LRB-4286/2
MGD&CMH:jld:rs
2003 - 2004 LEGISLATURE
February 24, 2004 - Introduced by Senators Darling, Hansen and Lazich,
cosponsored by Representatives
Stone, Cullen, Montgomery, Owens,
Jeskewitz, Gottlieb, LeMahieu, Kreibich and Ott. Referred to Committee on
Judiciary, Corrections and Privacy.
SB481,1,7
1An Act to renumber 46.055;
to renumber and amend 980.08 (4), 980.08 (5)
2and 980.08 (6m);
to amend 20.435 (2) (bj), 46.03 (1), 46.055 (title), 46.058 (2m),
346.10 (2), 51.42 (3) (aw) 1. d., 980.01 (7), 980.065 (1m), 980.08 (3), 980.09 (1) (c)
4and 980.09 (2) (c); and
to create 46.055 (2), 980.01 (1m), 980.08 (4) (b) 2. to 6.,
5(d) and (e), 980.08 (5) (a) 5. and 6. and (b) and (6), 980.08 (6m) (b) 2. and 980.085
6of the statutes;
relating to: standard for commitment and supervised release
7of sexually violent persons.
Analysis by the Legislative Reference Bureau
Under current law, a person who commits a sexually violent offense may be
committed to the Department of Health and Family Services (DHFS) after serving
a sentence or disposition for the offense if a court finds that the person is a sexually
violent person. Current law defines a "sexually violent person" as a person: 1) who
has been convicted of, or adjudicated delinquent for, a sexually violent offense or who
has been found not guilty of a sexually violent offense by reason of mental disease,
defect, or illness; and 2) who is dangerous because he or she suffers from a mental
disorder that makes it substantially probable that he or she will engage in acts of
sexual violence.
A person committed to DHFS as a sexually violent person is initially placed in
institutional care. After 18 months, a sexually violent person may petition the court
for supervised release, which allows the person to reside in the community subject
to the conditions set by the court and to the rules of DHFS. If a person petitions the
court for supervised release, the court must grant the petition unless the state proves
that it is still substantially probable that the person will engage in future acts of
sexual violence if institutionalized care is not continued.
If a court determines that supervised release is appropriate, DHFS must make
its best effort to place the person in the county in which the person lived at the time
of the sexually violent offense. DHFS and the county in which the person is to be
placed must then prepare a plan for treating and monitoring the person upon his or
her release. Current law specifies what the plan must contain (such as what services
the person will receive in the community). In addition, current law requires DHFS,
when developing the supervised release plan, to consider the proximity of the
person's proposed residence to the homes of certain other sex offenders. Then, within
60 days after the court's determination that supervised release is appropriate, DHFS
and the county in which the person is to be placed must submit the supervised release
plan to the court for its approval. (This two-part hearing process, in which the court
determines whether supervised release is appropriate before reviewing the
supervised release plan, is sometimes referred to as a bifurcated hearing.)
This bill makes a number of changes relating to the commitment, release, and
placement of sexually violent persons. First, the bill changes the second part of the
definition of "sexually violent person." As a result of the change, a person who has
committed a sexually violent offense may be committed to DHFS if the state merely
shows that the person is dangerous because he or she suffers from a mental disorder
that makes it more likely than not (as opposed to substantially probable) that he or
she will engage in acts of sexual violence.
Second, the bill substantially modifies the existing bifurcated hearing process.
Under the bill, the court considers whether the person may be appropriate for
supervised release as a first step, but only with respect to certain issues. Specifically,
the court must assess: 1) whether it is still likely that the person will engage in acts
of sexual violence if the person is not continued in institutional care; 2) whether the
person has demonstrated significant or satisfactory progress in his or her treatment
or the person has refused treatment; 3) whether there is appropriate treatment that
is reasonably available in the community; 4) whether the person has agreed to
comply with conditions, rules, and requirements for supervised release and whether
the person is likely to violate such conditions, rules, or requirements; 5) whether a
major discipline report was issued regarding the person during the six months
immediately preceding the hearing; and 6) whether supervised release is in the best
interest of the person. If the state proves by clear and convincing evidence that the
person is not appropriate for supervised release under any of these criteria, the court
must deny the petition.
