AB660: Bill Text

LRB-3570/1

PJH:sac&med:rs

2011 - 2012 LEGISLATURE

2011 Assembly BILL 660

March 5, 2012 - Introduced by Representatives Wynn, Spanbauer and Knilans. Referred to Committee on Criminal Justice and Corrections.

AB660,1,10 An Act to renumber and amend 302.113 (9) (am), 302.113 (9) (g), 302.114 (9) (am), 302.114 (9) (b), 302.114 (9) (f) and 304.06 (3); to amend 302.113 (8m) (a), 302.113 (8m) (b), 302.114 (8m) (a), 302.114 (8m) (b), 302.33 (1), 303.08 (1) (intro.), 303.08 (2), 303.08 (5) (intro.), 303.08 (6), 303.08 (12), 808.075 (4) (g) 3. and 973.155 (1) (b); to repeal and recreate 973.10 (2); and to create 302.113 (8r), 302.113 (9) (am) 2., 302.113 (9) (em), 302.113 (9) (g) 2., 302.114 (8r), 302.114 (9) (am) 2., 302.114 (9) (b) 2., 302.114 (9) (dm), 302.114 (9) (f) 2., 304.06 (3) (a), 304.06 (3) (b) 2., 304.06 (3) (c), 304.06 (3g), 973.10 (2c), 973.10 (2e) and 973.10 (5) of the statutes; relating to: revocation of parole, probation, or extended supervision.

Analysis by the Legislative Reference Bureau

Under current law, with some exceptions, a person who commits a crime may be allowed to serve all or a portion of his or her sentence in the community, but under the supervision of the Department of Corrections (DOC) and in the legal custody of DOC (supervised release). Current law offers three types of generally available supervised release: 1) release from prison to extended supervision, which is available to certain persons who are sentenced to imprisonment for a felony he or she committed on or after December 31, 1999, or for a misdemeanor he or she committed on or after February 1, 2003, 2) release from prison to parole, which is available to certain persons who are sentenced for a felony or a misdemeanor he or she committed before those dates, and 3) release to probation, which is available for certain persons for whom a court delays sentencing or imposes a sentence and stays its execution while the person serves his or her time on probation.

A person who is on supervised release must comply with rules and conditions set by DOC, or in the case of a probationer or some persons released to extended supervision, with rules and conditions set by DOC and the sentencing court. If the person violates a rule or condition of supervised release, DOC may initiate proceedings to revoke his or her release. In most cases, a person is entitled to a hearing to determine if he or she did violate a rule or condition of supervised release.

A person under supervised release who is accused of violating a rule or condition of supervised release may waive his or her right to a hearing; in that case, DOC determines whether revocation is warranted and, if revocation is warranted, the period of incarceration that may be appropriate for the violation. Current law provides that, if after a hearing before the Division of Hearings and Appeals in the Department of Administration, the person is found to have committed a violation, the person's supervised release may be revoked. Upon revocation, the person may be returned to a correctional facility for a period of time up to the time remaining on his or her sentence; if the person is a probationer, the person may be returned to court for sentencing or, if the original sentence was imposed but stayed, may be required to serve his or her original sentence. A revocation decision by the Division of Hearings and Appeals may be appealed by the person or, if revocation is denied, by DOC.

Under current law, the person has a right to due process with respect to the revocation hearing, but the rules of evidence that apply to court proceedings do not necessarily apply to revocation hearings. Also under current law, a person who has been charged with committing a felony is entitled to a preliminary examination at which the court must determine whether there is probable cause to believe that the defendant committed a felony. Witness testimony may be taken at both revocation hearings and preliminary examinations.

This bill changes aspects of the revocation proceedings for persons who are under supervised release for a felony and who violate a condition of supervised release by committing a new crime, violating a rule or condition that prohibits contact with a victim or witness, violating a rule or condition that prohibits contact with a minor if the person is serving a sentence for a crime against a child, or absconding from supervision for more than 180 days (supervised felon).

Under the bill, if DOC alleges that a supervised felon committed one or more of the listed violations, DOC is required to take physical custody of the supervised felon and keep the person in its physical custody until any revocation issues are resolved. If DOC opts not to seek revocation of a supervised felon's release, DOC must notify the district attorney for the county where the felon was convicted of the alleged violation and its decision not to seek revocation. Under the bill, the district attorney has 30 days to initiate revocation proceedings against the supervised felon. The bill requires DOC to cooperate with a district attorney who initiates revocation proceedings. Under the bill, if a supervised felon is found to have committed the violation, he or she must be reincarcerated for not less than half of the time remaining on his or her sentence or, in the case of a person serving a life term, for not less than five years. If a supervised felon was on probation, the bill requires the person to be returned to court for sentencing or to be required to serve the sentence that had been stayed.

The bill also makes changes to revocation proceedings that apply to supervised felons and to persons who are under supervised release for a misdemeanor or for a felony but whose alleged violations are not among those listed for supervised felons. Under the bill, the standard of proof for determining whether a person committed a violation of a rule or condition of supervised release is a preponderance of evidence. The bill limits review of revocation proceedings to determining whether DOC or, in the case of a supervised felon, DOC or the district attorney, met that burden of proof.

The bill also provides that, if DOC or, in the case of a supervised felon, DOC or the district attorney, initiates proceedings to revoke a person's supervised release because the person has committed a new felony, the felony victim's testimony from the preliminary examination regarding the new felony is admissible at the hearing on revocation of extended supervision. The bill further provides that, if the victim testified at a preliminary examination regarding the felony and if a record of the testimony is available, a party to the revocation hearing may not subpoena the victim to appear at the revocation hearing unless that party shows good cause for requiring the victim's appearance.

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:

AB660, s. 1 Section 1. 302.113 (8m) (a) of the statutes is amended to read:

AB660,3,7 302.113 (8m) (a) Every person released to extended supervision under this section remains in the legal custody of the department. If the department alleges that any condition or rule of extended supervision other than one listed in sub. (8r) has been violated by the a person, the department may take physical custody of the person for the investigation of the alleged violation and proceed under this subsection.

AB660, s. 2 Section 2. 302.113 (8m) (b) of the statutes is amended to read:

AB660,4,9 302.113 (8m) (b) If a the person released to extended supervision under this section described in par. (a) signs a statement admitting a violation of a condition or rule of extended supervision, the department may, as a sanction for the violation, confine the person for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the person in a county jail under this paragraph, the department shall reimburse the county for its actual costs in confining the person from the appropriations under s. 20.410 (1) (ab) and (b). Notwithstanding s. 302.43, the person is not eligible to earn good time credit on any period of confinement imposed under this subsection.

AB660, s. 3 Section 3. 302.113 (8r) of the statutes is created to read:

AB660,4,17 302.113 (8r) (a) If the department alleges that a person has violated any condition or rule of extended supervision by committing a new crime, violating a rule or condition that prohibits contact with a victim or witness, violating a rule or condition that prohibits contact with a minor if the person is serving a sentence for a violation of ch. 948, or absconding from supervision for more than 180 days, the department shall take physical custody of the person for the investigation of the alleged violation and proceed under this subsection.

AB660,4,24 (b) If the department is satisfied that a condition or rule of extended supervision specified in par. (a) has been violated, it may initiate proceedings to revoke the person's extended supervision. If the department does not initiate proceedings to revoke the person's extended supervision, the department shall notify the district attorney in the county where the person was convicted that it alleges the person has committed a violation specified in par. (a) but does not wish to initiate revocation proceedings.

AB660,5,2 (c) Within 30 days of receiving notice under par. (b), the district attorney in the county where the person was convicted may initiate revocation proceedings.

AB660,5,9 (d) Upon request of a district attorney who is proceeding under par. (c), the department shall retain physical custody of the person until the conclusion of the revocation proceedings and assist the district attorney in the revocation proceedings. Assistance under this paragraph may include serving the person with notice of the district attorney's intent to revoke extended supervision, providing records relating to the person to the district attorney, and allowing a supervising agent to testify at revocation proceedings.

AB660, s. 4 Section 4. 302.113 (9) (am) of the statutes, as affected by 2011 Wisconsin Act 38, is renumbered 302.113 (9) (am) 1. and amended to read:

AB660,5,24 302.113 (9) (am) 1. If a Except as provided in subd. 2., if the department proves by a preponderance of the evidence that the person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the reviewing authority shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The order returning a person to prison under this paragraph subdivision shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

AB660, s. 5 Section 5. 302.113 (9) (am) 2. of the statutes is created to read:

AB660,6,12 302.113 (9) (am) 2. If the department or the district attorney proceeding under sub. (8r) (c) proves by a preponderance of the evidence that the person released to extended supervision under this section violates a condition of extended supervision specified in sub. (8r) (a), the reviewing authority shall revoke the extended supervision of the person and order the person to be returned to prison for not less than one-half of the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The order returning a person to prison under this subdivision shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

AB660, s. 6 Section 6. 302.113 (9) (em) of the statutes is created to read:

AB660,6,20 302.113 (9) (em) A felony victim's or witness's testimony from a preliminary examination regarding the felony is admissible in any administrative hearing held under par. (am) to determine whether a person on extended supervision violated the conditions of extended supervision by committing the felony. If such testimony is available, a party to the administrative hearing may not subpoena the victim or witness to appear at the administrative hearing unless the party shows good cause for requiring the victim's or witness's appearance.

AB660, s. 7 Section 7. 302.113 (9) (g) of the statutes is renumbered 302.113 (9) (g) 1. and amended to read:

AB660,7,7 302.113 (9) (g) 1. In any case in which there is a hearing before the division of hearings and appeals in the department of administration concerning whether to revoke a person's extended supervision, the person on extended supervision may seek review of a decision to revoke extended supervision and the department of corrections or the district attorney may seek review of a decision to not revoke extended supervision. Review under this paragraph is limited to whether the department or the district attorney met the burden of proof specified under par. (am). Review of a decision under this paragraph may be sought only by an action for certiorari. Except as provided in subd. 2., a writ of certiorari must be filed within 60 days of the revocation decision.

AB660, s. 8 Section 8. 302.113 (9) (g) 2. of the statutes is created to read:

AB660,7,14 302.113 (9) (g) 2. If the department of corrections does not seek review of a decision to not revoke extended supervision under subd. 1., the department shall notify the district attorney in the county where the person was convicted that it does not intend to seek review of the decision. The district attorney may, by filing a writ of certiorari within 60 days after it receives notice from the department under this subdivision, seek review of the decision.

AB660, s. 9 Section 9. 302.114 (8m) (a) of the statutes is amended to read:

AB660,7,21 302.114 (8m) (a) Every person released to extended supervision under this section remains in the legal custody of the department. If the department alleges that any condition or rule of extended supervision other than one listed in sub. (8r) has been violated by the person, the department may take physical custody of the person for the investigation of the alleged violation and proceed under this subsection.

AB660, s. 10 Section 10. 302.114 (8m) (b) of the statutes is amended to read:

AB660,8,6 302.114 (8m) (b) If a person released to extended supervision under this section subsection signs a statement admitting a violation of a condition or rule of extended supervision, the department may, as a sanction for the violation, confine the person for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the person in a county jail under this paragraph, the department shall reimburse the county for its actual costs in confining the person from the appropriations under s. 20.410 (1) (ab) and (b). Notwithstanding s. 302.43, the person is not eligible to earn good time credit on any period of confinement imposed under this subsection.

AB660, s. 11 Section 11. 302.114 (8r) of the statutes is created to read:

AB660,8,14 302.114 (8r) (a) If the department alleges that the person has violated any condition or rule of extended supervision by committing a new crime, violating a rule or condition that prohibits contact with a victim or witness, violating a rule or condition that prohibits contact with a minor if the person is serving a sentence for a violation of ch. 948, or absconding from supervision for more than 180 days, the department shall take physical custody of the person for the investigation of the alleged violation and proceed under this subsection.

AB660,8,21 (b) If the department is satisfied that a condition or rule of extended supervision specified in par. (a) has been violated, it may initiate proceedings to revoke the person's extended supervision. If the department does not initiate proceedings to revoke the person's extended supervision, the department shall notify the district attorney in the county where the person was convicted that it alleges the person has committed a violation specified in par. (a) but does not wish to initiate revocation proceedings.

AB660,8,23 (c) Within 30 days of receiving notice under par. (b), the district attorney in the county where the person was convicted may initiate revocation proceedings.

AB660,9,5 (d) Upon request of a district attorney who is proceeding under par. (c), the department shall retain physical custody of the person until the conclusion of the revocation proceedings and assist the district attorney in the revocation proceedings. Assistance under this paragraph may include serving the person with notice of the district attorney's intent to revoke extended supervision, providing records relating to the person to the district attorney, and allowing a supervising agent to testify at revocation proceedings.

AB660, s. 12 Section 12. 302.114 (9) (am) of the statutes, as affected by 2011 Wisconsin Act 38, is renumbered 302.114 (9) (am) 1. and amended to read:

AB660,9,18 302.114 (9) (am) 1. If a Except as provided in subd. 2., if the department proves by a preponderance of the evidence that the person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for a specified period of time before he or she is eligible for being released again to extended supervision. The period of time specified under this paragraph subdivision may not be less than 5 years and may be extended in accordance with sub. (3).

AB660, s. 13 Section 13. 302.114 (9) (am) 2. of the statutes is created to read: