JEO:skg:ch
1995 - 1996 LEGISLATURE
March 28, 1996 - Introduced by Representatives Murat, Schneider and
Hasenohrl. Referred to Committee on Criminal Justice and Corrections.
AB1092,1,6 1An Act to renumber and amend 51.37 (9) and 51.37 (10) (am); to amend 51.37
2(10) (b), 895.54, 971.17 (3) (a), 971.17 (4) (a), 971.17 (5) and 971.17 (7) (a); and
3to create 51.37 (9) (b), 51.37 (10) (am) 2., 971.17 (3) (am), 971.17 (4) (am) and
4971.17 (7m) of the statutes; relating to: the commitment of persons found not
5guilty of first-degree intentional homicide by reason of mental disease or
6defect.
Analysis by the Legislative Reference Bureau
Under current law, a person who is found not guilty of a crime by reason of
mental disease or defect is committed to the custody of the department of health and
social services (DHSS). When committing a person found not guilty by reason of
mental disease or defect, a court must specify the length of the person's commitment,
which cannot be more than two-thirds of the maximum sentence of imprisonment
for the crime. The court must also specify whether the person is to be placed in
institutional care or on conditional release. A person placed on conditional release
is subject to the custody and control of DHSS and must abide by conditions set by the
court and by the rules of DHSS. A person placed in institutional care may petition
for conditional release if at least 6 months have passed since the initial commitment
order was entered, since the most recent conditional release petition was denied or
since the most recent order for conditional release was revoked. In addition, the
director of the facility at with the person is placed may, at any time, file a petition
for the conditional release of the person. The director of the treatment facility at
which the person is placed also may, in certain circumstances, allow a person placed
in institutional care to be discharged under supervision, to be conditionally
transferred to the custody of a legal guardian or other person, or to take a temporary
home visit or temporary leave from the institution. Finally, a person who has been

placed on conditional release may petition the court for termination of his or her
commitment if he or she has been on conditional release for at least 6 months or if
at least 6 months have elapsed since the most recent petition for termination was
denied.
This bill requires a person who is found not guilty of first-degree intentional
homicide by reason of mental disease or defect to spend a minimum of 5 years in
institutional care before being eligible for conditional release, discharge under
supervision, conditional transfer or a temporary home visit or temporary leave. In
addition, the bill provides that a person who is found not guilty of first-degree
intentional homicide by reason of mental disease or defect and who has spent the
minimum 5 years in institutional care may petition for conditional release only once
every 36 months, instead of once every 6 months as under current law. However, the
director of the treatment facility at which the person is placed may, at any time, file
a petition for the conditional release of the person once the person has spent the
minimum 5-year period in institutional care. The bill also provides that a person
who has been found not guilty of first-degree intentional homicide by reason of
mental disease or defect and who has been placed on conditional release may petition
for termination of his or her commitment only once every 36 months, instead of once
every 6 months as under current law.
Finally, current law requires DHSS to notify victims or, in certain
circumstances, family members of victims that a person found not guilty by reason
of mental disease or defect has been placed on conditional release or has had his or
her commitment terminated. This bill requires clerks of court to maintain a registry
of family members of victims of first-degree intentional homicide in cases in which
the defendant is found not guilty by reason of mental disease or defect and requires
the clerk of courts to notify family members who are on the registry that the
defendant has filed a petition for conditional release or for termination of his or her
commitment. The notice that the clerk of court must send under the bill must include
a copy of the petition and the time and place of any hearing that the court has set on
the petition.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB1092, s. 1 1Section 1. 51.37 (9) of the statutes is renumbered 51.37 (9) (a) and amended
2to read:
AB1092,3,173 51.37 (9) (a) If Subject to par. (b), if, in the judgment of the director of Mendota
4mental health institute, Winnebago mental health institute or the Milwaukee
5county mental health complex, any person who is committed under s. 971.14 or

1971.17 is not in such condition as warrants his or her return to the court but is in a
2condition to receive a conditional transfer or discharge under supervision, the
3director shall report to the department of health and family services, the committing
4court and the district attorney of the county in which the court is located his or her
5reasons for the judgment. If the court does not file objection to the conditional
6transfer or discharge within 60 days of the date of the report, the director may, with
7the approval of the department of health and family services, conditionally transfer
8any person to a legal guardian or other person, subject to the rules of the department
9of health and family services. Before a person is conditionally transferred or
10discharged under supervision under this subsection, the department of health and
11family services shall so notify the municipal police department and county sheriff for
12the area where the person will be residing. The notification requirement does not
13apply if a municipal department or county sheriff submits to the department of
14health and family services a written statement waiving the right to be notified. The
15department of health and family services may contract with the department of
16corrections for the supervision of persons who are transferred or discharged under
17this subsection.
AB1092, s. 2 18Section 2. 51.37 (9) (b) of the statutes is created to read:
AB1092,3,2219 51.37 (9) (b) A person committed for institutional care under s. 971.17 (3) (am)
20may not be conditionally transferred or discharged under supervision under par. (a)
21unless the minimum period of institutional care specified in the person's
22commitment order has elapsed.
AB1092, s. 3 23Section 3. 51.37 (10) (am) of the statutes is renumbered 51.37 (10) (am) 1. and
24amended to read:
AB1092,4,5
151.37 (10) (am) 1. The Subject to subd. 2., the director of a state treatment
2facility may grant to any patient admitted to the facility as a result of a commitment
3under ch. 971 or 975, a home visit for up to 15 days, or a leave for employment or
4education purposes in which the patient is not absent from the facility for more than
515 days.
AB1092, s. 4 6Section 4. 51.37 (10) (am) 2. of the statutes is created to read:
AB1092,4,107 51.37 (10) (am) 2. The director of a state treatment facility may not grant a
8home visit or leave under subd. 1. to a person committed for institutional care under
9s. 971.17 (3) (am) unless the minimum period of institutional care specified in the
10person's commitment order has elapsed.
AB1092, s. 5 11Section 5. 51.37 (10) (b) of the statutes is amended to read:
AB1092,4,1512 51.37 (10) (b) Such a A home visit or leave under this subsection may be granted
13by the department at its discretion when it is believed to be in the best therapeutic
14interests of the patient and it is reasonably believed not to present a substantial risk
15of harm to the community.
AB1092, s. 6 16Section 6. 895.54 of the statutes is amended to read:
AB1092,4,20 17895.54 Liability exemption; notification of release. A person is immune
18from any liability regarding any act or omission regarding the notification of any
19applicable office or person under s. 51.37 (10), 304.06 (1), 971.17 (4m) or, (6m) or (7m)
20or 980.11. This section does not apply to wilful or wanton acts or omissions.
AB1092, s. 7 21Section 7. 971.17 (3) (a) of the statutes is amended to read:
AB1092,5,822 971.17 (3) (a) An Except as provided in par. (am), an order for commitment
23under this section shall specify either institutional care or conditional release. The
24court shall order institutional care if it finds by clear and convincing evidence that
25conditional release of the person would pose a significant risk of bodily harm to

1himself or herself or to others or of serious property damage. If the court does not
2make this finding, it shall order conditional release. In determining whether
3commitment shall be for institutional care or conditional release, the court may
4consider, without limitation because of enumeration, the nature and circumstances
5of the crime, the person's mental history and present mental condition, where the
6person will live, how the person will support himself or herself, what arrangements
7are available to ensure that the person has access to and will take necessary
8medication, and what arrangements are possible for treatment beyond medication.
AB1092, s. 8 9Section 8. 971.17 (3) (am) of the statutes is created to read:
AB1092,5,1410 971.17 (3) (am) If the defendant under sub. (1) is found not guilty by reason of
11mental disease or mental defect for a violation of s. 940.01, the commitment order
12shall specify a minimum period of institutional care of 5 years. The minimum period
13of institutional care under this paragraph is subject to the credit provisions of s.
14973.155.
AB1092, s. 9 15Section 9. 971.17 (4) (a) of the statutes is amended to read:
AB1092,5,2216 971.17 (4) (a) Any Except as provided in par. (am), any person who is committed
17for institutional care may petition the committing court to modify its order by
18authorizing conditional release if at least 6 months have elapsed since the initial
19commitment order was entered, the most recent release petition was denied or the
20most recent order for conditional release was revoked. The Except as provided in par.
21(am), the
director of the facility at which the person is placed may file a petition under
22this paragraph on the person's behalf at any time.
AB1092, s. 10 23Section 10. 971.17 (4) (am) of the statutes is created to read:
AB1092,6,1124 971.17 (4) (am) A person who is committed for institutional care under sub. (3)
25(am) may not be placed on conditional release until the minimum period of

1institutional care specified under sub. (3) (am) has elapsed. In anticipation of the end
2of the minimum time period of institutional care specified under sub. (3) (am), the
3person may petition the committing court to modify its order by authorizing
4conditional release. After the minimum time period of institutional care specified
5under sub. (3) (am) has elapsed, the person may petition the committing court to
6modify its order by authorizing conditional release if at least 36 months have elapsed
7since the most recent release petition was denied or the most recent order for
8conditional release was revoked. The director of the facility at which the person is
9placed may file a petition under this paragraph on the person's behalf at any time
10after the minimum period of institutional care specified under sub. (3) (am) has
11elapsed.
AB1092, s. 11 12Section 11. 971.17 (5) of the statutes is amended to read:
AB1092,7,1013 971.17 (5) Petition for termination. A person on conditional release, or the
14department of health and family services on his or her behalf, may petition the
15committing court to terminate the order of commitment. If the person files a timely
16petition without counsel, the court shall serve a copy of the petition on the district
17attorney and, subject to sub. (7) (b), refer the matter to the state public defender for
18determination of indigency and appointment of counsel under s. 977.05 (4) (j). If the
19person petitions through counsel, his or her attorney shall serve the district attorney.
20The petition shall be determined as promptly as practicable by the court without a
21jury. The court shall terminate the order of commitment unless it finds by clear and
22convincing evidence that further supervision is necessary to prevent a significant
23risk of bodily harm to the person or to others or of serious property damage. In
24making this determination, the court may consider, without limitation because of
25enumeration, the nature and circumstances of the crime, the person's mental history

1and current mental condition, the person's behavior while on conditional release, and
2plans for the person's living arrangements, support, treatment and other required
3services after termination of the commitment order. A petition under this subsection
4may not be filed unless at least 6 months have elapsed since the person was last
5placed on conditional release or since the most recent petition under this subsection
6was denied, except that if the person has been found not guilty by reason of mental
7disease or defect for a violation of s. 940.01 a petition under this subsection may not
8be filed unless at least 36 months have elapsed since the person was last placed on
9conditional release or since the most recent petition under this subsection was
10denied
.
AB1092, s. 12 11Section 12. 971.17 (7) (a) of the statutes is amended to read:
AB1092,7,1712 971.17 (7) (a) The committing court shall conduct all hearings under this
13section. All hearings under this section shall be held in open court. The person shall
14be given reasonable notice of the time and place of each such hearing and family
15members of victims shall be given notice under sub. (7m) of hearings on petitions
16filed under sub. (4) or (5)
. The court may designate additional persons to receive
17these notices of hearings under this section.
AB1092, s. 13 18Section 13. 971.17 (7m) of the statutes is created to read:
AB1092,7,2019 971.17 (7m) Notice to victims' families about petitions and hearings. (a) In
20this subsection:
AB1092,7,2121 1. "Crime" has the meaning designated in s. 949.01 (1).
AB1092,7,2322 2. "Member of the family" means spouse, child, sibling, parent or legal
23guardian.
AB1092,7,2424 3. "Victim" means a person against whom a crime has been committed.
AB1092,8,9
1(b) If a person who has been found not guilty by reason of mental disease or
2defect for a violation of s. 940.01 files a petition for conditional release under sub. (4)
3or files a petition for termination under sub. (5), or if the department of health and
4family services files a petition for termination under sub. (5) on behalf of a person
5who has been found not guilty by reason of mental disease or defect for a violation
6of s. 940.01, the clerk of the circuit court in which the petition is filed shall notify an
7adult member of the victim's family or, if the victim is younger than 18 years old, the
8victim's parent or legal guardian, after the submission of a card under par. (d)
9requesting notification.
AB1092,8,1110 (c) The notice under par. (b) shall inform the person under par. (b) of all of the
11following:
AB1092,8,1212 1. The defendant's name.
AB1092,8,1413 2. The fact that the person has filed a petition under sub. (4) or (5) or has had
14a petition under sub. (5) filed on his or her behalf.
AB1092,8,1515 3. A copy of the petition specified in subd. 2.
AB1092,8,1616 4. The time and place of any hearing set by the court on the petition.
AB1092,8,1917 (d) The clerk shall send the notice under par. (b), postmarked at least 7 days
18before the hearing date specified in par. (c) 4., to the last-known address of the person
19under par. (b).
AB1092,8,2420 (e) In addition to the initial notice under par. (b), if the court sets a hearing on
21the petition that is in addition to any hearing for which notice was provided under
22par. (c) 4., the clerk shall send a notice of the additional hearing, postmarked at least
237 days before the hearing date, to the last-known address of the person specified
24under par. (b).
AB1092,9,12
1(f) The director of state courts shall design and prepare cards for clerks of court
2to provide to persons specified in par. (b) who want to receive notice under this
3subsection. The cards shall have space for these persons to provide their names and
4addresses, the name of the applicable defendant and any other information the
5director of state courts determines is necessary. A clerk of courts shall provide the
6cards, without charge, to district attorneys and to the persons specified in par. (b).
7District attorneys shall provide the cards, without charge, to persons specified in par.
8(b). These persons may submit completed cards to the clerk of the committing court.
9A person who has submitted a card may update the information by providing a new
10card showing the updated information. All records or portions of records that relate
11to mailing addresses of persons who submit cards under this paragraph are not
12subject to inspection or copying under s. 19.35 (1).
AB1092, s. 14 13Section 14. Effective date.
AB1092,9,1514 (1) This act takes effect on July 1, 1996, or on the day after publication,
15whichever is later.
AB1092,9,1616 (End)
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