AB247: Bill Text

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).

AB247,9,14 (am) That the parent who has custody, as defined in s. 895.035 (1), of the juvenile make reasonable restitution for If the act for which the deferred prosecution agreement is being entered into has resulted in any damage to or loss or destruction of the property of another, or for any actual physical in bodily injury to another excluding pain and suffering, resulting from the act for which the deferred prosecution agreement is being entered into 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 parent who has custody, as defined in s. 895.035 (1), of the juvenile to make reasonable restitution, subject to the limit specified in this paragraph, for the damage, injury or death as provided in pars. (d) to (j). Except for recovery for retail theft under s. 943.51, the maximum amount of any restitution ordered under this subd. 5. am. paragraph for damage or, injury or death resulting from any one act of a juvenile or from the same act committed by 2 or more juveniles in the custody of the same parent may not exceed the amount specified in s. 799.01 (1) (d). Any order under this subd. 5. am. paragraph shall include a finding that the parent who has custody of the juvenile is financially able to pay the amount ordered and may allow up to the date of the expiration of the deferred prosecution agreement for the payment. Any recovery under this subd. 5. am. paragraph shall be reduced by the amount recovered as restitution for the same act under subd. 5. a par. (a).

AB247,9,17 (c) Under this subdivision subsection, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make more than $250 in restitution or to perform more than 40 hours of services for the victim as restitution.

AB247, s. 12 Section 12. 938.245 (2) (a) 5. b. of the statutes is renumbered 938.245 (2t) (b).

AB247, s. 13 Section 13. 938.245 (2) (a) 6. of the statutes is renumbered 938.245 (2u) and amended to read:

AB247,9,23 938.245 (2u) That The deferred prosecution agreement may require that the juvenile participate in a supervised work program or other community service work in accordance with s. 938.34 (5g).

AB247, s. 14 Section 14. 938.245 (2) (a) 7. of the statutes is renumbered 938.245 (2d) and amended to read:

AB247,10,16 938.245 (2d) That the juvenile be placed with a volunteers in probation program under such conditions as the intake worker determines are reasonable and appropriate, if If the juvenile is alleged to have committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under s. 973.11 (2) a volunteers in probation program established in the juvenile's county of residence and if the intake worker determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community, the deferred prosecution agreement may require that the juvenile be placed with a volunteers in probation program under such conditions that the intake worker determines are reasonable and appropriate. The conditions that the intake worker may establish under this subdivision subsection may include, but need not be limited to, a request to a volunteer to provide for the juvenile a role model, informal counseling, general monitoring and monitoring of the conditions established by the intake worker, or any combination of these functions, and any other deferred prosecution condition that the intake worker may establish under this paragraph section.

AB247, s. 15 Section 15. 938.245 (2) (a) 8. of the statutes is renumbered 938.245 (2m), and 938.245 (2m) (intro.), as renumbered, is amended to read:

AB247,10,21 938.245 (2m) (intro.) That The deferred prosecution agreement may require that the juvenile be placed in a teen court program if all of the following conditions apply:

AB247, s. 16 Section 16. 938.245 (2) (a) 9. of the statutes is renumbered 938.245 (2z) and amended to read:

AB247,11,10 938.245 (2z) That The deferred prosecution agreement may require that the juvenile be placed in a youth village program as described in s. 118.42. Upon the motion of the court or the application of the juvenile, parent, guardian, legal custodian, intake worker or any agency supervising the juvenile under a deferred prosecution agreement under this subdivision subsection, the court may, after giving notice to the parties to the deferred prosecution agreement and their counsel, if any, extend the agreement for up to an additional one year in the absence of an objection to extension by the parties to the initial deferred prosecution agreement. If the juvenile or the parent, guardian or legal custodian object to the extension, the court shall schedule a hearing and make a determination on the issue of extension. A deferred prosecution agreement under this subdivision subsection may be extended no more than twice.

AB247, s. 17 Section 17. 938.245 (2) (b) of the statutes is amended to read:

AB247,11,14 938.245 (2) (b) A deferred prosecution agreement, other than an agreement under par. (a) 9. sub. (2z), may not include any form of out-of-home placement and may not exceed one year.

AB247, s. 18 Section 18. 938.245 (2) (c) of the statutes is amended to read:

AB247,11,21 938.245 (2) (c) If the deferred prosecution agreement provides for alcohol and other drug abuse outpatient treatment under par. (a) 4. sub. (2g), the juvenile and the juvenile's parent, guardian or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a deferred prosecution agreement for the provision of alcohol and other drug abuse outpatient treatment.

AB247, s. 19 Section 19. 938.245 (2g) of the statutes is renumbered 938.245 (2x).

AB247, s. 20 Section 20. 938.245 (2t) (d) of the statutes is created to read:

AB247,12,5 938.245 (2t) (d) If the act for which the deferred prosecution agreement is entered into has resulted in damage to or loss or destruction of property, the deferred prosecution agreement may require the juvenile or the parent who has custody, as defined in s. 895.035 (1), of the juvenile to return the property to the owner or the owner's designee or, if return of the property is impossible, impractical or inadequate, to pay the owner or the owner's designee the reasonable repair or replacement cost of the property or the greater of the following:

AB247,12,6 1. The value of the property on the date of its damage, loss or destruction.

AB247,12,9 2. The value of the property on the date of the deferred prosecution agreement, less the value of any part of the property returned as of the date of its return. The value of any retail merchandise shall be its retail value.

AB247, s. 21 Section 21. 938.245 (2t) (e) of the statutes is created to read:

AB247,12,14 938.245 (2t) (e) If the act for which the deferred prosecution agreement is entered into has resulted in bodily injury, the deferred prosecution agreement may require that the juvenile or the parent who has custody, as defined in s. 895.035 (1), of the juvenile do any one or more of the following:

AB247,12,17 1. Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care and treatment.

AB247,12,19 2. Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation.

AB247,12,21 3. Reimburse the injured person for income lost as a result of the act for which the deferred prosecution agreement is entered into.

AB247,12,24 4. If the injured person's sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to ensure that the duties are continued until the person is able to resume performance of the duties.

AB247, s. 22 Section 22. 938.245 (2t) (f) of the statutes is created to read:

AB247,13,5 938.245 (2t) (f) If the act for which the deferred prosecution agreement is entered into has resulted in death, the deferred prosecution agreement may require that the juvenile or the parent who has custody, as defined in s. 895.035 (1), of the juvenile pay an amount equal to the cost of necessary funeral and related services under s. 895.04 (5).

AB247, s. 23 Section 23. 938.245 (2t) (g) of the statutes is created to read:

AB247,13,15 938.245 (2t) (g) If the juvenile violated s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.07 or 948.08 and par. (e) 1. does not apply, the deferred prosecution agreement may require that the juvenile pay an amount, not to exceed $10,000, or that the parent who has custody, as defined in s. 895.035 (1), of the juvenile pay an amount, not to exceed the amount specified in par. (am), equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment. The $10,000 limit under this paragraph does not apply to the amount of any restitution agreed to under par. (e) or (h) for the cost of necessary professional services relating to psychiatric and psychological care and treatment.

AB247, s. 24 Section 24. 938.245 (2t) (h) of the statutes is created to read:

AB247,13,19 938.245 (2t) (h) In any case, the deferred prosecution agreement may require that the juvenile or the parent who has custody, as defined in s. 895.035 (1), of the juvenile do any one or more of the following:

AB247,13,23 1. Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the juvenile for his or her conduct in the commission of the act for which the deferred prosecution agreement is entered into.

AB247,14,2 2. Pay to the person against whom the act for which the deferred prosecution agreement is entered into was committed an amount equal to the income lost and reasonable out-of-pocket expenses incurred as a result of the filing of charges or that person's cooperation in the investigation and prosecution of the act.

AB247,14,5 3. Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension of the juvenile for the act for which the deferred prosecution agreement is entered into.

AB247,14,7 4. If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this subsection.

AB247, s. 25 Section 25. 938.245 (2t) (i) of the statutes is created to read:

AB247,14,10 938.245 (2t) (i) Any order under par. (h) 3. or 4. shall require that all restitution to victims be paid before restitution to other persons.

AB247, s. 26 Section 26. 938.245 (2t) (j) of the statutes is created to read: