AB28: Bill Text

LRB-1261/1

CMH:sac:rs

2013 - 2014 LEGISLATURE

2013 Assembly BILL 28

February 18, 2013 - Introduced by Joint Legislative Council. Referred to Committee on Criminal Justice.

AB28,2,2 An Act to repeal 980.075 (title), (1), (1m) (b) and (2); to renumber 980.07 (6); to renumber and amend 980.075 (1m) (a), 980.075 (3), 980.075 (5), 980.075 (6) and 980.08 (3); to consolidate, renumber and amend 980.075 (4) (a) and (b); to amend 980.01 (3), 980.01 (8), 980.065 (1r), 980.07 (1), 980.07 (4) (b), 980.07 (6m), 980.08 (1), 980.08 (4) (a), 980.08 (4) (cg) 1., 980.08 (9) (a), 980.09 (1), 980.09 (2) and (3), 980.09 (4) and 980.095 (1) (a); and to create 980.08 (2m), 980.08 (4) (cj), 980.09 (1m) (d) and 980.09 (5) of the statutes; relating to: criteria for supervised release from commitment as sexually violent persons, placement of females committed as sexually violent persons, permitted outings under direct supervision for individuals on supervised release, and supervised release and discharge of individuals committed as sexually violent persons.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

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

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Special Committee on Supervised Release and Discharge of Sexually Violent Persons.

Chapter 980 of the Wisconsin statutes provides a statutory scheme for the involuntary civil commitment of individuals who have completed their criminal sentences and are determined to be "sexually violent persons." In general, a sexually violent person (SVP) is an individual who has been convicted of a sexually violent offense and who is dangerous because he or she suffers from a mental disorder that makes it likely the individual will engage in future acts of sexual violence. Current law contains provisions for the discharge or supervised release of individuals committed under ch. 980.

This draft makes various changes to the discharge and supervised release provisions of ch. 980. These changes include the following:

• Assigning the burden of proof regarding supervised release criteria to the petitioner.

• Extending the timelines within which a court must hold a supervised release hearing or discharge trial.

• Altering the pleading requirement a petitioner must meet before receiving a discharge trial.

• Repealing parts of s. 980.075, stats., relating to the supervised release and discharge petition process, and renumbering certain provisions to the statutory sections specifically relating to supervised release and discharge.

• Requiring a court to make a supervised release determination after denying discharge at a discharge trial.

• Requiring a delay of up to 10 days in the execution of a court order granting discharge to a committed individual.

• Altering the criteria which a committed person must meet before a court may grant supervised release.

• Expanding the list of activities for which a committed person on supervised release may leave his or her residence under direct supervision of a department of corrections (DOC) escort.

AB28,1 Section 1. 980.01 (3) of the statutes is amended to read:

AB28,3,2 980.01 (3) Except in ss. 980.075, 980.09, and 980.095, "petitioner" "Petitioner" means the agency or person that filed a petition under s. 980.02.

Note: Part of s. 980.075 is repealed in this bill and parts are renumbered to be parts of s. 980.07, but the only instance of "petitioner" in s. 980.075 was changed to "person." See Section 11 . Section 980.09 contains one occurrence of "petitioner"; this bill changes it to "person" for consistency. See Section 24. Section 980.095 contains one occurrence of "petitioner"; this bill changes it to "person" to be consistent and to eliminate any confusion since that statutory section also discusses the petition under s. 980.02. See Section 26.

AB28,2 Section 2 . 980.01 (8) of the statutes is amended to read:

AB28,3,5 980.01 (8) "Significant progress in treatment" means that the person has done is doing all of the following:

AB28,3,8 (a) Meaningfully participated participating in the treatment program specifically designed to reduce his or her risk to reoffend offered at a facility described under s. 980.065.

AB28,3,12 (b) Participated Participating in the treatment program at a level that was is sufficient to allow the identification of his or her specific treatment needs and then demonstrated demonstrating, through overt behavior, a willingness to work on addressing the specific treatment needs.

AB28,3,15 (c) Demonstrated Demonstrating an understanding of the thoughts, attitudes, emotions, behaviors, and sexual arousal linked to his or her sexual offending and an ability to identify when the thoughts, emotions, behaviors, or sexual arousal occur.

AB28,3,19 (d) Demonstrated Demonstrating sufficiently sustained change in the thoughts, attitudes, emotions, and behaviors and sufficient management of sexual arousal such that one could reasonably assume that, with continued treatment, the change could be maintained.

Note: Revises the definition of "significant progress in treatment" to specify that the individual must be participating in treatment programs at a sufficient level and demonstrating the requisite behavior, understanding, and changes, rather than specifying that the individual has already participated in the treatment or has already demonstrated these behaviors, understandings, and changes.

Under current law, a committed individual must meet 5 specified criteria before a court may grant him or her supervised release. One of the criteria requires that the individual has made "significant progress in treatment" and that the progress can be sustained while on supervised release. Because the draft revises the definition of "significant progress in treatment", a committed individual must currently be engaged in or working towards the requirements set forth in the definition to meet the criterion for supervised release. Corresponding revisions are made in Sections 5 and 18.

AB28,3 Section 3. 980.065 (1r) of the statutes is amended to read:

AB28,4,5 980.065 (1r) Notwithstanding sub. (1m), the department may place a female person committed under s. 980.06 at Mendota Mental Health Institute, Wisconsin Women's Resource Center, Winnebago Mental Health Institute, or a privately operated residential facility under contract with the department of health services.

Note: Expands the list of facilities at which DHS may place a female committed as an SVP to include the Wisconsin Women's Resource Center.

AB28,4 Section 4. 980.07 (1) of the statutes is amended to read:

AB28,5,2 980.07 (1) If a person is committed under s. 980.06 and has not been discharged under s. 980.09 (4), the department shall appoint an examiner to conduct a reexamination of the person's mental condition within 12 months after the date of the initial commitment order under s. 980.06 and again thereafter at least once each 12 months to determine whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. The examiner shall apply the criteria under s. 980.08 (4) (cg) when considering if the person should be placed on supervised release and shall apply the criteria under s. 980.09 (3) when considering if the person should be discharged. At the time of a reexamination under this section, the person who has been committed may retain or have the court shall appoint an examiner as provided under s. 980.031 (3) upon request of the committed person or the person may retain an examiner. The county shall pay the costs of an examiner appointed by the court as provided under s. 51.20 (18) (a).

Note: Clarifies that a court must appoint an examiner for the committed person if the person requests an examiner at the time of the 12-month reexamination. Removes ambiguity regarding whether a court may choose not to appoint an examiner when a committed person requests an examiner.

AB28,5 Section 5 . 980.07 (4) (b) of the statutes is amended to read:

AB28,5,5 980.07 (4) (b) Whether the person has made is making significant progress in treatment or has refused treatment.

Note: This change corresponds with the revision in Section 2.

AB28,6 Section 6 . 980.07 (6) of the statutes is renumbered 980.07 (6) (a).

Note: This bill renumbers 980.075 (1m) (a) to 980.07 (6) (b); see Section 9 .

AB28,7 Section 7. 980.07 (6m) of the statutes is amended to read:

AB28,5,14 980.07 (6m) If a person committed under s. 980.06 is incarcerated at a county jail, state correctional institution, or federal correction institution for a new criminal charge or conviction or because his or her parole was revoked, any reporting requirement under sub. (1), (4), or (6) (a) does not apply during the incarceration period. A court may order a reexamination of the person under sub. (3) if the courts finds reexamination to be necessary. The schedule for reporting established under sub. (1) shall resume upon the release of the person.

****Note: This bill renumbers s. 980.07 (6) to be 980.07 (6) (a). See Section 6 .

AB28,8 Section 8. 980.075 (title), (1), (1m) (b) and (2) of the statutes are repealed.

Note: This bill relocates portions of s. 980.075 into ss. 980.07 and 980.09, stats., as described in the notes appearing beneath Sections 9, 10 , 11, 12 , and 13. This draft also adds identical language from s. 980.075 to s. 980.08. See the note following Section 15 .

Portions of s. 980.075, patient petition process, which this bill repeals and does not relocate to other portions of the chapter appear in s. 980.075 (2), stats., and contain the following: (1) a 30-day deadline for submitting a supervised release or discharge petition that may conflict with more specific deadlines appearing within s. 980.08 and 980.09, stats; and (2) language stating that a person remains committed or remains on supervised release without court review if the person does not file a timely discharge petition.

AB28,9 Section 9 . 980.075 (1m) (a) of the statutes is renumbered 980.07 (6) (b) and amended to read:

AB28,6,7 980.07 (6) (b) When the department provides a copy of the report under s. 980.07 (6) par. (a) to the person who has been committed under s. 980.06, the department shall provide to the person a standardized petition form for supervised release under s. 980.08 and a standardized petition form for discharge under s. 980.09.

Note: Requires DHS to provide petition forms to committed individuals when providing a copy of the person's reexamination report.

AB28,10 Section 10 . 980.075 (3) of the statutes is renumbered 980.09 (1m) (a) and amended to read:

AB28,6,15 980.09 (1m) (a) If the person files a petition for discharge under s. 980.09 sub. (1) without counsel, the court shall serve a copy of the petition and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person petitions for discharge under s. 980.09 sub. (1) through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.

Note: This Section relocates s. 980.075 (3), stats., which requires that a committed person or his or her attorney serve a copy of the person's discharge petition and supporting documents on the prosecuting entity.

AB28,11 Section 11 . 980.075 (4) (a) and (b) of the statutes are consolidated, renumbered 980.09 (1m) (c) and amended to read:

AB28,6,21 980.09 (1m) (c) The petitioner If a person files a petition for discharge under sub. (1), the person may use experts or professional persons to support his or her petition. (b) The district attorney or the department of justice may use experts or professional persons to support or oppose any petition filed under sub. (1).

Note: This Section relocates s. 980.075 (4) (a) and (b), which permits the committed individual and the prosecution to use experts or other professionals to support or oppose a discharge petition.

AB28,12 Section 12 . 980.075 (5) of the statutes is renumbered 980.09 (1m) (b) and amended to read:

AB28,7,7 980.09 (1m) (b) Subject to s. 980.03 (2) (a), before proceeding under s. 980.08 or 980.09 but If the person files a petition for a discharge under sub. (1) without counsel, as soon as circumstances permit, the court shall refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j) if the person is not represented by counsel.

Note: This Section relocates s. 980.075 (5), stats., which requires the court to refer a committed person who does not have an attorney to the office of the state public defender for an indigency determination and appointment of counsel.

AB28,13 Section 13 . 980.075 (6) of the statutes is renumbered 980.07 (7) and amended to read:

AB28,7,14 980.07 (7) At any time before a hearing under s. 980.08 or 980.09, the department may file a supplemental report if the department determines that court should have additional information. The court shall accept the supplemental report and permit testimony from the department regarding the report or any relevant portion of the report.

Note: Permits the department of health services (DHS) to file a supplemental report at any time prior to a supervised release or discharge hearing.

Creates new language requiring the court to accept any supplemental reports filed by DHS prior to a supervised release or discharge hearing and requires the court to allow DHS to testify about the supplemental report.

AB28,14 Section 14. 980.08 (1) of the statutes is amended to read:

AB28,8,3 980.08 (1) Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 12 months have elapsed since the initial commitment order was entered or at least 12 months have elapsed since the most recent release petition was denied , since supervised release was denied under s. 980.09 (4), or since the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.