AB729: Bill Text

LRB-4344/1

GMM:jld:pg

2001 - 2002 LEGISLATURE

2001 Assembly BILL 729

January 16, 2002 - Introduced by Representatives Walker, Albers, Cullen, Hahn, Hines, Jeskewitz, Ladwig, Montgomery, Musser, Olsen, Plale, Rhoades, Ryba, Stone and Townsend, cosponsored by Senators Jauch, Burke, Darling, Huelsman and Rosenzweig. Referred to Committee on Corrections and the Courts.

AB729,2,3 An Act to repeal 938.357 (4) (d); to amend 48.366 (8), 48.415 (4) (a), 301.03 (10) (d), 302.11 (10), 302.255, 302.386 (5) (d), 938.183 (3), 938.185 (2), 938.355 (4) (a), 938.355 (4) (b), 938.356 (1), 938.538 (3) (a) 1., 938.538 (3) (a) 1m., 938.538 (3) (a) 2., 938.538 (3) (b), 938.538 (4) (a), 938.538 (5) (c), 938.538 (6), 938.992 (3), 973.013 (3m) and 976.08; and to create 808.075 (4) (fn) 10. and 938.538 (4m) of the statutes; relating to: permitting the period for which a serious juvenile offender program participant may be placed in a juvenile secured correctional facility to be extended; prohibiting a juvenile who has been adjudicated delinquent from being transferred to an adult prison; permitting a juvenile who has been sentenced as an adult to be transferred to an adult prison on reaching 15 years of age; permitting a juvenile to be placed in a juvenile secured correctional facility only until the juvenile reaches 18 years of age; and requiring the juvenile court, when placing a juvenile who has been adjudged delinquent outside the home or when denying parental visitation with such a juvenile, to warn the parents of any applicable termination of parental rights grounds and of the conditions necessary for the juvenile to be returned to the home or for the parent to be granted visitation.

Analysis by the Legislative Reference Bureau

Under current law, a court assigned to exercise jurisdiction under the Juvenile Justice Code (juvenile court) may place a juvenile ten years of age or over who has committed a Class A felony or a juvenile 14 years of age or over who has committed a Class B felony in the serious juvenile offender program (SJOP) if the juvenile court finds that the only other disposition that would be appropriate for the juvenile would be placement in a juvenile secured correctional facility. The SJOP contains various component phases for its participants, including placement in a juvenile secured correctional facility or, if the participant is 17 years of age or over, an adult prison. The SJOP also includes a component phase of intensive or other field supervision, including juvenile corrective sanctions supervision, juvenile aftercare supervision or, if the participant is 17 years of age or over, adult intensive sanctions supervision. Also, under current law, the department of corrections (DOC) may transfer a juvenile who is placed in a juvenile secured correctional facility to the Racine Youthful Offender Correctional Facility, which is a medium security adult correctional institution for offenders 15 to 21 years of age, if the juvenile is 15 years of age or over and the conduct of the juvenile in the juvenile secured correctional facility presents a serious problem to the juvenile or others.

The Wisconsin Supreme Court recently held, however, in State of Wisconsin v. Hezzie R., 219 Wis. 2d 849 (1998), that subjecting a juvenile who has no right to a trial by jury under the juvenile justice code to placement in an adult prison violates the juvenile's constitutional right to a trial by jury because placement in an adult prison constitutes criminal punishment rather than juvenile rehabilitation. Accordingly, this bill eliminates the authority of DOC to transfer a juvenile who has been adjudicated delinquent to an adult prison, including the intensive sanctions program, which is defined in the statutes as a state prison.

Current law contains conflicting provisions relating to the age under which a juvenile who has been sentenced to an adult prison (juvenile prisoner) must be placed in a juvenile secured correctional facility and the age at which a juvenile prisoner may be transferred to an adult prison. One provision requires DOC to keep juvenile prisoners under 15 years of age in a juvenile secured correctional facility, another provision requires DOC to keep juvenile prisoners under 16 years of age in a juvenile secured correctional facility, and another provision does not permit DOC to transfer a juvenile prisoner to an adult prison until the juvenile attains 17 years of age. This bill provides a uniform age of 15 years at which DOC may transfer a juvenile prisoner to an adult prison.

Under current law, a participant in the SJOP who has committed a Class A felony may be placed in a juvenile secured correctional facility or an adult prison until the participant reaches 25 years of age and a participant in the SJOP who has committed a Class B felony may be placed in such a facility or prison for not more than three years. This bill permits the juvenile court to extend the period for which a participant in the SJOP may be placed in a juvenile secured correctional facility for not more than an additional two years if the juvenile court finds that the participant is in need of the supervision, care, and rehabilitation that a placement in a juvenile secured correctional facility provides and that public safety considerations require that the participant be placed in such a facility. Under the bill, the juvenile court may extend a juvenile's placement one or more times, but the total cumulative period of all extensions may not exceed two years. The bill also permits DOC to extend the period for which a participant in the SJOP may be placed in a juvenile secured correctional facility one or more times for an additional total cumulative period of not more than 30 days without a hearing, unless DOC provides for a hearing by rule. In addition, the bill specifies that a 30-day extension under the bill does not preclude a two-year extension under the bill, and vice versa.

Under current law, in the case of a delinquency proceeding that is commenced before a juvenile reaches 17 years of age, the juvenile court retains jurisdiction over the proceeding after the juvenile reaches 17 years of age. Current law, however, is ambiguous as to the period of time for which a juvenile who is 17 years of age or older when his or her dispositional order is entered may be placed in a juvenile secured correctional facility. One provision provides that a dispositional order terminates at the end of one year, which would permit a juvenile who is 17 years of age or older when his or her dispositional order is entered to be placed in a juvenile secured correctional facility until after the juvenile reaches 18 years of age. Another provision permits the juvenile court to place a juvenile in a juvenile secured correctional facility for up to two years or until the juvenile's 18th birthdate, whichever is earlier. This bill clarifies that a juvenile may be placed in a juvenile secured correctional facility only until the juvenile reaches 18 years of age.

Under current law, when the juvenile court orders a juvenile in need of protection or services to be placed outside the juvenile's home or denies a parent visitation with the juvenile in a dispositional order, a change in placement order, or an order revising or extending a dispositional order, the juvenile court must notify the juvenile's parents, both orally and in writing, of any ground for termination of parental rights (TPR) that may be applicable and of the conditions necessary for the juvenile to be returned to the home or for the parent to be granted visitation. This bill requires the juvenile court to provide that notice when placing a juvenile who has been adjudged delinquent outside the home or when denying parental visitation with such a juvenile. The bill also expands the TPR ground based on continuing denial of visitation to include a parent who is denied visitation for over one year under a delinquency order containing the required notice.

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:

AB729, s. 1 Section 1. 48.366 (8) of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB729,4,17 48.366 (8) Transfer to or between facilities. The department of corrections may transfer a person subject to an order between secured correctional facilities. After the person attains the age of 17 15 years, the department of corrections may place the person in a state prison named in s. 302.01, except that the department of corrections may not place any person under the age of 18 years in the correctional institution authorized in s. 301.16 (1n). If the person is 15 years of age or over, the department of corrections may transfer the person to the Racine youthful offender correctional facility named in s. 302.01 as provided in s. 938.357 (4) (d). If the department of corrections places a person subject to an order under this section in a state prison, that department shall provide services for that person from the appropriate appropriation under s. 20.410 (1). The department of corrections may transfer a person placed in a state prison under this subsection to or between state prisons named in s. 302.01 without petitioning for revision of the order under sub. (5) (a), except that the department of corrections may not transfer any person under the age of 18 years to the correctional institution authorized in s. 301.16 (1n).

AB729, s. 2 Section 2. 48.415 (4) (a) of the statutes is amended to read:

AB729,5,2 48.415 (4) (a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356 (2) or 938.356 (2).

AB729, s. 3 Section 3. 301.03 (10) (d) of the statutes is amended to read:

AB729,5,9 301.03 (10) (d) Administer the office of juvenile offender review in the division of juvenile corrections in the department. The office shall be responsible for decisions regarding case planning, and the release of juvenile offenders from secured correctional facilities or secured child caring institutions to aftercare placements and the transfer of juveniles to the Racine youthful offender correctional facility named in s. 302.01 as provided in s. 938.357 (4) (d).

AB729, s. 4 Section 4. 302.11 (10) of the statutes is amended to read:

AB729,5,13 302.11 (10) An inmate subject to an order under s. 48.366 or 938.34 (4h) is not entitled to mandatory release and may be released or discharged only as provided under s. 48.366 or 938.538.

AB729, s. 5 Section 5. 302.255 of the statutes is amended to read:

AB729,5,18 302.255 Interstate corrections compact; additional applicability. "Inmate", as defined under s. 302.25 (2) (a), includes persons subject to an order under s. 48.366 who are confined to a state prison under s. 302.01 and persons subject to an order under s. 938.34 (4h) who are 17 years of age or older.

AB729, s. 6 Section 6. 302.386 (5) (d) of the statutes is amended to read:

AB729,5,23 302.386 (5) (d) Any participant in the serious juvenile offender program under s. 938.538 unless he or she the participant is placed in a Type 1 secured correctional facility, as defined in s. 938.02 (19), or in a Type 1 prison other than the institution authorized under s. 301.046 (1).

AB729, s. 7 Section 7. 808.075 (4) (fn) 10. of the statutes is created to read:

AB729,6,2 808.075 (4) (fn) 10. Extension, under s. 938.538 (4m) (a) 2., of a placement under s. 938.538 (3) (a) 1.

AB729, s. 8 Section 8. 938.183 (3) of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB729,6,16 938.183 (3) Except as provided in s. 973.013 (3m), the department shall place a juvenile under 15 years of age who is subject to a criminal penalty under sub. (1m) or (2) in a secured correctional facility or a secured child caring institution. When a juvenile who is subject to a criminal penalty under sub. (1m) or (2) attains the age of 17 15 years, the department may place the juvenile in a state prison named in s. 302.01, except that the department may not place any person under the age of 18 years in the correctional institution authorized in s. 301.16 (1n). If a juvenile who is subject to a criminal penalty under sub. (1m) or (2) is 15 years of age or over, the department may transfer the juvenile to the Racine youthful offender correctional facility named in s. 302.01 as provided in s. 938.357 (4) (d). A juvenile who is subject to a criminal penalty under sub. (1m) or (2) for an act committed before December 31, 1999, is eligible for parole under s. 304.06.

AB729, s. 9 Section 9. 938.185 (2) of the statutes is amended to read:

AB729,6,23 938.185 (2) Venue for any proceeding under s. 938.363 or, 938.365, or 938.538 (4m) (a) 2. shall be in the county where the dispositional order was issued, unless the juvenile's county of residence has changed, or the parent of the juvenile has resided in a different county of this state for 6 months. In either case, the court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county of residence of the juvenile or parent.

AB729, s. 10 Section 10. 938.355 (4) (a) of the statutes is amended to read:

AB729,7,11 938.355 (4) (a) Except as provided under par. (b) or s. 938.368, all orders under this section made before the juvenile reaches the age of 18 and all extensions under s. 938.365 made before the juvenile reaches the age of 18 shall terminate at the end of one year unless the court specifies a shorter period of time. Except if s. 938.368 applies, extensions or revisions shall terminate at the end of one year unless the court specifies a shorter period of time. No extension under s. 938.365 of an original dispositional order may be granted for a juvenile who is subject to an order under s. 938.34 (4d), (4h), (4m) or (4n) if the juvenile is 17 years of age or older when the original dispositional order terminates. Any order made before the juvenile reaches the age of majority shall be effective for a time up to one year after its entry unless the court specifies a shorter period of time.

AB729, s. 11 Section 11. 938.355 (4) (b) of the statutes is amended to read:

AB729,8,4 938.355 (4) (b) An order under s. 938.34 (4d), (4h) or (4m) for which a juvenile has been adjudicated delinquent is subject to par. (a), except that the judge may make an Except as provided in s. 938.368, an order under s. 938.34 (4d) or (4m) made before the juvenile reaches the age of 18 may apply for up to 2 years or until the juvenile's 18th birthdate, whichever is earlier and the judge shall make an, unless the court specifies a shorter period of time. Except as provided in s. 938.368, an order under s. 938.34 (4h) made before the juvenile reaches the age of 18 shall apply for 5 years, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class B felony if committed by an adult, or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class A felony if committed by an adult. Except as provided in s. 938.368, extensions of an order under s. 938.34 (4d), (4h), (4m), or (4n) made before the juvenile reaches the age of 17 shall terminate at the end of one year unless the court specifies a shorter period of time. No extension under s. 938.365 of an original dispositional order under s. 938.34 (4d), (4h), (4m), or (4n) may be granted for a juvenile who is 17 years of age or older when the original dispositional order terminates.

AB729, s. 12 Section 12. 938.356 (1) of the statutes is amended to read:

AB729,8,12 938.356 (1) Whenever the court orders a juvenile to be placed outside his or her home or denies a parent visitation because the juvenile has been adjudged delinquent or to be in need of protection or services under s. 938.183, 938.34, 938.345, 938.357, 938.363, or 938.365, the court shall orally inform the parent or parents who appear in court of any grounds for termination of parental rights under s. 48.415 which that may be applicable and of the conditions necessary for the juvenile to be returned to the home or for the parent to be granted visitation.

AB729, s. 13 Section 13. 938.357 (4) (d) of the statutes is repealed.

AB729, s. 14 Section 14. 938.538 (3) (a) 1. of the statutes is amended to read:

AB729,8,19 938.538 (3) (a) 1. Subject to subd. 1m., placement in a Type 1 secured correctional facility, or a secured child caring institution or, if the participant is 17 years of age or over or 15 years of age or over and transferred under s. 938.357 (4) (d), a Type 1 prison, as defined in s. 301.01 (5), for a period of not more than 3 years, unless that period is extended under sub. (4m) (a) 1. or 2. or both.

AB729, s. 15 Section 15. 938.538 (3) (a) 1m. of the statutes is amended to read:

AB729,9,2 938.538 (3) (a) 1m. If the participant has been adjudicated delinquent for committing an act that would be a Class A felony if committed by an adult, placement in a Type 1 secured correctional facility, or a secured child caring institution or, if the participant is 17 years of age or over or 15 years of age or over and transferred under s. 938.357 (4) (d), a Type 1 prison, as defined in s. 301.01 (5), until the participant reaches 25 years of age, unless the participant is released sooner, subject to a mandatory minimum period of confinement of not less than one year.

AB729, s. 16 Section 16. 938.538 (3) (a) 2. of the statutes is amended to read:

AB729,9,6 938.538 (3) (a) 2. Intensive or other field supervision, including corrective sanctions supervision under s. 938.533, or aftercare supervision or, if the participant is 17 years of age or over, intensive sanctions supervision under s. 301.048.

AB729, s. 17 Section 17. 938.538 (3) (b) of the statutes is amended to read:

AB729,9,16 938.538 (3) (b) The department may provide the sanctions under par. (a) in any order, may provide more than one sanction at a time and , may return a participant to a sanction that was used previously for a the participant, and, in returning a participant to the sanction provided in par. (a) 1., may extend the period specified in par. (a) 1. as provided in sub. (4 m) (a) 1. or petition the court to extend that period as provided in sub. (4m) (a) 2., or both. Notwithstanding ss. 938.357, 938.363, and 938.533 (3), but subject to sub. (4m) (a) 2., a participant is not entitled to a hearing regarding the department's exercise of authority under this subsection unless the department provides for a hearing by rule.

AB729, s. 18 Section 18 . 938.538 (4) (a) of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB729,9,25 938.538 (4) (a) A participant in the serious juvenile offender program is under the supervision and control of the department, is subject to the rules and discipline of the department, and is considered to be in custody, as defined in s. 946.42 (1) (a). Notwithstanding ss. 938.19 to 938.21, if a participant violates a condition of his or her participation in the program under sub. (3) (a) 2. to 9. while placed in a Type 2 secured correctional facility the department may, without a hearing, take the participant into custody and return him or her to placement in a Type 1 secured correctional facility, or a secured child caring institution or, if the participant is 17 years of age or over, a Type 1 prison, as defined in s. 301.01 (5). Any intentional failure of a participant to remain within the extended limits of his or her placement while participating in the serious juvenile offender program or to return within the time prescribed by the administrator of the division of intensive sanctions in the department is considered an escape under s. 946.42 (3) (c). This paragraph does not preclude a juvenile who has violated a condition of the juvenile's participation in the program under sub. (3) (a) 2. to 9. from being taken into and held in custody under ss. 938.19 to 938.21.