A. Least Restrictive (Informal) Disposition Orders

1. Deferred Prosecution Agreements (DPA) – generally Ch. 938 eliminates informal agreements and substitutes deferred prosecution agreements.

a. Under sec. 938.245(2)(b), DPA may not include any form of out-of-home placement and may not exceed one year. Can be extended only once.

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b. May include many conditions including counseling, school attendance, AODA treatment, Teen Court, etc.

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c. No minimum age for restitution and community service (supervised work program). Secs. 938.245(2)(a) 5a, 6a.

• With respect to cash restitution payments, a DPA may not require a juvenile under 14 to make a payment in excess of $250.00, sec 938.245(2)(a)5c, with up to 40 hours service to victim as part of restitution.

• With respect to community service there is no limit on the amount of hours that the DPA can require. Sec. 938.245(2)(a)6. 

 

2. Consent Decrees

 

a. Under sec. 938.32, no minimum age for consent decree.

 

b. Victim Input: District Attorney required to attempt to contact the victim for purpose of notifying them of their right to make a statement to the court. Further, victim and “any other person” allowed to make a statement prior to the entry of a consent decree. Sec. 938.32(1)(b)1g.

 

c. May include restitution, community service, AODA, Teen Court, etc.

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d. No minimum age for restitution and community service. Sec. 938.32(1d) and (1t).

 

(1) Consent decree may not require a cash payment of more than $250.00 for a juvenile under the age of 14. Sec. 938.32(1t)(a)3.

(2) There is no limit on the amount of community service hours that a consent decree can require.

e. Length of time: Maximum term of all consent decrees is one year. Sec. 938.32(2)(a). A one year consent decree may be extended for up to an additional 6 months. Sec. 938.32(2)(c).

 

B. Supervision (“Probation”) and Variety of In-Home Services

1. Formal Supervision. Sec. 938.34(2): place the juvenile under the supervision of DHHS, an agency or a “suitable adult, including a friend of the juvenile,” under court-ordered conditions including reasonable rules for the juvenile’s conduct. Generally includes standard conditions:

a. Attend school daily;

b. Obey all rules at home;

c. No law violations reaching level of probable cause;

d. No contact with victim or accomplices. 

2. Day Treatment. Sec. 938.34(7w)

a. Requires a report (under sec. 938.33(1)) indicating that the juvenile has “specialized educational needs.”

b. DHHS also to provide intensive in-home services, including counseling, family therapy, monitoring behavior in school and community. Sec. 938.34(2). 

3. Home Detention. Sec. 938.34(2)(c): court can order the juvenile to remain at home (or other placement) for not more that thirty days.

4. In-home Electronic Monitoring. Sec. 938.34(3g).

5. Offender Educational Programs. Sec. 938.34(7n): court may order juvenile to participate in educational program designed to deter future delinquent behavior.

6. Drug Testing. Sec. 938.34(6s).

a. Requires a court report that indicates that the juvenile is in need of treatment for substance abuse.

b. The court may order the juvenile to submit to drug testing.

c. Out of Home Placements – Short Term 

1. Secure Detention / Non-secure custody. Sec. 938.34(3)(f).

a. Placement is in a secure detention facility, non-secure custody or the juvenile portion of the county jail.

b. Placement may be for any combination of single or consecutive days totaling not more than 365. The court shall order credit for time served in secure detention which relates to the “course of conduct for which the detention or non secure custody was imposed.” [Requires County Board approval. Sec.938.355(6d)(e)]

c. Juvenile may be released from custody (like Huber release) for school, work or “any activity which the court considers beneficial to the juvenile.” Sec. 938.34(3)(f)2.

 

2. In Patient Special Care / AODA Treatment. Sec. 938.34(6).

a. Juvenile is identified in an evaluation under sec.938.295 as in need of special treatment or care.

b. An order for special treatment may include an order committing the juvenile under 51.42 or 51.437 for care in an inpatient facility. The evaluation and report indicate that the juvenile has an alcohol or other drug abuse problem and the juvenile is a proper subject for treatment and is in need of inpatient treatment because the appropriate treatment is not available as an outpatient.

c. The commitment may not total more than 30 days.

d. Note: It is the parent that is actually court ordered to commit the juvenile to an in-patient facility.

 

C. Out of Home Placements – In General

Note: all out of home placements require that the judge make findings consistent with the Adoption and Safe Families Act.

1. Foster Home/Treatment Foster Home/Group Home. Sec. 938.34(3)(c) and (cm). DHHS designated as the agency to provide services. 

2. Supervised Independent Living sec. 938.34(3)(e). 

a. Available on or after a juvenile’s 17th birthday for those juveniles who demonstrate sufficient maturity and judgment.

b. Requires proof of a reasonable plan for supervision by an appropriate person or agency. 

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D. Correctional Placements

1. Secured Child Caring Institutions (SCCI). Sec. 938.34(4m).

a. Under Ch. 938, children under 12 and who are adjudicated delinquent may be placed in a “secured child caring institution” (SCCI).

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b. Juveniles placed in a SCCI remain under the supervision of DOC and are subject to the rules of DOC. They are considered to be “in custody.”

(1) If juvenile does well in SCCI, the agency operating the facility can place the juvenile in a less restrictive setting without a hearing. Sec. 938.357(4)(c).

 (2) If juvenile violates a condition of the SCCI placement DOC may either return the child to correction or place the child in secure detention for not more than 30 days without a hearing, as a sanction for the violation. Sec.938.357(4)(b).

(3) DOC can determine, without a hearing, that a correctional placement would be more appropriate. 

2. Serious Juvenile Offender Program (SJOP). Sec. 938.34(4h) and 938.538. 

a. A juvenile who commits certain offenses defined below will, under the Serious Juvenile Offender Program, be subject to one or more of the following sanctions:

(1) Confinement in a correctional facility or a SSCI, for a term of up to 3 years. The juvenile may not be placed in an adult prison. Sec. 938.538(3)(a)1.

(a) For Class A felonies there is a mandatory confinement “until the participant reaches 25 years of age, unless the participant is released sooner, subject to a mandatory minimum period of confinement of not less than one year.” Sec.938.538(3)(a)1m. 

(b) Alternate care in a foster home, treatment foster home, group home, child caring institution or SCCI. Sec. 938.538(3)(a)1p.

(c) Intensive field supervision, including corrective sanction supervision, after care supervision or electronic monitoring. Sec. 938.538(3)(a)2 and 3.

(d) Traditional supervision conditions including AODA services, community service, restitution, education and employment programs set up by the department. Sec. 938.538(3)(a)4-9. 

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b. In order to qualify for this program the juvenile must:

(1) Be 14 or older; and

(2) Adjudicated delinquent on any of the following: conspiracy (sec. 938.31), attempt to commit a crime for which penalty is life imprisonment (sec. 939.32(1)(a), first or second degree intentional homicide secs. (940.01 and 940.05),first degree reckless homicide (sec. 940.02), felony murder (sec. 940.03), mayhem (sec. 940.21), first degree sexual assault (sec. 940.255(1)), taking hostages (sec. 940.305), kidnapping (sec. 940.31), tampering with household products and causing death (sec. 941.327(2)(b)4), arson of a building or damage or property by explosives (sec. 943.02), armed burglary (sec. 943.10(2), carjacking (sec. 943.23(1g), (1m) or (1r), armed robbery (sec. 943.32(2)), first degree sexual assault of a child (sec. 948.02(1)), engaging in repeated acts of sexual assault of same child (sec. 948.025), abduction of another’s child (sec. 938.35(1)(b)), solicitation of a child to commit a Class A felony (sec. 948.35(1)(b)), or use of child to commit a Class A felony (sec. 948.36).

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(3) Exception to age requirement of 14 or older: 10 – 13 year olds who commit first or second degree intentional homicide (sec. 940.01 and 940.05), or first degree reckless homicide (sec. 940.02) and are returned to juvenile court on a reverse waiver are subject to the Serious Juvenile Offender Program.

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c. The court must also find that the only other appropriate disposition would be placement in a secure correctional facility. Sec. 938.34(4h).

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d. Length of the order. The length of the order is governed by the severity of the offense: 

(1) For any offense other than a Class A or B felony the length of the order will be for one year unless the court specified a shorter period of time. Sec. 938.355(4)(a).

(2) For Class B felonies, length of order shall be 5 years.Sec. 938.355(4)(b).  

(3) For Class A felonies, the length of order shall be until the juvenile reaches age 25. Sec. 938.355(4)(b). 

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3. Correctional Placement. Sec. 938.34(4m). ( Lincoln Hills, Copper Lake)

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a. Correctional Orders

(1) All correctional orders under sec. 938.34(4m), must be combined with an after care order under sec. 938.34(4n). (2) If a court determines that a juvenile committed any of the following offenses, “that determination shall be prima facie evidence, that a less restrictive alternative than  placement in a secured correctional facility or a secured child caring institution is not appropriate.” Sec. 938.355. Court finds that DOC is the appropriate agency to provide services and the court must also determine that placement in the SJOP would not be appropriate. Sec.938.34(4m)(b).

(a) First or second degree intentional homicide (sec. 940.01 and 940.05), first degree reckless homicide (sec. 940.02), felony murder (sec. 940.03), aggravated battery (sec. 940.10(2)-(6)), mayhem (sec. 940.21), first degree sexual assault (sec. 940.255(1)), kidnapping (sec. 940.31), drive by shooting (sec. 941.20)), arson of a building or 8 damage of property by explosives (sec. 943.02), carjacking (sec. 943.23(1g), (1m) or (1r), armed robbery (sec. 943.32(2)), stalking offenses (secs. 947.013(1t), (1v) or (1x), first or second degree sexual of a child (sec. 948.02(1)), engaging in repeated acts of sexual assault of the same child (sec. 948.025), or physical abuse of a child (sec. 948.03). See Sec. 938.34(4m)(b)1.
(b) Any felony offense committed while the juvenile possessed, used or threatened to use a handgun, short-barrel rifle or short barrel shotgun. Sec. 938.34(4m)(b)2.
(c) Simple possession of a short-barreled shotgun, short barreled rifle or handgun. Sec. 938.34(4m)(b)3. 

(3) The type of correctional placement depends on the child’s age. 

(a) Under Ch. 938, children under age 12 who are adjudicated delinquent may be placed in corrections if DOC determines that a correctional placement would be more appropriate than a placement in a SCCI. Sec. 938.34(4m). 

(b) For juveniles aged 12 and over placement in corrections is authorized. 

(4) Length of the order. 

(a) Under Ch. 48, the correctional order can be for up to 2 years or until the juvenile’s 19th birthday, whichever is earlier. Sec. 48.355(4). 

(b) Under Ch. 938 the court may make a correctional order apply for up to 2 years or until the juvenile’s 18th birthday, whichever is earlier. Sec. 938.355(4)(b).