AB247: Bill Text

LRB-0897/1

GMM:cmh&jlg:km

1999 - 2000 LEGISLATURE

1999 Assembly BILL 247

March 25, 1999 - Introduced by Representatives Goetsch, Ladwig, Gundrum, Vrakas, Powers, Klusman, Owens, Musser, Porter, Hahn, Olsen, Ziegelbauer, Sykora, Grothman, Brandemuehl, Albers, Kelso, Johnsrud, Seratti, Spillner, F. Lasee, Suder, Gunderson, M. Lehman and Staskunas, cosponsored by Senators Roessler, Huelsman, Drzewiecki, Schultz, Cowles and Darling. Referred to Committee on Criminal Justice.

AB247,2,3 An Act to renumber 938.245 (2) (a) 5. b., 938.245 (2g), 938.32 (1t) (a) 2. and 938.32 (1t) (b); to renumber and amend 938.245 (2) (a) (intro.), 938.245 (2) (a) 1., 938.245 (2) (a) 2., 938.245 (2) (a) 3., 938.245 (2) (a) 4., 938.245 (2) (a) 5. a., am. and c., 938.245 (2) (a) 6., 938.245 (2) (a) 7., 938.245 (2) (a) 8., 938.245 (2) (a) 9., 938.32 (1t) (a) 1., 1m. and 3. and 938.343 (4); to amend 38.24 (1s) (a), 103.67 (2) (j), 103.70 (1), 895.035 (2m) (a), 895.035 (6), 938.245 (2) (b), 938.245 (2) (c), 938.245 (3), 938.245 (4), 938.245 (5), 938.34 (5) (a), 938.346 (1) (h) 2., 938.45 (1r) (a), 938.547 (4), 949.15 (1), 949.165 (7) and 950.04 (1v) (q); and to create 938.245 (2t) (d), 938.245 (2t) (e), 938.245 (2t) (f), 938.245 (2t) (g), 938.245 (2t) (h), 938.245 (2t) (i), 938.245 (2t) (j), 938.32 (1t) (d), 938.32 (1t) (e), 938.32 (1t) (f), 938.32 (1t) (g), 938.32 (1t) (h), 938.32 (1t) (i), 938.32 (1t) (j), 938.34 (5) (d), 938.34 (5) (e), 938.34 (5) (f), 938.34 (5) (g), 938.34 (5) (h), 938.34 (5) (i), 938.34 (5) (j), 938.343 (4) (b), 938.343 (4) (c), 938.343 (4) (d), 938.343 (4) (e), 938.343 (4) (f), 938.343 (4) (g), 938.45 (1r) (c), 938.45 (1r) (d), 938.45 (1r) (e), 938.45 (1r) (f), 938.45 (1r) (g), 938.45 (1r) (h) and 938.45 (1r) (i) of the statutes; relating to: the making of restitution by a juvenile or by a parent who has custody of a juvenile.

Analysis by the Legislative Reference Bureau

Under current law, a juvenile who has committed an act that has resulted in damage to the property of another or in actual physical injury to another excluding pain and suffering may, under a deferred prosecution agreement, consent decree or dispositional order, be required to repair the damage to property or to make reasonable restitution for the damage or injury if the court assigned to exercise jurisdiction under the juvenile justice code (juvenile court), after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Currently, a parent who has custody of such a juvenile (parent) may also be required to make reasonable restitution for any damage or injury resulting from the juvenile's act, subject to a maximum limitation of $5,000 and subject to reduction by the amount recovered from the juvenile.

This bill changes the law relating to the restitution that a juvenile or parent may be required to make to bring that law into closer conformity with the law relating to the restitution that an adult may be required to make. Specifically, the bill permits a juvenile or parent to be required to make restitution not only when the juvenile's act results in damage to property, but also when the act results in loss or destruction of property, and to make restitution not when the act results in actual physical injury to another, but when the act results in bodily injury to another. The bill also permits a juvenile or parent to be required to make restitution when death results from the juvenile's act. Further, the bill changes the standard that the juvenile court must consider in determining whether to order the payment of restitution. The bill changes that standard from whether that payment is beneficial to the well-being and behavior of the juvenile to whether that payment is beneficial to the well-being or behavior of the juvenile.

In addition, the bill specifies what restitution a juvenile or parent may be required to make. Specifically, the bill provides that:

1. If the juvenile's act has resulted in damage to or loss or destruction of property, the juvenile or parent may be required to return the property to the owner or, if return of the property is impossible, impractical or inadequate, to pay the owner the reasonable repair or replacement cost of the property or the greater of the following:

a. The value of the property on the date of its damage, loss or destruction.

b. The current value of the property, less the value of any part of the property returned as of the date of its return.

2. If the juvenile's act has resulted in bodily injury, the juvenile or parent may be required to do any one or more of the following:

a. Pay the cost of the victim's physical, psychiatric and psychological care and treatment.

b. Pay the cost of the victim's physical and occupational therapy and rehabilitation.

c. Reimburse the victim for lost income.

d. If the victim is solely employed as a homemaker, pay an amount sufficient to ensure that the victim's homemaker duties are continued until the victim is able to resume those duties.

3. If the juvenile's act has resulted in death, the juvenile or parent may be required to pay the cost of the victim's funeral expenses, including the cost of a cemetery lot, grave marker and care of the lot.

4. If the juvenile's act constitutes sexual assault, sexual assault of a child, repeated sexual assault of a child, sexual exploitation of a child, incest with a child, child enticement or soliciting a child for prostitution, but the act does not result in bodily injury, the juvenile may be required to pay the cost, not to exceed $10,000, or the parent may be required to pay the cost, not to exceed $5,000, of the victim's psychiatric and psychological care and treatment.

5. In any case, the juvenile or parent may be required to pay the cost, not to exceed $5,000, may be required to do any one or more of the following:

a. Pay all damages that the victim could recover from the juvenile in a civil action.

b. Pay for the victim's lost income and reasonable out-of-pocket expenses incurred resulting from the filing of a petition or cooperating in the investigation and prosecution of the juvenile's act.

c. Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the juvenile.

d. If justice so requires, reimburse any insurer who has compensated the victim for a loss otherwise compensable as restitution.

6. If the victim has been paid a crime victim's award by the department of justice, any restitution received up to the amount of the award must be paid into the general fund and the balance must be paid to the victim.

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

AB247, s. 1 Section 1. 38.24 (1s) (a) of the statutes is amended to read:

AB247,3,5 38.24 (1s) (a) A court-approved alcohol or other drug abuse education program offered to individuals under s. 48.245 (2) (a) 4., 48.345 (13) (b), 48.347 (5) (b), 938.245 (2) (a) 4. (2g), 938.32 (1g) (b), 938.34 (6r) (b) or (14s) (b) 3., 938.343 (10) (c) or 938.344 (2g) (a).

AB247, s. 2 Section 2. 103.67 (2) (j) of the statutes is amended to read:

AB247,4,6 103.67 (2) (j) Minors under 14 years of age may be employed as participants in a restitution project under s. 938.245 (2) (a) 5. (2t), 938.32 (1t) (a), 938.34 (5), 938.343 (4) or 938.345 or a supervised work program or other community service work under s. 938.245 (2) (a) 6. (2u), 938.32 (1t) (b) (1u), 938.34 (5g), 938.343 (3) or 938.345.

AB247, s. 3 Section 3. 103.70 (1) of the statutes is amended to read:

AB247,4,17 103.70 (1) Except as otherwise provided in sub. (2) and in ss. 103.21 to 103.31, 103.78, 938.245 (2) (a) 5. b. (2t) (b), 938.32 (1t) (a) 2. and (b), 938.34 (5) (b) and (5g) (c) and 938.343 (4) (b), and as may be provided under s. 103.79, a minor, unless indentured as an apprentice in accordance with s. 106.01, or unless 12 years and over and engaged in agricultural pursuits, or unless 14 years and over and enrolled in a youth apprenticeship program under s. 106.13, shall not be employed or permitted to work at any gainful occupation or employment unless there is first obtained from the department or a permit officer a written permit authorizing the employment of the minor within those periods of time stated in the permit, which shall not exceed the maximum hours prescribed by law.

AB247, s. 4 Section 4. 895.035 (2m) (a) of the statutes is amended to read:

AB247,5,13 895.035 (2m) (a) If a juvenile or a parent with custody of a child juvenile fails to pay restitution under s. 938.245 (2t), 938.32 (1t), 938.34 (5), 938.343 (4), 938.345 or 938.45 (1r) (a) as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938, a court of criminal jurisdiction or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the juvenile or parent 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 juvenile may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the juvenile or parent be entered and docketed as a judgment against the juvenile and the parent with custody of the juvenile 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.

AB247, s. 5 Section 5. 895.035 (6) of the statutes is amended to read:

AB247,5,21 895.035 (6) Any recovery of restitution under this section shall be reduced by the amount recovered as restitution for the same act under s. 938.245 (2t), 938.32 (1t), 938.34 (5), 938.343 (4) or 938.45 (1r) (a). Any recovery of a forfeiture under this section shall be reduced by the amount recovered as a forfeiture for the same act under s. 938.34 (8), 938.343 (2) or 938.45 (1r) (b). Any recovery of a surcharge under this section shall be reduced by the amount recovered as a surcharge under s. 938.34 (8d).

AB247, s. 6 Section 6. 938.245 (2) (a) (intro.) of the statutes is renumbered 938.245 (2) (a) and amended to read:

AB247,5,25 938.245 (2) (a) A deferred prosecution agreement may provide for any one or more of the following: conditions specified in subs. (2b) to (2z) that are applicable.

AB247, s. 7 Section 7. 938.245 (2) (a) 1. of the statutes is renumbered 938.245 (2b) and amended to read:

AB247,6,6 938.245 (2b) That The deferred prosecution agreement may require that the juvenile and the juvenile's parent, guardian or legal custodian participate in individual, family or group counseling and that the parent, guardian or legal custodian participate in parenting skills training.

AB247, s. 8 Section 8. 938.245 (2) (a) 2. of the statutes is renumbered 938.245 (2c) and amended to read:

AB247,6,12 938.245 (2c) That The deferred prosecution agreement may require that the juvenile and a parent, guardian and legal custodian abide by such obligations, including supervision, curfews and school attendance requirements, as will tend to ensure the juvenile's rehabilitation, protection or care.

AB247, s. 9 Section 9. 938.245 (2) (a) 3. of the statutes is renumbered 938.245 (2f) and amended to read:

AB247,7,2 938.245 (2f) That If the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs and the medical, personal, family or social effects of that use, the deferred prosecution agreement may require that the juvenile submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages, controlled substances or controlled substance analogs and any medical, personal, family or social effects caused by its use, if the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects that use.

AB247, s. 10 Section 10. 938.245 (2) (a) 4. of the statutes is renumbered 938.245 (2g) and amended to read:

AB247,7,23 938.245 (2g) That the juvenile participate in a restitution project if If the act for which the deferred prosecution agreement is being entered into has resulted in damage to the property of another, or in actual physical in bodily injury to another excluding pain and suffering. Subject to subd. 5. c. or in death and if the intake worker after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being or behavior of, the juvenile, the deferred prosecution agreement may require the juvenile to repair the damage to property or, subject to par. (c), to make reasonable restitution for the damage or injury or death as provided in pars. (d) to (j), either in the form of cash payments or, if the victim agrees, the performance of services for the victim, or both, if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any such deferred prosecution agreement shall include a determination that the juvenile alone is financially able to pay or physically able to perform the services, may allow up to the date of the expiration of the deferred prosecution agreement for the payment or for the completion of the services and may include a schedule for the performance and completion of the services. Any recovery under this subd. 5. a. paragraph shall be reduced by the amount recovered as restitution for the same act under subd. 5. am. par. (am).

AB247, s. 11 Section 11. 938.245 (2) (a) 5. a., am. and c. of the statutes are renumbered 938.245 (2t) (a), (am) and (c) and amended to read:

AB247,8,19 938.245 (2t) (a) That the juvenile participate in a restitution project if If the act for which the deferred prosecution agreement is being entered into has resulted in damage to or loss or destruction of the property of another, or in actual physical in bodily injury to another excluding pain and suffering. Subject to subd. 5. c. or in death and if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being or behavior of, the juvenile, the deferred prosecution agreement may require the juvenile to repair the damage to property or, subject to par. (c), to make reasonable restitution for the damage or, injury or death as provided in pars. (d) to (j), either in the form of cash payments or, if the victim agrees, the performance of services for the victim, or both, if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any such deferred prosecution agreement shall include a determination that the juvenile alone is financially able to pay or physically able to perform the services, may allow up to the date of the expiration of the deferred prosecution agreement for the payment or for the completion of the services and may include a schedule for the performance and completion of the services. Any recovery under this subd. 5.a. paragraph. shall be reduced by the amount recovered as restitution for the same act under subd. 5. am par. (am).