Amendment ASA2-AB591

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.

AB591-ASA2,13,12 (d) The court shall conduct a hearing on a petition filed under par. (b) 1., but if the court has ordered a physical examination under par. (c), the hearing may not occur until after the examination is complete and a report of the examination has been filed as provided under par. (c). At the hearing, the court shall take evidence it considers relevant to determining whether the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public. The department and the party to whom the petition was sent under par. (b) 2. may offer relevant evidence regarding that issue.

AB591-ASA2,13,15 (e) The court may grant a petition filed under par. (b) 1. if it determines after a hearing under par. (d) that the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public.

AB591-ASA2, s. 5 Section 5. 946.465 of the statutes is created to read:

AB591-ASA2,13,20 946.465 Tampering with a global positioning system tracking device. Whoever, without the authorization of the department of corrections, intentionally tampers with a global positioning system tracking device or comparable technology that is provided under s. 301.48 is guilty of a Class I felony.

AB591-ASA2, s. 6 Section 6. 948.02 (6) of the statutes is created to read:

AB591-ASA2,14,2 948.02 (6) Finding regarding force or violence. If a person is convicted or found not guilty by reason of mental disease or defect under sub. (2), the court shall determine, immediately after the trial, based on a preponderance of the evidence presented at trial, and without a jury, if the offense involved the use or a threat of force or violence. If the court makes such a determination, the court shall enter a finding to that effect in the record.

AB591-ASA2, s. 7 Section 7. 948.025 (4) of the statutes is created to read:

AB591-ASA2,14,7 948.025 (4) (a) If a person is convicted or found not guilty by reason of mental disease or defect under sub. (1) (b), the court shall determine, immediately after the trial, based on a preponderance of the evidence presented at trial, and without a jury, if any of the following applies:

AB591-ASA2,14,8 1. The offense involved a violation of s. 948.02 (1).

AB591-ASA2,14,9 2. The offense involved the use or a threat of force or violence.

AB591-ASA2,14,11 (b) If the court determines that either par. (a) 1. or 2. applies, the court shall enter a finding to that effect in the record.

AB591-ASA2, s. 8 Section 8. 971.17 (4) (e) of the statutes is renumbered 971.17 (4) (e) 1. and amended to read:

AB591-ASA2,15,4 971.17 (4) (e) 1. If the court finds that the person is appropriate for conditional release, the court shall notify the department of health and family services. The Subject to subd. 2. and 3., the department of health and family services and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health and family services may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health and family services and person to be released request additional time to develop the plan.

AB591-ASA2,15,10 2. If the county department of the person's county of residence declines to prepare a plan, the department of health and family services may arrange for another any other county to prepare the plan if that county agrees to prepare the plan and if the individual person will be living in that county. This subdivision does not apply if the person was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect.

AB591-ASA2, s. 9 Section 9. 971.17 (4) (e) 3. of the statutes is created to read:

AB591-ASA2,15,16 971.17 (4) (e) 3. If the county department for the person's county of residence declines to prepare a plan for a person who was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect, the department may arrange for any of the following counties to prepare a plan if the county agrees to do so:

AB591-ASA2,15,18 a. The county in which the person was found not guilty by reason of mental disease or defect, if the person will be living in that county.

AB591-ASA2,15,20 b. A county in which a treatment facility for sex offenders is located, if the person will be living in that facility.

AB591-ASA2, s. 10 Section 10. 980.08 (5) of the statutes is renumbered 980.08 (5) (b) and amended to read:

AB591-ASA2,16,22 980.08 (5) (b) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and the county department under s. 51.42 in the county of residence of the person selected under par. (c) or (d) shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan. If

AB591-ASA2,17,5 (c) The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence and have the county department for that county prepare a plan, but if the county department of the person's county of residence declines to prepare a plan, the department may arrange for another the county in which the person was convicted or a county in which a treatment facility for sex offenders is located to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. do so.

AB591-ASA2,17,12 (d) If the department is unable to arrange for another a county to prepare a plan under par. (c), the court shall designate a county department to prepare the plan, order the county department for one of the counties described in par. (c) to prepare the plan, and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.

AB591-ASA2, s. 11 Section 11. 980.08 (5) (a) of the statutes is created to read:

AB591-ASA2,17,18 980.08 (5) (a) In this subsection, "county in which the person was convicted" means the county in which the person was convicted of, adjudicated delinquent for, or found not guilty by reason of mental disease or defect for the sexually violent offense that resulted in the sentence, placement, or commitment that was in effect when the petition was filed under s. 980.02.

AB591-ASA2, s. 12 Section 12. 980.08 (5) (e) of the statutes is created to read:

AB591-ASA2,18,2 980.08 (5) (e) The department may arrange for the county department for the county in which the person was convicted to prepare a plan and the court may order such a county department to prepare a plan only if the person will be living in that county. The department may arrange for the county department for a county in which a treatment facility for sex offenders is located to prepare a plan and the court may order such a county department to prepare a plan only if the person will be living in that treatment facility.

AB591-ASA2, s. 13 Section 13. 980.08 (6m) of the statutes is amended to read:

AB591-ASA2,19,7 980.08 (6m) An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5) (b). A person on supervised release is subject to the conditions set by the court and to the rules of the department. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified. If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section.

AB591-ASA2, s. 14 Section 14. Initial applicability.

AB591-ASA2,19,12 (1) Placement and tracking of persons released to parole or extended supervision. The treatment of sections 301.03 (20) and 301.48 of the statutes first applies to persons whom the department of corrections releases to parole or extended supervision on the effective date of this subsection.