If the court does not deny the petition at that stage of the process, it refers the
case to DHFS for the preparation of a supervised release plan, which, under the bill,
must identify where the person will live. If the county in which the person will be
placed has a transitional facility for the placement of sexually violent persons, the
plan must provide for the placement of the person in that facility. (See below for
additional discussion of the bill's requirements regarding the siting of such a facility.)
If the person is to be placed in anywhere else, DHFS and the county must follow the
procedure established under the bill regarding selecting the placement. Initially,
DHFS and the county must consider the proximity of any proposed residence to
residential subdivisions and to certain types of facilities for children, including
schools, day care providers, group homes, foster homes, and youth centers. In doing
so, DHFS and the county must: 1) prepare a list and a map of residential subdivisions
and relevant facilities for children in consultation with affected municipalities; 2)
submit the list and map, along with the address of the proposed residence, to the local
common councils and village or town boards; and 3) consider any comments from the
municipalities regarding the proposed placement before finalizing the supervised
release plan. Then, when DHFS and the county submit the supervised release plan
to the court (which they must do within 90 days after the court refers the case to
DHFS), DHFS and the county must provide the map, the list, and any comments
from affected municipalities to the court and to the chief elected official, the police
chief, and the sheriff for the community in which the proposed placement is located.
After the court receives a plan for supervised release, it must hold a hearing to
determine whether to approve the plan and whether to grant the petition for
supervised release. The bill requires that the court notify the chief elected official,
the police chief, and the sheriff for the community in which the proposed placement
is located of the hearing at least five days beforehand. After reviewing the plan, the
court must: 1) order DHFS and the county to modify the plan; 2) deny the petition
for supervised release, but only if the state proves by clear and convincing evidence
that the community would not be adequately protected under the plan; or 3) approve
the plan and grant the petition.
Third, the bill requires any person who is on supervised release to actively
participate in treatment as a condition of supervised release.
Fourth, the bill creates a committee composed of officials from the city of
Milwaukee and Milwaukee County and individual residents of Milwaukee County
to prepare recommendations regarding the location of a proposed transitional
facility for persons who have been committed to the custody of DHFS as sexually
violent persons. The bill specifies the factors that the committee must consider in
making its recommendation and specifies that the location must be suitable for the
development of a facility that can house the number of people that DHFS expects to
be on supervised release in Milwaukee County.
Fifth, if DHFS establishes a transitional facility of the type described in the
preceding paragraph, it must move any sexually violent person who is on supervised
release in the county in which the facility is located into the facility if it has a vacancy
there for that person.
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:
SB481,4,93
20.435
(2) (bj)
Competency examinations and conditional and supervised
4release services. Biennially, the amounts in the schedule for outpatient competency
5examinations and for payment by the department of costs for treatment and services
6for persons released under s. 980.06 (2) (c), 1997 stats.,
s. 980.08 (5), 2001 stats., or
7s. 971.17 (3) (d) or (4) (e) or 980.08
(5) (6) (c) 3., for which the department has
8contracted with county departments under s. 51.42 (3) (aw) 1. d., with other public
9agencies, or with private agencies to provide the treatment and services.
SB481, s. 2
10Section
2. 46.03 (1) of the statutes is amended to read:
SB481,4,1311
46.03
(1) Institutions governed. Maintain and govern the Mendota and the
12Winnebago mental health institutes; the secure mental health facility established
13under s. 46.055
(1); and the centers for the developmentally disabled.
SB481, s. 3
14Section
3. 46.055 (title) of the statutes is amended to read:
SB481,4,16
1546.055 (title)
Secure mental health facility Facilities for sexually
16violent persons.
SB481, s. 4
17Section
4. 46.055 of the statutes is renumbered 46.055 (1).
