prepares an annual
plan that includes performance goals for all pupils, for minority group pupils, for
low-income pupils, and for teachers.
Finally, DPI must award grants on a competitive basis to school districts with
expanded flexibility to help implement school district decentralization plans and to
train principals to be effective administrators in decentralized school districts.
Under current law, school boards may enter into contracts with individuals,
groups, businesses, or governmental bodies to establish charter schools, which
operate with fewer constraints than traditional public schools. Current law also
permits the UW-Milwaukee, the Milwaukee Area Technical College, and the city of
Milwaukee to operate charter schools (Milwaukee charter schools) directly or to
contract for the operation of charter schools. These Milwaukee charter schools must
be located within the Milwaukee Public Schools (MPS) district and only pupils who
reside in the MPS district may attend the charter schools. The operators of the
Milwaukee charter schools receive aid for the regular school term based on the
number of pupils attending the charter schools, as opposed to school districts, which
are entitled to receive state aid for both the regular school term and for summer
school. Employees of the Milwaukee charter schools may not be employed by MPS
and are thus not eligible to participate in the state's retirement system.
This bill allows any four-year UW-System institution, state technical college,
or cooperative educational service agency (CESA) (an agency that facilitates the
provision of services to school districts) to operate charter schools (new charter
schools) directly or to contract for their operation. The bill allows the new charter
schools and the Milwaukee charter schools to be located in any school district in the
state. Only pupils who reside in a school district in which a new charter school is
located may attend the new charter school, unless the charter school is established
or operated by a CESA, in which case pupils who reside in a school district served by
the CESA may attend the charter school. Operators of the new charter schools
receive the same amount of state aid per pupil as do the operators of the Milwaukee
charter schools for both the regular school term and for summer school. Employees
of the new charter schools may not be employed by any school district and are thus
not eligible to participate in the state's retirement system.
This bill directs DPI to make loans to school districts to support the
development of charter schools. The funds may be used for costs associated with the
start-up of a charter school established by a school district.
Current law requires each school board and each Milwaukee charter school to
administer standardized examinations to fourth, eighth, and tenth grade pupils
enrolled in the school district, including pupils enrolled in charter schools (other
than Milwaukee charter schools) located in the school district. Beginning in the
2002-03 school year, each school board must also administer a high school
graduation examination that is designed to measure whether pupils have met the
academic standards adopted by the school board. A school board may either adopt
the examinations developed by DPI or develop its own examinations. Identical
provisions exist under current law for Milwaukee charter schools. DPI provides the
examinations that are adopted, approved, or developed by DPI, and scores those
examinations, free of charge.
Under current law, each school board must administer to all pupils enrolled in
the school district in the third grade, including pupils enrolled in charter schools
(other then Milwaukee charter schools) located in the school district, a standardized
reading test developed by DPI. The Milwaukee charter schools are required to
administer this test to their third grade pupils.
Under current law, the third grade reading test, the fourth, eighth, and tenth
grade examinations, and the high school graduation examination are not required
to be administered to pupils participating in the Milwaukee Parental Choice
Program (MPCP), under which certain low-income pupils who reside in the city of
Milwaukee may attend participating private schools in Milwaukee at state expense.
Beginning in the 2002-03 school year, this bill allows a private school participating
in the MPCP to choose to administer the grade examinations (the third grade reading
test and the fourth, eighth, and tenth grade examinations) or the high school
graduation examination, or both, to the pupils attending the private school under the
MPCP. The bill requires that DPI provide all of the examinations administered to
MPCP pupils, and score the examinations, free of charge. The bill also generally
prohibits DPI from disclosing the results of the examinations administered to MPCP
pupils.
Under current law, beginning on July 1, 2002, each pupil must be given at least
two opportunities to take the fourth and eighth grade examinations. This bill
eliminates the requirement that each pupil be given two opportunities to take each
examination; the bill requires only that the examinations be administered to all
pupils in the appropriate grades.
Current law directs DPI to make available upon request, within 90 days after
the date of administration, any of the required pupil assessments. This bill requires
the person to submit the request in writing and provides that the person may view
the examination but not receive a copy. The bill also directs DPI to promulgate rules
that, to the extent feasible, protect the security and confidentiality of the
examinations.
Currently, DPI annually must identify those school districts that are low in
performance and those schools in which there are pupils who do not meet the state
minimum performance standards. This bill requires DPI to publish and report a list
of the school districts and schools to the governor and the legislature. The bill also
requires the identified school districts to develop improvement plans.
