AB1036: Bill Text

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:

AB1036,13 Section 13. 48.366 (1) (a) of the statutes is amended to read:

AB1036,12,19 48.366 (1) (a) The person is placed in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in a supervised independent living arrangement under an order under s. 48.355, 48.357, or 48.365 that terminates as provided in s. 48.355 (4) (b) 1., 2., or 3. or 2., 48.357 (6) (a) 1., 2., or 3. or 2., or 48.365 (5) (b) 1., 2., or 3. 2. on or after the person attains 18 years of age.

AB1036,14 Section 14. 48.366 (1m) of the statutes is created to read:

AB1036,13,5 48.366 (1m) Duration of eligibility. A person may continue in out-of-home care under a voluntary agreement under sub. (3) until the person attains 21 years of age if the person is a full-time student at a secondary school or its vocational or technical equivalent and 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 person's permanency plan.

AB1036,15 Section 15. 48.366 (2) (b) 4. of the statutes is amended to read:

AB1036,13,23 48.366 (2) (b) 4. If the court determines that the person who is the subject of an order described in sub. (1) (a) or (b) understands that he or she may continue in out-of-home care, but wishes to be discharged from that care on termination of the order, the court shall advise the person that he or she may enter into a voluntary agreement under sub. (3) at any time before he or she is granted a high school or high school equivalency diploma or reaches attains 21 years of age, whichever occurs first, so long as he or she is a full-time student at a secondary school or its vocational or technical equivalent and an individualized education program under s. 115.787 is in effect for him or her meets any of the conditions for eligibility described in sub. (1m). If the court determines that the person wishes to continue in out-of-home care under an extension of an order under s. 48.355, 48.357, or 48.365 described in sub. (1) (a), the court shall schedule an extension hearing under s. 48.365. If the court determines that the person wishes to continue in out-of-home care under a voluntary agreement under sub. (3), the court shall order the agency primarily responsible for providing services to the person under the order to provide transition-to-independent-living services for the person under that voluntary agreement.

AB1036,16 Section 16. 48.366 (3) (a) of the statutes is amended to read:

AB1036,14,12 48.366 (3) (a) On termination of an order described in sub. (1) (a) or (b), the person who is the subject of the order, or the person's guardian on behalf of the person, and the agency primarily responsible for providing services to the person under the order may enter into a transition-to-independent-living agreement under which the person continues in out-of-home care and continues to be a full-time student at a secondary school or its vocational or technical equivalent under an individualized education program under s. 115.787 until the date on which the person reaches attains 21 years of age, is granted a high school or high school equivalency diploma no longer meets any of the conditions for eligibility described in sub. (1m), or terminates the agreement as provided in par. (b), whichever occurs first, and the agency provides services to the person to assist him or her in transitioning to independent living.

AB1036,17 Section 17. 48.366 (3) (c) of the statutes is amended to read:

AB1036,14,24 48.366 (3) (c) A person who terminates a voluntary agreement under this subsection, or the person's guardian on the person's behalf, may request the agency primarily responsible for providing services to the person under the agreement to enter into a new voluntary agreement under this subsection at any time before the person is granted a high school or high school equivalency diploma or reaches attains 21 years of age, whichever occurs first, so long as the person is a full-time student at a secondary school or its vocational or technical equivalent and an individualized education program under s. 115.787 is in effect for him or her meets any of the conditions for eligibility described in sub. (1m). If the request meets the conditions set forth in the rules promulgated under sub. (4) (b), the agency shall enter into a new voluntary agreement with that person.

AB1036,18 Section 18. 48.396 (1) of the statutes is amended to read:

AB1036,16,2 48.396 (1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of the adult expectant mothers of unborn children shall be kept separate from records of other adults. Law enforcement officers' records of children and the adult expectant mothers of unborn children shall not be open to inspection or their contents disclosed except under sub. (1b), (1d), (5), or (6) or s. 48.293 or 938.396 (2m) (c) 1p. or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child or adult expectant mother involved, to the confidential exchange of information between the police and officials of the public or private school attended by the child or other law enforcement or social welfare agencies, or to children 10 13 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under s. 118.125, and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under s. 118.125. This subsection does not apply to the confidential exchange of information between the police and officials of the tribal school attended by the child if the police determine that enforceable protections are provided by a tribal school policy or tribal law that requires tribal school officials to keep the information confidential in a manner at least as stringent as is required of a public school official under s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and s. 938.396 (1) (a). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under ss. 48.78 and 938.78.

AB1036,19 Section 19 . Subchapter IX (title) of chapter 48 [precedes 48.44] of the statutes is amended to read:

AB1036,16,5 CHAPTER 48

AB1036,16,8 SUBCHAPTER IX JURISDICTION OVER PERSON 17 OR OLDER adults

AB1036,20 Section 20 . 48.44 of the statutes is amended to read:

AB1036,16,13 48.44 Jurisdiction over persons 17 or older adults. The court has jurisdiction over persons 17 years of age or older adults as provided under ss. 48.133, 48.355 (4), 48.357 (6), 48.365 (5), and 48.45 and as otherwise specifically provided in this chapter.

AB1036,21 Section 21 . 48.45 (1) (a) of the statutes is amended to read:

AB1036,16,22 48.45 (1) (a) If in the hearing of a case of a child alleged to be in a condition described in s. 48.13 it appears that any person 17 years of age or older adult has been guilty of contributing to, encouraging, or tending to cause by any act or omission, such that condition of the child, the judge may make orders with respect to the conduct of such that person in his or her relationship to the child, including orders determining the ability of the person to provide for the maintenance or care of the child and directing when, how, and from where funds for the maintenance or care shall be paid.

AB1036,22 Section 22 . 48.45 (1) (am) of the statutes is amended to read:

AB1036,17,5 48.45 (1) (am) If in the hearing of a case of an unborn child and the unborn child's expectant mother alleged to be in a condition described in s. 48.133 it appears that any person 17 years of age or over adult has been guilty of contributing to, encouraging, or tending to cause by any act or omission, such that condition of the unborn child and expectant mother, the judge may make orders with respect to the conduct of such that person in his or her relationship to the unborn child and expectant mother.

AB1036,23 Section 23 . 48.45 (3) of the statutes is amended to read:

AB1036,17,11 48.45 (3) If it appears at a court hearing that any person 17 years of age or older adult has violated s. 948.40, the judge shall refer the record to the district attorney for criminal proceedings as may be warranted in the district attorney's judgment. This subsection does not prevent prosecution of violations of s. 948.40 without the prior reference by the judge to the district attorney, as in other criminal cases.

AB1036,24 Section 24 . 48.5275 of the statutes is created to read:

AB1036,17,17 48.5275 Seventeen-year-old juvenile justice aids. Notwithstanding s. 48.526, from the appropriation under s. 20.437 (1) (cL), the department shall reimburse counties for the costs under s. 48.526 (2) (c) 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.

AB1036,25 Section 25. 48.57 (3m) (a) 1. (intro.) of the statutes is amended to read:

AB1036,17,21 48.57 (3m) (a) 1. (intro.) “Child" means a person under 18 years of age. “Child" also includes a person 18 years of age or over, but under 21 years of age, if any of the following applies: