LRB-0852/1
MLJ:emw&kjf
2019 - 2020 LEGISLATURE
March 15, 2019 - Introduced by
Joint Legislative Council. Referred to Committee
on Insurance, Financial Services, Government Oversight and Courts.
SB99,1,6
1An Act to repeal 969.035 (3) (b) and 969.035 (6) (c);
to renumber and amend
2969.035 (3) (a), 969.035 (3) (c) and 969.035 (8);
to amend 757.69 (1) (b), 969.035
3(2) (intro.), 969.035 (2) (a), 969.035 (2) (b), 969.035 (3) (intro.), 969.035 (4),
4969.035 (5), 969.035 (6) (a), 969.035 (6) (b), 969.035 (7), 969.035 (9) and 969.035
5(10); and
to create 969.035 (2) (c), 969.035 (3) (bm), 969.035 (6) (am), 969.035
6(6) (cm) and 969.035 (12) of the statutes;
relating to: pretrial detention.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council Prefatory note: This bill was prepared for the Joint
Legislative Council's Study Committee on Bail and Conditions of Pretrial Release. Under
current law, a court may deny release to a defendant prior to trial under a procedure
prescribed by statute if the defendant is accused of committing one of certain specified
crimes or is accused of committing a violent crime, as defined by statute, and has
previously been convicted of a violent crime. The statutory pretrial detention procedure
is authorized by Article I, Section 8 (3), of the Wisconsin Constitution, which also
prescribes many of the requirements that a statutory pretrial detention procedure must
contain.
This bill makes a variety of changes to the pretrial detention procedure. These
changes are described below. This bill takes effect only if an amendment to Article I,
Section 8 (3), of the Wisconsin Constitution is ratified.
Court commissioners authorized to conduct pretrial detention hearings
Under current law, court commissioners may conduct initial appearances and set
bail. This bill specifies that court commissioners are authorized to conduct pretrial
detention hearings.
Eligibility for pretrial detention
Under current law, a person is eligible for pretrial detention if he or she is accused
of committing one of certain specified crimes or is accused of committing a violent crime,
as defined by statute, and has previously been convicted of a violent crime. This bill
provides that a person is also eligible for pretrial detention if he or she is accused of
committing any other offense and there is a serious risk that: (1) the person poses a
danger of inflicting serious bodily harm on a member of the community; (2) the person
will intimidate a witness; or (3) the person will not appear in court as required.
Requesting pretrial detention
Under current law, to initiate the statutory pretrial detention procedure, a district
attorney is required to make certain allegations to the court and file a copy of a complaint
charging commission of a crime that qualifies the defendant for pretrial detention. This
bill allows a district attorney to request a pretrial detention hearing by making a motion
to the court alleging that the defendant is eligible for denial of release and that no
available condition of release will adequately protect members of the community from
serious bodily harm, prevent the intimidation of witnesses, or reasonably assure the
defendant's appearance in court when required. The bill removes the requirement that
a district attorney file a copy of the complaint charging commission of a qualifying crime
when moving the court to detain the defendant.
The bill also provides that a court may also hold a pretrial detention hearing, upon
its own motion, with respect to defendants who are eligible for pretrial detention by virtue
of being accused of “any other offense” and there is a serious risk the person poses a
danger of inflicting serious bodily harm on a member of the community; the person will
intimidate a witness; or there is a serious risk that the person will not appear in court as
required.
Rules governing the pretrial detention hearing
Current law specifies that in a pretrial hearing “the evidence shall be presented in
open court with the right of confrontation, right to call witnesses, right to
cross-examination and right to representation of counsel.” Current law also provides
that the rules of evidence in criminal trials govern the admissibility of evidence at a
pretrial detention hearing.
This bill provides that the defendant has the right to be represented by counsel and
shall be afforded an opportunity to testify, to present witnesses, to cross-examine
witnesses, and to present information by proffer or otherwise. This bill provides that the
rules concerning admissibility of evidence in criminal trials do not apply to the
presentation and consideration of information at a pretrial detention hearing.
Required showings
Current law provides that, at the pretrial detention hearing, the state has the
burden of going forward and proving both of the following by clear and convincing
evidence: (1) that the defendant committed an offense for which pretrial detention is
available; and (2) that available conditions of release will not adequately protect
members of the community from serious bodily harm or prevent the intimidation of
witnesses.
This bill eliminates the requirement that the state prove by clear and convincing
evidence that the defendant committed the predicate offense. It replaces this with a
requirement that the state shall establish probable cause that the defendant committed
the offense for which he or she has been charged.
This bill creates a rebuttable presumption that available conditions of release will
not adequately protect members of the community from serious bodily harm, prevent the
intimidation of witnesses, or assure the defendant's appearance when required when the
defendant is eligible for pretrial detention because he or she is accused of committing or
attempting to commit one of several enumerated offenses or is accused of committing or
attempting to commit a violent crime and has previously been convicted of a violent crime.
The standard of proof for rebutting the presumption is the preponderance of the evidence.
If the defendant rebuts the presumption, the state may proceed to seek pretrial
detention by proving by clear and convincing evidence, that the available conditions of
release will not adequately protect members of the community from serious bodily harm,
prevent the intimidation of witnesses, or assure the defendant's appearance in court
when required. For defendants to whom the presumption does not apply, the state must
prove by clear and convincing evidence that the available conditions of release will not
adequately protect members of the community from serious bodily harm or prevent the
intimidation of witnesses.
Pretrial detention time limits
Current law allows a court to detain a defendant for 10 days prior to a pretrial
detention hearing if the district attorney has met the requirements for initiating the
pretrial detention process and for 60 days following a pretrial detention hearing if the
state makes the required showing.
This bill provides that if the state makes the required showings at a pretrial
detention hearing, a defendant may be held for an additional period of time following the
hearing not to exceed 60 days, with respect to a defendant accused of a misdemeanor, and
not to exceed 90 days with respect to a defendant accused of a felony. It also provides that
the court may extend this period, upon its own motion or the motion of any party, if it finds
that the ends of justice are best served by extending that period.
Reopening pretrial detention hearing
This bill provides that the pretrial hearing may be reopened at any time before trial
if the court finds that information exists that was not known to the district attorney or
the defendant at the time of the hearing and that has a material bearing on the issue of
whether there are conditions of release that adequately protect members of the
community from serious bodily harm, prevent the intimidation of witnesses, or assure the
defendant's appearance in court when required.
Determining whether delay is caused by defendant
Current law provides that in calculating the time periods for which a defendant
may be detained, the court shall omit any period of time found by the court to result from
a delay caused by the defendant or a continuance granted which was initiated by the
defendant. Current law provides that delay is caused by the defendant only if the delay
is “expressly requested” by the defendant. The bill removes the provision providing that
delay is caused by the defendant only if the delay is expressly requested by the defendant.
SB99,1
1Section
1. 757.69 (1) (b) of the statutes is amended to read:
SB99,4,102
757.69
(1) (b) In criminal matters issue summonses, arrest warrants or search
3warrants, determine probable cause to support a warrantless arrest, conduct initial
4appearances of persons arrested, set bail, inform the defendant in accordance with
5s. 970.02 (1),
conduct pretrial detention hearings under s. 969.035, refer the person
6to the authority for indigency determinations specified under s. 977.07 (1), conduct
7the preliminary examination and arraignment, and, with the consent of both the
8state and the defendant, accept a guilty plea. If a court refers a disputed restitution
9issue under s. 973.20 (13) (c) 4., the circuit court commissioner shall conduct the
10hearing on the matter in accordance with s. 973.20 (13) (c) 4.
SB99,2
11Section
2. 969.035 (2) (intro.) of the statutes is amended to read:
SB99,4,1412
969.035
(2) (intro.) A
circuit court may deny person is eligible for denial of 13release from custody under this section
to any of the following persons if any of the
14following applies:
SB99,3
15Section
3. 969.035 (2) (a) of the statutes is amended to read:
SB99,4,1716
969.035
(2) (a)
A The person
is accused of committing an offense under s.
17940.01, 940.225 (1), 948.02 (1) or (2), 948.025, or 948.085.
SB99,4
18Section
4. 969.035 (2) (b) of the statutes is amended to read:
SB99,4,2119
969.035
(2) (b)
A The person
is accused of committing or attempting to commit
20a violent crime
, and the person has a previous conviction for committing or
21attempting to commit a violent crime.
SB99,5
22Section
5. 969.035 (2) (c) of the statutes is created to read:
SB99,4,2423
969.035
(2) (c) The person is accused of committing or attempting to commit
24any other offense and any of the following applies:
SB99,5,2
11. There is a serious risk that the person poses a danger of inflicting serious
2bodily harm on a member of the community.
SB99,5,33
2. There is a serious risk that the person will intimidate a witness.
SB99,5,44
3. There is a serious risk that the person will not appear in court as required.
SB99,6
5Section 6
. 969.035 (3) (intro.) of the statutes is amended to read:
SB99,5,66
969.035
(3) (intro.) A court may proceed under this section
if as follows:
SB99,5,8
7(am) Upon motion by the district attorney
alleges alleging to the court
and
8provides the court with documents as follows:
SB99,7
9Section 7
. 969.035 (3) (a) of the statutes is renumbered 969.035 (3) (am) 1. and
10amended to read:
SB99,5,1211
969.035
(3) (am) 1.
Alleges that
That the defendant is eligible for denial of
12release under sub. (2) (a)
or (b) to (c).
SB99,8
13Section 8
. 969.035 (3) (b) of the statutes is repealed.
SB99,9
14Section 9
. 969.035 (3) (bm) of the statutes is created to read:
SB99,5,1615
969.035
(3) (bm) Upon its own motion if the defendant is eligible for denial of
16release under sub. (2) (c).
SB99,10
17Section 10
. 969.035 (3) (c) of the statutes is renumbered 969.035 (3) (am) 2.
18and amended to read:
SB99,5,2219
969.035
(3) (am) 2.
Alleges that
That no available conditions of release will
not 20adequately protect members of the community from serious bodily harm
or, prevent
21the intimidation of witnesses
, or reasonably assure the defendant's appearance in
22court when required.
SB99,11
23Section 11
. 969.035 (4) of the statutes is amended to read:
SB99,6,524
969.035
(4) If the court determines that the district attorney has complied with
25sub. (3), the court may order that the detention of a person who is currently in custody
1be continued or may issue a warrant commanding any law enforcement officer to
2bring the defendant without unnecessary delay before the court. When the
3defendant is brought before the court, he or she shall be
given a copy of the documents
4specified in sub. (3) and informed of his or her rights under this section and s. 970.02
5(1) and (6).
SB99,12
6Section
12. 969.035 (5) of the statutes is amended to read:
SB99,6,157
969.035
(5) A pretrial detention hearing is a hearing before a court for the
8purpose of determining
if the continued detention of the defendant is justified 9whether any available conditions of release would reasonably protect members of the
10community from serious bodily harm, prevent the intimidation of witnesses, and
11reasonably assure the defendant's appearance in court when required. A pretrial
12detention hearing may be held in conjunction with a preliminary examination under
13s. 970.03 or a conditional release revocation hearing under s. 969.08 (5) (b), but
14separate findings shall be made by the court relating to the pretrial detention,
15preliminary examination
, and conditional release revocation.
SB99,6,19
16(5m) The pretrial detention hearing shall be commenced within 10 days from
17the date the defendant is detained or brought before the court under sub. (4). The
18defendant may not be denied release from custody in accordance with
s. ss. 969.02
19and 969.03 for more than 10 days prior to the hearing required by this subsection.
SB99,13
20Section
13. 969.035 (6) (a) of the statutes is amended to read:
SB99,6,2521
969.035
(6) (a) The state
has the burden of going forward and proving by clear
22and convincing evidence that the defendant committed an offense specified under
23sub. (2) (a), or that the defendant committed or attempted to commit a violent crime
24subsequent to a prior conviction for a violent crime shall establish probable cause
25that the defendant committed the offense for which he or she has been charged.