AB1036: Bill Text

2019 - 2020 LEGISLATURE

2019 Assembly BILL 1036

March 26, 2020 - Introduced by Representatives Goyke, Emerson, Crowley, Doyle, Anderson, Bowen, Considine, Spreitzer, Ohnstad, Billings, Pope, Neubauer, Zamarripa and C. Taylor, cosponsored by Senators Miller, Larson and Smith. Referred to Committee on Rules.

AB1036,3,2 An Act to repeal 48.355 (4) (b) 3., 48.357 (6) (a) 3., 48.365 (5) (b) 3., 48.623 (1m) (b), 48.975 (3m) (b), 938.18 (1) (c), 938.31 (3) (c) 1., 938.31 (3) (c) 2., 938.31 (3) (c) 3., 938.355 (4) (am) 3., 938.357 (6) (a) 3. and 938.365 (5) (b) 3.; to renumber 938.245 (1) and 938.549 (2) (intro.), (b) and (c); to renumber and amend 938.195 (3), 938.245 (6) and 938.549 (2) (a); to amend 48.02 (1d), 48.02 (2), 48.355 (4) (b) 4., 48.357 (6) (a) 4., 48.365 (5) (b) 4., 48.366 (1) (intro.), 48.366 (1) (a), 48.366 (2) (b) 4., 48.366 (3) (a), 48.366 (3) (c), 48.396 (1), subchapter IX (title) of chapter 48 [precedes 48.44], 48.44, 48.45 (1) (a), 48.45 (1) (am), 48.45 (3), 48.57 (3m) (a) 1. (intro.), 48.57 (3m) (a) 1. a., 48.57 (3m) (a) 1. b., 48.57 (3n) (a) 1. (intro.), 48.57 (3n) (a) 1. a., 48.57 (3n) (a) 1. b., 48.57 (3n) (am) 6. a., 48.623 (1m) (intro.), 48.623 (1m) (a), 48.623 (1m) (c), 48.645 (1) (intro.), 48.645 (1) (a), 48.645 (1) (b), 48.685 (1) (bm), 48.686 (1) (bm), 48.975 (3m) (intro.), 48.975 (3m) (a), 48.975 (3m) (c), 118.163 (4), 119.04 (1), 125.07 (4) (d), 125.07 (4) (e) 1., 125.085 (3) (bt), 165.83 (1) (c) 1., 165.83 (1) (c) 2., 301.12 (2m), 301.12 (14) (a), 301.26 (4) (cm) 1., 302.31 (7), 938.02 (1), 938.02 (3m), 938.02 (10m), 938.067 (6m), 938.12 (1), 938.12 (2), 938.13 (12), 938.18 (1) (a), 938.18 (1) (b), 938.18 (2), 938.183 (1) (intro.), 938.183 (1) (am), 938.183 (3), 938.195 (title), 938.195 (1) (a), 938.195 (2) (title), 938.195 (2) (a), 938.195 (2) (b), 938.195 (3) (title), 938.24 (2) (title) and (b), 938.245 (1m), 938.245 (2g), 938.255 (1) (intro.), 938.31 (3) (a) 1., 938.31 (3) (b), 938.31 (3) (c) (intro.), 938.31 (3) (c) 5., 938.32 (1x), 938.34 (4h) (a), 938.34 (8), 938.343 (2), 938.344 (3), 938.35 (1m), 938.355 (4) (am) 4., 938.355 (4) (b), 938.355 (4m) (a), 938.357 (6) (a) 4., 938.365 (5) (b) 4., 938.366 (1) (intro.), 938.366 (1) (a), 938.366 (2) (b) 4., 938.366 (3) (a), 938.366 (3) (c), 938.39, 938.396 (1) (b) 5., subchapter IX (title) of chapter 938 [precedes 938.44], 938.44, 938.45 (1) (a), 938.45 (3), 938.48 (4m) (title), 938.48 (4m) (a), 938.48 (4m) (b), 938.48 (14), 938.52 (1) (d), 938.57 (3) (title), 938.57 (3) (a) (intro.), 938.57 (3) (a) 1., 938.57 (3) (a) 3., 938.57 (3) (b), 939.632 (1) (e) 1., 939.632 (1) (e) 3., 946.50 (intro.), 948.01 (1), 948.11 (2) (am) (intro.), 948.40 (1), 948.40 (2), 948.45 (1), 948.60 (2) (d), 948.61 (4), 961.455 (title), 961.455 (1), 961.455 (2), 961.46, 961.573 (2), 961.574 (2), 961.575 (1), 961.575 (2), 961.575 (3), 990.01 (3) and 990.01 (20); and to create 20.437 (1) (be), 20.437 (1) (cL), 48.366 (1m), 48.5275, 48.645 (1) (c), 118.256, 938.18 (1) (bm), 938.183 (1d), 938.195 (1m), 938.195 (3) (b), 938.24 (2) (ag) and (ar), 938.245 (1b), 938.245 (1g), 938.245 (6) (b), 938.366 (1m), 938.532, 938.545, 970.032 (3) and 971.31 (13) (c) of the statutes; relating to: juvenile court jurisdiction; the serious juvenile offender program; extending out-of-home care to 21 years of age for certain persons; juvenile interrogations; deferred prosecution agreements and diversion services for juveniles; the authority of school districts and school resource officers to respond to school-based behavior; providing an exemption from emergency rule procedures; providing an exemption from rule-making procedures; granting rule-making authority; and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill makes changes to the jurisdiction of the court assigned to exercise jurisdiction under the Juvenile Justice Code (juvenile court), the jurisdiction of the criminal court, procedures under the Juvenile Justice Code, dispositions available in juvenile delinquency proceedings, and out-of-home care placements.

AGE OF JUVENILE court JURISDICTION

Under current law, a person 17 years of age or older who is alleged to have violated a criminal law is subject to the procedures specified in the Criminal Procedure Code and, on conviction, is subject to sentencing under the Criminal Code, which may include a sentence of imprisonment in the Wisconsin state prisons. Currently, subject to certain exceptions, a person under 17 years of age who is alleged to have violated a criminal law is subject to the procedures specified in the Juvenile Justice Code and, on being adjudicated delinquent, is subject to an array of dispositions under that code including placement in a juvenile correctional facility. This bill raises from 17 to 18 the age at which a person who is alleged to have violated a criminal law is subject to the procedures specified in the Criminal Procedure Code and, on conviction, to sentencing under the Criminal Code.

Similarly, under current law, a person 17 years of age or older who is alleged to have violated a civil law or municipal ordinance is subject to the jurisdiction and procedures of the circuit court or, if applicable, the municipal court, while a person under 17 years of age who is alleged to have violated a civil law or municipal ordinance, subject to certain exceptions, is subject to the jurisdiction and procedures of the juvenile court. This bill raises from 17 to 18 the age at which a person who is alleged to have violated a civil law or municipal ordinance is subject to the jurisdiction and procedures of the circuit court or, if applicable, the municipal court.

The bill appropriates to the Department of Children and Families a sum sufficient for youth aids-related purposes to reimburse counties, beginning on January 1, 2021, for costs associated with juveniles who were alleged to have violated a state or federal criminal law or any civil law or municipal ordinance at age 17. The bill requires DCF to consult with county representatives to determine those expenses that are eligible for reimbursement.

AGE OF DELINQUENCY

Under current law, a child age ten or over may be adjudged delinquent by the juvenile court for an act that would be a crime if committed by an adult. Under this bill, a child age 13 or over may be adjudged delinquent for an act that would be a crime if committed by an adult.

ORIGINAL ADULT COURT JURISDICTION

This bill eliminates the original jurisdiction of a court of criminal jurisdiction over a juvenile who is alleged to have 1) committed assault or battery while placed in a juvenile correctional facility; 2) committed first-degree or second-degree intentional homicide or first-degree reckless homicide on or after the juvenile's tenth birthday; or 3) violated any state criminal law, if the juvenile has previously been convicted of a crime either under the original jurisdiction of a court of criminal jurisdiction or following a waiver of jurisdiction by the juvenile court. Under the bill, a juvenile who is alleged to be delinquent on or after the effective date of the bill is subject to the jurisdiction of the juvenile court.

This bill also changes the procedure for requesting that the juvenile court waive its jurisdiction over a juvenile, which, if granted, places the juvenile under the criminal court's jurisdiction. Under current law, a petition may be filed requesting waiver of the juvenile court's jurisdiction if the juvenile is at least 14 years old and is alleged to have committed certain acts, or if the juvenile is at least 15 years old and is alleged to have violated any state criminal law. This bill raises from 14 to 16 the age at which waiver of juvenile court jurisdiction may be requested for the commission of certain acts, but allows waiver for a juvenile who is at least 14 years old and is alleged to have committed an act that would be a Class A or Class B felony if committed by an adult. This bill also removes the current law provision allowing waiver of juvenile court jurisdiction for a juvenile who is alleged to have violated any state criminal law.

SERIOUS JUVENILE OFFENDER PROGRAM

This bill makes changes to eligibility for the Serious Juvenile Offender Program (SJOP). Under current law, the juvenile court may order a juvenile to participate in the SJOP if the juvenile has been adjudicated delinquent for committing certain felony crimes. The SJOP provides a juvenile with supervision, care, and rehabilitation that is more restrictive than ordinary supervision in the community and includes component phases that are intensive, highly structured, and based on public safety considerations and the participant's need for supervision, care, and rehabilitation.

Under current law, in order to qualify for the SJOP, a juvenile must meet certain age limits, must be adjudicated delinquent for the commission or attempted commission of certain crimes, and must be found to be a danger to the public and to be in need of restrictive custodial treatment. This bill increases the age limits for participation in the SJOP.

EXTENDING OUT-OF-HOME CARE TO AGE 21

This bill permits a child to remain in a foster home, group home, or residential care center for children and youth, in the home of a relative, or in a supervised independent living arrangement (out-of-home care) until the child attains 21 years of age if the child 1) is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 21 years of age; 2) is enrolled in an institution that provides postsecondary or vocational education; 3) is participating in a program or activity designed to promote, or remove barriers to, employment; 4) is employed for at least 80 hours per month; or 5) is incapable of doing any of those activities due to a medical condition, which incapacity is supported by regularly updated information in the child's permanency plan. The bill also permits a relative, guardian, or adoptive parent of such a child to continue receiving kinship care payments, subsidized guardianship payments, or adoption assistance for the care and maintenance of such a child until the child attains 21 years of age.

Under current law, the federal Department of Health and Human Services provides foster care and adoption assistance under Title IV-E of the Social Security Act for the care of persons under 18 years of age and, at the option of a state, for persons under 19, 20, or 21 years of age, as a state may elect, who are 1) completing secondary education or a program leading to an equivalent credential; 2) enrolled in an institution that provides postsecondary or vocational education; 3) participating in a program or activity designed to promote, or remove barriers to, employment; 4) employed for at least 80 hours per month; or 5) incapable of doing any of those activities due to a medical condition, which incapacity is supported by regularly updated information in the child's case plan. Currently, this state permits a person to remain in out-of-home care until he or she has attained 19 years of age, if he or she is is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 19 years of age, and permits a person to remain in out-of-home care until he or she has attained 21 years of age, if he or she is a full-time student at a secondary school or its vocational or technical equivalent and if an individualized education program, which is a program under which special education and related services are provided to a person with a disability, is in effect for the person.

CUSTODIAL INTERROGATION OF A JUVENILE

This bill changes the requirements for conducting a custodial interrogation of a juvenile and limits the exceptions for admitting statements made during an improper interrogation into evidence at a hearing. Under current law, when a law enforcement officer conducts a custodial interrogation of a juvenile, the law enforcement officer is required to record the interrogation. If the interrogation is not recorded, a statement made during the interrogation is inadmissible as evidence at the juvenile's hearing, unless one of the following exceptions applies:

1. The juvenile refused to respond or cooperate in the custodial interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the juvenile's refusal.

2. The statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody.

3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating.

4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.

This bill requires a person who is conducting a custodial interrogation of a juvenile, in addition to recording the interrogation, to notify the juvenile's parent, guardian, legal custodian, or Indian custodian before conducting the interrogation, to notify a juvenile who is being interrogated that the interrogation is being recorded, and to notify a juvenile who is under the age of 16 that he or she is being interrogated. Under the bill, if the parent, guardian, legal custodian or Indian custodian did not receive notice of the interrogation, the juvenile did not receive the appropriate notice, or the interrogation was not recorded, a statement made during the interrogation is inadmissible as evidence at the juvenile's hearing, unless one of the following exceptions applies:

1. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.

2. Exigent public safety circumstances existed that prevented the notification of the parent, guardian, legal custodian, or Indian custodian or prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.

This bill also changes the definition of “custodial interrogation” for the purposes of interrogating a juvenile to refer to a “reasonable juvenile of a similar age” instead of a “reasonable person.”

JUVENILE CLASSIFICATION SYSTEM

Under current law, DCF, in consultation with the Department of Corrections, must make available to all counties a juvenile classification system that includes a risk assessment instrument for determining the probability that a juvenile who has committed an offense will commit another offense, a needs assessment instrument for determining the service needs of a juvenile who has committed an offense, and a services and placement guide for integrating the risk and needs of a juvenile who has committed an offense with other factors to determine an appropriate placement and level of services for the juvenile. Under current law, a county may use the juvenile classification system to determine, at the time of an intake inquiry, whether to close a case, enter into a deferred prosecution agreement, or refer the case to the district attorney; recommend, at the time of disposition, a placement and a plan of rehabilitation, treatment, and care for the juvenile; and determine, after disposition, the level or intensity of supervisory contacts required for a juvenile under county supervision.

This bill requires an intake worker to use the juvenile classification system as part of the intake inquiry with a juvenile after providing notice to the juvenile, parent, guardian, and legal custodian, but only if the juvenile has not refused to participate.

Deferred prosecution agreement

Under current law, when a juvenile is alleged to have violated a law or municipal ordinance, he or she may be referred to the juvenile court for intake and a determination of whether a petition should be filed in that court. An intake worker provides intake services to the juvenile, such as screening and interviewing the juvenile, determining whether and where the juvenile should be held, and whether to close the case or request that a petition for delinquency be filed.

Under current law, as an alternative to closing a case or referring it to a district attorney to file a petition, an intake worker may enter into a written deferred prosecution agreement (DPA) with all parties if the intake worker has determined that neither the interests of the juvenile nor of the public require the filing of a delinquency petition; if the facts persuade the intake worker that the jurisdiction of the juvenile court, if sought, would exist; and if the juvenile and his or her parent, guardian, and legal custodian consent. The DPA may impose obligations on the juvenile, parent, guardian, or legal custodian, such as treatment, counseling, restitution, or a teen court program. If at any time during the period of a DPA the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the agreement and request that a delinquency petition be filed. If the obligations under the DPA are met, then no petition may be filed or citation issued on the charges that brought about the agreement.

Under this bill, unless an intake worker decides to close a case, the intake worker must enter into a DPA with all parties if all of the following apply:

1. The juvenile is referred because he or she is alleged to have committed a status offense or an act that would be a misdemeanor if committed by an adult or violated a civil law punishable by forfeiture or a county, town, or other municipal ordinance.

