2. DOC's evidence-based risk assessment tool.
3. DOC's training of community supervision officers.
4. The aging and elderly population in Wisconsin's prisons and possible options
for alternatives to prison for that population.
Reduction of mandatory minimum sentences
Under current law, a sentencing court may reduce the confinement portion of
a bifurcated sentence if the inmate qualifies for a sentence adjustment, earned
release, or compassionate release.
In State v. Grazma, 2020 WI App 100, the Wisconsin Court of Appeals limited
the sentencing court's ability to reduce the confinement portion of a bifurcated
sentence if the person was serving a sentence for a crime that carried a mandatory
minimum term of confinement. The court held that under the earned release
program, an inmate's term of confinement may not be reduced below an applicable
mandatory minimum sentence. The bill specifies that an inmate's term of
confinement may be reduced below a mandatory minimum if the inmate qualifies for
a reduction based on a sentence adjustment, earned release, or compassionate
release.
Sentencing for youthful offenders
Under current law, a person who is under the age of 17 and is alleged to have
violated a criminal law is generally under the jurisdiction of the juvenile court and,
upon being adjudged delinquent of such an act, is subject to one of the dispositions
under the Juvenile Justice Code. However, a person who is age 10 or older who is
alleged to have committed certain crimes may be under the jurisdiction of the
criminal court and, upon conviction, subject to sentencing under the criminal code.
The bill creates a sentence adjustment procedure for a “youthful offender,”
defined under the bill as a person who committed a crime before he or she turned 18
years old and is subject to sentencing by the criminal court. The bill prohibits a court
from sentencing a youthful offender to life imprisonment without the possibility of
parole or release to extended supervision, and creates new mitigating factors in the
sentencing criteria when sentencing a youthful offender. Finally, the bill eliminates
statutory mandatory life sentences without parole for youthful offenders in order to
align with federal constitutional law.
Under current law, an inmate can petition to reduce the confinement portion
of his or her bifurcated sentence after serving a certain proportion of the sentence.
An inmate who is serving a life sentence can petition to be released to extended
supervision or parole after serving at least 20 years of his or her sentence or after
another date set by the sentencing court. The bill creates a new procedure for a
youthful offender, including a youthful offender who is serving a life sentence, to
receive a sentence adjustment after serving 15 years of his or her sentence. Under
the bill, one year before the inmate is eligible to petition for the sentence adjustment,
DOC is required to notify the youthful offender of his or her eligibility. The court may
reduce the term of imprisonment for the youthful offender and may modify the
conditions of parole or extended supervision if the court determines that the interests
of justice warrant a reduction, taking into account the factors enumerated in the bill.
If the court denies the petition under the bill, the youthful offender may petition
again every five years, up to five times. Under the bill, DOC is required to send a
notice to all youthful offenders who have served at least 14 years of their sentences
within six months after the bill takes effect.
Under current law, when a court makes a sentencing decision, it must consider
certain guidelines, including whether there were any aggravating factors present.
Under the bill, when a court is sentencing a youthful offender, it must also consider
mitigating factors related to the age and maturity of the youthful offender. These
sentencing guidelines for youthful offenders take effect retroactively under the bill,
meaning that they apply to any conviction for which sentencing has already
occurred.
Under current law, if a person is convicted of a serious felony on three separate
occasions or a serious child sex offense on two separate occasions, the person is
subject to a mandatory life sentence without the possibility of parole or extended
supervision. However, in Miller v. Alabama, 567 U.S. 460 (2012), the U.S. Supreme
Court held that imposing a mandatory life sentence without parole for a minor
constitutes cruel and unusual punishment and therefore violates the eighth
amendment of the Constitution. The bill clarifies that the statutory mandatory
sentence of life imprisonment without the possibility of parole or extended
supervision for repeat offenders does not apply to youthful offenders. The bill also
prohibits a court from imposing a life sentence without the possibility of parole or
extended supervision for a youthful offender. These changes to sentencing also apply
retroactively under the bill.
Treatment of pregnant and postpartum person in prison and jail
The bill limits the use of physical restraints on pregnant and postpartum people
who are in the custody of a correctional facility. Under the bill, a pregnant person
may not be restrained unless the restraints are reasonably necessary for the
legitimate safety and security needs of the person, correctional staff, other inmates,
or the public, and any restraints used must be the least restrictive possible under the
circumstances. In addition, the bill requires that every woman in the custody of a
correctional facility be offered testing for pregnancy, and, if pregnant, be offered
testing for sexually transmitted infections. The bill also requires the correctional
facility where the pregnant or postpartum person is being confined to provide
information related to pregnancy, labor, and the postpartum period, and to provide
access to certain health services related to pregnancy, labor, and the postpartum
period.
Huber release for individuals on probation, parole, or extended supervision
Under current law, a probationer who is detained in a county jail or other county
facility for a probation violation may participate in Huber release for
employment-related or medical purposes only if his or her probation is due to a
misdemeanor conviction and the probation violation for which he or she is detained
is not a crime.
The bill allows all probationers, parolees, and individuals on extended
supervision who are detained pending disposition of revocation proceedings,
investigation of a rule violation, or for a short-term sanction to participate in Huber
release for any Huber purpose.
Baccalaureate degree program for prisoners
The bill requires the UW System and DOC to provide a baccalaureate degree
program for prisoners. Prior to expending any funds appropriated for such a
program, the UW System and DOC must submit a plan for implementing the
program to DOA for approval.
Reimbursement for law enforcement investigative services
Under current law, DOC must reimburse counties for certain expenses related
to an action or proceeding involving a prisoner in a state prison or a juvenile in a
juvenile correctional facility in the county. The bill adds that DOC must also
reimburse any county, city, village, or town that provides law enforcement
investigative services for an incident involving a prisoner in a state prison or a
juvenile in a juvenile correctional facility.
Juvenile correctional system
Age of adult court jurisdiction
Under current law, a person who is alleged to have violated a criminal law is
generally subject to the jurisdiction of the criminal court if the person is at least 17
years old, and is subject to the jurisdiction of the juvenile court if the person is under
the age of 17. A person who is under the jurisdiction of the criminal court is subject
to the procedures specified in the Criminal Procedure Code and, on conviction, is
subject to sentencing under the Criminal Code. A person who is under the
jurisdiction of the juvenile court 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. The 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 jurisdiction of the
criminal court and, on conviction, to sentencing under the Criminal Code.
Similarly, under current law, 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 the municipal court, if the person is at least 17 years old, and, with certain
exceptions, is subject to the jurisdiction of the juvenile court if the person is under
the age of 17. The 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 creates a sum sufficient appropriation under DCF for youth
aids-related purposes, but only to reimburse counties, beginning on January 1,
2022, 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.
Age of delinquency
Under current law, a child age 10 or over may be adjudged delinquent by the
juvenile court for an act that would be a crime if committed by an adult. Under the
bill, only a child age 12 or over may be adjudged delinquent by the juvenile court for
an act that would be a crime if committed by an adult.
Adult court jurisdiction over a juvenile
Under current law, the juvenile court generally has exclusive jurisdiction over
a juvenile, who is a person under the age of 17 who is alleged to have violated a
criminal law. However, under certain circumstances, a juvenile may automatically
be under the jurisdiction of the adult court or may be waived into adult court
jurisdiction through a petition to the court. The bill changes the circumstances for
adult court jurisdiction over a juvenile.
Original jurisdiction of the adult court over a juvenile
The bill eliminates original adult court jurisdiction over a juvenile. Under
current law, the adult court has original jurisdiction over a juvenile who meets any
of the following criteria:
1. A juvenile who is over the age of 10 and is alleged to have committed or
attempted to commit first-degree intentional homicide or committed first-degree
reckless homicide or second-degree homicide.
2. A juvenile who is alleged to have committed assault or battery while placed
in a secured juvenile facility or to have committed battery against a probation,
aftercare, community supervision, parole, or extended supervision officer.
3. A juvenile who is alleged to have attempted or committed a violation of any
state criminal law in addition to an offense listed under item 1 or item 2, if the
violations may be joined into a single criminal case.
4. A juvenile who has previously come under the jurisdiction of the adult court.
Waiver petition for adult court jurisdiction over a juvenile
Under current law, a juvenile may be waived into adult court jurisdiction by a
petition filed by the district attorney or the court itself. A petition may be filed if the
juvenile is at least 15 years old and is alleged to have violated any state criminal law,
or if the juvenile is at least 14 years old and is alleged to have committed certain
felonies involving the use of force, is alleged to have manufactured, distributed, or
delivered a controlled substance, or is alleged to have committed certain felonies at
the request of or for the benefit of a criminal gang.
Under the bill, a waiver petition may be filed for a juvenile who is at least 16
years old and is alleged to have violated any state law that would be a felony if
committed by an adult. Under the bill, a 14-year-old or 15-year-old may be waived
into adult court if he or she is alleged to have committed a violation that would grant
original adult court jurisdiction over a juvenile under current law, or that would
allow for a 14-year-old to be waived by petition into adult court under current law,
except for the manufacture, distribution, or delivery of a controlled substance.
Elimination of Serious Juvenile Offender Program
Under current law, a dispositional order entered under the Juvenile Justice
Code imposing a correctional placement for a juvenile who has been adjudged
delinquent generally terminates no later than the juvenile's 18th birthday and may
not be extended. Under the bill, such an order generally terminates no later than
the juvenile's 19th birthday. However, if the juvenile is placed in the Serious Juvenile
Offender Program (SJOP), the dispositional order extends for up to three years,
regardless of the age of the juvenile at the time the order is entered, or, if the juvenile
has committed an act that would be punishable by life imprisonment if committed
by an adult, until the juvenile reaches 25 years of age. Under current law, DOC is
required to administer the SJOP and may provide sanctions for a juvenile under
SJOP other than confinement in a juvenile correctional facility, including intensive
supervision, electronic monitoring, alcohol or other drug abuse treatment and
services, mental health treatment and services, community service, restitution, and
education and employment services.
The bill eliminates SJOP as an available disposition for a juvenile adjudicated
delinquent under the Juvenile Justice Code.
Extended juvenile jurisdiction
The bill creates extended juvenile jurisdiction (EJJ) for juveniles who are
alleged delinquent for the commission of certain acts, which allows the disposition
under the Juvenile Justice Code to extend beyond a juvenile's 19th birthday. Under
the bill, if a juvenile meets the requirements for waiver of juvenile court jurisdiction,
the district attorney or the juvenile may instead petition the juvenile court to place
the juvenile under EJJ or the court may initiate such a proceeding on its own motion.
In order to grant EJJ, the court must find that the juvenile qualifies for waiver, that
the juvenile qualifies for a correctional placement, if adjudged delinquent for the
alleged acts, and that a correctional placement is insufficient to protect public safety
or for rehabilitation of the juvenile. These findings must be made on clear and
convincing evidence at a hearing to the court. If the court grants EJJ, the juvenile
is entitled to a jury trial and the court may, after trial, impose any juvenile disposition
that it deems appropriate.
The bill creates a new juvenile disposition that may be used only for juveniles
subject to EJJ. The extended juvenile disposition is available only to juveniles who
are given a juvenile correctional placement and for whom the court finds that the
correctional placement alone is insufficient to protect public safety or for
rehabilitation of the juvenile. In this case, the court may impose an extended
juvenile disposition, which has the same force and effect as a criminal sentence, after
a juvenile correctional placement terminates on the juvenile's 19th birthday. The
extended juvenile disposition may not extend beyond the juvenile's 23rd birthday
unless the juvenile is adjudicated delinquent for first-degree intentional homicide,
in which case the extended juvenile disposition may extend to the juvenile's 25th
birthday. The extended juvenile disposition is stayed in the original juvenile
dispositional order until a hearing is held between the juvenile's 18th and 19th
birthdays. The court must dismiss the extended juvenile disposition unless it finds,
by clear and convincing evidence presented at the hearing, that the juvenile
continues to pose a risk to the public, considering the juvenile's risk and treatment
needs at the time of the hearing.
If the court upholds the extended juvenile disposition after the hearing, the
court determines whether to impose probation or confinement in jail or prison and
imposes the sentence. If the juvenile is on aftercare supervision, the court may only
impose probation. Under the bill, DOC is charged with promulgating rules for
release to extended juvenile supervision or discharge of individuals on an extended
juvenile disposition. An extended juvenile disposition is not subject to the
requirements of bifurcated sentencing, but a juvenile who violates a condition of
probation or extended supervision under an extended juvenile disposition may have
his or her probation or extended supervision revoked after a hearing held by the
Division of Hearings and Appeals in DOA. If probation is revoked, the juvenile may
be sent back to the court to determine the term of confinement in jail or prison.
Closure of Lincoln Hills and Copper Lakes schools
2017 Wisconsin Act 185 required DOC to close the current Type 1 juvenile
correctional facilities known as Lincoln Hills and Copper Lake schools no later than
January 1, 2021.
2019 Wisconsin Act 8 extended this date to July 1, 2021. The bill
removes the deadline for these facilities to be closed and provides instead that DOC
must close the facilities as soon as all the juveniles who are placed there are
transferred out to a substitute placement, which must happen as soon as a substitute
placement that meets the needs of each juvenile is ready.
2019 Wisconsin Act 8 provided that DOC may, within its discretion, transfer
juveniles out of Lincoln Hills or Copper Lake to a juvenile detention facility that is
approved to receive placements of juveniles for more than 30 days. Under Act 8, all
juveniles who are transferred to a juvenile detention facility using this procedure are
required to be transferred into a secured residential care center for children and
youth (SRCCCY) or a new Type 1 juvenile correctional facility no later than July 1,
2021. The bill specifies that juveniles who are transferred to a juvenile detention
facility using this procedure are required to be transferred into an SRCCCY or a new
Type 1 juvenile correctional facility as soon as a substitute placement that meets the
needs of each juvenile is ready.
Juvenile correctional facilities
Under current law, the juvenile court may place a juvenile in a Type 1 juvenile
correctional facility under the supervision of DOC or an SRCCCY under the
supervision of a county department of human or social services if the juvenile is
adjudged delinquent for an act that would be punishable by a sentence of six months
or more if committed by an adult or is found to be a danger to the public.
Under current law, upon the closure of the Lincoln Hills and Copper Lakes
Schools, each county must provide an SRCCCY to hold juveniles who are placed
under county supervision in secured custody. Under current law, an SRCCCY may
have less restrictive physical security barriers than a Type 1 juvenile correctional
facility and must provide trauma-informed, evidence-based programming and
services. Under current law, DOC must open one or more new Type 1 juvenile
correctional facilities to replace the Lincoln Hills and Copper Lakes Schools.
The bill removes the requirement for DOC to establish one or more Type 1
juvenile correctional facilities and instead authorizes DOC to establish and operate
an SRCCCY. The bill also eliminates the term “Type 1 juvenile correctional facility.”
Under current law, after the closure of the Lincoln Hills and Copper Lakes
Schools, a juvenile who is adjudged delinquent for an act that would be punishable
by a sentence of six months or more if committed by an adult and who is found to be
a danger to the public may be placed in an SRCCCY under the supervision of a county
department but not under the supervision of DOC. The bill allows such a juvenile
to be placed under the supervision of DOC in an SRCCCY run by DOC after the
closure of the Lincoln Hills and Copper Lakes Schools.
Type 2 status
Under current law, any secured or nonsecured facility that holds a juvenile with
a Type 2 status is referred to as a Type 2 juvenile correctional facility or a Type 2
residential care center for children and youth (collectively, Type 2 facility). A Type
2 facility is operated in a manner that is less restrictive than a Type 1 juvenile
correctional facility or an SRCCCY. Under current law, DOC may place a juvenile
under its supervision under Type 2 status, and the juvenile court may place a
juvenile under the supervision of a county department in a Type 2 residential care
center for children and youth. A juvenile subject to Type 2 status may be placed in
a Type 2 facility or under aftercare or community supervision. The juvenile is subject
to certain conditions for maintaining Type 2 status. If the juvenile violates the
conditions of Type 2 status, the juvenile may be moved to a Type 1 juvenile
correctional facility or an SRCCCY without a change in placement hearing.
The bill eliminates eliminates Type 2 status and Type 2 facilities from the
Juvenile Justice Code.
Placement of juveniles in a juvenile detention facility
The bill eliminates as an available disposition under the Juvenile Justice Code
the placement of a juvenile in a juvenile detention facility or juvenile portion of a
county jail for more than 30 days. Under current law, the juvenile court may place
a juvenile that has been adjudicated delinquent in a juvenile detention facility or
juvenile portion of a county jail for up to 30 days or, if the facility is eligible, up to 365
days. A juvenile detention facility is eligible to accept a juvenile for more than 30
days if 1) prior to January 1, 2018, the county board of supervisors of the county
operating the facility has adopted a resolution authorizing such a placement and 2)
the county has not been awarded a grant under the juvenile corrections grant
program, which provides funding for the establishment of an SRCCCY.
Status violations
Under current law, a juvenile adjudged delinquent or to have committed a civil
law or municipal ordinance violation, including a habitual truancy violation, who
violates a condition of his or her dispositional order is subject to various sanctions,
including placement in a juvenile detention facility or a place of nonsecure custody
for not more than 10 days. Also under current law, a juvenile adjudged delinquent
who violates a condition of his or her delinquency order or aftercare supervision may,
without a hearing, be placed in a juvenile detention facility or a place of nonsecure
custody for not more than 72 hours (short-term detention) during an investigation
of the violation and potential sanctions or as a consequence of that violation. The bill
eliminates placement in a juvenile detention facility as a sanction or for short-term
detention unless the juvenile court finds that the juvenile poses a threat to public
safety and the underlying offense for which the juvenile court order was imposed is
not a status offense. The bill defines a status offense as an offense committed by a
juvenile that would not be an offense if committed by an adult (for example, truancy).
Community supervision and aftercare supervision
Under current law, when a juvenile who is placed under the supervision of DOC
under the Juvenile Justice Code is released from a juvenile correctional facility, DOC
provides community supervision for the juvenile until DOC discharges the juvenile
from supervision. When a juvenile who is placed under the supervision of a county
department is released from a juvenile correctional facility or an SRCCCY, the
county department provides aftercare supervision for the juvenile until the county
department discharges the juvenile from supervision. The bill eliminates
community supervision for a juvenile and requires a county department to provide
aftercare supervision for any juvenile who is released from a juvenile correctional
facility or an SRCCCY.
Use of restraints on a child
The bill generally prohibits the use of restraints on anyone under the age of 18
when appearing before the juvenile court or criminal court. The bill provides that,
upon a request of the district attorney, corporation counsel, or other appropriate
county official, a court may order the use of restraints on a child if, after a hearing,
it issues written findings of fact showing that the use of restraints is necessary under
certain conditions. The bill also requires that any restraints used on a child must
allow limited movement of the hands and prohibits the use of fixed restraints that
are attached to a wall, floor, or furniture.
Daily rates for juvenile correctional services
Current law establishes at $615 the per person daily rate paid by counties to
DOC for services provided to juveniles in a Type 1 juvenile correctional facility (daily
rate). The bill eliminates the daily rate set in statute and requires DOC to specify
the daily rate. Under current law and the bill, these payments are credited to a DOC
appropriation for juvenile correctional services. Under current law, if there is a
deficit in that appropriation account at the close of the fiscal biennium, the governor
must increase the daily rate by $6 in the executive budget bill for each fiscal
biennium until the deficit is eliminated. Under the bill, in the case of such a deficit,
the secretary of corrections may increase the daily rate and the daily cost assessment
for counties for care in a foster home, group home, or residential care center for
children and youth and for community supervision services by $6 until the deficit is
eliminated.
Payments to DHS for services at Mendota Juvenile Treatment Center
Under current law, DOC must transfer certain amounts to DHS for services for
juveniles placed at the Mendota Juvenile Treatment Center (MJTC). The bill
replaces those specific amounts with a requirement that DOC reimburse DHS for the
cost of providing those services at a per person daily rate specified by DHS. The bill
maintains a requirement that DHS charge DOC not more than the actual cost of
providing those services. The bill also authorizes DOC to charge counties the same
daily rate for care in a Type 1 juvenile correctional facility as DHS charges DOC for
MJTC services.
Juvenile correctional services deficit relief
The bill creates an appropriation from the general fund to DOC for juvenile
correctional services if the amount in the juvenile correctional services appropriation
under current law is insufficient. The current law juvenile correctional services
appropriation is funded by various program receipts.
Courts and procedure
Public defender
Public defender private attorney rate increases for inflation
Under current law, for any case assigned on or after January 1, 2020, the rate
at which the public defender must pay a private local attorney to whom a case is
assigned is $70 per hour for time spent related to the case, excluding travel, and $25
per hour for time spent in travel related to the case.
The bill provides that the rate at which the public defender must pay a private
local attorney to whom a case is assigned on or after January 1, 2020, must be
adjusted biennially by a percentage that correlates with the federal Department of
Labor's consumer price index. Under the bill, the first of these adjustments will be
made on July 1, 2023.
Circuit courts
Statutory addition of circuit court branches designated to begin operation
in 2021
The bill adds four new circuit court branches to the statutory list of judicial
circuit branches, as authorized by the Director of State Courts and designated to
begin operation in 2021.
Current law contains a list that sets forth the number of branches each judicial
circuit has.
2019 Wisconsin Act 184 authorized the Director of State Courts to add
four circuit court branches, by November 14, 2020, to begin operation on August 1,
2021. Act 184 further authorized the Director of State Courts to allocate one of the
newly authorized branches to any county the Director of State Courts determined to
be in need of an additional circuit court branch, but only if the county passed a
resolution requesting an additional circuit court branch and established, or will have
established by May 31, 2021, the appropriate infrastructure to support an additional
circuit court branch. Act 184 also authorized the Director of State Courts to require
any county, as a condition for receiving a circuit court branch allocation, to have
established or to apply for a grant to establish a drug court. In March 2020, the
Director of State Courts allocated new circuit court branches to Calumet, Dunn,
Jackson, and Marathon Counties. The bill updates the list of circuit court branches
to reflect the additional four circuit court branches allocated by the Director of State
Courts and authorized to begin operation on August 1, 2021.
District attorneys
Increase in deputy district attorney allocation
The bill increases the number of deputy district attorneys that may be
appointed in a prosecutorial unit with a population of more than 200,000 but less
than 750,000 from three deputy district attorneys to four deputy district attorneys.
General courts and procedure
Extreme risk protection injunctions
Under current law, a person is prohibited from possessing a firearm and must
surrender all firearms if the person is subject to a domestic abuse injunction, a child
abuse injunction, or, in certain cases, a harassment or an individuals-at-risk
injunction. If a person surrenders a firearm because he or she is subject to one of
those injunctions, the firearm may not be returned until a court determines that the
injunction has been vacated or has expired and that the person is not otherwise
prohibited from possessing a firearm. A person who possesses a firearm in violation
of the injunction is guilty of a Class G felony.
The bill creates an extreme risk protection temporary restraining order and an
extreme risk protection injunction. Such an order or injunction prohibits a person
from possessing a firearm because he or she is a danger to himself or herself or
another. Under the bill, only a law enforcement officer or a family or household
member of the person may file a petition for an extreme risk protection injunction.
If a court receives such a petition, the court must schedule an injunction hearing.
The court also must issue a temporary restraining order prohibiting the person from
possessing a firearm and ordering the person to surrender all firearms if the court
finds reasonable grounds that the person is substantially likely to injure himself or
herself or another person if he or she possesses a firearm. If a temporary restraining
order is issued, it remains in effect until the injunction hearing. At the injunction
hearing, the court may grant an extreme risk protection injunction ordering the
person to refrain from possessing a firearm and to surrender all firearms if the court
finds by clear and convincing evidence that the person is substantially likely to injure
himself or herself or another person if the person possesses a firearm. Under the bill,
an extreme risk protection injunction is effective for up to one year and may be
renewed. A person who is subject to an extreme risk protection injunction may
petition to vacate the injunction. A person who possesses a firearm in violation of
an extreme risk protection temporary restraining order or injunction is guilty of a
Class G felony.
Under the bill, a person who files a petition for an extreme risk protection
injunction, knowing the information in the petition to be false, is guilty of the crime
of false swearing, a Class H felony.
Qui tam actions for false claims
