SB345: Bill Text

LRB-3968/1

JEO:kaf:km

1997 - 1998 LEGISLATURE

1997 Senate BILL 345

November 6, 1997 - Introduced by Senator Burke, cosponsored by Representatives Huber and Murat. Referred to Committee on Judiciary, Campaign Finance Reform and Consumer Affairs.

SB345,3,2 An Act to renumber and amend 301.048 (6) and 303.065 (1); to amend 19.85 (1) (d), 20.410 (1) (b), 20.410 (1) (bn), 20.410 (1) (d), 20.410 (1) (g), 20.410 (1) (gb), 20.410 (1) (gc), 20.410 (1) (ge), 20.410 (1) (gf), 46.21 (1) (d), 46.23 (2) (a), 46.48 (8) (d) 1., 48.78 (2) (d) 5., 51.15 (1) (b) 2., 51.20 (1) (ar) (intro.), 51.20 (13) (g) 2m., 51.30 (4) (b) 10. (intro.), 51.30 (4) (b) 10. a., 51.30 (4) (b) 10. b., 51.30 (4) (b) 10. d., 51.37 (8) (a), 51.37 (8) (b), 51.37 (11), 106.215 (8g) (b), 111.32 (3), 132.13 (1) (a), 165.76 (1) (a), 165.76 (1) (e), 165.76 (2) (b) 1., 165.76 (2) (b) 2., 165.76 (2) (b) 3m., 165.76 (2) (b) 5., 165.76 (2) (b) 6., 165.84 (5), 227.03 (4), 230.36 (1), 230.36 (3) (c) (intro.), 230.36 (3) (c) 2., 230.36 (3) (c) 3., 301.03 (2r), 301.03 (3), 301.03 (3g), 301.046 (3) (intro.), 301.048 (1) (a), 301.048 (2) (b), 301.048 (2) (d), 301.048 (4) (a), 301.048 (4) (am), 301.048 (4m) (b) (intro.), 301.048 (4m) (b) 1., 301.048 (4m) (b) 2., 301.049 (2) (a) 2., 301.049 (3) (e), 301.08 (1) (c) 1. a., 301.08 (1) (c) 1. b., 301.08 (1) (c) 2., 301.132 (2), 301.132 (3), 301.21 (1) (h), 301.32 (3) (a), 301.32 (3) (b), 301.38 (1) (am), 301.45 (1) (b), 301.45 (1) (bm), 301.45 (1) (dh), 301.45 (2) (a) 4. b., 301.45 (2) (e) 1., 301.45 (2) (e) 2., 301.45 (3) (a) 1m., 301.45 (3) (a) 2., 301.45 (3) (b) 2., 301.45 (3) (b) 4., 301.45 (5) (a) 1m., 301.46 (2) (b) 4. b., 302.045 (1), 302.045 (3), 302.045 (4), 302.11 (1), 302.11 (1g) (am), 302.11 (1i), 302.11 (1p), 302.11 (6), 302.11 (9), 302.14, 302.17 (2), 302.25 (4) (c), 302.33 (2) (a) (intro.), 302.33 (2) (b), 302.335 (title), 302.335 (2) (intro.), 302.335 (2) (a) (intro.), 302.335 (2) (a) 1., 302.335 (2) (a) 2., 302.335 (2) (a) 3., 302.335 (2) (b), 302.335 (3), 302.335 (4), 303.21 (1) (a), 303.215, 304.02 (3) (c), 304.02 (4), 304.02 (5), 304.06 (1) (b), 304.06 (1y), 304.062 (title), 304.062 (1), 304.062 (2), 304.063 (title), 304.063 (2) (intro.), 304.063 (3), 304.071 (2), 304.072 (title), 304.072 (1), 304.072 (2), 304.072 (3), 304.072 (4), 304.073 (2), 304.074 (title), 304.074 (2), 304.074 (3) (intro.), 304.074 (3) (d), 304.074 (4), 304.075, 304.13 (1) (intro.), 304.13 (2), 304.13 (3), 304.13 (7), 304.13 (8) (b), 304.135, 304.137, 304.14, 343.06 (1) (i), 343.30 (2d), 563.14 (2), 563.27 (1), 563.51 (29) (b), 801.50 (5), 938.183 (2) (b), 938.78 (2) (d) 5., 938.991 (1), 938.991 (3) (c), 938.991 (5) (a), 938.991 (5) (am), 938.991 (6), 938.991 (7) (title), 938.991 (7) (a), 938.991 (7) (b), 938.991 (7) (c), 938.991 (14), 938.993 (2), 939.62 (2m) (b), 940.20 (2m) (title), 940.20 (2m) (a) 2., 940.20 (2m) (b), 942.06 (2m) (a), 942.06 (2q) (a) (intro.), 946.42 (1) (a), 946.46, 950.045, 961.49 (2) (a), 961.49 (2) (b), 969.01 (4), 971.11 (1), 972.13 (6), 972.15 (5) (intro.), 973.013 (1) (b), 973.013 (2), 973.0135 (2) (intro.), 973.014 (title), 973.014 (1) (intro.), 973.014 (1) (c), 973.014 (2), 973.02, 973.032 (1), 973.032 (5), 973.10 (1), 973.15 (1), 973.15 (2) (b), 973.15 (6), 973.155 (1) (b), 973.155 (2), 973.155 (5), 973.20 (1r), 973.20 (10), 975.10 (1), 976.03 (3), 976.03 (13), 976.03 (22), 976.03 (23) (b), 976.03 (27) (a), 976.05 (3) (a), 976.05 (4) (b), 977.05 (6) (h) (intro.), 977.05 (6) (h) 1., 977.05 (6) (h) 2., 978.07 (1) (c) 1., 980.015 (2) (a), 980.02 (1) (b) 2., 980.02 (2) (ag) and 980.02 (4) (am); and to create 46.03 (7) (e), 301.03 (13), 301.046 (3t), 301.048 (2) (cm), 301.048 (2m), 301.048 (6) (b), 301.35 (2) (bm), 302.045 (2) (cm), 302.045 (3m), 302.11 (1z), 302.113, 302.114, 304.02 (6), 972.15 (2c), 973.01 and 973.014 (1g) of the statutes; relating to: sentences for felony offenses, parole, extended supervision and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes changes in the structure of sentences for felony offenses and establishes a criminal code study committee. Specifically, the bill does the following:

Sentences for felony offenses

Currently, a person serving a sentence of imprisonment to a state prison usually has 3 possible ways of being released on parole: discretionary parole granted by the parole commission (for which a person is usually eligible after serving 25% of the sentence or 6 months, whichever is greater); mandatory release on parole (usually granted automatically after the person serves two-thirds of the sentence); or special action parole release by the secretary of corrections (a program designed to relieve prison crowding).

However, current law also provides different parole eligibility provisions for certain serious felony offenders. If a serious felony offender has one or more prior convictions for a serious felony, a judge may set a discretionary parole eligibility date for the offender that is later than 25% of the sentence or 6 months but not later than the mandatory release date of two-thirds of the sentence. In addition, certain serious felony offenders need not be automatically released when they reach their mandatory release dates. Instead, the parole commission may deny mandatory release to such an offender in order to protect the public or because the offender refused to participate in counseling or treatment. The serious felony offenders covered by these parole provisions include persons convicted of serious violations such as homicide, battery, sexual assault, mayhem, kidnapping, taking hostages, arson, armed burglary, armed robbery, carjacking, assault by a prisoner, crimes against children and controlled substances.

Under this bill, if a court chooses to sentence a felony offender to a term of imprisonment in state prison for a felony committed on or after July 1, 1999, the court must do so by providing a bifurcated sentence that includes a term of confinement in prison followed by a term of supervision in the community (called "extended supervision"). A person given a bifurcated sentence is not eligible for parole. A bifurcated sentence imposed under the bill must be structured as follows:

1. The total length of the bifurcated sentence may not exceed the maximum term of imprisonment allowable for the felony.

2. The court must set the term of confinement in prison portion of the sentence to be at least one year but not more than 75% of the total length of the bifurcated sentence, except that if the maximum period of imprisonment for the felony is one year the term of confinement in prison must be at least 6 months but not more than 8 months.

3. The term of extended supervision must equal at least 25% of the length of the term of confinement in prison.

Thus, for example, if a person is convicted of a Class B felony, which is punishable by imprisonment of not more than 40 years, the judge could sentence the person to a 30-year term of confinement in prison, in which case the term of extended supervision would have to be at least 7 and one-half years but could not be more than 10 years.

The bill also provides that a person serving a bifurcated sentence is not eligible for release from the term of confinement in prison to the intensive sanctions program or the community residential confinement program. In addition, a person serving a bifurcated sentence is not eligible for release from the term of confinement in prison to the challenge incarceration program (often referred to as "boot camp") unless the court decides at the time of sentencing that the person is eligible for the program.

After the person completes the term of confinement in prison portion of a bifurcated sentence, he or she serves the term of extended supervision in which he or she is subject to conditions set by both the court and the department of corrections (DOC) and is subject to supervision by DOC. If a person violates a condition of extended supervision, extended supervision may be revoked and the person may be returned to serve a period of time in prison.

Under current law, a person serving a life sentence usually must serve 20 years minus time calculated under the mandatory release formula before he or she is eligible for release on parole. If the person does not receive extensions due to violations of prison rules, he or she reaches parole eligibility after serving 13 years, 4 months. However, a judge may set a parole eligibility date for a person serving a life sentence that is later than the usual parole eligibility date or may provide that the person is not eligible for parole. Also, if a person has 2 convictions for any of certain serious felonies and is then convicted a 3rd time for another serious felony, he or she must be sentenced to life without parole (the so-called "3 strikes, you're out" law). No person serving a life sentence is entitled to mandatory release.

This bill provides that a person sentenced to life imprisonment for a crime committed on or after July 1, 1999, is not eligible for parole. Instead, the bill requires a judge who is sentencing a person to life imprisonment to do one of the following: 1) provide that the person is eligible for extended supervision after serving 20 years; 2) set a date on which the person becomes eligible for extended supervision, as long as that date requires the person to serve at least 20 years; or 3) provide that the person is not eligible for extended supervision. If the court provides that the person is eligible for extended supervision, the person may petition the sentencing court for release to extended supervision on or after the extended supervision eligibility date. A person sentenced to life who is released to extended supervision is on extended supervision for the remainder of his or her life and, like a person on extended supervision under a bifurcated sentence (see above), may have his or her extended supervision revoked and be returned to prison if he or she violates a condition of extended supervision. The bill does not affect persons sentenced to life imprisonment without the possibility of parole under the "3 strikes, you're out" law.

Criminal code study committee

This bill creates a committee called the criminal code study committee that consists of all of the following members: 2 judges appointed by the supreme court; the majority leader in each house, or his or her designee; the minority leader in each house, or his or her designee; one faculty member from the law school of the University of Wisconsin appointed by the governor; one faculty member from the law school of Marquette University appointed by the governor; the attorney general or his or her designee; one current district attorney appointed by the attorney general; the state public defender or his or her designee; one representative of crime victims appointed by the attorney general; one member of the criminal law section of the state bar appointed by the governor; one representative of law enforcement agencies appointed by the governor; 3 public members appointed by the governor; and the secretary of corrections or his or her designee.

Under the bill, the committee is required to study the classification of criminal offenses in the criminal code, the penalties for all felonies and issues relating to the implementation of the changes made in this bill relating to the structure of sentences for felony offenses. The committee must also make recommendations concerning all of the following: 1) creating a sentencing commission to promulgate sentencing guidelines for use by judges when imposing sentence under the new felony sentencing structure created in this bill; 2) changing the administrative rules of the department of corrections to ensure that a person is returned to prison promptly and for an appropriate period of time if he or she violates a condition of extended supervision; and 3) creating a uniform classification system for all felonies, including felonies outside of the criminal code, classifying every felony in a manner that places crimes of similar severity into the same classification and consolidating all felonies into a single criminal code.

Finally, the bill requires the committee to submit a report of its findings and recommendations to the legislature no later than January 1, 1999. The committee's report must include any proposed legislation that is necessary to implement the recommendations made by the committee in its report.

For further information see the state 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:

SB345, s. 1 Section 1. 19.85 (1) (d) of the statutes is amended to read:

SB345,5,4 19.85 (1) (d) Except as provided by rule promulgated under s. 304.06 (1) (em), considering specific applications of probation, extended supervision or parole, or considering strategy for crime detection or prevention.

SB345, s. 2 Section 2. 20.410 (1) (b) of the statutes is amended to read:

SB345,6,4 20.410 (1) (b) Field supervision. The amounts in the schedule to provide services related to probation, extended supervision and parole. No payments may be made under this paragraph for payments in accordance with other states party to the interstate corrections compact under s. 302.25.

SB345, s. 3 Section 3. 20.410 (1) (bn) of the statutes is amended to read:

SB345,6,10 20.410 (1) (bn) (title) Reimbursing counties for probation, extended supervision and parole holds. The amounts in the schedule for payments to counties under s. 302.33 (2) (a) for costs relating to maintaining persons in custody pending the disposition of their parole, extended supervision or probation revocation proceedings.

SB345, s. 4 Section 4. 20.410 (1) (d) of the statutes is amended to read:

SB345,6,16 20.410 (1) (d) Purchased services for offenders. The amounts in the schedule for the purchase of goods, care and services, authorized under s. 301.08 (1) (b) 1., for probationers, parolees, persons on extended supervision and other offenders, except as provided in par. (dd). In addition, funds from this appropriation shall be used to reimburse programs under s. 38.04 (12).

SB345, s. 5 Section 5. 20.410 (1) (g) of the statutes is amended to read:

SB345,6,22 20.410 (1) (g) (title) Loan fund for persons on probation, extended supervision or parole. The amounts in the schedule for the purposes specified in ss. 301.32 (3) and 304.075. All moneys received belonging to absconding probationers and, parolees, and persons on extended supervision under ss. 301.32 (3) and 304.075 shall be credited to this appropriation.

SB345, s. 6 Section 6. 20.410 (1) (gb) of the statutes is amended to read:

SB345,7,3 20.410 (1) (gb) Drug testing. All moneys received from probation, extended supervision and parole clients who are required to pay for their drug testing, as prescribed by rule in accordance with s. 301.03 (3), for expenditures related to the drug testing program for probationers and, parolees and persons on extended supervision under s. 301.03 (3).

SB345, s. 7 Section 7. 20.410 (1) (gc) of the statutes is amended to read:

SB345,7,9 20.410 (1) (gc) Sex offender honesty testing. All moneys received from probation, extended supervision and parole clients who are required to pay for polygraph examinations, as prescribed by rule in accordance with s. 301.132 (3), for expenditures related to the lie detector test program for probationers , extended supervision and parolees under s. 301.132.

SB345, s. 8 Section 8. 20.410 (1) (ge) of the statutes is amended to read:

SB345,7,16 20.410 (1) (ge) Administrative and minimum supervision. The amounts in the schedule for the supervision of probationers and, parolees and persons on extended supervision under minimum or administrative supervision and for the department's costs associated with contracts under s. 301.08 (1) (c) 2. All moneys received from vendors under contracts under s. 301.08 (1) (c) 2. and from fees charged under s. 304.073 (2) shall be credited to this appropriation account.

SB345, s. 9 Section 9. 20.410 (1) (gf) of the statutes is amended to read:

SB345,7,20 20.410 (1) (gf) Probation, extended supervision and parole. The amounts in the schedule for probation, extended supervision and parole. All moneys received under s. 304.074 (2) shall be credited to this appropriation account.

SB345, s. 10 Section 10. 46.03 (7) (e) of the statutes is created to read:

SB345,8,2 46.03 (7) (e) As part of its biennial budget request under s. 16.42, submit a request for funding for child abuse prevention efforts in an amount equal to or greater than 1% of the total proposed budget of the department of corrections for the same biennium, as indicated by the estimate provided by the department of corrections under s. 301.03 (13).

SB345, s. 11 Section 11. 46.21 (1) (d) of the statutes is amended to read:

SB345,8,10 46.21 (1) (d) "Human services" means the total range of services to people, including mental illness treatment, developmental disabilities services, physical disabilities services, relief funded by a relief block grant under ch. 49, income maintenance, youth probation, extended supervision and parole services, alcohol and drug abuse services, services to children, youth and families, family counseling, exceptional educational services for children from birth to the age of 3 and manpower services.

SB345, s. 12 Section 12. 46.23 (2) (a) of the statutes is amended to read:

SB345,8,17 46.23 (2) (a) "Human services" means the total range of services to people including, but not limited to, health care, mental illness treatment, developmental disabilities services, relief funded by a block grant under ch. 49, income maintenance, probation, extended supervision and parole services, alcohol and drug abuse services, services to children, youth and aging, family counseling, exceptional educational services and manpower services.

SB345, s. 13 Section 13. 46.48 (8) (d) 1. of the statutes is amended to read:

SB345,8,23 46.48 (8) (d) 1. The use of liaisons to meet with prospective program participants to provide information about the program and to assist program participants, prior to their release on extended supervision or parole, in planning for and obtaining the housing, employment, education and treatment that they will need upon release.

SB345, s. 14 Section 14. 48.78 (2) (d) 5. of the statutes is amended to read:

SB345,9,2 48.78 (2) (d) 5. On parole under s. 302.11 or ch. 304 or on extended supervision under s. 302.113 or 302.114.

SB345, s. 15 Section 15. 51.15 (1) (b) 2. of the statutes is amended to read:

SB345,9,8 51.15 (1) (b) 2. A specific recent overt act or attempt or threat to act or omission by the individual which is reliably reported to the officer or person by any other person, including any probation, extended supervision and parole agent authorized by the department of corrections to exercise control and supervision over a probationer or, parolee or person on extended supervision.

SB345, s. 16 Section 16. 51.20 (1) (ar) (intro.) of the statutes is amended to read:

SB345,9,24 51.20 (1) (ar) (intro.) If the individual is an inmate of a state prison, the petition may allege that the inmate is mentally ill, is a proper subject for treatment and is in need of treatment. The petition shall allege that appropriate less restrictive forms of treatment have been attempted with the individual and have been unsuccessful and it shall include a description of the less restrictive forms of treatment that were attempted. The petition shall also allege that the individual has been fully informed about his or her treatment needs, the mental health services available to him or her and his or her rights under this chapter and that the individual has had an opportunity to discuss his or her needs, the services available to him or her and his or her rights with a licensed physician or a licensed psychologist. The petition shall include the inmate's sentence and his or her expected date of release as determined under s. 302.11 or 302.113, whichever is applicable. The petition shall have attached to it a signed statement by a licensed physician or a licensed psychologist of a state prison and a signed statement by a licensed physician or a licensed psychologist of a state treatment facility attesting either of the following:

SB345, s. 17 Section 17. 51.20 (13) (g) 2m. of the statutes is amended to read:

SB345,10,4 51.20 (13) (g) 2m. In addition to the provisions under subds. 1., 2. and 2g., no commitment ordered under par. (a) 4. or 4m. may continue beyond the inmate's date of release on parole or extended supervision, as determined under s. 302.11 or 302.113, whichever is applicable.

SB345, s. 18 Section 18. 51.30 (4) (b) 10. (intro.) of the statutes is amended to read:

SB345,10,17 51.30 (4) (b) 10. (intro.) To a correctional facility or to a probation, extended supervision and parole agent who is responsible for the supervision of an individual who is receiving inpatient or outpatient evaluation or treatment under this chapter in a program that is operated by, or is under contract with, the department or a county department under s. 51.42 or 51.437, or in a treatment facility, as a condition of the probation, extended supervision and parole supervision plan, or whenever such an individual is transferred from a state or local correctional facility to such a treatment program and is then transferred back to the correctional facility. Every probationer or, parolee or person on extended supervision who receives evaluation or treatment under this chapter shall be notified of the provisions of this subdivision by the individual's probation, extended supervision and parole agent. Release of records under this subdivision is limited to:

SB345, s. 19 Section 19. 51.30 (4) (b) 10. a. of the statutes is amended to read: