LRB-2444/1
MGD&RLR:kg/cx:pg
2003 - 2004 LEGISLATURE
March 11, 2004 - Introduced by Senators Moore and
Coggs, cosponsored by
Representatives Turner, Taylor and Young. Referred to Committee on
Judiciary, Corrections and Privacy.
SB550,2,2
1An Act to repeal 46.03 (18) (fm), 302.113 (9) (at) and 961.472;
to renumber
2973.10 (2) (a) and 973.10 (2) (b);
to renumber and amend 302.113 (9) (am),
3961.47 (title), 961.47 (1), 961.47 (2) and 973.10 (2) (intro.);
to amend 20.410 (1)
4(ge), 302.113 (7), 302.113 (9) (b), 302.113 (9) (c), 808.075 (4) (g) 3., 961.475,
5973.09 (4) (a), 973.09 (4) (b), 973.10 (1), 973.15 (2m) (a) 3. and 973.15 (2m) (e);
6and
to create 51.49, 301.08 (1) (c) 1., 302.113 (9) (am) 2., 302.113 (9) (am) 3.,
7302.113 (9) (ar), 304.06 (3b), 304.074 (1d), 971.41 (1), 971.41 (2) (title) and (a)
81. to 3., 971.41 (2) (b), 971.41 (2) (c), 971.41 (3), 971.41 (5), 971.41 (6), 971.41 (7)
9to (12), 973.10 (2) (bm), 973.10 (2) (c), 973.10 (2b) and 973.10 (2e) of the statutes;
10relating to: alternatives to prosecution and incarceration for persons who
11commit certain drug-related or alcohol-related offenses, violations of extended
12supervision, parole, or probation related to the use of alcohol or other drugs or
13to substance abuse treatment, providing an exemption from emergency rule
1procedures, requiring the exercise of rule-making authority, and making an
2appropriation.
Analysis by the Legislative Reference Bureau
This bill permits, and in some cases requires, a nonviolent offender who is
charged with an offense related to the person's use of drugs or alcohol to be provided
substance abuse treatment as an alternative to prosecution or incarceration. It also
authorizes treatment in lieu of revocation of probation, parole, or extended
supervision.
Substance abuse treatment as an alternative to prosecution or
incarceration
1. Alternatives to prosecution and incarceration under current law. Current
law generally prohibits the manufacture, distribution, delivery, and possession of
controlled substances. The penalties for violating these prohibitions depend on the
conduct, the drug, and the amount of the drug involved. Maximum terms of
imprisonment range from as high as 46 years in cases involving repeat offenders who
manufacture, distribute, or deliver large quantities of certain drugs to as low as 30
days for simple possession of certain nonnarcotic drugs. Maximum fines vary in a
similar way. Current law also prohibits certain other conduct (such as the
possession, manufacture or delivery of drug paraphernalia or maintaining a drug
house) that is related to the unlawful use of drugs.
Current law, however, provides prosecutors significant discretion in whether
and how to prosecute such offenses (as well as all other offenses). For example, a
prosecutor may defer or suspend the prosecution of a person in exchange for his or
her agreement to complete a substance abuse treatment program, refrain from
committing other crimes, or comply with any other requirement. If the person abides
by the agreement, the prosecutor never files a criminal complaint or, if a complaint
has been filed, dismisses the case. In addition, courts have alternatives to sentencing
in certain drug cases. First, a court may allow a person who pleads guilty to or is
found guilty of drug possession to participate in a drug treatment program as an
alternative to sentencing if the person volunteers to participate and if a treatment
facility agrees to provide it. At the end of treatment, the court may waive sentencing
for the drug possession offense. Second, if a person with no prior drug convictions
pleads guilty to or is found guilty of possession of certain nonnarcotic drugs, the
court, without entering a judgment of conviction, may enter a conditional discharge
order, which places the person on probation. If the person successfully completes
probation, the court dismisses the case. Finally, a court may sentence a person to
probation but require that the person submit to an assessment or participate in
treatment as a condition of probation.
2. Automatic eligibility. Under this bill, if a Wisconsin resident pleads guilty
or no contest to or is found guilty of a simple drug offense (defined as unlawful
possession of a controlled substance, keeping a drug house, fraudulently obtaining
a controlled substance, or possession of drug paraphernalia that is unrelated to the
production or use of methamphetamine), the court must, in general, order the person
to submit to a substance abuse assessment and enter a conditional discharge order.
This requirement does not apply if the person does not consent or if: 1) the person has
two or more prior simple drug offense convictions; 2) at least one of those simple drug
offenses was committed within the preceding ten years; and 3) the person was offered
an opportunity to receive substance abuse treatment and rehabilitation services,
through the program created by this bill, in connection with one of those offenses.
The conditional discharge order must require that the person participate in
substance abuse treatment and rehabilitation services, and the court and the
Department of Corrections (DOC) must monitor the person's compliance with the
order. Unless revoked, the order must remain in effect until the court determines
that the person has successfully completed his or her treatment and for at least an
additional six months thereafter.
As under current law, if the person complies with the conditions of the order,
the court discharges the person and dismisses the criminal case. How the court
responds to violations of the order depends on the nature of the violation. If the
violation is unrelated to the person's substance abuse treatment or use of alcohol or
drugs, the court may revoke the order, enter a judgment of conviction, and sentence
the person. But if the violation is related to the person's substance abuse treatment
or the person's use of alcohol or other drugs, any sanctions that the court imposes
must be graduated sanctions. The court may revoke the conditional discharge order
for that type for violation only if it has already used other sanctions.
If the court revokes the conditional discharge order for a violation related to the
person's substance abuse treatment or the person's use of alcohol or other drugs, the
court must enter a judgment of conviction and place the person on probation. An
order placing a person on probation under the bill is similar to a conditional
discharge order. It must require that the person participate in substance abuse
treatment; the court and DOC monitor the person's compliance with the order; and,
unless revoked, the order remains in effect until the court determines that the person
has successfully completed his or her treatment and for at least an additional six
months thereafter. If the person successfully completes probation, the court must
vacate the judgment of conviction. If the person violates a condition of probation that
is unrelated to the person's substance abuse treatment or the person's use of alcohol
or other drugs, the court may revoke the person's probation. If the violation is related
to the treatment or the person's use of alcohol or other drugs, any sanctions that the
court imposes must be graduated sanctions. Unlike the case with a conditional
discharge order, however, graduated sanctions for a violation of probation may
include incarceration. The bill specifies that the first period of incarceration may not
exceed two weeks and the second may not exceed 30 days.
The court may revoke a person's probation order for a violation related to the
person's substance abuse treatment or the person's use of alcohol or other drugs only
if the court finds that there is no reasonable likelihood that the person will abstain
from illegal activity for the rest of his or her probation and that either: 1) the violation
occurred after the court modified the treatment and rehabilitation conditions of the
probation order or imposed graduated sanctions; or 2) there are no reasonable
treatment and rehabilitation services options other than the services originally
ordered by the court. If the court revokes a person's probation, the court must
sentence the person.
3. Discretionary eligibility. The bill also allows a court to enter a conditional
discharge order in a case in which a Wisconsin resident commits an offense other
than a simple drug offense. The court may do so, however, only after the person
completes a substance abuse assessment and the court finds that: 1) the offense was
significantly motivated by the person's substance abuse; 2) neither the victim of the
offense nor the public will be harmed by the entry of a conditional discharge order;
3) entering a conditional discharge order is in the best interests of the public; and 4)
entering a conditional discharge order will not unduly depreciate the seriousness of
the offense. But the court may not enter a conditional discharge if the person
committed a Class A, B, C, D, or E felony or a weapon offense specified in the bill or
operated a motor vehicle, motorboat, snowmobile, or all-terrain vehicle with a
prohibited alcohol content, while intoxicated, or while having a restricted controlled
substance in his or her blood (a disqualifying offense). Moreover, even if the court
makes the findings described in the previous paragraph, the court is not required to
enter a conditional discharge order. As an alternative, the court may place the
person directly on probation (unless the person committed a disqualifying offense).
Other provisions of the bill regarding conditional discharge and probation apply to
this group of people in the same way as they do to a person who is automatically
eligible for conditional discharge.
4. Violent offenders. The bill specifies that the court may not use a conditional
discharge order or probation in the manner described above in a case involving a
violent offender. The bill defines a violent offender as a person to whom one of the
following applies: 1) the person has been charged with or convicted of an offense in
a pending case and, during the course of the offense, the person carried, possessed,
or used a dangerous weapon, the person used force against another person, or a
person died or suffered serious bodily harm; or 2) the person has one or more prior
convictions for a felony involving the use or attempted use of force against another
person with the intent to cause death or serious bodily harm.
5. Expungement. If a person successfully completes his or her treatment under
a conditional discharge or probation order entered under the bill, the person may
petition the court to expunge the record of the case. The court may expunge the
record if it determines that the person will benefit and society will not be harmed by
the expungement.
6. Miscellaneous provisions. The bill also: 1) requires DOC to contract for the
supervision of persons who reside in a first class city and who are subject to a
conditional discharge or probation order; 2) specifies that the provisions relating to
conditional discharge and probation do not apply if a person is given the opportunity
to participate in certain county drug court programs in existence when the bill takes
effect; and 3) requires DOC and the department of health and family services (DHFS)
to report periodically to the legislature regarding the effectiveness of the conditional
discharge/probation program.
Drug treatment as an alternative to revocation
Under current law, a person on probation or extended supervision (ES) must
comply with conditions imposed by the court or DOC; a person on parole must comply
with conditions imposed by DOC. If a person violates one of those conditions, DOC
may seek to revoke the person's probation, ES, or parole through a proceeding before
the Division of Hearings and Appeals (DHA) in the Department of Administration
(DOA). If the person waives a hearing, the DOC secretary decides whether to revoke
the person's probation, ES, or parole. Otherwise, after a hearing before a hearing
examiner, the DHA administrator decides whether to revoke the person's probation,
ES, or parole. In any event, current law requires that alternatives to revocation be
considered.
Post-revocation proceedings vary between probation, ES, and parole. If
probation is being revoked, the person is returned to the court for sentencing or DOC
implements any sentence that was already imposed but that was stayed (postponed)
while the person was on probation. If ES is being revoked, the person is returned to
the sentencing court, which determines the length of time for which the person
should be returned to prison. If parole is being revoked, the person resumes serving
his or her sentence in prison.
This bill specifies that, if a person violates probation, ES, or parole and the
violation relates to the person's use of alcohol or other drugs, DHA or DOC (the
reviewing authority) may require the person to submit to a substance abuse
assessment or treatment as an alternative to revoking the person's probation, ES,
or parole. If the person is already required to participate in a substance abuse
treatment program as a condition of probation, ES, or parole, the reviewing authority
may establish, maintain, or modify conditions of probation, ES, or parole relating to
the person's participation. In addition, the bill specifies that if the reviewing
authority revokes a person's probation for a violation related to the person's use of
alcohol or other drugs or participation in a court-ordered or DOC-ordered substance
abuse treatment program, DOC must return the person to court, even if the court has
already imposed (and stayed) a sentence. The court must then decide whether the
revocation order should remain in effect, in which case the person is sent to prison;
or be vacated in conjunction with the court entering an order requiring the person
to submit to a substance abuse assessment or treatment or, if the person is already
required to participate in a substance abuse treatment program as a condition of
probation, establishing, maintaining, or modifying conditions of probation relating
to the person's participation. Under the bill, the court has similar authority to vacate
an order revoking a person's ES when the person is returned to court.
County development of substance abuse treatment programs
Under current law, county departments of community programs (county
departments) provide certain services relating to the assessment and treatment of
alcohol and other drug abuse. This bill requires DHFS to promulgate rules
specifying: 1) the services that county departments must make available to persons
who participate in the conditional discharge/probation program or who are to be
provided substance abuse assessments or treatment as an alternative to revocation;
2) minimum standards for those services; 3) requirements for substance abuse
assessments ordered under the bill; and 4) the qualifications of service providers.
County departments must then develop a network of substance abuse treatment and
rehabilitation services, including the services required by DHFS's rules. They must
also provide the services (including assessments ordered by the court) to persons who
participate in the conditional discharge/probation program (from whose insurers the
county departments may be able to obtain reimbursement) or who are to be provided
substance abuse assessments or treatment as an alternative to revocation. The
services must include different options for substance abuse treatment, be consistent
with the best practices in substance abuse treatment, and be evaluated for the
purpose of determining their effectiveness. County departments may provide the
required assessments and services themselves or may do so by contract with others.
The bill requires each county department to submit a plan to DHFS, on a
one-time basis, specifying who will provide its substance assessments and
treatment and describing how and where they will be provided. The bill requires
each county to create a community corrections committee (with the committee's
membership specified in the bill) to advise its county department in developing the
plan of services.
Funding for implementing the bill
The changes made by the bill regarding alternatives to prosecution and
incarceration are contingent upon the state having sufficient resources to facilitate
the implementation of those changes. Under the bill, by November 15, 2004, each
county must submit an estimate to DOA of the amount of additional money that it
will need (for example, for its county department of community programs and its
court system) and the amount of money that it will save (for example, in
incarceration costs) to implement the bill. By December 1, 2004, DOA must prepare
a similar estimate for state agencies. In consultation with the attorney general and
the secretaries of corrections and health and family services, the secretary of
administration must then determine the amount of funding that the state and
counties would need to implement the bill. (The secretary of administration must
consider counties' estimates in making that determination but need not rely on
them.)
The secretary of DOA must then periodically assess whether there are
adequate resources available to enable the state and counties to implement the bill.
If the secretary determines that there are adequate resources available, the
secretary must provide written notice of that fact to the revisor of statutes, who then
publishes that notice in the Wisconsin Administrative Register. The provisions of the
bill regarding alternatives to prosecution, incarceration, and revocation take effect
on the first day of the seventh month beginning after that certification.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
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:
SB550,7,103
20.410
(1) (ge)
Administrative and minimum supervision. The amounts in the
4schedule for the supervision of
probationers persons placed on probation under s.
5973.09, parolees,
and persons on extended supervision
, and, as determined by the
6department under s. 971.41 (10m), persons subject to a conditional discharge order
7or on probation under s. 971.41 under minimum or administrative supervision and
8for the department's costs associated with contracts under s. 301.08 (1) (c) 2. All
9moneys received from vendors under s. 301.08 (1) (c) 4. shall be credited to this
10appropriation account.
SB550, s. 2
11Section
2. 46.03 (18) (fm) of the statutes is repealed.
SB550, s. 3
12Section
3. 51.49 of the statutes is created to read:
SB550,7,17
1351.49 Treatment intervention program.
(1) Definition. In this section,
14"reviewing authority," in the context of proceedings to revoke a person's extended
15supervision, parole, or probation, means the division of hearings and appeals in the
16department of administration or, if the person waives the final administrative
17hearing, the secretary of corrections.
SB550,8,3
18(1m) County responsibility. (a) The county department of community
19programs shall provide substance abuse assessments that are ordered by the circuit
20court under s. 302.113 (9) (ar) 2., 971.41 (2), or 973.10 (2e) (c) or by the reviewing
21authority under s. 302.113 (9) (am) 2., 304.06 (3b) (b), or 973.10 (2) (bm). The
1assessments shall comply with standards established by the department of health
2and family services under sub. (2). The assessor shall report the results of each
3assessment to the court or the reviewing authority.
SB550,8,124
(b) The county department of community programs shall develop a network of
5substance abuse treatment and rehabilitation services, including the services
6required by rule under sub. (2) and any other services that the county elects to
7provide, and shall provide the services, as ordered by the circuit court under s.
8302.113 (9) (ar) 2. or 3., 971.41 (3), or 973.10 (2e) (c) or (d) or by the reviewing
9authority under s. 302.113 (9) (am) 2. or 3., 304.06 (3b) (b) or (c), or 973.10 (2) (bm)
10or (c). The services shall include different options for substance abuse treatment, be
11consistent with the best practices in substance abuse treatment, and be evaluated
12for the purpose of determining their effectiveness.
SB550,8,1513
(c) The county department of community programs may directly provide the
14assessments and services that are required under this subsection or may contract
15with another person to provide the assessments and services.
SB550,8,17
16(2) Rules. The department of health and family services shall promulgate
17rules specifying all of the following:
SB550,8,2318
(a) The services that county departments of community programs must make
19available to persons under s. 302.113 (9) (am) 2. or 3. or (ar) 2. or 3., 304.06 (3b) (b)
20or (c), 971.41 (2), (3), or (6), or 973.10 (2) (bm) or (c) or (2e) (c) or (d). The rules shall
21require that the services include, at the least, treatment for substance abuse,
22education concerning the effects of substance abuse, tests to determine if a person
23has used alcohol or other drugs, and employment support.
SB550,8,2424
(b) Minimum standards for the services specified under par. (a).
SB550,8,2525
(c) Requirements for substance abuse assessments ordered under s. 961.41 (2).
SB550,9,2
1(d) Qualifications of providers of the services required under par. (a) and for the
2providers of assessments ordered under s. 961.41 (2).
SB550, s. 4
3Section
4. 301.08 (1) (c) 1. of the statutes is created to read:
SB550,9,64
301.08
(1) (c) 1. In this paragraph, "probationer" includes a person subject to
5a conditional discharge order or on probation under s. 971.41 if so determined by the
6department under s. 971.41 (10m).
SB550,9,169
302.113
(7) Any inmate released to extended supervision under this section is
10subject to all conditions and rules of extended supervision until the expiration of the
11term of extended supervision portion of the bifurcated sentence. The department
12may set conditions of extended supervision in addition to any conditions of extended
13supervision required under s. 302.116, if applicable, or set by the court under sub.
14(7m)
or (9) (ar) 2. or 3. or s. 973.01 (5) if the conditions set by the department do not
15conflict with the court's conditions.
The reviewing authority, as defined in sub. (9)
16(ag), may set or modify conditions under sub. (9) (am) 2. or 3.
SB550,9,2119
302.113
(9) (am) (intro.) If a person released to extended supervision under this
20section violates a condition of extended supervision, the reviewing authority may
21revoke do one of the following:
SB550,9,22
221. Revoke the extended supervision of the person.
SB550,9,25
23(ap) If the extended supervision of the person is revoked, the person shall be
24returned to the circuit court for the county in which the person was convicted of the
25offense for which he or she was on extended supervision, and the
court shall order
1the person to be returned to prison for any specified period of time that does not
2exceed the time remaining on the bifurcated sentence reviewing authority shall
3make a recommendation to the court concerning the period of time for which the
4person should be returned to prison. The
recommended time period may not exceed
5the time remaining on the bifurcated sentence
, which is the total length of the
6bifurcated sentence, less time served by the person in confinement under the
7sentence before release to extended supervision under sub. (2) and less all time
8served in confinement for previous revocations of extended supervision under the
9sentence.
A court order returning a person to prison under this subdivision shall
10provide the person whose extended supervision was revoked with credit in
11accordance with ss. 304.072 and 973.155.
SB550, s. 7
12Section
7. 302.113 (9) (am) 2. of the statutes is created to read:
SB550,10,1613
302.113
(9) (am) 2. If the violation relates to the person's use of alcohol or other
14drugs and subd. 3. does not apply, order the person to submit to a substance abuse
15assessment or substance abuse treatment or both under s. 51.49 in the person's
16county of residence as a condition of extended supervision.
