2019 - 2020 LEGISLATURE

2019 Assembly BILL 609

November 15, 2019 - Introduced by Representatives Duchow, Hutton, Kulp, Wichgers, Knodl, Dittrich, Quinn and Steineke, cosponsored by Senators Wanggaard, Olsen and Jacque. Referred to Committee on Judiciary.

AB609,1,6 An Act to repeal 969.035 (3) (b) and 969.035 (6) (c); to renumber and amend 969.035 (3) (a), 969.035 (3) (c) and 969.035 (8); to amend 757.69 (1) (b), 969.035 (2) (intro.), 969.035 (2) (a), 969.035 (2) (b), 969.035 (3) (intro.), 969.035 (4), 969.035 (5), 969.035 (6) (a), 969.035 (6) (b), 969.035 (7), 969.035 (9) and 969.035 (10); and to create 969.035 (2) (c), 969.035 (3) (bm), 969.035 (6) (am), 969.035 (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.