1995 Wisconsin Act 352

352,48m Section 48m. 302.365 (1) (a) 3. of the statutes is created to read:

302.365 (1) (a) 3. Policies and procedures for providing educational programming for prisoners under 18 years of age. The rules shall establish functional objectives for educational programming for those prisoners, but may not require jails or houses of correction to use only one particular method to meet the objectives.

352,48p Section 48p. 302.38 (1) of the statutes, as affected by 1995 Wisconsin Act 43, is amended to read:

302.38 (1) If a prisoner needs medical or hospital care or is intoxicated or incapacitated by alcohol the sheriff, superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment and may transfer the prisoner to a hospital or to an approved treatment facility under s. 51.45 (2) (b) and (c), making provision for the security of the prisoner. The sheriff, superintendent or other keeper may provide appropriate care or treatment under this subsection for a prisoner under 18 years of age and may transfer a prisoner under 18 years of age under this subsection without obtaining the consent of the prisoner's parent, guardian or legal custodian. The sheriff, superintendent or other keeper may charge a prisoner for the costs of providing medical care to the prisoner while he or she is in the jail or house of correction. If the sheriff or other keeper maintains a personal money account for an inmate's use for payment for items from canteen, vending or similar services, the sheriff or other keeper may make deductions from the account to pay for the charges under this subsection.

352,49 Section 49. 304.06 (1) (b) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

304.06 (1) (b) Except as provided in sub. (1m) or s. 161.49 (2), 302.045 (3) or 973.0135, the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in a county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater. The parole commission may parole a participant in the serious juvenile offender program under s. 938.538 when he or she has participated in that program for 2 years. Except as provided in s. 939.62 (2m) or 973.014, the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11 (1) and subject to extension using the formulas under s. 302.11 (2). The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing.

352,50 Section 50 . 304.06 (1z) of the statutes, as created by 1995 Wisconsin Act 77, is repealed.

352,51 Section 51 . 778.25 (1) (a) 4. of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

778.25 (1) (a) 4. Under s. 48.983 938.983 brought against an adult in circuit court or against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

352,52 Section 52 . 895.035 (2m) (a) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

895.035 (2m) (a) If a child fails to pay restitution under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or 938.345 as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the child will not pay restitution as ordered or agreed to, the victim, the victim's insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the child may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the child be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the victim or the victim's insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim's insurer, or both, from commencing another action seeking compensation from the child or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim's insurer.

352,53 Section 53 . 895.034 (2m) (b) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

895.035 (2m) (b) If a child fails to pay a forfeiture as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a municipal court or if it appears likely that the child will not pay the forfeiture as ordered, the representative of the public interest under s. 938.09, the agency, as defined in s. 938.38 (1) (a), supervising the child or the law enforcement agency that issued the citation to the child may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of the forfeiture unpaid by the child be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the county or appropriate municipality. A petition under this paragraph may be filed after the expiration of the dispositional order or sentence under which the forfeiture is payable, but no later than one year after the expiration of the dispositional order or sentence or any extension of the dispositional order or sentence.

352,53m Section 53m. 938.02 (1) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.02 (1) “Adult" means a person who is 18 years of age or older, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, “adult" means a person who has attained 17 years of age.

352,53p Section 53p. 938.02 (10m) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.02 (10m) “Juvenile" means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “juvenile" does not include a person who has attained 17 years of age.

352,54 Section 54 . 938.02 (15m) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.02 (15m) “Secured correctional facility" means a correctional institution operated or contracted for by the department for holding in secure custody persons adjudged delinquent. “Secured correctional facility" includes the facility at which the juvenile boot camp program under s. 938.532 is operated, and a facility authorized under s. 938.533 (3) (b) and a facility authorized under s., 938.538 (4) (b) or 938.539 (5).

352,55 Section 55 . 938.02 (19) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.02 (19) “Type 1 secured correctional facility" means a secured correctional facility, but excludes any correctional institution that meets the criteria under sub. (15m) solely because of its status under s. 938.533 (3) (b) or, 938.538 (4) (b) or 938.539 (5).

352,56 Section 56 . 938.02 (19r) of the statutes is created to read:

938.02 (19r) “Type 2 child caring institution" means a child caring institution that is designated by the department to provide care and maintenance for juveniles who have been placed in the child caring institution under the supervision of a county department under s. 938.34 (4d).

352,57 Section 57 . 938.02 (20) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.02 (20) “Type 2 secured correctional facility" means a secured correctional facility that meets the criteria under sub. (15m) solely because of its status under s. 938.533 (3) (b) or, 938.538 (4) (b) or 938.539 (5).

352,58 Section 58 . 938.028 of the statutes is created to read:

938.028 Custody of Indian children. The Indian child welfare act, 25 USC 1911 to 1963, supercedes the provisions of this chapter in any child custody proceeding governed by that act.

352,59 Section 59 . 938.065 (3) (f) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.065 (3) (f) Make any dispositional order under s. 938.34 (4d), (4h) or (4m).

352,60 Section 60 . 938.08 (3) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.08 (3) (a) In addition to the law enforcement authority specified in sub. (2), department personnel designated by the department and personnel of an agency contracted with under s. 301.08 (1) (b) 3. designated by agreement between the agency and the department have the power of law enforcement authorities to take a juvenile into physical custody under the following conditions:

1. If they are in prompt pursuit of a juvenile who has run away from a secured correctional facility or secured child caring institution.

2. If the juvenile has failed to return to a secured correctional facility or secured child caring institution after any authorized absence.

(b) A juvenile taken into custody under par. (a) may be returned directly to the secured correctional facility or secured child caring institution and shall have a hearing regarding placement in a disciplinary cottage or in disciplinary status in accordance with ch. 227.

352,61 Section 61 . 938.17 (2) (h) 4. of the statutes is created to read:

938.17 (2) (h) 4. If the court assigned to exercise jurisdiction under this chapter and ch. 48 imposes the sanction specified in s. 938.355 (6) (d) 1. or home detention with monitoring by an electronic monitoring system as specified in s. 938.355 (6) (d) 3., on a petition described in subd. 1., that court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under s. 938.355 (6) (d) 1. or 3.

352,62 Section 62 . 938.18 (2m) of the statutes is created to read:

938.18 (2m) The court may designate an agency, as defined in s. 938.38 (1) (a), to submit a report analyzing the criteria specified in sub. (5). The agency shall file the report with the court and the court shall cause copies of the report to be given to the juvenile, any parent, guardian or legal custodian of the juvenile and counsel at least 3 days before the hearing. The court may rely on facts stated in the report in making its findings with respect to the criteria under sub. (5).

352,63 Section 63 . 938.18 (2r) of the statutes, as created by 1995 Wisconsin Act 77, is repealed.

352,64 Section 64 . 938.18 (7) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.18 (7) If the juvenile absconds and does not appear at the waiver hearing, the court may proceed with the waiver hearing as provided in subs. (4) to (6) in the juvenile's absence. If the waiver is granted, the juvenile may contest that waiver when the juvenile is apprehended by showing the court of criminal jurisdiction good cause for his or her failure to appear. If the court of criminal jurisdiction finds good cause for the juvenile's failure to appear, that court shall transfer jurisdiction to the court assigned to exercise jurisdiction under this chapter and ch. 48 for the purpose of holding the waiver hearing.

352,65 Section 65 . 938.183 (1) (a) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.183 (1) (a) A juvenile who has been adjudicated delinquent and who is alleged to have violated s. 940.20 (1) or 946.43 while placed in a secured correctional facility, a secure detention facility, a secured child caring institution or a secured adolescent treatment unit under s. 46.043 or who has been adjudicated delinquent and has who is alleged to have committed a violation of s. 940.20 (2m).

352,66 Section 66 . 938.183 (1) (b) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.183 (1) (b) A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation following waiver of jurisdiction under s. 48.18, 1993 stats., or s. 938.18 by the court assigned to exercise jurisdiction under this chapter and ch. 48 or if the court assigned to exercise jurisdiction under this chapter and ch. 48 has waived its jurisdiction over the juvenile for a previous violation and criminal proceedings on that previous violation are still pending.

352,67 Section 67 . 938.183 (1m) of the statutes, as created by 1995 Wisconsin Act 77, is renumbered 938.183 (1m) (intro.) and amended to read:

938.183 (1m) (intro.) Notwithstanding subchs. IV to VI, a juvenile described in sub. (1) is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for the crime that the juvenile is alleged to have committed, unless except as follows:

(b) If a court of criminal jurisdiction transfers jurisdiction under s. 970.032 or 971.31 (13) to a court assigned to exercise jurisdiction under this chapter and ch. 48, the juvenile is subject to the procedures and dispositions specified in subch. IV to VI.

352,68 Section 68 . 938.183 (1m) (a) of the statutes is created to read:

938.183 (1m) (a) If the juvenile is under 15 years of age, the juvenile may be held in secure custody only in a secure detention facility or in the juvenile portion of a county jail.

352,69 Section 69 . 938.183 (1m) (c) of the statutes is created to read:

938.183 (1m) (c) If the juvenile is convicted of a lesser offense and if any of the conditions specified in s. 938.183 (2) (a) 1. or 2. applies, the court of criminal jurisdiction may impose a criminal penalty or a disposition specified in s. 938.34.

352,69m Section 69m. 938.183 (2) (a) 1. of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.183 (2) (a) 1. The court of criminal jurisdiction convicts the juvenile of a lesser offense that is not an attempt to violate s. 940.01, that is not a violation of s. 940.02 or 940.05 and that is not an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18.

352,69p Section 69p. 938.183 (2) (a) 2. of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.183 (2) (a) 2. The court of criminal jurisdiction convicts the juvenile of a lesser offense that is an attempt to violate s. 940.01, that is a violation of s. 940.02 or 940.05 or that is an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18 and the court of criminal jurisdiction, after considering the criteria specified in s. 938.18 (5), determines by clear and convincing evidence that it would be in the best interests of the juvenile and of the public to impose a disposition specified in s. 938.34.

352,70 Section 70 . 938.185 (1) (c) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.185 (1) (c) In the case of a violation of a state law or a county, town or municipal ordinance, the county where the violation occurred, except that in that case the court of the county where the violation occurred may, after the juvenile is adjudged delinquent, transfer the proceeding to the county where the juvenile resides for disposition, if the court of the county of residence agrees to that transfer and the transferring court agrees to that disposition.

352,71 Section 71 . 938.208 (1) (intro.) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.208 (1) (intro.) Probable cause exists to believe that the juvenile has committed a delinquent act and either presents a substantial risk of physical harm to another person or a substantial risk of running away so as to be unavailable for a court hearing or a revocation hearing for juveniles on aftercare supervision. For juveniles on aftercare supervision who have been adjudged delinquent, the delinquent act referred to in this section may be the act for which the juvenile was adjudged delinquent. If the intake worker determines that any of the following conditions applies, the juvenile is considered to present a substantial risk of physical harm to another person:

352,72 Section 72 . 938.208 (6) of the statutes is created to read:

938.208 (6) Probable cause exists to believe that the juvenile is subject to the jurisdiction of the court of criminal jurisdiction under s. 938.183 (1) and is under 15 years of age.

352,73 Section 73 . 938.209 (3) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.209 (3) The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under s. 938.18 or who is under the jurisdiction of an adult court under s. 938.183, unless the juvenile is under the jurisdiction of an adult court under s. 938.183 (1) and is under 15 years of age.

352,73p Section 73p. 938.22 (1) (b) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.22 (1) (b) Subject to sub. (3) (ar), in counties having a population of less than 500,000, the nonjudicial operational policies of the secure detention facility or shelter care facility shall be determined by the judge of the court assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district county board of supervisors or, in the case of a secure detention facility or shelter care facility established by 2 or more counties, by a committee of the judges of the courts in the participating counties assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district the county boards of supervisors for the 2 or more counties jointly. Those policies shall be executed by the superintendent appointed under sub. (3) (a).

352,73r Section 73r. 938.22 (3) (a) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.22 (3) (a) In counties having a population of less than 500,000, public secure detention facilities and public shelter care facilities shall be in the charge of a superintendent. The judge of the court assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district county board of supervisors or, where 2 or more counties operate joint public secure detention facilities or public shelter care facilities, the committee of judges of the courts assigned to exercise jurisdiction under this chapter and ch. 48 with the approval of the chief judge of the judicial administrative district county boards of supervisors for the 2 or more counties jointly shall appoint the superintendent and other necessary personnel for the care and education of the juveniles in secure detention or shelter care facilities, subject to par. (am) and to civil service regulations in counties having civil service.

352,73rm Section 73rm. 938.223 of the statutes is created to read:

938.223 Contracts with Minnesota counties for secure detention facility services. (1) The county board of supervisors of any county may contract with one or more counties in Minnesota that operate a secure detention facility for the use of one or more Minnesota secure detention facilities for the holding of juveniles who meet the criteria under s. 938.208.

(2) (a) A contract under sub. (1) shall require all of the following:

1. That the Minnesota secure detention facility meet or exceed the minimum requirements for the approval and operation of a Wisconsin secure detention facility established by the department by rules promulgated under s. 938.22 (2) (a) and that the Minnesota secure detention facility be approved by the department under s. 301.36.

2. That the Minnesota secure detention facility provide educational programming, health care and other care that is equivalent to that which a juvenile would receive if held in a Wisconsin secure detention facility.

(b) In addition to the requirements under par. (a), a contract under sub. (1) shall include all of the following:

1. The rates to be paid by the Wisconsin county for holding a juvenile in the Minnesota secure detention facility and the charges to be paid by the Wisconsin county for any extraordinary medical and dental expenses and any programming provided for a juvenile who is held in the Minnesota secure detention facility.

2. An agreement that the Wisconsin county retains jurisdiction over a juvenile who is held in the Minnesota secure detention facility.

3. An agreement that the Minnesota secure detention facility is subject to investigation and inspection by the department under s. 301.36.

4. Any other matters that are necessary and appropriate concerning the obligations, responsibilities and rights of the contracting counties and the department.

(3) The county board of supervisors of any county that operates a secure detention facility may contract with one or more counties in Minnesota for the use of the secure detention facility operated by the Wisconsin county for the holding of juveniles transferred to that secure detention facility by the Minnesota county.

352,74 Section 74 . 938.24 (5) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.24 (5) The intake worker shall recommend request that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days or sooner of receipt of referral information. If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel or other official under s. 938.09 shall receive written notice of such action. In addition, if a deferred prosecution agreement is entered into placing a juvenile in a youth village program as described in s. 118.42, the judge or juvenile court commissioner shall receive written notice of such action and, on receipt of that notice, shall enter an order requiring compliance with that agreement. A notice of deferred prosecution of an alleged delinquency case shall include a summary of the facts surrounding the allegation and a list of prior intake referrals and dispositions. If a law enforcement officer has made a recommendation concerning the juvenile, the intake worker shall forward this recommendation to the district attorney under s. 938.09. Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The judge shall grant appropriate relief as provided in s. 938.315 (3) with respect to any such petition which is not referred or filed within the time limits specified within this subsection. Failure to object if a petition is not referred or filed within a time limit specified in this subsection waives that time limit.

352,75 Section 75 . 938.245 (2) (a) 5. b. of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.245 (2) (a) 5. b. In addition to any other employment or duties permitted under ch. 103 or any rule or order under ch. 103, a juvenile who is under 14 years of age who is participating in a restitution project provided by the county may, for the purpose of making restitution, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under ch. 103 or any rule or order under ch. 103. A juvenile who is participating in a restitution project provided by the county is exempt from the permit requirement under s. 103.70 (1).

352,76 Section 76 . 938.245 (2g) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.245 (2g) If the informal disposition deferred prosecution agreement is based on an allegation that the juvenile violated s. 943.017 and the juvenile has attained the minimum age at which a juvenile may be adjudicated delinquent, the informal disposition deferred prosecution agreement may require that the juvenile participate for not less than 10 hours nor more than 100 hours in a supervised work program under s. 938.34 (5g) or perform not less than 10 hours nor more than 100 hours of other community service work, except that if the juvenile has not attained 14 years of age the maximum number of hours is 40.

352,77 Section 77 . 938.245 (4) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.245 (4) The intake worker shall inform the juvenile and the juvenile's parent, guardian and legal custodian in writing of their right to request the court to terminate or, if the juvenile is subject to a deferred prosecution agreement under sub. (2) (a) 9., to request the court to terminate the deferred prosecution agreement at any time or to object at any time to the fact or terms of the deferred prosecution agreement. If an objection arises the intake worker may alter the terms of the agreement or recommend to the district attorney or corporation counsel that a petition be filed. If the deferred prosecution agreement is terminated the intake worker may recommend to the district attorney or corporation counsel that a petition be filed.

352,78 Section 78 . 938.245 (5) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.245 (5) A deferred prosecution agreement under sub. (2) (a) 1. to 8. may be terminated by the court upon the request of the juvenile, parent, guardian or legal custodian. A deferred prosecution agreement under sub. (2) (a) 9. may be terminated by the court upon the request of the juvenile, parent, guardian or legal custodian.