SB550, s. 8
17Section
8. 302.113 (9) (am) 3. of the statutes is created to read:
SB550,10,2218
302.113
(9) (am) 3. If the person is required to participate in a substance abuse
19treatment program as a condition of extended supervision and the violation relates
20to the person's participation in the program, establish, maintain, or modify
21conditions of extended supervision relating to the person's participation in the
22program.
SB550, s. 9
23Section
9. 302.113 (9) (ar) of the statutes is created to read:
SB550,10,2524
302.113
(9) (ar) If a person is returned to court under par. (ap) after revocation
25of extended supervision, the court shall do one of the following:
SB550,11,5
11. Order the person to be returned to prison for any specified period of time that
2does not exceed the time remaining on the bifurcated sentence, as calculated under
3par. (ap). A court order returning a person to prison under this subdivision shall
4provide the person whose extended supervision was revoked with credit in
5accordance with ss. 304.072 and 973.155.
SB550,11,106
2. If the violation relates to the person's use of alcohol or other drugs and subd.
73. does not apply, vacate the reviewing authority's decision to revoke the person's
8extended supervision and order the person to submit to a substance abuse
9assessment or substance abuse treatment or both under s. 51.49 in the person's
10county of residence as a condition of extended supervision.
SB550,11,1611
3. If the person is required to participate in a substance abuse treatment
12program as a condition of extended supervision and the violation relates to the
13person's participation in the program, vacate the reviewing authority's decision to
14revoke the person's extended supervision and establish, maintain, or modify
15conditions of extended supervision relating to the person's participation in the
16program.
SB550,12,321
302.113
(9) (b) A person who is returned to prison after revocation of extended
22supervision shall be incarcerated for the entire period of time specified by the court
23under par.
(am) (ar) 1. The period of time specified under par.
(am) (ar) 1. may be
24extended in accordance with sub. (3). If a person is returned to prison under par.
(am) 25(ar) 1. for a period of time that is less than the time remaining on the bifurcated
1sentence, the person shall be released to extended supervision after he or she has
2served the period of time specified by the court under par.
(am) (ar) 1. and any periods
3of extension imposed in accordance with sub. (3).
SB550,12,146
302.113
(9) (c) A person who is subsequently released to extended supervision
7after service of the period of time specified by the court under par.
(am) (ar) 1. is
8subject to all conditions and rules under subs. (7) and, if applicable, (7m) until the
9expiration of the remaining extended supervision portion of the bifurcated sentence.
10The remaining extended supervision portion of the bifurcated sentence is the total
11length of the bifurcated sentence, less the time served by the person in confinement
12under the bifurcated sentence before release to extended supervision under sub. (2)
13and less all time served in confinement for previous revocations of extended
14supervision under the bifurcated sentence.
SB550, s. 13
15Section
13. 304.06 (3b) of the statutes is created to read:
SB550,12,1816
304.06
(3b) (a) In this subsection, "reviewing authority" means the division of
17hearings and appeals in the department of administration or, if the parolee waives
18the final administrative hearing, the secretary of corrections.
SB550,12,2319
(b) If a parolee violates a condition of parole, the violation relates to the
20parolee's use of alcohol or other drugs, and par. (c) does not apply, the reviewing
21authority may, in lieu of revoking parole, order the parolee to submit to a substance
22abuse assessment or substance abuse treatment or both under s. 51.49 in the
23person's county of residence as a condition of parole.
SB550,13,524
(c) If a parolee is required to participate in a substance abuse treatment
25program as a condition of parole and the parolee violates a condition of parole that
1relates to the parolee's participation in the program, the division of hearings and
2appeals in the department of administration or, if the parolee waives the final
3administrative hearing, the secretary of corrections may, in lieu of revoking parole,
4establish, maintain, or modify conditions of parole relating to the parolee's
5participation in the program.