AB28: Bill Text

Note: Provides that a committed individual and the prosecution may use experts or professionals in supporting or opposing a petition for supervised release. The language is currently contained in s. 980.075 (4) (a) and (b), stats., which this bill renumbers to s. 980.09 (1m) (c) to apply to discharge. It needs to be repeated to apply to s. 980.08, supervised release.

AB28,16 Section 16. 980.08 (3) of the statutes is renumbered 980.08 (3) (a) and amended to read:

AB28,9,4 980.08 (3) (a) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having for the court who have the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 60 days after appointment, unless the court for good cause extends this time limit. If the person requests appointment of an examiner within 20 days after the filing of the petition, the court shall appoint an examiner for the person, unless the court appointed an examiner under s. 980.031 (3) or 980.07 (1) for the current reexamination period. If a report filed by an examiner appointed under s. 980.07 (1) to conduct a reexamination of the person's mental condition within the 6 months preceding the filing of the petition supports supervised release, the court may appoint that examiner as the examiner for the person under this subsection.

AB28,9,12 (b) The examiners appointed under par. (a) shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If any such examiner believes that the person is appropriate for supervised release under the criteria specified in sub. (4) (cg), the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection par. (a) as provided under s. 51.20 (18) (a).

Note: Renumbers existing s. 980.08 (3) as 2 separate paragraphs.

The Section also extends the time period for an examiner to complete an evaluation of the committed person and submit the report to the court from 30 to 60 days, and authorizes the court to extend the time limit for good cause.

The Section clarifies that the court appoints an examiner at this stage for purposes of the court. The draft also requires the court to appoint an examiner for the committed person if: (1) the person requests appointment of an examiner; and (2) the court has not previously appointed an examiner for the person under other sections of the chapter during the relevant 12-month reexamination period.

If the committed person requests appointment of his or her own examiner, the Section allows the court to appoint the DHS examiner who conducted the person's annual reexamination if: (1) the examiner conducted the examination within the 6 months before the person filed his or her supervised release petition; and (2) the examiner's report supports a grant of supervised release. This will allow the court to appoint an examiner who already conducted an examination of the individual and generated a report favorable to the individual, rather than requiring the court to appoint an additional examiner on behalf of the person.

AB28,17 Section 17. 980.08 (4) (a) of the statutes is amended to read:

AB28,9,16 980.08 (4) (a) The court, without a jury, shall hear the petition within 30 120 days after the report of the court-appointed examiner appointed under sub. (3) (a) is filed with the court, unless the court for good cause extends this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d).

Note: Extends the time period for the supervised release hearing from 30 to 120 days after the examiner's report is filed.

AB28,18 Section 18 . 980.08 (4) (cg) 1. of the statutes is amended to read:

AB28,10,5 980.08 (4) (cg) 1. The person has made is making significant progress in treatment and the person's progress can be sustained while on supervised release.

Note: Revises one of the 5 criteria a committed individual must meet before being granted supervised release to require that the individual is making significant progress in treatment, rather than requiring that the individual has made significant progress in treatment. This change corresponds with the revision in Section 2.

AB28,19 Section 19. 980.08 (4) (cj) of the statutes is created to read:

AB28,10,8 980.08 (4) (cj) The person has the burden of proving by clear and convincing evidence that the person meets the criteria in par. (cg).

Note: Provides that the person petitioning for supervised release bears the burden of proving he or she meets the criteria by clear and convincing evidence, codifying the Wisconsin Supreme Court's decision in State v. West, 2011 WI 83.

AB28,20 Section 20. 980.08 (9) (a) of the statutes is amended to read:

AB28,10,16 980.08 (9) (a) As a condition of supervised release granted under this chapter, for the first year of supervised release, the court shall restrict the person on supervised release to the person's home residence except for outings approved by the department of health services that are under the direct supervision of a department of corrections escort and that are for employment or volunteer purposes, for religious purposes, educational purposes, treatment and exercise purposes, supervision purposes, or residence maintenance, or for caring for the person's basic living needs.

Note: Expands the list of activities for which a committed individual on supervised release may leave his or her residence under direct supervision of a DOC escort and requires that all outings be approved by DHS. Specifically, in addition to existing purposes, the bill provides that a committed individual may leave his or her residence for volunteer, educational, treatment, exercise or supervision purposes, or for maintenance of his residence. The bill also replaces use of the term "home", with the term "residence".

AB28,21 Section 21. 980.09 (1) of the statutes is amended to read:

AB28,11,9 980.09 (1) A committed person may petition the committing court for discharge at any time. The court shall deny the petition under this section without a hearing unless the petition alleges facts from which the court or jury may would likely conclude the person's condition has changed since the date of his or her initial commitment order the most recent order denying a petition for discharge after a hearing on the merits, or since the date of his or her initial commitment order if the person has never received a hearing on the merits of a discharge petition, so that the person does not meet no longer meets the criteria for commitment as a sexually violent person.

Note: Alters the pleading requirement which a petitioner must meet before his or her discharge petition will receive a discharge trial. The Section requires a petitioner to allege facts which would likely lead a fact-finder to determine he or she no longer qualifies as an SVP, rather than alleging facts which may lead a fact-finder to this determination.

This Section also alters the time period during which a petitioner must show his or her "condition has changed" in order to merit a discharge trial. The language requires a petitioner to allege a change occurring since the last discharge trial at which a fact-finder determined that he or she remains an SVP.

AB28,22 Section 22. 980.09 (1m) (d) of the statutes is created to read:

AB28,12,2 980.09 (1m) (d) After receiving a petition for discharge under sub. (1) and upon the request of the person filing the petition, unless the court previously appointed an examiner under s. 980.031 (3) or 980.07 (1) for the current reexamination period, the court shall appoint for the person an examiner having the specialized knowledge determined by the court to be appropriate. If an examination conducted under s. 980.07 (1) within the 6 months preceding the filing of the petition supports discharge, the court may appoint the examiner who conducted that examination as the examiner for the person. The examiner shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided in s. 146.82 (2) (c). The county shall pay the costs of an examiner appointed under this paragraph as provided under s. 51.20 (18) (a).

Note: The Section creates a new statutory section relating to appointment of an examiner for the person petitioning for discharge. The bill specifies that a court must appoint an examiner for the person if the person is indigent and requests an examiner after submitting a discharge petition to the court.

However, the court is not required to appoint an additional examiner for the person if the court previously appointed an examiner for the person at the time of the person's annual reexamination. Further, instead of appointing a new examiner for the person, the court may appoint an examiner who already completed an examination of the person under certain circumstances. The court may appoint an examiner who previously examined the person if: (1) the examiner completed a reexamination of the person within the 6 months before the person filed his or her petition for discharge; and (2) the examination recommended discharge.

AB28,23 Section 23 . 980.09 (2) and (3) of the statutes are amended to read:

AB28,13,3 980.09 (2) The court shall review the petition within 30 days and In reviewing the petition, the court may hold a hearing to determine if it contains facts from which the court or jury may conclude that the person does not meet the person's condition has sufficiently changed such that a court or jury would likely conclude the person no longer meets the criteria for commitment as a sexually violent person. In determining under this subsection whether facts exist that might warrant such a conclusion the person's condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment, the court shall may consider the record, including evidence introduced at the initial commitment trial or the most recent trial on a petition for discharge, any current or past reports filed under s. 980.07, relevant facts in the petition and in the state's written response, arguments of counsel, and any supporting documentation provided by the person or the state. If the court determines that the petition record does not contain facts from which a court or jury may would likely conclude that the person does not meet no longer meets the criteria for commitment, the court shall deny the petition. If the court determines that facts exist the record contains facts from which a court or jury could would likely conclude the person does not meet no longer meets the criteria for commitment, the court shall set the matter for hearing trial.

AB28,13,10 (3) The court shall hold a hearing trial within 90 days of the determination that the petition contains facts from which the court or jury may conclude that the person does not meet person's condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment as a sexually violent person. The At trial, the state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment as a sexually violent person.

Note: Alters the procedure for court review of a discharge petition in determining whether the court must hold a discharge trial. Under current law, a court may hold a hearing to determine whether the petition meets the pleading requirement. The hearing is an initial hearing that addresses the sufficiency of the petition itself, unlike a discharge trial which occurs later and determines whether the petitioner remains an SVP.

The Section also alters the pleading requirement a petitioner must meet before receiving a discharge trial. Under current law, the petitioner's discharge petition must allege facts from which a court or jury may conclude that he no longer qualifies as an SVP. The bill instead provides that a petitioner's discharge petition must allege facts from which a court or jury would likely conclude he no longer qualifies as an SVP. The Section also specifies that a court may review the entire record in determining whether the petitioner's condition has sufficiently changed to warrant a discharge trial.

The Section uses the word "trial" instead of the word "hearing" so that the Section refers to discharge trials rather than discharge hearings. This distinguishes between an initial hearing held by a court to determine the sufficiency of a discharge petition and a full trial on the merits.

AB28,24 Section 24 . 980.09 (4) of the statutes is amended to read:

AB28,14,2 980.09 (4) If the court or jury is satisfied that the state has not met its burden of proof under sub. (3), the petitioner person shall be discharged from the custody of the department. If the court or jury is satisfied that the state has met its burden of proof under sub. (3), the court may shall proceed under s. 980.08 (4) to determine whether to modify the petitioner's person's existing commitment order by authorizing supervised release, unless the person waives consideration of the criteria in s. 980.08 (4) (cg). If the person waives consideration of these criteria, the waiver is a denial of supervised release for purposes of s. 980.08 (1).

Note: Requires a court to consider supervised release for a petitioner after denying discharge at a discharge trial. Under current law, the court may choose to evaluate whether the petitioner meets the supervised release criteria, but is not required to do so.

The Section permits a petitioner to waive the court's consideration of supervised release, but treats the waiver as a denial of supervised release for purposes of calculating when a committed person may file a petition for supervised release.

AB28,25 Section 25. 980.09 (5) of the statutes is created to read:

AB28,14,8 980.09 (5) If a court orders discharge of a committed person under this section, the court shall stay the execution of the order so that the department may comply with its statutory duties under s. 980.11 (2) and (3). The stay of execution may not exceed 10 working days and shall be for as short a period as necessary to permit the department to comply with s. 980.11 (2) and (3).

Note: Specifies that a court ordering discharge of a person from commitment must delay execution of the order for a period of time, not to exceed 10 working days, during which DHS must issue notice to victims and their family members and notify DOC.

AB28,26 Section 26 . 980.095 (1) (a) of the statutes is amended to read:

AB28,14,16 980.095 (1) (a) The district attorney or the department of justice, whichever filed the original petition, or the petitioner person who filed the petition for discharge or his or her attorney may request that a hearing trial under s. 980.09 (3) be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days of the filing of the petition for discharge determination by the court that a court or jury would likely conclude under s. 980.09 (1) that the person's condition has sufficiently changed.

Note: Alters the deadline by which a petitioner must request a jury trial in discharge proceedings. Under current law, a petitioner must request a jury trial within 10 days of filing his discharge petition, which requires the petitioner to request a jury trial before the court determines whether or not he will receive a trial on his discharge petition. The Section specifies that a petitioner must request a jury trial within 10 days after the court determines that his or her petition warrants a trial.

Changes "hearing" to "trial" to be consistent with changes under s. 980.09 (3). See Section 23.

AB28,15,1 (End)