AB533: Bill Text

LRB-3404/4

MGD:wlj:jf

1999 - 2000 LEGISLATURE

1999 Assembly BILL 533

October 14, 1999 - Introduced by Joint Legislative Council. Referred to Committee on Corrections and the Courts.

AB533,2,2 An Act to repeal 301.047; to amend 15.01 (6), 15.02 (3) (c) 1., 15.105 (title), 20.505 (4) (title), 230.08 (2) (e) 1., 302.11 (1g) (b) 2., 978.03 (3) and 978.05 (8) (b); to repeal and recreate 302.11 (1g) (b) 2.; and to create 15.105 (26), 16.25, 20.435 (3) (ft), 20.505 (4) (em), 46.03 (44), 46.72, 59.54 (27), 301.03 (2t), 301.047, 301.065 and 978.044 of the statutes; relating to: authorizing the appointment of assistant district attorneys to provide restorative justice services; authorizing counties and the department of corrections to contract with religious organizations for the provision of services relating to delinquency and crime prevention and the rehabilitation of offenders; inmate rehabilitation; creating the office of government-sectarian facilitation; establishing a grant program for a neighborhood organization incubator; distributing funding for alcohol and other drug abuse services; and making appropriations.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the joint legislative council in the bill.

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

Prefatory note: This bill was prepared for the joint legislative council's special committee on faith-based approaches to crime prevention and justice. The principal features of the bill are:

Establishment of three assistant district attorney positions to engage in restorative justice

Current law specifies that each county shall have one district attorney. Current law also authorizes the appointment of one or more deputy district attorneys for the larger population counties and one or more assistant district attorneys for all counties, as requested by the department of administration (DOA) and authorized by law. This bill authorizes one assistant district attorney project position each for Dane County, Milwaukee County and a county other than Dane or Milwaukee, to be selected by the attorney general in consultation with the department of corrections (DOC), to develop and operate restorative justice programming in these counties and to assist district attorneys in other counties in the development and operation of restorative justice programming in those counties. The bill appropriates $108,300 general purpose revenue (GPR) in fiscal year 1999-00 and $144,300 GPR in fiscal year 2000-01 for these purposes.

Restorative justice programming broadens the focus of the criminal and juvenile justice systems. It focuses on victim needs, seeks victim and community input into the criminal and juvenile justice process and holds offenders accountable to those directly harmed by their criminal or delinquent acts. One common restorative justice program involves the establishment of neighborhood panels of residents that meet to discuss the impact of a crime or delinquent act and collaboratively, with all the stakeholders, work to develop a plan to repair the harm caused by the criminal or delinquent act. Another common restorative justice program is victim-offender conferencing, where an offender meets with the victim or a member of the victim's family and other appropriate persons, in order to: (1) discuss the impact of the offense on the victim and the community; (2) provide support to the victim and facilitate the reintegration of the victim into community life; (3) explore appropriate restorative responses by the offender; and (4) facilitate the reintegration of the offender into community life.

The bill requires the assistant district attorneys funded under the bill to maintain records regarding restorative justice activities. The district attorneys for Dane County, Milwaukee County and the county selected by the attorney general are required under the bill to submit to DOA annual reports describing the restorative justice activities each of them has undertaken, including the number of victims and offenders served, the types of crimes or juvenile offenses involved and the rates of recidivism among offenders served by restorative justice programming.

The restorative justice assistant district attorney project positions created under the bill expire after June 30, 2003. In order to aid the legislature in determining whether to continue these positions by making them permanent, the legislative audit bureau is required by October 1, 2002, to conduct a quantitative and qualitative evaluation of the success of restorative justice programming in serving victims, offenders and communities affected by crime and to report these findings to the appropriate committees of the legislature, as determined by the speaker of the assembly and the president of the senate, under s. 13.172 (3).

Nondiscrimination against religious organizations

Current law imposes duties on DOC and counties relating to crime prevention and the rehabilitation of offenders. This bill authorizes DOC and counties to contract with, or award grants to, religious organizations for use in the prevention of delinquency and crime and the rehabilitation of offenders on the same basis as any other nongovernmental provider without impairing the religious character of such organizations and without diminishing the religious freedom of beneficiaries of services funded under these programs. These provisions are comparable to provisions of current law that address the issue of discrimination against religious organizations that apply to the department of health and family services (DHFS) and department of workforce development (DWD).

In particular, the bill does the following:

•Nondiscrimination against religious organizations. The bill specifies that if DOC or a county is authorized to distribute any grant to, or contract with, a nongovernmental entity, that nongovernmental entity can be a religious organization as long as the programs are implemented consistent with the U.S. and Wisconsin Constitutions. The bill prohibits DOC or a county from discriminating against an organization because the organization does or does not have a religious character or because of the specific religious nature of the organization.

•Religious character and freedom. The bill specifies that a religious organization that receives a grant from, or contracts with, DOC or a county retains its independence from federal, state and local governments, including the organization's control over the definition, development, practice and expression of its religious beliefs. The bill prohibits DOC and each county from requiring a religious organization to alter its form of internal governance or remove religious art, icons, scripture or other symbols as a condition of contracting with, or receiving a grant from, DOC or the county.

•Rights of beneficiaries of assistance. The bill specifies that if an individual has an objection to the religious character of the organization or institution from which the individual receives, or would receive, assistance from a program supported with funding administered by DOC or a county, DOC or the county must provide the individual assistance of equal value from a nonreligious provider that is accessible to the individual if the individual so requests. Both DOC and the counties are required to provide written information to individuals who are eligible for assistance regarding the availability of assistance from a nonreligious provider.

•Employment practices. The bill specifies that a religious organization's exemption recognized under federal law regarding employment practices [42 USC 2000e-1a] is not affected by its participation in programs administered by DOC or a county.

•Nondiscrimination against beneficiaries. The bill prohibits a religious organization from discriminating against an individual in regard to rendering services funded under any DOC or county program on the basis of religion, a religious belief or refusal to actively participate in a religious practice.

•Fiscal accountability. The bill specifies that any religious organization that receives grant funding from, or contracts with, DOC or a county is subject to the same laws and rules as other contractors and grantees regarding accounting in accord with generally accepted auditing principles for the use of these funds. If the religious organization segregates funding from DOC or the county into separate accounts, only the financial assistance provided with these funds is subject to an audit.

•Limitations on the use of funds for certain purposes. The bill prohibits any religious organization that receives funding from DOC or a county from expending any of those funds for sectarian worship, instruction or proselytization.

•Certification of compliance. The bill requires every religious organization that contracts with, or receives a grant from, DOC or a county to provide crime prevention or rehabilitation assistance to eligible recipients to certify in writing that it has complied with the proscription against discrimination based on religion, religious belief or refusal to actively participate in a religious practice and the proscription against the expenditure of public funds for sectarian worship, instruction or proselytization. Each organization is also required to furnish the department or county board with a copy of this certification and a written description of the policies the organization has adopted to ensure compliance with these proscriptions.

•Remedy for violation. The bill specifies that any party that seeks to enforce its rights under this law may assert a civil action for injunctive relief in an appropriate court against the entity or agency that allegedly commits such violation.

•Preemption. The bill specifies that nothing in the provisions described above should be construed to preempt any other provision of state law, federal law or the U.S. or Wisconsin Constitutions that prohibits or restricts the expenditure of state funds in or by religious organizations.

Inmate rehabilitation

DOC provides various services to inmates. Currently, inmate rehabilitation programs operated within Wisconsin prisons are either operated by DOC staff or are purchased from other providers.

The bill authorizes DOC to permit one or more nonprofit community-based organizations to operate an inmate rehabilitation program in the Milwaukee alcohol and other drug abuse (AODA) treatment facility which is scheduled to commence operations in January 2001, if:

• The organization meets all the requirements set forth in the bill.

• DOC determines that operation of the program does not constitute a threat to the security of the facility or to the safety of inmates or the public.

• DOC determines that operation of the program is in the best interests of the inmates.

An organization that wants to operate an inmate rehabilitation program in the facility must submit to DOC a detailed proposal for the operation of a program that includes all of the following:

• A description of the services to be provided, including aftercare services, and a description of the geographic area in which aftercare services will be provided.

• A description of the activities to be undertaken and the approximate daily schedule of programming for inmates participating in the program.

• A description of the qualifications of the individuals providing services to inmates.

• A statement of the organization's policies regarding eligibility of inmates to participate in the program.

• A statement of the goals of the program.

• A description of the methods by which the organization will evaluate the effectiveness of the program in attaining its goals.

• Any other information specified by DOC.

To be eligible to operate a rehabilitation program in the facility, an organization must agree in writing to all of the following:

• The organization may not receive compensation from DOC for services provided in the rehabilitation program.

• The organization may not deny an inmate the opportunity to participate in the program for any reason related to the inmate's religious beliefs or nonbelief. (The organization may suspend or terminate an inmate's participation in a program for reasons unrelated to religious beliefs, including the inmate's failure to participate meaningfully in the program.)

• An inmate may withdraw from participation in the program at any time.

• Upon the inmate's release, the organization shall provide community-based aftercare services for each inmate who completes the program and who resides in the area in which the organization is providing such services.

The bill provides that DOC must establish policies that provide reasonable access to inmates by an organization operating an inmate rehabilitation program established under the bill.

The bill requires DOC to designate a specific portion of the facility for operation of the program. To the extent possible, inmates participating in the program must be housed in the portion of the facility in which the program is operated.

The bill provides that DOC may not require an inmate to participate in an inmate rehabilitation program established under the bill. Further, DOC may not base any decision regarding an inmate's conditions of confinement, including discipline or an inmate's eligibility for release, on an inmate's participation or nonparticipation in an inmate rehabilitation program established under the bill. The treatment of inmates, including the provision of housing, activities in which an inmate may participate, freedom of movement and work assignments, must be substantially the same for inmates who participate in a program and those who do not.

The bill provides that DOC may restrict an inmate's participation in an inmate rehabilitation program established under the bill only if the restriction is necessary for the security of the facility or the safety of the inmates or the public.

The bill authorizes DOC to suspend or terminate operation of an inmate rehabilitation program established under the bill if the organization operating the program fails to comply with any of the requirements set forth in the bill and requires DOC to suspend or terminate the program if DOC determines that suspension or termination of the program is necessary for the security of the facility or the safety of the inmates or the public or that suspension or termination of the program is in the best interests of the inmates.

The bill requires DOC to evaluate, or contract with a private or public agency for an evaluation of, the effectiveness of the program in reducing recidivism and alcohol and other drug abuse. The bill requires DOC to collect the data and information necessary to evaluate the program and to submit a report on the evaluation to the governor and the appropriate standing committees of the legislature.

Under current law, the parole commission may deny presumptive mandatory release to an inmate on the grounds that the inmate has refused to participate in counseling or treatment that the social service and clinical staff of the institution determines is necessary for the inmate. The bill specifies that the parole commission may not deny presumptive mandatory release to an inmate because of the inmate's refusal to participate in an inmate rehabilitation program established under the bill.

The bill provides that the provisions described above expire two years after an inmate rehabilitation program established under the bill begins operation.

Establishment of the office of government-sectarian facilitation

The bill creates a temporary office of government-sectarian facilitation in the DOA. The office is headed by an official titled "the facilitator" and is to operate for three years (from November 1, 1999, to November 1, 2002).

The facilitator is nominated by the governor, and with the advice and consent of the senate appointed, to serve at the pleasure of the governor. The facilitator may not be a member of the board of directors, be otherwise involved in the governance or control of, or be employed by any faith-based organization eligible for funding to provide government services under the bill. In addition, the facilitator must have experience relevant to the operation of nonprofit organizations or state or local government and must have a demonstrated understanding of state and federal laws regarding nondiscrimination against religious organizations.

The bill appropriates $57,600 GPR in 1999-00 and $67,400 GPR in 2000-01 for the office of government-sectarian facilitation and increases by 1.0 the full-time equivalent (FTE) authorized project positions for DOA.

The office of government-sectarian facilitation is required to: (1) assist in the implementation of state and federal laws regarding nondiscrimination against religious organizations; and (2) facilitate interaction between faith-based organizations and state and local government. Specifically, the office must do all of the following:

• Provide information on laws regarding nondiscrimination against faith–based organizations.

• Assist government agencies in utilizing the services of faith–based organizations in the provision of governmental services.

• Assist faith–based organizations in their efforts to participate in the provision of governmental services.