AB465: Bill Text

5. Changes to the crime of carjacking. Under current law, a person is guilty of carjacking if he or she intentionally takes any vehicle without the consent of the owner while possessing a dangerous weapon and by using or threatening the use of force or the weapon against another. This bill classifies every carjacking offense as a Class C felony, including an offense resulting in a person's death (currently a Class A felony), and adds carjacking to the list of offenses subject to the felony murder statute (see item 4 above, Felony murder).

6. Increase in certain misdemeanor penalties. The bill increases penalties for a few misdemeanor offenses by classifying them as felony offenses. The misdemeanor offenses that are changed to felony offenses by the bill (and the classification into which the offense is placed) are as follows:

a) Stalking (Class I felony).

b) Criminal damage to railroad property (Class I felony).

c) Possession of a firearm in a school zone (Class I felony).

d) Discharge of a firearm in a school zone (Class G felony).

7. Elimination of certain minimum penalty provisions. Current law requires a court to impose a minimum sentence of imprisonment in certain cases. In other cases current law specifies a minimum sentence of imprisonment but also allows a court, in the exercise of its discretion, to impose a lesser sentence of imprisonment or no imprisonment at all. This bill eliminates both mandatory and presumptive minimum prison sentences for felony offenses, except for Class A felonies, which carry a mandatory sentence of life imprisonment (see below, Sentences of life imprisonment), and the persistent repeater penalty enhancers (often called the "three strikes, you're out" and "two strikes, you're out" laws), which require a sentence of life imprisonment without possibility of release. In addition, the bill does not change the minimum mandatory sentence of six months for fifth and subsequent offenses of operating a motor vehicle while intoxicated.

8. Elimination of mandatory consecutive sentences. Under current law, a court sentencing a person convicted of a crime generally may provide that any sentence imposed run concurrent with or consecutive to any other sentence imposed at the same time or any sentence imposed previously. However, a court must impose a consecutive sentence if the person was convicted of certain escape offenses, possession or discharge of a firearm in a school zone, using or possessing a handgun and armor-piercing bullet while committing another crime or violating conditions of lifetime supervision by committing another crime. This bill eliminates the requirement that consecutive sentences be imposed in these cases. The bill also imposes new requirements relating to bifurcated sentences and sentences imposed under current law that are ordered to run consecutively to each other (see below, The structure of felony sentences, item 3-C).

Penalty enhancers

Current law contains various penalty enhancers that allow the penalties for a crime to be increased if the crime is committed under certain circumstances. For instance, current law provides penalty enhancers for committing a crime using a dangerous weapon, committing a crime while wearing a bulletproof garment, committing a crime against a victim chosen because of his or her race, religion, color, disability, sexual orientation, national origin or ancestry (the "hate crime" enhancer), committing certain violent crimes against an elder person and committing certain sex crimes while infected with a sexually transmitted disease. Current law also provides for penalty enhancers that may be triggered by the defendant's status at the time he or she committed the crime. For instance, current law provides a penalty enhancer for habitual criminals (persons who commit a crime after having been previously convicted of a crime) and for persons responsible for the welfare of a child who commit certain crimes against the child.

The bill retains the current penalty enhancers for: 1) habitual criminals; 2) using a dangerous weapon in the commission of a crime; 3) committing a violent crime in a school zone; 4) committing certain domestic abuse offenses within 72 hours after an arrest for a domestic abuse incident; 5) committing a "hate crime"; 6) distributing a controlled substance to a person under the age of 17; and 7) distributing a controlled substance within 1,000 feet of a school, park, correctional institution or certain other facilities. The remaining penalty enhancers contained in current law are eliminated and are instead included in a list of aggravating factors that must be considered by a court when sentencing a person.

In addition, under current law, if a person violates certain prohibitions relating to operating a motor vehicle while intoxicated and, at the time of the offense, a child under the age of 16 is in the vehicle, the penalties for the offense double. This bill retains this penalty enhancer for most of the offenses involving operating a motor vehicle while intoxicated, but the bill eliminates the enhancer for the crimes of homicide by intoxicated use of a vehicle and injury by intoxicated use of a vehicle.

The structure of felony sentences (other than life sentences)

1. The structure of prison sentences for felony offenses committed before December 31, 1999. If a person commits a felony before December 31, 1999, and is sentenced to prison, the person will usually have three possible ways of being released from prison on parole: discretionary parole granted by the parole commission (for which a person is usually eligible after serving 25% of the sentence or six months, whichever is greater); mandatory release on parole (usually granted automatically after the person serves two-thirds of the sentence); or special action parole release by the secretary of corrections (a program designed to relieve prison crowding). However, the person could be subject to more restrictive discretionary parole eligibility provisions or to restrictions on mandatory release under certain circumstances (for example, if the person has one or more prior convictions for certain serious felonies).

2. The structure of prison sentences for felony offenses committed on or after December 31, 1999. Under 1997 Wisconsin Act 283, if a court chooses to sentence a felony offender to a term of imprisonment in state prison for a felony committed on or after December 31, 1999, the court must do so by imposing a bifurcated sentence that includes a term of confinement in prison followed by a term of community supervision (called "extended supervision"). The offender is not eligible for parole. A bifurcated sentence imposed under 1997 Wisconsin Act 283 must be structured as follows:

A) The total length of the bifurcated sentence may not exceed the maximum term of imprisonment allowable for the felony.

B) The court must set the term of confinement in prison portion of the sentence to be at least one year but not more than 40 years for a Class B felony, 20 years for a Class BC felony, ten years for a Class C felony, five years for a Class D felony, or two years for a Class E felony. If the person is being sentenced to prison for a felony that is not in one of these classes, the term of confinement in prison portion of the sentence must be at least one year but not more than 75% of the total length of the bifurcated sentence.

C) The term of extended supervision must equal at least 25% of the length of the term of confinement in prison. For example, if a person is convicted of a Class B felony committed on or after December 31, 1999, and a judge sentences the person to the maximum allowable 40-year term of confinement in prison, the term of extended supervision would have to be at least ten years. There is no limit on the length of the term of extended supervision, other than the limit that results from the requirements that the term of confinement in prison portion of a bifurcated sentence be at least one year and that the total bifurcated sentence not exceed the maximum term of imprisonment specified by law for the crime.

During the term of extended supervision, the person is subject to supervision by the department of corrections (DOC) and is subject to conditions set by both the court and DOC. If a person violates a condition of extended supervision or a rule promulgated by DOC relating to extended supervision, the person's extended supervision may be revoked in an administrative proceeding and the person may be returned to serve a period of time in prison. The length of time for which the person is returned to prison is determined by an administrative law judge or, if the person waives a revocation hearing, by DOC.

3. The changes made by this bill. This bill makes the following changes relating to the imposition of bifurcated sentences:

A) Like 1997 Wisconsin Act 283 does for the current felony classes, the bill establishes maximum terms of confinement in prison for the new felony classes. Unlike 1997 Wisconsin Act 283, the bill also establishes a maximum amount of extended supervision that a court can impose for classified felonies. The maximum term of confinement in prison and the maximum term of extended supervision for each classified felony is as follows: - See PDF for table

B) Under the bill, when a court is imposing a bifurcated sentence it must consider any advisory sentencing guidelines for the offense adopted by the sentencing commission (see below, Sentencing commission) or, if the sentencing commission has not adopted guidelines for the offense, the temporary advisory guidelines adopted by the criminal penalties study committee in its report under 1997 Wisconsin Act 283. In addition, the bill requires the sentencing court to consider any applicable mitigating and aggravating circumstances. The bill includes a partial list of aggravating circumstances that a court must consider. The list incorporates the provisions of current penalty enhancers that are being eliminated by the bill (see above, Penalty enhancers).

C) Under the bill, when a court imposes a bifurcated sentence on a person who is also subject to a prison sentence for a crime committed before December 31, 1999 (a current law sentence), the court must specify all of the following: 1) whether the confinement in prison portion of the bifurcated sentence is to run concurrent with or consecutively to the imprisonment portion of the current law sentence; and 2) whether the period of parole under the current law sentence is to run concurrent with or consecutively to the term of extended supervision portion of the bifurcated sentence. The court must also make the same specifications when imposing a current law sentence on a person who is also subject to a bifurcated sentence.

D) The bill allows DOC to take custody of a person who is on extended supervision in order to investigate an alleged violation of a condition of extended supervision. The bill also provides that, if a person on extended supervision admits that the or she has violated a condition or rule of extended supervision, DOC may, as a sanction for the violation, confine the person for not more than 90 days in a DOC regional detention facility or, with the consent of the sheriff, in a county jail.

E) The bill changes the procedure for revoking extended supervision by requiring that a court determine how long to send a person back to prison after his or her extended supervision is revoked. Under the bill, DOC or the administrative law judge who made the revocation decision must make a recommendation to the court concerning the amount of time for which the person should be returned to prison. The court then reviews the recommendation and makes the final decision as to the amount of time for which the person is returned to prison.

F) The bill creates a procedure by which DOC or a person on extended supervision may petition a court to modify the conditions of extended supervision set by the court. The court may hold a hearing on a petition to modify extended supervision and may grant the petition if it determines that the requested modification would meet the needs of DOC and the public and would be consistent with the objectives of the person's bifurcated sentence.

G) The bill creates a procedure by which certain older prisoners who have been given a bifurcated sentence may petition the sentencing court for a modification of the terms of the sentence. The procedure is available to prisoners who are 65 years of age or older and have served at least five years of the term of confinement in prison portion of their bifurcated sentence and to prisoners who are 60 years of age or older and have served at least ten years of the term of confinement in prison portion of the bifurcated sentence.

Under the procedure, the prisoner files a petition with the prison's program review committee, which may then refer the petition to the sentencing court if it finds that the public interest would be served by a modification of the prisoner's bifurcated sentence. If a petition is referred to a sentencing court, the court must determine whether the public interest would be served by a modification of the prisoner's bifurcated sentence. The victim of the prisoner's crime has a right to provide a statement concerning the modification of the sentence.

If the court decides that the public interest would be served by such a modification, the court must modify the sentence by: 1) reducing the term of confinement in prison portion of the sentence to a number that provides for the release of the prisoner to extended supervision; and 2) increasing the term of extended supervision of the prisoner by the same number, so that the total length of the bifurcated sentence does not change.

H) The bill clarifies that, if a misdemeanor offender may be sentenced to prison because of the application of a sentence enhancer and the court decides to sentence the person to prison, the court must impose a bifurcated sentence. In sentencing a person to prison in such a case, the term of confinement in prison portion of the sentence may not constitute more than 75% of the total bifurcated sentence.

Sentences of life imprisonment

If a person is sentenced to life imprisonment for an offense committed before December 31, 1999, the person usually must serve 20 years minus time calculated under the mandatory release formula before he or she is eligible for release on parole. If the person does not receive extensions due to violations of prison rules, he or she reaches parole eligibility after serving 13 years, four months. However, a court may set a parole eligibility date for a person serving a life sentence that is later than the usual parole eligibility date or may provide that the person is not eligible for parole. No person serving a life sentence of any kind is entitled to mandatory release on parole.

If a person is sentenced to life imprisonment for a crime committed on or after December 31, 1999, he or she is not eligible for parole. Instead, the court who is sentencing the person to life imprisonment must do one of the following: 1) provide that the person is eligible for release to extended supervision after serving 20 years; 2) set a date on which the person becomes eligible for extended supervision, as long as that date requires the person to serve at least 20 years; or 3) provide that the person is not eligible for extended supervision. If the court provides that the person is eligible for extended supervision, the person may petition the sentencing court for release to extended supervision on or after the extended supervision eligibility date. A person sentenced to life who is released to extended supervision is on extended supervision for the remainder of his or her life and, like a person on extended supervision under a bifurcated sentence (see above, The structure of felony sentences, item 2-C), may have his or her extended supervision revoked in an administrative proceeding and be returned to prison if he or she violates a condition of extended supervision or a rule promulgated by DOC relating to extended supervision. A person returned to prison after a revocation of extended supervision may not petition for rerelease to extended supervision until he or she has served a period of time back in prison. The time period, which must be at least five years, is determined by an administrative law judge or, if the person waived a revocation hearing, by DOC.

This bill allows DOC to take custody of a person who is on extended supervision under a life sentence in order to investigate an alleged violation of a condition of extended supervision. The bill also provides that, if a person on extended supervision admits that he or she has violated a condition or rule of extended supervision, DOC may, as a sanction for the violation, confine the person for not more than 90 days in a DOC regional detention facility or, with the consent of the sheriff, in a county jail. In addition, the bill changes the procedure for revoking extended supervision by requiring that a court determine how long to send a person back to prison after his or her extended supervision is revoked. Under the bill, DOC or the administrative law judge who made the revocation decision must make a recommendation to the court concerning the amount of time for which the person should be returned to prison. The court then reviews the recommendation and makes the final decision as to the amount of time for which the person is returned to prison. Both the recommendation and the court's final decision must provide for the person to be returned to prison for at least five years.

Sentencing commission

The bill creates a sentencing commission (commission) consisting of 17 voting members and three nonvoting members, all of whom serve three year terms. Under the bill, the commission is responsible for studying sentencing practices throughout the state. Using the information it obtains, the commission must adopt advisory sentencing guidelines for use by judges when imposing sentences for felonies committed on or after December 31, 1999. The commission must also assist the legislature in assessing the cost of changes in statutes affecting criminal sentencing and provide information regarding sentencing to judges, lawyers, state agencies, the legislature. In addition, the commission must study whether race is a basis for imposing sentences in criminal cases and submit a report and recommendations on this issue to the governor, the legislature and the supreme court. The duties of the commission end on December 31, 2004.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB465, s. 1 Section 1. 6.18 of the statutes is amended to read:

AB465,16,3 6.18 Former residents. If ineligible to qualify as an elector in the state to which the elector has moved, any former qualified Wisconsin elector may vote an absentee ballot in the ward of the elector's prior residence in any presidential election occurring within 24 months after leaving Wisconsin by requesting an application form and returning it, properly executed, to the municipal clerk of the elector's prior Wisconsin residence. When requesting an application form for an absentee ballot, the applicant shall specify the applicant's eligibility for only the presidential ballot. The application form shall require the following information and be in substantially the following form:

AB465,16,7 This blank shall be returned to the municipal clerk's office. Application must be received in sufficient time for ballots to be mailed and returned prior to any presidential election at which applicant wishes to vote. Complete all statements in full.

AB465,16,8 APPLICATION FOR PRESIDENTIAL

AB465,16,9 ELECTOR'S ABSENT BALLOT.

AB465,16,10 (To be voted at the Presidential Election

AB465,16,11 on November ...., .... (year)

AB465,16,20 I, .... hereby swear or affirm that I am a citizen of the United States, formerly residing at .... in the .... ward .... aldermanic district (city, town, village) of ...., County of .... for 10 days prior to leaving the State of Wisconsin. I, .... do solemnly swear or affirm that I do not qualify to register or vote under the laws of the State of ....(State you now reside in) where I am presently residing. A citizen must be a resident of: State ....(Insert time) County ....(Insert time) City, Town or Village ....(Insert time), in order to be eligible to register or vote therein. I further swear or affirm that my legal residence was established in the State of ....(the State where you now reside) on .... Month .... Day .... Year.

AB465,16,21 Signed ....

AB465,16,22 Address ....(Present address)

AB465,16,23 ....(City) ....(State)

AB465,16,24 Subscribed and sworn to before me this .... day of .... .... (year)

AB465,16,25 ....(Notary Public, or other officer authorized to administer oaths.)

AB465,17,1 ....(County)

AB465,17,2 My Commission expires

AB465,17,3 MAIL BALLOT TO:

AB465,17,4 NAME ....

AB465,17,5 ADDRESS ....

AB465,17,6 CITY .... STATE .... ZIP CODE ....

AB465,17,11 Penalties for Violations. Whoever swears falsely to any absent elector affidavit under this section may be fined not more than $1,000 or imprisoned for not more than 6 months, or both. Whoever intentionally votes more than once in an election may be fined not more than $10,000 or imprisoned for not more than 3 years, and 6 months or both.

AB465,17,12 ....(Municipal Clerk)

AB465,17,13 ....(Municipality)

AB465, s. 2 Section 2. 11.61 (1) (a) of the statutes, as affected by 1997 Wisconsin Act 283, is amended to read:

AB465,17,19 11.61 (1) (a) Whoever intentionally violates s. 11.05 (1), (2), (2g) or (2r), 11.07 (1) or (5), 11.10 (1), 11.12 (5), 11.23 (6) or 11.24 (1) may be fined not more than $10,000 or imprisoned for not more than 4 years and 6 months or both is guilty of a Class I felony.

AB465, s. 3 Section 3. 11.61 (1) (b) of the statutes, as affected by 1997 Wisconsin Act 283, is amended to read:

AB465,18,2 11.61 (1) (b) Whoever intentionally violates s. 11.25, 11.26, 11.27 (1), 11.30 (1) or 11.38 where is guilty of a Class I felony if the intentional violation does not involve a specific figure, or where if the intentional violation concerns a figure which exceeds $100 in amount or value may be fined not more than $10,000 or imprisoned for not more than 4 years and 6 months or both.

AB465, s. 4 Section 4. 12.60 (1) (a) of the statutes, as affected by 1997 Wisconsin Act 283, is amended to read:

AB465,18,7 12.60 (1) (a) Whoever violates s. 12.09, 12.11 or 12.13 (1), (2) or (3) (a), (e), (f), (j), (k), (L), (m), (y) or (z) may be fined not more than $10,000 or imprisoned for not more than 4 years and 6 months or both is guilty of a Class I felony.

AB465, s. 5 Section 5. 13.05 of the statutes, as affected by 1997 Wisconsin Act 283, is amended to read:

AB465,18,21 13.05 Logrolling prohibited. Any member of the legislature who gives, offers or promises to give his or her vote or influence in favor of or against any measure or proposition pending or proposed to be introduced, in the legislature in consideration or upon condition that any other person elected to the same legislature will give or will promise or agree to give his or her vote or influence in favor of or against any other measure or proposition pending or proposed to be introduced in such legislature, or who gives, offers or promises to give his or her vote or influence for or against any measure on condition that any other member will give his or her vote or influence in favor of any change in any other bill pending or proposed to be introduced in the legislature may be fined not less than $500 nor more than $1,000 or imprisoned for not less than one year nor more than 4 years and 6 months or both, is guilty of a Class I felony.

AB465, s. 6 Section 6. 13.06 of the statutes, as affected by 1997 Wisconsin Act 283, is amended to read:

AB465,19,10 13.06 Executive favor. Any member of the legislature who gives, offers or promises to give his or her vote or influence in favor of or against any measure or proposition pending or proposed to be introduced in the legislature, or that has already been passed by either house of the legislature, in consideration of or on condition that the governor approve, disapprove, veto or sign, or agree to approve, disapprove, veto or sign, any other measure or proposition pending or proposed to be introduced in the legislature or that has already been passed by the legislature, or either house thereof, or in consideration or upon condition that the governor nominate for appointment or appoint or remove any person to or from any office or position under the laws of this state, may be fined not less than $500 nor more than $1,000 or imprisoned for not less than one year nor more than 3 years or both is guilty of a Class I felony.

AB465, s. 7 Section 7. 13.69 (6m) of the statutes, as affected by 1997 Wisconsin Act 283, is amended to read:

AB465,19,17 13.69 (6m) Any principal, lobbyist or other individual acting on behalf of a principal who files a statement under s. 13.63 (1), 13.64, 13.65, 13.67 or 13.68 which he or she does not believe to be true may be fined not more than $10,000 or imprisoned for not more than 7 years and 6 months or both is guilty of a Class H felony.

AB465, s. 8 Section 8. 15.01 (2) of the statutes is amended to read:

AB465,20,4 15.01 (2) "Commission" means a 3-member governing body in charge of a department or independent agency or of a division or other subunit within a department, except for the Wisconsin waterways commission which shall consist of 5 members, the parole commission which shall consist of 6 members and the Fox river management commission which shall consist of 7 members. A Wisconsin group created for participation in a continuing interstate body, or the interstate body itself, shall be known as a "commission", but is not a commission for purposes of s. 15.06. The parole commission created under s. 15.145 (1) shall be known as a "commission", but is not a commission for purposes of s. 15.06. The sentencing commission created under s. 15.105 (26) shall be known as a "commission" but is not a commission for purposes of s. 15.06 (1) to (4m), (7) and (9).

AB465, s. 9 Section 9. 15.105 (26) of the statutes is created to read:

AB465,20,8 15.105 (26) Sentencing commission. (a) Creation; membership. There is created a sentencing commission which is attached to the department of administration under s. 15.03 and which shall consist of the following members:

AB465,20,9 1. The attorney general or his or her designee.

AB465,20,10 2. The state public defender or his or her designee.

AB465,20,12 3. Seven members, at least 2 of whom are not employed by any unit of federal, state or local government, appointed by the governor.

AB465,20,14 4. One majority party member from each house of the legislature, appointed as are the members of standing committees in their respective houses.

AB465,20,17 5. One member appointed by the senate majority leader or, if the senate majority leader and the governor are members of the same political party, by the senate minority leader.

AB465,20,18 6. Two circuit judges, appointed by the supreme court.

AB465,20,20 7. One representative of crime victims and one district attorney, each appointed by the attorney general.

AB465,20,22 8. One attorney in private practice engaged primarily in the practice of criminal defense, appointed by the criminal law section of the State Bar of Wisconsin.

AB465,20,25 (b) Nonvoting members. The secretary of corrections or his or her designee, the chairperson of the parole commission or his or her designee and the director of state courts or his or her designee shall be nonvoting members of the commission.

AB465,21,2 (c) Terms. 1. Except as provided in subd. 2., members appointed under par. (a) 3. and 5. to 8. shall serve 3-year terms and are eligible for reappointment.

AB465,21,5 2. The term of a circuit judge appointed under par. (a) 6. shall end when such person ceases to be a circuit judge. The term of a district attorney appointed under par. (a) 7. shall end when such person ceases to be a district attorney.

AB465,21,8 (d) Officers. The governor shall designate annually one of the members of the commission as chairperson. The commission may elect officers other than a chairperson from among its members as its work requires.