SB481, s. 5
18Section
5. 46.055 (2) of the statutes is created to read:
SB481,4,2419
46.055
(2) The department shall submit a report each February 1 to the chief
20clerk of each house of the legislature, for distribution to the appropriate standing
21committees under s. 13.172 (3), regarding the effectiveness of its efforts to find and
22maintain appropriate placements for persons on supervised release under s. 980.06,
231997 stats., or s. 980.08 and its anticipated need for finding additional placements
24in the 5 years following the date of the report.
SB481, s. 6
25Section
6. 46.058 (2m) of the statutes is amended to read:
SB481,5,11
146.058
(2m) The superintendents of the secure mental health facility
2established under s. 46.055
(1), the Wisconsin resource center established under s.
346.056 and any secure mental health unit or facility provided by the department of
4corrections under s. 980.065 (2) shall adopt proper means to prevent escapes of
5persons detained or committed to the facility, center or unit under ch. 980 and may
6adopt proper means to pursue and capture persons detained or committed to the
7facility, center or unit under ch. 980 who have escaped. In adopting means under this
8subsection to prevent escape and pursue and capture persons who have escaped, a
9superintendent may delegate to designated staff members of the facility, center or
10unit the power to use necessary and appropriate force, as defined by the department
11by rule, to prevent escapes and capture escaped persons.
SB481, s. 7
12Section
7. 46.10 (2) of the statutes is amended to read:
SB481,6,1413
46.10
(2) Except as provided in subs. (2m) and (14) (b) and (c), any person,
14including but not limited to a person admitted, committed or placed under s. 975.01,
151977 stats., s. 975.02, 1977 stats., and s. 975.17, 1977 stats., and ss. 51.10, 51.13,
1651.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12) and (13), 55.05, 55.06, 971.14
17(2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services and
18supplies provided by any institution in this state including University of Wisconsin
19Hospitals and Clinics, in which the state is chargeable with all or part of the person's
20care, maintenance, services and supplies, any person receiving care and services
21from a county department established under s. 51.42 or 51.437 or from a facility
22established under s. 49.73, and any person receiving treatment and services from a
23public or private agency under s. 980.06 (2) (c), 1997 stats., or s. 971.17 (3) (d) or (4)
24(e) or 980.08
(5) (6m) (a) and the person's property and estate, including the
25homestead, and the spouse of the person, and the spouse's property and estate,
1including the homestead, and, in the case of a minor child, the parents of the person,
2and their property and estates, including their homestead, and, in the case of a
3foreign child described in s. 48.839 (1) who became dependent on public funds for his
4or her primary support before an order granting his or her adoption, the resident of
5this state appointed guardian of the child by a foreign court who brought the child
6into this state for the purpose of adoption, and his or her property and estate,
7including his or her homestead, shall be liable for the cost of the care, maintenance,
8services and supplies in accordance with the fee schedule established by the
9department under s. 46.03 (18). If a spouse, widow or minor, or an incapacitated
10person may be lawfully dependent upon the property for their support, the court
11shall release all or such part of the property and estate from the charges that may
12be necessary to provide for those persons. The department shall make every
13reasonable effort to notify the liable persons as soon as possible after the beginning
14of the maintenance, but the notice or the receipt thereof is not a condition of liability.
SB481, s. 8
15Section
8. 51.42 (3) (aw) 1. d. of the statutes is amended to read:
SB481,6,2316
51.42
(3) (aw) 1. d. Provide treatment and services that are specified in a
17conditional release plan approved by a court for a person who is a county resident and
18is conditionally released under s. 971.17 (3) or (4) or that are specified in a supervised
19release plan approved by a court under s. 980.06 (2) (c), 1997 stats.,
or s. 980.08 (5)
,
202001 stats., or s. 980.08 (6) (c) 3. If the county department provides treatment and
21services under this subdivision, the department of health and family services shall,
22from the appropriation under s. 20.435 (2) (bj), pay the county department for the
23costs of the treatment and services.
SB481, s. 9
24Section
9. 980.01 (1m) of the statutes is created to read:
SB481,6,2525
980.01
(1m) "Likely" means more likely than not.
SB481, s. 10
1Section
10. 980.01 (7) of the statutes is amended to read:
SB481,7,72
980.01
(7) "Sexually violent person" means a person who has been convicted
3of a sexually violent offense, has been adjudicated delinquent for a sexually violent
4offense, or has been found not guilty of or not responsible for a sexually violent
5offense by reason of insanity or mental disease, defect
, or illness, and who is
6dangerous because he or she suffers from a mental disorder that makes it
7substantially probable likely that the person will engage in acts of sexual violence.
SB481, s. 11
8Section
11. 980.065 (1m) of the statutes is amended to read:
SB481,7,129
980.065
(1m) The department shall place a person committed under s. 980.06
10at the secure mental health facility established under s. 46.055
(1), the Wisconsin
11resource center established under s. 46.056 or a secure mental health unit or facility
12provided by the department of corrections under sub. (2).
SB481, s. 12
13Section
12. 980.08 (3) of the statutes is amended to read:
SB481,7,2514
980.08
(3) Within 20 days after receipt of the petition, the court shall appoint
15one or more examiners having the specialized knowledge determined by the court to
16be appropriate, who shall examine the person and furnish a written report of the
17examination to the court within 30 days after appointment. The examiners shall
18have reasonable access to the person for purposes of examination and to the person's
19past and present treatment records, as defined in s. 51.30 (1) (b), and patient health
20care records, as provided under s. 146.82 (2) (c). If any such examiner believes that
21the person is appropriate for supervised release under the
criterion criteria specified
22in sub. (4)
(b), the examiner shall report on the type of treatment and services that
23the person may need while in the community on supervised release. The county shall
24pay the costs of an examiner appointed under this subsection as provided under s.
2551.20 (18) (a).
SB481, s. 13
1Section
13. 980.08 (4) of the statutes is renumbered 980.08 (4) (a) and
2amended to read:
SB481,8,63
980.08
(4) (a) The court, without a jury, shall
hear the petition proceed under
4par. (b) within 30 days after the report of the court-appointed examiner is filed with
5the court, unless the petitioner waives this time limit. Expenses of proceedings
6under this subsection shall be paid as provided under s. 51.20 (18) (b), (c)
, and (d).
SB481,8,9
7(b) The court shall
grant deny the petition
unless if the state proves
any of the
8following by clear and convincing evidence
that the person is still a sexually violent
9person and that:
SB481,8,11
101. That it is still
substantially probable likely that the person will engage in acts
11of sexual violence if the person is not continued in institutional care.
SB481,8,19
12(c) In making a decision under
this subsection par. (b), the court may consider,
13without limitation because of enumeration, the nature and circumstances of the
14behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a),
15the person's mental history and present mental condition, where the person
will 16might live, how the person will support himself or herself
, and what arrangements
17are available to ensure that the person has access to and will participate in necessary
18treatment, including pharmacological treatment using an antiandrogen or the
19chemical equivalent of an antiandrogen if the person is a serious child sex offender.
SB481,8,25
20(6g) A decision under
this subsection sub. (4) (b) or (6) (c) on a petition filed by
21a person who is a serious child sex offender may not be made based on the fact that
22the person is a proper subject for pharmacological treatment using an antiandrogen
23or the chemical equivalent of an antiandrogen or on the fact that the person is willing
24to participate in pharmacological treatment using an antiandrogen or the chemical
25equivalent of an antiandrogen.
SB481, s. 14
1Section
14. 980.08 (4) (b) 2. to 6., (d) and (e) of the statutes are created to read:
SB481,9,32
980.08
(4) (b) 2. That the person has not demonstrated significant or
3satisfactory progress in his or her treatment or the person has refused treatment.
SB481,9,54
3. That there is no treatment reasonably available in the community that
5meets all of the following requirements:
SB481,9,66
a. The treatment will meet the person's ongoing treatment needs.
SB481,9,77
b. The treatment will be provided by a department-approved provider.
SB481,9,118
c. The treatment provider has presented a specific course of treatment to the
9department, has agreed to provide the treatment, will report progress to the
10department on a regular basis, and will report violations immediately to the
11department, consistent with the treatment and supervision needs of the person.
SB481,9,1512
4. That the person has not agreed to comply with the conditions of, or
13department rules regarding, supervised release or the requirements of the
14treatment provider, or the person is likely to violate such conditions, rules, or
15requirements.
SB481,9,1716
5. That a major discipline report was issued regarding the person during the
176 months immediately preceding the hearing.
SB481,9,1818
6. That supervised release is not in the best interest of the person.
SB481,9,2119
(d) The court may defer hearing evidence or making a finding regarding
20whether the state has met its burden under par. (b) 1., 3., or 6. until it conducts a
21hearing under sub. (6) (b).
SB481,9,2322
(e) If the court does not deny the petition under par. (b), the court shall notify
23the department and proceed under sub. (6).
SB481, s. 15
24Section
15. 980.08 (5) of the statutes is renumbered 980.08 (5) (a) and
25amended to read:
SB481,10,8
1980.08
(5) (a) If the court
finds that the person is appropriate for supervised
2release does not deny the petition under sub. (4) (b), the
court shall notify the
3department. The department shall make its best effort to arrange for placement of
4the person in a residential facility or dwelling that is in the person's county of
5residence, as determined by the department under s. 980.105. The department and
,
6except as provided in par. (c), the county department under s. 51.42 in the
person's 7county of residence
of the person shall
make its best effort to prepare a
supervised
8release plan
that identifies for the person that does all of the following:
SB481,10,10
91. Identifies the treatment and services, if any, that the person will receive in
10the community.
The plan shall address
SB481,10,19
112. Addresses the person's need, if any, for supervision, counseling, medication,
12community support services, residential services, vocational services, and alcohol or
13other drug abuse treatment.
In developing a plan for where the person may reside
14while on supervised release, the department shall consider the proximity of any
15potential placement to the residence of other persons on supervised release and to
16the residence of persons who are in the custody of the department of corrections and
17regarding whom a sex offender notification bulletin has been issued to law
18enforcement agencies under s. 301.46 (2m) (a) or (am). If the person is a serious child
19sex offender, the plan shall address
SB481,10,24
203. Addresses the person's need for pharmacological treatment using an
21antiandrogen or the chemical equivalent of an antiandrogen
. The department may
22contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public
23agency or with a private agency to provide the treatment and services identified in
24the plan. The plan shall specify if the person is a serious child sex offender.
SB481,11,5
14. Specifies who will be responsible for providing the treatment and services
2identified in the plan.
The plan shall be presented to the court for its approval within
360 days after the court finding that the person is appropriate for supervised release,
4unless the department, county department and person to be released request
5additional time to develop the plan.
SB481,11,17
6(c) The department shall make its best effort to arrange for placement of the
7person in a residential facility or dwelling that is in the person's county of residence. 8If the county department of the person's county of residence declines to prepare a
9plan, the department may arrange for another county to prepare the plan if that
10county agrees to prepare the plan and if the person will be living in that county. If
11the department is unable to arrange for another county to prepare a plan, the court
12shall designate a county department to prepare the plan
, and order the county
13department to prepare the plan
and place the person on supervised release in that
14county, except that the court may not so designate the county department in any
15county where there is a facility in which persons committed to institutional care
16under this chapter are placed unless that county is also the person's county of
17residence.
SB481, s. 16
18Section
16. 980.08 (5) (a) 5. and 6. and (b) and (6) of the statutes are created
19to read:
SB481,11,2020
980.08
(5) (a) 5. Identifies where the person shall live.
SB481,11,2521
6. Includes a written agreement from the person providing the housing
22described in subd. 5. to accept the person who will reside there, to provide the level
23of security required by the court, and to immediately report to the department if the
24person leaves the housing without authorization. This subdivision does not apply
25to a person to whom s. 980.085 applies.
SB481,12,3
1(b) Before submitting a supervised release plan to the court under sub. (6) (a)
2for a person other than one to whom s. 980.085 applies, the department and county
3department shall do all of the following in the order specified:
SB481,12,64
1. Identify a proposed placement. In identifying any proposed placement, the
5department and the county department shall consider the proximity of the
6placement to all of the following: