Amendment ASA1-SB441

SB441-ASA1, s. 95 Section 95. 980.05 (3) (a) of the statutes is amended to read:

SB441-ASA1,39,6 980.05 (3) (a) At a trial on a petition under this chapter, the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt that the person who is the subject of the petition is a sexually violent person.

SB441-ASA1, s. 96 Section 96. 980.05 (3) (b) of the statutes is amended to read:

SB441-ASA1,39,11 980.05 (3) (b) If the state alleges that the sexually violent offense or act that forms the basis for the petition was an act that was sexually motivated as provided in s. 980.01 (6) (b) or (bm), the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

SB441-ASA1, s. 97 Section 97. 980.07 (1) of the statutes is renumbered 980.07 (1) (intro.) and amended to read:

SB441-ASA1,39,22 980.07 (1) (intro.) If a person has been is committed under s. 980.06 and has not been discharged under s. 980.09 or 980.093, the department shall conduct an examination of his or her mental condition within 6 12 months after an the date of the initial commitment order under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining 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. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an any of the following:

SB441-ASA1,39,25 (a) An examiner as provided under s. 980.03 (4) 980.031 (3). The county shall pay the costs of an examiner appointed under this paragraph as provided under s. 51.20 (18) (a).

SB441-ASA1, s. 98 Section 98. 980.07 (1) (b) of the statutes is created to read:

SB441-ASA1,40,2 980.07 (1) (b) An attorney as provided under s. 980.03 (2) (a).

SB441-ASA1, s. 99 Section 99. 980.07 (1g) of the statutes is created to read:

SB441-ASA1,40,7 980.07 (1g) Any examiners under this section shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c).

SB441-ASA1, s. 100 Section 100. 980.07 (1m) of the statutes is created to read:

SB441-ASA1,40,14 980.07 (1m) At the time for any examination under sub. (1), the department shall prepare a treatment report based on its treating professionals' evaluation of the person's progress in treatment and of whether that progress has been sufficient and their description of the type of treatment that the person would need in the community if supervised release were ordered. The department shall provide a copy of this report to any examiner conducting an examination under sub. (1).

SB441-ASA1, s. 101 Section 101. 980.07 (2) of the statutes is amended to read:

SB441-ASA1,41,6 980.07 (2) Any examiner conducting an examination under this section sub. (1) shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the department. The report shall include an assessment of the risk that the person will reoffend, whether the risk can be safely managed in the community if reasonable conditions of supervision and security are imposed, and whether the treatment that the person needs is available in the community. The department shall then send the treatment report, the written examination report, and a written statement from the department recommending continued institutional care, supervised release, or discharge to the court that committed the person under s. 980.06. A copy of each report and the department's recommendation shall be provided also to the district attorney or department of justice, whichever is applicable, and to the person's attorney as soon as he or she is retained or appointed. If the department concludes that the person does not meet the criteria for commitment as a sexually violent person, the department shall petition for discharge in accordance with the provisions of s. 980.09 (1).

SB441-ASA1, s. 102 Section 102. 980.07 (3) of the statutes is amended to read:

SB441-ASA1,41,11 980.07 (3) Notwithstanding sub. (1), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. Any report ordered under this subsection shall conform to subs. (1m) and (2).

SB441-ASA1, s. 103 Section 103. 980.07 (4) to (7) of the statutes are created to read:

SB441-ASA1,41,17 980.07 (4) (a) Within 30 days after the filing of the reexamination report, treatment report, and recommendation under this section, the person subject to the commitment, the district attorney, or the department of justice, whichever is applicable, may object to the department's recommendation under sub. (2) by filing a written objection with the court.

SB441-ASA1,41,18 (b) If no timely objection is filed under par. (a), one of the following applies:

SB441-ASA1,41,21 1. If the department's recommendation under sub. (2) is for continued institutional care, the department's recommendation shall be implemented without a hearing.

SB441-ASA1,41,23 2. If the department's recommendation under sub. (2) is for supervised release or discharge, the court shall proceed under sub. (7) or s. 980.09.

SB441-ASA1,42,4 (5) (a) If the person files a timely objection without counsel, the court shall serve a copy of the objection and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person objects through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable. If the district attorney or department of justice objects, it shall serve the person or his or her counsel.

SB441-ASA1,42,7 (b) If the person filing an objection is requesting discharge, the court may not proceed under sub. (7). The court may proceed under s. 980.093 if the person files a petition under that section.

SB441-ASA1,42,9 (6) The district attorney or department of justice, whichever is applicable, may employ experts or professional persons to support or oppose any recommendation.

SB441-ASA1,42,14 (6m) Subject to s. 980.03 (2) (a), the court, before proceeding under sub. (7), 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. The determination of indigency and the appointment of counsel shall be done as soon as circumstances permit.

SB441-ASA1,42,20 (7) (a) Except as provided in subs. (4) (b) 1. and (5) (b), unless the department recommends discharge, the court, without a jury, shall hold a hearing to determine whether to authorize supervised release. The court shall hold the hearing within 30 days after the date on which objections are due under sub. (4), unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d).

SB441-ASA1,42,25 (am) The department of justice shall represent the department of health and family services at any hearing under this subsection unless the departments have adverse interests. If the departments have adverse interests, the department of health and family services shall be represented at the hearing by its agency counsel or by an attorney that it retains.

SB441-ASA1,43,10 (b) The court shall determine from all of the evidence whether to continue institutional care and, if not, what the appropriate placement would be for the person while on supervised release. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, the person's progress or lack of progress in treatment, and, if the court were to authorize supervised release, where the person would live, how the person would support himself or herself, and what arrangements would be available to ensure that the person would have access to and would participate in necessary treatment.

SB441-ASA1,43,16 (bm) The court shall select a county to prepare a report under par. (c). Unless the court has good cause to select another county, the court shall select the person's county of residence. A preliminary decision by the court under this paragraph or under par. (cm) to refer a case to a county department or the court's failure to make such a decision shall not affect the court's power to authorize or not authorize supervised release under this subsection.

SB441-ASA1,43,25 (c) The court shall order the county department under s. 51.42 in the county of intended placement to prepare a report, either independently or with the department of health and family services, identifying prospective residential options for community placement. In identifying prospective residential options, the county 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).

SB441-ASA1,44,3 (cm) If the court determines that the prospective residential options identified in the report under par. (c) are inadequate, the court shall select another county to prepare a report under par. (c).

SB441-ASA1,44,6 (d) The court may order that a person be placed on supervised release if it finds, based on all of the reports, trial records, and evidence presented, that all of the following apply:

SB441-ASA1,44,9 1. The person who will be placed on supervised release has made sufficient progress in treatment such that the risk that the person will reoffend can be safely managed in the community.

SB441-ASA1,44,12 2. There is treatment reasonably available in the community and the person who will be placed on supervised release will be treated by a provider who is qualified to provide the necessary treatment in this state.

SB441-ASA1,44,19 3. The provider presents a specific course of treatment for the person who will be placed on supervised release, agrees to assume responsibility for the person's treatment, agrees to comply with the rules and conditions of supervision imposed by the court and the department, agrees to report on the person's progress to the court on a regular basis, and agrees to report any violations of supervised release immediately to the court the department of justice or the district attorney, as applicable.

SB441-ASA1,44,23 4. The person who will be placed on supervised release has housing arrangements that are sufficiently secure to protect the community, and the person or agency that is providing the housing to the person who will be placed on supervised release agrees in writing to the following conditions:

SB441-ASA1,44,24 a. To accept the person who will be placed supervised release.

SB441-ASA1,44,25 b. To provide or allow for the level of safety that the court requires.

SB441-ASA1,45,6 c. To immediately report to the court and the department of justice or the district attorney, as applicable, any unauthorized absence of the person who will be placed on supervised release from the housing arrangement to which the person has been assigned. This subd. 4. c. does not apply unless the person or agency that is providing the housing is a state or local government agency or is licensed by the department.

SB441-ASA1,45,9 5. The person who will be placed on supervised release will comply with the provider's treatment requirements and all of the requirements that are imposed by the department and the court.

SB441-ASA1,45,12 6. The department has made provisions for the necessary services, including sex offender treatment, other counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment.

SB441-ASA1, s. 104 Section 104. 980.08 of the statutes is repealed and recreated to read:

SB441-ASA1,45,18 980.08 Supervised release; procedures, implementation, revocation. (1) If the court determines under s. 980.07 (7) that supervised release is appropriate, the court shall order the county department under s. 51.42 in the county of intended placement to assist the department of health and family services in implementing the supervised release placement.

SB441-ASA1,45,21 (2) The department shall file with the court any additional rules of supervision not inconsistent with the rules or conditions imposed by the court within 10 days of imposing the rule.

SB441-ASA1,45,23 (3) If the department wishes to change a rule or condition of supervision imposed by the court, it must obtain the court's approval.

SB441-ASA1,46,7 (4) An order granting supervised release places the person in the care, control, and custody of the department. The department shall arrange for the care, control, and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the order for supervised release. Before a person is actually released under this section, the court shall 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.

SB441-ASA1,46,11 (5) (a) If the department concludes that a person on supervised release, or awaiting placement on supervised release, violated or threatened to violate a rule of supervised release, it may petition for revocation of the order granting supervised release. The department may also detain the person.

SB441-ASA1,46,15 (b) If the department concludes that a person on supervised release, or awaiting placement on supervised release, is a threat to the safety of others, it shall detain the person and petition for revocation of the order granting supervised release.

SB441-ASA1,47,2 (c) If the department concludes that the order granting supervised release should be revoked, it shall file a statement alleging the violation and a petition to revoke the order for supervised release with the committing court and provide a copy of each to the regional office of the state public defender responsible for handling cases in the county where the committing court is located. If the department has detained the person under par. (a) or (b), the department shall file the statement and the petition and provide them to the state public defender within 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays. 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). The determination of indigency and the appointment of counsel shall be done as soon as circumstances permit.

SB441-ASA1,47,7 (d) The court shall hear the petition within 30 days, unless the hearing or time deadline is waived. A final decision on the petition to revoke shall be made within 90 days of the filing of the petition. Pending the final revocation hearing, the department may detain the person in the county jail or return him or her to institutional care.

SB441-ASA1,47,13 (6) (a) If the court finds after a hearing, by clear and convincing evidence, that any rule has been violated and the court finds that the violation of the rule merits the revocation of the order granting supervised release, the court may revoke the order for supervised release and order that the person be placed in institutional care. The person shall remain in institutional care until he or she is discharged from the commitment or again placed on supervised release.

SB441-ASA1,47,18 (b) If the court finds after a hearing, by clear and convincing evidence, that the safety of others requires that supervised release be revoked, the court shall revoke the order granting supervised release and order that the person be placed in institutional care. The person shall remain in institutional care until he or she is discharged from the commitment or again placed on supervised release.

SB441-ASA1, s. 105 Section 105. 980.09 (title) of the statutes is amended to read:

SB441-ASA1,47,21 980.09 (title) Petition for discharge; procedure with department's approval.

SB441-ASA1, s. 106 Section 106. 980.09 (1) (title) of the statutes is repealed.

SB441-ASA1, s. 107 Section 107. 980.09 (1) (a) of the statutes is renumbered 980.09 (1) and amended to read:

SB441-ASA1,48,8 980.09 (1) If the secretary department determines at any time that a person committed under this chapter is no longer does not meet the criteria for commitment as a sexually violent person, the secretary department shall authorize the person to petition the committing court for discharge. The person department shall file the petition with the court and serve a copy upon the department of justice or the district attorney's office that filed the petition under s. 980.02 (1), whichever is applicable. The court, upon receipt of the petition for discharge, shall order a hearing to be held within 45 90 days after the date of receipt of the petition.

SB441-ASA1, s. 108 Section 108. 980.09 (1) (b) of the statutes is renumbered 980.09 (2m) and amended to read:

SB441-ASA1,48,17 980.09 (2m) At a hearing under this subsection section, the district attorney or the department of justice, whichever filed the original petition, shall represent the state and shall have the right to have the petitioner examined by an expert or professional person of his, her or its choice. The hearing shall be before the court without a jury. The state has the burden of proving by clear and convincing evidence that the petitioner is still currently meets the criteria for commitment as a sexually violent person.

SB441-ASA1, s. 109 Section 109. 980.09 (1) (c) of the statutes is renumbered 980.09 (3) and amended to read:

SB441-ASA1,48,25 980.09 (3) If the court is satisfied that the state has not met its burden of proof under par. (b) sub. (2m), the petitioner shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b) sub. (2m), the court may proceed under 980.07 (7) (b) to (d) to determine, using the criterion specified in s. 980.08 (4), whether to modify the petitioner's existing commitment order by authorizing supervised release.

SB441-ASA1, s. 110 Section 110. 980.09 (2) of the statutes is repealed.

SB441-ASA1, s. 111 Section 111. 980.093 of the statutes is created to read:

SB441-ASA1,49,8 980.093 Petition for discharge without department's approval. (1) Petitions in general. A committed person may petition the committing court for discharge without the department's approval. The court shall deny the petition under this section without a hearing unless the petition alleges facts from which the court or jury may conclude the person's condition has changed so that the person does not meet the criteria for commitment as a sexually violent person.

SB441-ASA1,49,18 (2) Court review of petition. The court shall review the petition within 30 days and the court may hold a hearing to determine if it contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. In determining under this subsection whether facts exist that might warrant such a conclusion, the court shall consider any current or past reports filed under s. 980.07, relevant arguments in the petition and in the state's written response, and any supporting documentation provided by the person or the state. If the court determines that the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment, the court shall deny the petition.

SB441-ASA1,49,23 (3) Hearing. The court shall hold a hearing within 90 days of the determination that the petition contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. The state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment as a sexually violent person.

SB441-ASA1,50,4 (4) Disposition. If the court or jury is satisfied that the state has not met its burden of proof under sub. (3), the petitioner shall be discharged from the custody of the department. If the court or jury is satisfied that the state has met its burden of proof under sub. (3), the court may proceed under s. 980.07 (7) (b) to (d) to determine whether to modify the petitioner's existing commitment order by authorizing supervised release.

SB441-ASA1, s. 112 Section 112. 980.095 of the statutes is created to read:

SB441-ASA1,50,10 980.095 Procedures for discharge hearings. (1) Use of juries. (a) The district attorney or the department of justice, whichever filed the original petition, or the petitioner or his or her attorney may request that a hearing under s. 980.093 or 980.096 be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days of the filing of the petition for discharge.

SB441-ASA1,50,18 (b) Juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court. The number of jurors prescribed in par.(a), plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall thereupon exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

SB441-ASA1,50,20 (c) No verdict shall be valid or received unless it is agreed to by at least 5 of the jurors.

SB441-ASA1,50,25 (2) Department's right to be heard. The department of justice shall represent the department of health and family services at any discharge hearing unless the departments have adverse interest. If the departments have adverse interests, the department of health and family services shall be represented at the hearing by its agency counsel or an attorney that it retains.

SB441-ASA1,51,2 (3) Post verdict motions. Motions after verdict may be made without further notice upon receipt of the verdict.

SB441-ASA1,51,4 (4) Appeals. Any party may appeal an order under this subsection as a final order under chs. 808 and 809.

SB441-ASA1, s. 113 Section 113. 980.10 of the statutes is repealed.

SB441-ASA1, s. 114 Section 114. 980.101 (2) (a) of the statutes is amended to read:

SB441-ASA1,51,12 980.101 (2) (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.

SB441-ASA1, s. 115 Section 115. 980.11 (2) (intro.) of the statutes is amended to read:

SB441-ASA1,51,16 980.11 (2) (intro.) If the court places a person on supervised release under s. 980.08 or discharges a person under s. 980.09 or 980.10 980.093, the department shall do all of the following:

SB441-ASA1, s. 116 Section 116. 980.12 (1) of the statutes is amended to read:

SB441-ASA1,51,21 980.12 (1) Except as provided in ss. 980.03 (4) 980.031 (3) and 980.08 (3), the department shall pay from the appropriations under s. 20.435 (2) (a) and (bm) for all costs relating to the evaluation, treatment, and care of persons evaluated or committed under this chapter.

SB441-ASA1, s. 117 Section 117. 980.14 (title) of the statutes is created to read:

SB441-ASA1,51,23 980.14 (title) Immunity.

SB441-ASA1, s. 118 Section 118. 980.14 (1) of the statutes is created to read:

SB441-ASA1,52,3 980.14 (1) In this section, "agency" means the department of corrections, the department of health and family services, the department of justice, or a district attorney.

SB441-ASA1, s. 119 Section 119. Nonstatutory provisions.

SB441-ASA1,52,13 (1) In this section, "facility for children" means a public or private school, a group home, as defined in section 48.02 (7) of the statutes, a residential care center for children and youth, as defined in section 48.02 (15d) of the statutes, a shelter care facility, as defined in section 48.02 (17) of the statutes, a foster home, as defined in section 48.02 (6) of the statutes, a treatment foster home, as defined in section 48.02 (17q) of the statutes, a day care center licensed under section 48.65 of the statutes, a day care program established under section 120.13 (14) of the statutes, a day care provider certified under section 48.651 of the statutes, or a youth center, as defined in section 961.01 (22) of the statutes.

SB441-ASA1,52,17 (2) (a) There is created a committee to assist the state in determining the location for the facility enumerated in 2001 Wisconsin Act 16, section 9107 (1) (d) 1., that will be a transitional facility for the housing of persons committed to the custody of the department of health and family services under chapter 980 of the statutes.