Amendment ASA2-AB591

ASSEMBLY SUBSTITUTE AMENDMENT 2, TO 2005 ASSEMBLY BILL 591

November 9, 2005 - Offered by Representatives Suder and Kleefisch.

AB591-ASA2,1,5 An Act to renumber and amend 971.17 (4) (e) and 980.08 (5); to amend 51.42 (3) (aw) 1. d., 301.03 (19) and 980.08 (6m); and to create 301.03 (20), 301.48, 946.465, 948.02 (6), 948.025 (4), 971.17 (4) (e) 3., 980.08 (5) (a) and 980.08 (5) (e) of the statutes; relating to: global positioning system tracking and a residency requirement for certain sex offenders and providing a penalty.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB591-ASA2, s. 1 Section 1. 51.42 (3) (aw) 1. d. of the statutes is amended to read:

AB591-ASA2,2,3 51.42 (3) (aw) 1. d. Provide treatment and services that are specified in a conditional release plan approved by a court for a person who is a county resident and is conditionally released under s. 971.17 (3) or (4) or that are specified in a supervised release plan approved by a court under s. 980.06 (2) (c), 1997 stats., or s. 980.08 (5) (b). If the county department provides treatment and services under this subdivision, the department of health and family services shall, from the appropriation under s. 20.435 (2) (bj), pay the county department for the costs of the treatment and services.

AB591-ASA2, s. 2 Section 2. 301.03 (19) of the statutes is amended to read:

AB591-ASA2,2,8 301.03 (19) Work Subject to sub. (20), work to minimize, to the greatest extent possible, the residential population density of sex offenders, as defined in s. 302.116 (1) (b), who are on probation, parole, or extended supervision or placed on supervised release under s. 980.06 (2) (c), 1997 stats., or s. 980.08 (5).

AB591-ASA2, s. 3 Section 3. 301.03 (20) of the statutes is created to read:

AB591-ASA2,2,12 301.03 (20) (a) Except as provided in s. 304.06 (2m) (b), place, in one of the following locations, each person who has been convicted of a sex offense, as defined in s. 301.45 (1d) (b), upon his or her release to parole or extended supervision:

AB591-ASA2,2,13 1. The county in which the person resided on the date of the sex offense.

AB591-ASA2,2,14 2. The county in which the person was convicted of the sex offense.

AB591-ASA2,2,15 3. A sex offender treatment facility.

AB591-ASA2,2,18 (b) Paragraph (a) does not preclude the department from authorizing a person to reside in a location other than one listed in par. (a) 1. to 3. if the department initially placed the person in one of those listed locations.

AB591-ASA2, s. 4 Section 4. 301.48 of the statutes is created to read:

AB591-ASA2,2,21 301.48 Global positioning system tracking and residency requirement for certain sex offenders. (1) Definitions. In this section:

AB591-ASA2,2,24 (a) "Exclusion zone" means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from entering except for purposes of traveling through it to get to another destination.

AB591-ASA2,3,5 (b) "Global positioning system tracking" means tracking using a system that actively monitors and identifies a person's location and timely reports or records the person's presence near or at a crime scene or in an exclusion zone or the person's departure from an inclusion zone. "Global positioning system tracking" includes comparable technology.

AB591-ASA2,3,7 (c) "Inclusion zone" means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from leaving.

AB591-ASA2,3,11 (d) "Lifetime tracking" means global positioning system tracking that is required for a person for the remainder of the person's life or until terminated under sub. (6). "Lifetime tracking" does not include global positioning system tracking under sub. (2) (b) or (c), regardless of how long it is required.

AB591-ASA2,3,12 (e) "Serious child sex offense" means any of the following:

AB591-ASA2,3,13 1. A violation of s. 948.02 (1) or 948.025 (1) (a).

AB591-ASA2,3,15 2. A violation of s. 948.02 (2) or 948.025 (1) (b), if the court makes a finding under s. 948.02 (6) or 948.025 (4) (b).

AB591-ASA2,3,16 (f) "Sex offense" means any of the following:

AB591-ASA2,3,17 1. A sex offense, as defined in s. 301.45 (1d) (b).

AB591-ASA2,3,19 2. A crime under federal law or the law of any state that is comparable to a crime described in subd. 1.

AB591-ASA2,3,21 (2) Who is covered. (a) The department shall arrange for lifetime tracking of all of the following:

AB591-ASA2,3,24 1. Any person who is placed on probation, extended supervision, or parole for committing a serious child sex offense, unless a court exempts the person from lifetime tracking under sub. (5).

AB591-ASA2,4,3 2. Any person who is placed on conditional release after having been found not guilty of a serious child sex offense by reason of mental disease or mental defect, unless a court exempts the person from lifetime tracking under sub. (5).

AB591-ASA2,4,4 3. Any person who is placed on supervised release under s. 980.08 (6m).

AB591-ASA2,4,6 (b) The department shall have a person tracked using a global positioning system tracking device if all of the following apply:

AB591-ASA2,4,9 1. The person has been convicted under federal law or the law of any other state of a crime that is comparable to a serious child sex offense or found not guilty of or not responsible for such a crime by reason of mental disease or mental defect.

AB591-ASA2,4,12 2. The person resides in this state, is employed or carrying on a vocation, as defined in s. 301.45 (1d) (a), in this state, or is a student, as defined in s. 301.45 (1d) (c), in this state.

AB591-ASA2,4,15 (c) If a person is placed on probation, extended supervision, or parole for committing a sex offense and par. (a) or (b) does not apply, the department may have the person tracked using a global positioning system tracking device.

AB591-ASA2,4,18 (3) Duties of the department. (a) For each person who is subject to global positioning system tracking under this subsection, the department shall do all of the following:

AB591-ASA2,4,23 1. Create individualized exclusion and inclusion zones for the person, if necessary to protect public safety. In creating exclusion zones, the department shall focus on areas where children congregate, with perimeters of 100 to 250 feet, and on areas where the person has been prohibited from going as a condition of probation, extended supervision, parole, conditional release, or supervised release.

AB591-ASA2,5,5 2. Ensure that the person's global positioning system tracking device, or any comparable technology used with respect to the person, immediately alerts the department and the local law enforcement agency having jurisdiction over the exclusion or inclusion zone if the person stays in any exclusion zone that is created for him or her under subd. 1. for any longer period than the time needed to travel through the zone to get to another destination or if the person leaves any inclusion zone that is created for him or her under subd. 1.

AB591-ASA2,5,9 (b) If a person who is on supervised release or conditional release is being tracked, the department shall notify the department of health and family services, upon request, of any tracking information for the person under any of the following circumstances:

AB591-ASA2,5,12 1. The department of corrections has been alerted under par. (a) 2. that the person being tracked has improperly stayed in an exclusion zone or improperly left an inclusion zone.

AB591-ASA2,5,14 2. The person being tracked fails to make a payment to the department under sub. (4) (b).

AB591-ASA2,5,16 (4) Costs. (a) The department shall determine all of the following for each person tracked:

AB591-ASA2,5,17 1. The cost of global positioning system tracking for the person.

AB591-ASA2,5,19 2. How much of the cost under subd. 1. the person is able to pay based on the factors listed in par. (d).

AB591-ASA2,5,22 (b) If required by the department, a person who is subject to global positioning system tracking shall pay for the cost of tracking up to the amount calculated for the person under par. (a) 2.

AB591-ASA2,6,2 (c) The department of health and family services shall pay for the cost of tracking a person to whom sub. (2) (a) 2. or 3. applies while the person is on conditional release or supervised release to the extent that the cost is not covered by payments made by the person under par. (b).

AB591-ASA2,6,4 (d) In determining how much of the costs the person is able to pay, the department may consider the following:

AB591-ASA2,6,5 1. The person's financial resources.

AB591-ASA2,6,6 2. The present and future earning ability of the person.

AB591-ASA2,6,7 3. The needs and earning ability of the person's dependents.

AB591-ASA2,6,9 4. Any other costs that the person is required to pay in conjunction with his or her supervision by the department or the department of health and family services.

AB591-ASA2,6,10 5. Any other factors that the department considers appropriate.

AB591-ASA2,6,13 (5) Exception to lifetime tracking requirement; underage sexual activity. (a) A person described in sub. (2) (a) 1. or 2. is not subject to tracking under this section if all of the following apply:

AB591-ASA2,6,16 1. The serious child sex offense described in sub. (2) (a) 1. or 2. did not involve sexual intercourse, as defined in s. 948.01 (6), by the use or threat of force or violence and did not involve sexual intercourse with a victim under the age of 12 years.

AB591-ASA2,6,19 2. At the time of the serious child sex offense, the person had not attained the age of 19 years, was not more than 4 years older than the child, and was not more than 4 years younger than the child.

AB591-ASA2,6,21 3. It is not necessary, in the interest of public protection, to subject the person to global positioning system tracking.

AB591-ASA2,7,2 (b) If a person believes that he or she is not subject to global positioning system tracking under par. (a), the person may move a court to make a determination of whether the person satisfies those criteria. A motion made under this paragraph shall be filed with the circuit court for the county in which the person was convicted or found not guilty or not responsible by reason of mental disease or defect.

AB591-ASA2,7,7 (c) A person who files a motion under par. (b) shall send a copy of the motion to the district attorney for the county in which the motion is filed. The district attorney shall make a reasonable attempt to contact the victim of the crime that is the subject of the person's motion to inform the victim of his or her right to make or provide a statement under par. (e).

AB591-ASA2,7,10 (d) A court shall hold a hearing on a motion made by a person under par. (b). The district attorney who receives a copy of a motion under par. (c) may appear at the hearing.

AB591-ASA2,7,15 (e) Before deciding a motion filed under par. (b), the court shall allow the victim of the serious child sex offense described in sub. (2) (a) 1. or 2. to make a statement in court at the hearing under par. (d) or to submit a written statement to the court. A statement under this paragraph must be relevant to whether the person satisfies the criteria specified in par. (a).

AB591-ASA2,7,20 (f) 1. Before deciding a motion filed by a person under par. (b), a court may request the person to be examined by a physician or a psychologist licensed under ch. 445 and who is approved by the court. If the person refuses to undergo an examination requested by the court under this subdivision, the court shall deny the person's motion without prejudice.

AB591-ASA2,8,3 2. If a person is examined by a physician or a psychologist under subd. 1., the physician or psychologist shall file a report of his or her examination with the court, and the court shall provide copies of the report to the person and, if he or she requests a copy, to the district attorney. The contents of the report shall be confidential until the physician or psychologist has testified at the hearing held under par. (d). The report shall contain an opinion regarding whether it would be in the interest of public protection to have the person subject to global positioning system tracking and the basis for that opinion.

AB591-ASA2,8,12 3. A person who is examined by a physician or psychologist under subd. 1. is responsible for paying the cost of the services provided by the physician or psychologist, except that if the person is indigent the cost of the services provided by the physician or psychologist shall be paid by the county. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under s. 977.07 (1), except that the person shall be considered indigent without another determination under s. 977.07 (1) if the person is represented by the state public defender or by a private attorney appointed under s. 977.08.

AB591-ASA2,8,16 (g) At the hearing held under par. (d), the person who filed the motion under par. (b) has the burden of proving by clear and convincing evidence that he or she satisfies the criteria specified in par. (a). In deciding whether the person has satisfied the criterion specified in par. (a) 3., the court may consider any of the following:

AB591-ASA2,8,18 1. The ages, at the time of the violation, of the person and of the child with whom the person had sexual contact or sexual intercourse.

AB591-ASA2,8,20 2. The relationship between the person and the child with whom the person had sexual contact or sexual intercourse.

AB591-ASA2,8,22 3. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the child with whom the person had sexual contact or sexual intercourse.

AB591-ASA2,9,2 4. Whether the child with whom the person had sexual contact or sexual intercourse suffered from a mental illness or mental deficiency that rendered the child temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

AB591-ASA2,9,3 5. The probability that the person will commit other violations in the future.

AB591-ASA2,9,4 6. The report of the examination conducted under par. (f).

AB591-ASA2,9,6 7. Any other factor that the court determines may be relevant to the particular case.

AB591-ASA2,9,11 (6) Offender's petition to terminate lifetime tracking. (a) Subject to par. (b), a person who is subject to lifetime tracking may file a petition requesting that lifetime tracking be terminated. A person shall file a petition requesting termination of lifetime tracking with the circuit court for the county in which the person was convicted or found not guilty or not responsible by reason of mental disease or defect.

AB591-ASA2,9,14 (b) 1. A person may not file a petition requesting termination of lifetime tracking if he or she has been convicted of a crime that was committed during the period of lifetime tracking.

AB591-ASA2,9,19 2. A person may not file a petition requesting termination of lifetime tracking earlier than 20 years after the date on which the period of lifetime tracking began. If a person files a petition requesting termination of lifetime tracking at any time earlier than 20 years after the date on which the period of lifetime tracking began, the court shall deny the petition without a hearing.

AB591-ASA2,9,21 3. A person described in sub. (2) (a) 3. may not file a petition requesting termination of lifetime tracking.

AB591-ASA2,9,25 (c) Upon receiving a petition requesting termination of lifetime tracking, the court shall send a copy of the petition to the district attorney responsible for prosecuting the serious sex offense that was the basis for the order of lifetime tracking. Upon receiving the copy of the petition, the district attorney shall conduct a criminal history record search to determine whether the person has been convicted of a criminal offense that was committed during the period of lifetime tracking. No later than 30 days after the date on which he or she receives the copy of the petition, the district attorney shall report the results of the criminal history record search to the court and may provide a written response to the petition.

AB591-ASA2,10,8 (d) After reviewing a report submitted under par. (c) concerning the results of a criminal history record search, the court shall do whichever of the following is applicable:

AB591-ASA2,10,11 1. If the report indicates that the person filing the petition has been convicted of a criminal offense that was committed during the period of lifetime tracking, the court shall deny the person's petition without a hearing.

AB591-ASA2,10,16 2. If the report indicates that the person filing the petition has not been convicted of a criminal offense that was committed during the period of lifetime tracking, the court shall order the person to be examined under par. (e), shall notify the department that it may submit a report under par. (f) and shall schedule a hearing on the petition to be conducted as provided under par. (g).

AB591-ASA2,11,3 (e) A person filing a petition requesting termination of lifetime tracking who is entitled to a hearing under par. (d) 2. shall be examined by a person who is either a physician or a psychologist licensed under ch. 455 and who is approved by the court. The physician or psychologist who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person petitioning for termination of lifetime tracking is a danger to public. The physician or psychologist shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the person filing the petition and the district attorney. The contents of the report shall be confidential until the physician or psychologist testifies at a hearing under par. (g). The person petitioning for termination of lifetime tracking shall pay the cost of an examination required under this paragraph.

AB591-ASA2,11,14 (f) After it receives notification from the court under par. (d) 2., the department may prepare and submit to the court a report concerning a person who has filed a petition requesting termination of lifetime tracking. If the department prepares and submits a report under this paragraph, the report shall include information concerning the person's conduct while on lifetime tracking and an opinion as to whether lifetime tracking of the person is still necessary to protect the public. When a report prepared under this paragraph has been received by the court, the court shall, before the hearing under par. (g), disclose the contents of the report to the attorney for the person who filed the petition and to the district attorney. When the person who filed the petition is not represented by an attorney, the contents shall be disclosed to the person.

AB591-ASA2,11,22 (g) A hearing on a petition requesting termination of lifetime tracking may not be conducted until the person filing the petition has been examined and a report of the examination has been filed as provided under par. (e). At the hearing, the court shall take evidence it considers relevant to determining whether lifetime tracking should be continued because the person who filed the petition is a danger to the public. The person who filed the petition and the district attorney may offer evidence relevant to the issue of the person's dangerousness and the continued need for lifetime tracking.

AB591-ASA2,11,25 (h) The court may grant a petition requesting termination of lifetime tracking if it determines after a hearing under par. (g) that lifetime tracking is no longer necessary to protect the public.

AB591-ASA2,12,4 (i) If a petition requesting termination of lifetime tracking is denied after a hearing under par. (g), the person may not file a subsequent petition requesting termination of lifetime tracking until at least 5 years have elapsed since the most recent petition was denied.

AB591-ASA2,12,9 (7) Department's petition to terminate lifetime tracking. (a) The department may file a petition requesting that a person's lifetime tracking be terminated if the person is permanently physically incapacitated. The petition shall include affidavits from 2 physicians that explain the nature of the person's permanent physical incapacitation.

AB591-ASA2,12,14 (b) 1. The department shall file a petition under par. (a) with the circuit court for the county in which the person was convicted or found not guilty or not responsible by reason of mental disease or defect or, in the case of a person described in sub. (2) (a) 3., the circuit court for the county in which the person was found to be a sexually violent person.

AB591-ASA2,12,18 2. The department shall send a copy of a petition filed under subd. 1. to the district attorney responsible for prosecuting the serious sex offense that was the basis for the order of lifetime tracking or, in the case of a person described in sub. (2) (a) 3., the agency that filed the petition under s. 980.02.

AB591-ASA2,13,4 (c) Upon its own motion or upon the motion of the party to whom the petition was sent under par. (b) 2., the court may order that the person to whom the petition relates be examined by a physician who is approved by the court. The physician who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person is permanently physically incapacitated. The physician shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the department and the party to whom the petition was sent under par. (b) 2. The contents of the report shall be confidential until the physician testifies at a hearing under par. (d). The department shall pay the cost of an examination required under this paragraph.