LRB-0668/1
CMH:wlj:rs
2009 - 2010 LEGISLATURE
January 25, 2010 - Introduced by Law Revision Committee. Referred to Committee
on Judiciary, Corrections, Insurance, Campaign Finance Reform, and
Housing.
SB492,1,5
1An Act to renumber 971.14 (1);
to renumber and amend 971.14 (5) (a);
to
2amend 911.01 (4) (c), 967.02 (2), 969.01 (1), 971.14 (2) (a), 971.14 (3) (d), 971.14
3(5) (am) and 971.14 (5) (b); and
to create 971.14 (1g) and 971.14 (5) (a) 4. of the
4statutes;
relating to: restoration to competency of a defendant (suggested as
5remedial legislation by the Department of Health Services).
Analysis by the Legislative Reference Bureau
Under current law, if a court has reason to doubt the competency of a defendant
in a criminal case, the court may order the defendant to be examined to determine
if the defendant is competent. If the examiner finds the defendant incompetent, the
examiner's report must include the examiner's opinion as to the likelihood that the
defendant will become competent, with treatment, within 12 months (or, if the
maximum sentence for the most serious charged offense is shorter than 12 months,
within the maximum sentence) and as to whether the defendant's treatment should
occur in an inpatient facility, in a jail or locked part of a facility, or as a condition of
bail or bond. If the court finds the defendant incompetent the proceedings are
suspended. If the court also finds that the defendant will become competent, with
treatment, in a certain time frame, the court must commit the defendant to the
custody of the Department of Health Services (DHS). The statutes require DHS to
determine whether the treatment should occur in a designated location or as a
condition of bail or bond. This bill eliminates the option that treatment occur as a
condition of bail or bond because, once proceedings are suspended when the person
is committed for treatment, bail or bond is not an option. This bill also provides an
alternative process for placing a person to an inpatient setting if the person is not
appropriate for outpatient treatment.
For further information, see the Notes provided by the Law Revision
Committee of the Joint Legislative Council.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Law Revision Committee prefatory note: This bill is a remedial legislation
proposal, requested by the Department of Health Services and introduced by the Law
Revision Committee under s. 13.83 (1) (c) 4. and 5., stats. After careful consideration of
the various provisions of the bill, the Law Revision Committee has determined that this
bill makes minor substantive changes in the statutes, and that these changes are
desirable as a matter of public policy.
SB492,2,103
911.01
(4) (c)
Miscellaneous proceedings. Proceedings for extradition or
4rendition; sentencing, granting
, or revoking probation, modification of a sentence
5under s. 302.1135, adjustment of a bifurcated sentence under s. 973.195 (1r), release
6to extended supervision under s. 302.113 (2) (b) or 304.06 (1) or discharge under s.
7973.01 (4m), issuance of arrest warrants, criminal summonses
, and search warrants;
8hearings under s. 980.09 (2); proceedings under s. 971.14
(1) (1r) (c);
or proceedings
9with respect to pretrial release under ch. 969 except where habeas corpus is utilized
10with respect to release on bail or as otherwise provided in ch. 969.
SB492, s. 2
11Section
2
. 967.02 (2) of the statutes is amended to read:
SB492,2,1312
967.02
(2) "Department" means the department of corrections, except as
13provided in
s. ss. 971.14 and 975.001.
SB492, s. 3
14Section
3. 969.01 (1) of the statutes is amended to read:
SB492,3,715
969.01
(1) Before conviction. Before conviction, except as provided in ss.
16969.035 and 971.14
(1) (1r), a defendant arrested for a criminal offense is eligible for
1release under reasonable conditions designed to assure his or her appearance in
2court, protect members of the community from serious bodily harm
, or prevent the
3intimidation of witnesses. Bail may be imposed at or after the initial appearance
4only upon a finding by the court that there is a reasonable basis to believe that bail
5is necessary to assure appearance in court. In determining whether any conditions
6of release are appropriate, the judge shall first consider the likelihood of the
7defendant appearing for trial if released on his or her own recognizance.
Note: Section 1 and this Section 4 reflect the renumbering of s. 971.14 (1) to
971.14 (1r) in Section 4 of the bill.
SB492, s. 4
8Section
4
. 971.14 (1) of the statutes is renumbered 971.14 (1r).
SB492, s. 5
9Section
5
. 971.14 (1g) of the statutes is created to read:
SB492,3,1110
971.14
(1g) Definition. In this section, "department" means the department
11of health services.
SB492, s. 6
12Section
6
. 971.14 (2) (a) of the statutes is amended to read:
SB492,3,2013
971.14
(2) (a) The court shall appoint one or more examiners having the
14specialized knowledge determined by the court to be appropriate to examine and
15report upon the condition of the defendant. If an inpatient examination is
16determined by the court to be necessary, the defendant may be committed to a
17suitable mental health facility for the examination period specified in par. (c), which
18shall be deemed days spent in custody under s. 973.155. If the examination is to be
19conducted by the department
of health services, the court shall order the individual
20to the facility designated by the department
of health services.
SB492, s. 7
21Section
7
. 971.14 (3) (d) of the statutes is amended to read:
SB492,4,722
971.14
(3) (d) If the examiner reports that the defendant lacks competency, the
23examiner's opinion regarding the likelihood that the defendant, if provided
1treatment, may be restored to competency within the time period permitted under
2sub. (5) (a). The examiner shall provide an opinion as to whether the
individual's 3defendant's treatment should occur in an inpatient facility designated by the
4department
of health services, in a community-based treatment program under the
5supervision of the department, or
should be conducted in a jail or a locked unit of a
6facility that has entered into a voluntary agreement with the state to serve as a
7location for treatment
, or as a condition of bail or bond.
SB492, s. 8
8Section
8
. 971.14 (5) (a) of the statutes is renumbered 971.14 (5) (a) 1. and
9amended to read:
SB492,4,2510
971.14
(5) (a) 1. If the court determines that the defendant is not competent but
11is likely to become competent within the period specified in this paragraph if
12provided with appropriate treatment, the court shall suspend the proceedings and
13commit the defendant to the custody of the department
of health services for
the 14treatment for a period not to exceed 12 months, or the maximum sentence specified
15for the most serious offense with which the defendant is charged, whichever is less.
16The department
to shall determine whether
the defendant will receive treatment
17shall occur in an appropriate institution designated by the department,
or while
18under the supervision of the department in a community-based treatment
19conducted program under contract with the department, or in a jail or a locked unit
20of a facility that has entered into a voluntary agreement with the state to serve as
21a location for treatment
, or as a condition of bail or bond, for a period of time not to
22exceed 12 months, or the maximum sentence specified for the most serious offense
23with which the defendant is charged, whichever is less. Under this subsection,. The
24sheriff shall transport the defendant to the institution, program, jail, or facility, as
25determined by the department.
SB492,5,5
12. If, under subd. 1., the department
of health services may commence 2commences services to a
person defendant in jail
but or in a locked unit, the
3department shall, as soon as possible, transfer
that person the defendant to an
4institution or provide services to the
person defendant in a
nonjail setting 5community-based treatment program consistent with this subsection.
SB492,5,7
63. Days spent in commitment under this paragraph are considered days spent
7in custody under s. 973.155.
Note: The amendments in Sections 7 and 8 allow for an outpatient option for
competency restoration. In addition, language in the current statute provides that the
department of health services must take certain actions during suspension of the
proceedings, as a condition of bail or bond. The reference to these actions being taken as
a condition of bail or bond is deleted. According to the department of health services, bail
or bond cannot be granted once the proceedings are suspended, making it difficult to
utilize this statute.
SB492, s. 9
8Section
9. 971.14 (5) (a) 4. of the statutes is created to read:
SB492,5,179
971.14
(5) (a) 4. A defendant under the supervision of the department placed
10under this paragraph in a community-based treatment program is in the custody
11and control of the department, subject to any conditions set by the department. If
12the department believes that the defendant under supervision has violated a
13condition, or that permitting the defendant to remain in the community jeopardizes
14the safety of the defendant or another person, the department may designate an
15institution at which the treatment shall occur and may request that the court
16reinstate the proceedings, order the defendant transported by the sheriff to the
17designated institution, and suspend proceedings consistent with subd. 1.
Note: The creation of s. 971.14 (5) (a) 4. in this
Section clarifies that the
department of health services has custody and control of a defendant placed in a
community-based treatment program.
SB492, s. 10
18Section
10. 971.14 (5) (am) of the statutes is amended to read:
SB492,6,1619
971.14
(5) (am) If the defendant is not subject to a court order determining the
20defendant to be not competent to refuse medication or treatment for the defendant's
1mental condition and if the
treatment facility
department determines that the
2defendant should be subject to such a court order, the
treatment facility department 3may file with the court
, with notice to the counsel for the defendant, the defendant
, 4and the district attorney, a motion for a hearing, under the standard specified in sub.
5(3) (dm), on whether the defendant is not competent to refuse medication or
6treatment. A report on which the motion is based shall accompany the motion and
7notice of motion and shall include a statement signed by a licensed physician that
8asserts that the defendant needs medication or treatment and that the defendant is
9not competent to refuse medication or treatment, based on an examination of the
10defendant by a licensed physician. Within 10 days after a motion is filed under this
11paragraph, the court shall, under the procedures and standards specified in sub. (4)
12(b), determine the defendant's competency to refuse medication or treatment for the
13defendant's mental condition. At the request of the defendant, the defendant's
14counsel
, or the district attorney, the hearing may be postponed, but in no case may
15the postponed hearing be held more than 20 days after a motion is filed under this
16paragraph.
Note: The amendments in this Section clarify that the department of health
services, not the treatment facility in which a defendant is placed, is responsible for filing
motions with the court for an order to determine that a defendant is not competent to
refuse medication or treatment.
SB492, s. 11
17Section
11
. 971.14 (5) (b) of the statutes is amended to read:
SB492,7,518
971.14
(5) (b) The defendant shall be periodically reexamined by the
19department
of health services examiners. Written reports of examination shall be
20furnished to the court 3 months after commitment, 6 months after commitment, 9
21months after commitment and within 30 days prior to the expiration of commitment.
22Each report shall indicate either that the defendant has become competent, that the
23defendant remains incompetent but that attainment of competency is likely within
1the remaining commitment period, or that the defendant has not made such progress
2that attainment of competency is likely within the remaining commitment period.
3Any report indicating such a lack of sufficient progress shall include the examiner's
4opinion regarding whether the defendant is mentally ill, alcoholic, drug dependent,
5developmentally disabled or infirm because of aging or other like incapacities.
Note: The amendment in Section 5 defines "department" as the department of
health services for s. 971.14. The amendments in Sections 2, 6
, and 11 reflect the creation
of that definition.