2. The juvenile has no more than two prior adjudications.

3. The juvenile has no more than three prior unsuccessful deferred prosecution agreement attempts.

4. The juvenile, parent, guardian, and legal custodian consent.

An exception to this requirement to enter into a DPA is that the intake worker may instead refer the case to the district attorney if the results of the juvenile classification system indicate the juvenile is high risk, or the results indicate the juvenile is a moderate risk and the case arises out of an alleged act that would be a Class A misdemeanor in violation of laws prohibiting crimes against life and bodily security or crimes against health and safety if committed by an adult.

Under current law, a district attorney may terminate a DPA and instead file a delinquency petition against the juvenile. With respect to the circumstance under the bill in which a DPA is required, a district attorney may not terminate the agreement or file a delinquency petition against the juvenile unless one of the following applies:

The juvenile or his or her parent, guardian, or legal custodian fails to respond to the intake worker's preliminary inquiry regarding eligibility for a DPA or an offer of a DPA.

2. The juvenile or his or her parent, guardian, or legal custodian does not consent to the DPA.

3. The juvenile fails to substantially comply with the conditions in the DPA.

4. The intake worker refers the case to the district attorney under the exception based on the results of the juvenile classification system or the type of alleged act.

Multisystemic therapy

Under current law, if a juvenile is adjudicated delinquent, the juvenile court must enter an order deciding one or more of the dispositions of the case under a care and treatment plan. The bill requires DCF to contract for or provide multisystemic therapy (MST) for a juvenile for whom that treatment is ordered under a disposition of the case. Under the bill, MST is an intensive and ongoing family-based and community-based treatment that addresses multiple factors that lead to antisocial behavior in juveniles and that is delivered in a juvenile's home, school, or community. The bill also requires DCF to promulgate rules governing MST and the licensing, training, and qualification requirements for a person who provides it.

Responses to school-based behavior

The bill prohibits a school district employee and school resource officer from referring to a law enforcement agency a minor pupil who is alleged to have committed a school-related offense. Under the bill, a school-related offense is habitual truancy or any of the following committed by a minor pupil on the property of the public school in which the minor pupil is enrolled during a school day or during a school-sponsored activity:

1. An offense that would be a misdemeanor, other than a violent misdemeanor, if committed by an adult.

2. A violation of a civil law punishable by forfeiture.

3. A violation of a county, town, or other municipal ordinance.

4. A status offense, meaning a violation of the law that would not be a violation if committed by an adult.

Instead, under the bill, such a minor pupil may be referred to either a restorative justice program or an evidence-based intervention developed or adopted by the school district or county. If the minor pupil refuses to participate in one of those alternatives, a school district employee may refer the minor pupil to the juvenile court. The bill authorizes a minor pupil to be referred to an alternative intervention instead of to the juvenile court if an alleged violation does not qualify as a school-related offense in certain circumstances.

Juvenile diversion services grant program

The bill creates a grant program for juvenile diversion services under which DCF may provide grants of up to $2,000,000 in each fiscal year to counties or Indian tribes to enable them to establish and operate evidence-based programs that provide services to juveniles as a method of diverting them from coming under the jurisdiction of the court.

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:

AB1036,1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB1036,2 Section 2. 20.437 (1) (be) of the statutes is created to read:

AB1036,9,5 20.437 (1) (be) Juvenile diversion services grants. The amounts in the schedule for grants under s. 938.545.

AB1036,3 Section 3 . 20.437 (1) (cL) of the statutes is created to read:

AB1036,9,8 20.437 (1) (cL) Seventeen-year-old juvenile justice aids. A sum sufficient for the purposes under s. 48.5275.

AB1036,4 Section 4 . 48.02 (1d) of the statutes is amended to read:

AB1036,9,13 48.02 (1d) “Adult" means a person who is 18 years of age or older, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, “ adult" means a person who has attained 17 years of age.

AB1036,5 Section 5 . 48.02 (2) of the statutes is amended to read:

AB1036,9,19 48.02 (2) “Child," when used without further qualification, means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “child" does not include a person who has attained 17 years of age.

AB1036,6 Section 6. 48.355 (4) (b) 3. of the statutes is repealed.

AB1036,7 Section 7. 48.355 (4) (b) 4. of the statutes is amended to read:

AB1036,10,19 48.355 (4) (b) 4. The date on which the child is granted a high school or high school equivalency diploma or the date on which the child attains 21 years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and if an individualized education program under s. 115.787 is in effect for the child is reasonably expected to complete the program before attaining 21 years of age; is enrolled in an institution that provides postsecondary or vocational education; is participating in a program or activity designed to promote, or remove barriers to, employment; is employed for at least 80 hours per month; or is incapable of doing any of those activities due to a medical condition, which incapacity is supported by regularly updated information in the child's permanency plan. The court may not grant an order that terminates as provided in this subdivision unless the child is 17 years of age or older when the order is granted and the child, or the child's guardian on behalf of the child, agrees to the order. At any time after the child attains 18 years of age, the child, or the child's guardian on behalf of the child, may request the court in writing to terminate the order and, on receipt of such a request, the court, without a hearing, shall terminate the order.

AB1036,8 Section 8. 48.357 (6) (a) 3. of the statutes is repealed.

AB1036,9 Section 9. 48.357 (6) (a) 4. of the statutes is amended to read:

AB1036,11,13 48.357 (6) (a) 4. The date on which the child is granted a high school or high school equivalency diploma or the date on which the child attains 21 years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and if an individualized education program under s. 115.787 is in effect for the child is reasonably expected to complete the program before attaining 21 years of age; is enrolled in an institution that provides postsecondary or vocational education; is participating in a program or activity designed to promote, or remove barriers to, employment; is employed for at least 80 hours per month; or is incapable of doing any of those activities due to a medical condition, which incapacity is supported by regularly updated information in the child's permanency plan. The court may not grant an order that terminates as provided in this subdivision unless the child is 17 years of age or older when the order is granted and the child, or the child's guardian on behalf of the child, agrees to the order. At any time after the child attains 18 years of age, the child, or the child's guardian on behalf of the child, may request the court in writing to terminate the order and, on receipt of such a request, the court, without a hearing, shall terminate the order.

AB1036,10 Section 10. 48.365 (5) (b) 3. of the statutes is repealed.

AB1036,11 Section 11. 48.365 (5) (b) 4. of the statutes is amended to read:

AB1036,12,7 48.365 (5) (b) 4. The date on which the child is granted a high school or high school equivalency diploma or the date on which the child attains 21 years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and if an individualized education program under s. 115.787 is in effect for the child is reasonably expected to complete the program before attaining 21 years of age; is enrolled in an institution that provides postsecondary or vocational education; is participating in a program or activity designed to promote, or remove barriers to, employment; is employed for at least 80 hours per month; or is incapable of doing any of those activities due to a medical condition, which incapacity is supported by regularly updated information in the child's permanency plan. The court may not grant an order that terminates as provided in this subdivision unless the child is 17 years of age or older when the order is granted and the child, or the child's guardian on behalf of the child, agrees to the order. At any time after the child attains 18 years of age, the child, or the child's guardian on behalf of the child, may request the court in writing to terminate the order and, on receipt of such a request, the court, without a hearing, shall terminate the order.

AB1036,12 Section 12. 48.366 (1) (intro.) of the statutes is amended to read:

AB1036,12,12 48.366 (1) Applicability. (intro.) This section applies to a person who is a full-time student of a secondary school or its vocational or technical equivalent, for whom an individualized education program under s. 115.787 is in effect, and described in sub. (1m) to whom any of the following applies: