AB298: Bill Text

1995 - 1996 LEGISLATURE

1995 Assembly BILL 298

April 8, 1995 - Introduced by Representatives Kaufert, Kreibich, Musser, Handrick, Owens, Nass, Brandemuehl, Dobyns, Olsen and Silbaugh, cosponsored by Senators A. Lasee, Farrow, Andrea, Petak and Zien. Referred to Committee on Criminal Justice and Corrections.

AB298,1,11 An Act to renumber 939.50 (1) (a), 939.50 (3) (a) and 973.015; to renumber and amend 940.01 (1); to amend 161.335 (1), 301.048 (2) (b), 302.11 (1m), 303.065 (1), 304.02 (5), 304.06 (1) (b), 304.071 (2), 939.30 (2), 939.31, 939.32 (1) (a), 939.50 (2), 939.60, 939.624 (2), 939.625 (1) (b) 2., 939.63 (1) (a) 2., 971.17 (1), 972.03, 972.13 (6), 973.013 (1) (b), 973.0135 (3), 973.014 (1) (intro.), 973.032 (2) (b), 973.09 (1) (c) and 978.07 (1) (c) 1.; and to create 161.335 (1m), 301.046 (3) (cm), 304.06 (1t), 939.22 (7), 939.50 (1) (ag), 939.50 (3) (ag), 940.01 (1) (b), 940.01 (1) (c), 940.01 (1) (d), 967.02 (1m), 973.015, 973.016 and 973.017 of the statutes; relating to: providing a penalty of either death or life imprisonment for certain kinds of first-degree intentional homicide, affecting parole eligibility and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, no state crime is punishable by the death penalty. This bill provides for either a death penalty (by lethal injection) or life imprisonment (with or without parole eligibility restrictions) for 5 different kinds of first-degree intentional homicide committed by a person who is 16 years old or older: 1) homicide of a child under the age of 14 years; 2) homicide of a fire fighter, peace officer or corrections employe; 3) homicide for hire; 4) serial or multiple homicide; or 5) homicide in connection with a kidnapping or sexual assault. Other kinds of first-degree homicide remain punishable by life imprisonment.

A determination of whether or not the death penalty will be imposed is the subject of a proceeding separate from the regular trial. After a conviction finding that one of the 5 types of homicide has occurred, the court reconvenes the trial jury, or, if there was no jury trial or the trial jury is unable to continue, a new jury is summoned. The defendant may waive the right to a jury. Evidence is then presented regarding various aggravating or mitigating circumstances relating to the crime and the defendant.

If the jury is not waived, the jury hears the evidence, and then gives an advisory sentence, to the court, of either life imprisonment or death. If the jury recommends life imprisonment, it may further recommend a complete or substantial restriction of the defendant's parole eligibility. The court, not bound by the advisory sentence, then weighs the aggravating and mitigating circumstances and enters the sentence of either life imprisonment or death. If life imprisonment is imposed, the court may completely or substantially restrict the defendant's parole eligibility. If the court chooses the death sentence it must set forth its findings in writing. Any death sentence is subject to automatic appellate review by the supreme court.

The court that imposes the death sentence sets the execution date. The secretary of corrections designates the executioner. One physician and 12 citizen witnesses must be present at the execution.

This bill applies only to those offenses committed on or after its effective date (the day after publication).

For further information see the state 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:

AB298, s. 1 Section 1. 161.335 (1) of the statutes is amended to read:

AB298,3,2 161.335 (1) Upon Except as provided in sub. (1m), upon application, the controlled substances board may issue a permit authorizing a person to manufacture, obtain, possess, use, administer or dispense a controlled substance for purposes of scientific research, instructional activities, chemical analysis or other special uses, without restriction because of enumeration. No person shall may engage in any such activity without a permit issued under this section, except that an individual may be designated and authorized to receive the permit for a college or university department, research unit or similar administrative organizational unit and students, laboratory technicians, research specialists or chemical analysts under his or her supervision may be permitted possession and use of controlled substances for these purposes without obtaining an individual permit.

AB298, s. 2 Section 2. 161.335 (1m) of the statutes is created to read:

AB298,3,6 161.335 (1m) Upon the application of the secretary of corrections for a permit to obtain a controlled substance for purposes of an execution under s. 973.017, the controlled substances board shall issue a permit under this section.

AB298, s. 3 Section 3. 301.046 (3) (cm) of the statutes is created to read:

AB298,3,8 301.046 (3) (cm) The prisoner is not awaiting imposition of a death sentence.

AB298, s. 4 Section 4. 301.048 (2) (b) of the statutes is amended to read:

AB298,3,12 301.048 (2) (b) He or she is a prisoner serving a felony sentence for a felony not punishable by death or life imprisonment and the department directs him or her to participate in the program.

AB298, s. 5 Section 5. 302.11 (1m) of the statutes is amended to read:

AB298,3,17 302.11 (1m) An inmate serving a life term is not entitled to mandatory release. Except as provided in ss. 304.06 (1t), 939.62 (2m) and 973.014, the parole commission may parole the inmate as specified in s. 304.06 (1). An inmate awaiting imposition of a death sentence is not eligible for parole.

AB298, s. 6 Section 6. 303.065 (1) of the statutes is amended to read:

AB298,3,24 303.065 (1) The department may grant work release privileges to any person incarcerated within the state prisons, except that no person serving a life sentence may be considered for work release until he or she has reached parole eligibility under s. 304.06 (1) (b) or (1t) or 973.014, whichever is applicable, and no person serving a life sentence under s. 939.62 (2m) or awaiting imposition of a death sentence may be considered for work release.

AB298, s. 7 Section 7. 304.02 (5) of the statutes is amended to read:

AB298,4,3 304.02 (5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life sentence under s. 939.62 (2m) or awaiting imposition of a death sentence is not eligible for release to parole supervision under this section.

AB298, s. 8 Section 8. 304.06 (1) (b) of the statutes is amended to read:

AB298,4,20 304.06 (1) (b) Except as provided in sub. (1m) or s. 161.49 (2), 302.045 (3) or 973.0135, the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in a county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater. Except as provided in sub. (1t) or s. 939.62 (2m) or 973.014, the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11 (1) and subject to extension using the formulas under s. 302.11 (2). The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing. The parole commission may not parole an inmate who is awaiting imposition of a death sentence.

AB298, s. 9 Section 9. 304.06 (1t) of the statutes is created to read:

AB298,4,24 304.06 (1t) If the prisoner is serving a life term imposed under s. 973.015, the prisoner is eligible for parole only when authorized by the sentencing court under s. 973.015 (3) (b).

AB298, s. 10 Section 10. 304.071 (2) of the statutes is amended to read:

AB298,5,3 304.071 (2) If a prisoner is not eligible for parole under s. 161.49 (2), 304.06 (1) (b) or (1t), 939.62 (2m) or 973.032 (5), he or she is not eligible for parole under this section.

AB298, s. 11 Section 11. 939.22 (7) of the statutes is created to read:

AB298,5,6 939.22 (7) "Crime punishable by death or life imprisonment" means a crime for which one or more of the possible penalties is death or life imprisonment.

AB298, s. 12 Section 12. 939.30 (2) of the statutes is amended to read:

AB298,5,10 939.30 (2) For a solicitation to commit a crime for which the penalty is punishable by death or life imprisonment, the actor is guilty of a Class C felony. For a solicitation to commit a Class E felony, the actor is guilty of a Class E felony.

AB298, s. 13 Section 13. 939.31 of the statutes is amended to read:

AB298,5,18 939.31 Conspiracy. Except as provided in ss. 161.41 (1x), 940.43 (4) and 940.45 (4), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is punishable by death or life imprisonment, the actor is guilty of a Class B felony.

AB298, s. 14 Section 14. 939.32 (1) (a) of the statutes is amended to read:

AB298,5,21 939.32 (1) (a) Whoever attempts to commit a crime for which the penalty is punishable by death or life imprisonment is guilty of a Class B felony.

AB298, s. 15 Section 15. 939.50 (1) (a) of the statutes is renumbered 939.50 (1) (am).

AB298, s. 16 Section 16. 939.50 (1) (ag) of the statutes is created to read:

AB298,5,24 939.50 (1) (ag) Class AA felony.

AB298, s. 17 Section 17. 939.50 (2) of the statutes is amended to read:

AB298,6,2 939.50 (2) A felony is a Class AA, A, B, C, D or E felony when it is so specified in chs. 939 to 951.

AB298, s. 18 Section 18. 939.50 (3) (a) of the statutes is renumbered 939.50 (3) (am).

AB298, s. 19 Section 19. 939.50 (3) (ag) of the statutes is created to read:

AB298,6,6 939.50 (3) (ag) For a Class AA felony, life imprisonment or death, as determined under s. 973.015.

AB298, s. 20 Section 20. 939.60 of the statutes is amended to read:

AB298,6,10 939.60 Felony and misdemeanor defined. A crime punishable by death or imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.

AB298, s. 21 Section 21. 939.624 (2) of the statutes is amended to read:

AB298,6,17 939.624 (2) If a person has one or more prior convictions for a serious violent crime or a crime punishable by death or life imprisonment and subsequently commits a serious violent crime, the court shall sentence the person to not less than 5 years' imprisonment, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court shall not place the defendant on probation.

AB298, s. 22 Section 22. 939.625 (1) (b) 2. of the statutes is amended to read:

AB298,6,21 939.625 (1) (b) 2. If the maximum term of imprisonment for a felony is more than 5 years or is a life term or the felony is punishable by death, the maximum term of imprisonment for the felony may be increased by not more than 5 years.

AB298, s. 23 Section 23. 939.63 (1) (a) 2. of the statutes is amended to read:

AB298,6,25 939.63 (1) (a) 2. If the maximum term of imprisonment for a felony is more than 5 years or is a life term or the felony is punishable by death, the maximum term of imprisonment for the felony may be increased by not more than 5 years.

AB298, s. 24 Section 24. 940.01 (1) of the statutes is renumbered 940.01 (1) (a) and amended to read:

AB298,7,5 940.01 (1) (a) Except as provided in par. (b) and sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

AB298, s. 25 Section 25. 940.01 (1) (b) of the statutes is created to read:

AB298,7,10 940.01 (1) (b) Except as provided in pars. (c) and (d) and sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class AA felony if the offense involves any of the following courses of conduct:

AB298,7,11 1. Homicide of a person who has not attained the age of 14 years.

AB298,7,13 2. Homicide of any fire fighter, as defined in s. 102.475 (8) (b), peace officer or corrections employe, acting in the line of duty.

AB298,7,15 3. Homicide committed for pecuniary gain by a person after being hired by any other person.

AB298,7,17 4. Homicide committed as part of a series or group of other homicides related by a common design or transaction.

AB298,7,18 5. Homicide committed in the perpetration of sexual assault or kidnapping.

AB298, s. 26 Section 26. 940.01 (1) (c) of the statutes is created to read:

AB298,7,21 940.01 (1) (c) Notwithstanding s. 939.05, a person is subject to par. (b) as a party to a crime only if that person had intended that a person be killed.

AB298, s. 27 Section 27. 940.01 (1) (d) of the statutes is created to read:

AB298,7,24 940.01 (1) (d) A person is subject to par. (b) only if the person is 16 years old or older when he or she commits the offense.

AB298, s. 28 Section 28. 967.02 (1m) of the statutes is created to read:

AB298,8,2 967.02 (1m) "Crime punishable by death or life imprisonment" has the meaning given in s. 939.22 (7).

AB298, s. 29 Section 29. 971.17 (1) of the statutes is amended to read:

AB298,8,13 971.17 (1) Commitment period. When a defendant is found not guilty by reason of mental disease or mental defect, the court shall commit the person to the department of health and social services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed under s. 973.15 (2) (a) against an offender convicted of the same crime or crimes, including imprisonment authorized by ss. 161.48, 939.62, 939.621, 939.63, 939.635, 939.64, 939.641 and 939.645 and other penalty enhancement statutes, as applicable, subject to the credit provisions of s. 973.155. If the maximum term of imprisonment is life crime is punishable by death or life imprisonment, the commitment period specified by the court may be life, subject to termination under sub. (5).

AB298, s. 30 Section 30. 972.03 of the statutes is amended to read:

AB298,9,2 972.03 Peremptory challenges. Each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. When the crime charged is punishable by death or life imprisonment the state is entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. If there is more than one defendant, the court shall divide the challenges as equally as practicable among them; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional challenges. If the crime is punishable by death or life imprisonment, the total peremptory challenges allowed the defense shall not exceed 12 if there are only 2 defendants and 18 if there are more than 2 defendants; in other cases 6 challenges if there are only 2 defendants and 9 challenges if there are more than 2. Each side shall be allowed one additional peremptory challenge if additional jurors are to be impaneled under s. 972.04 (1).

AB298, s. 31 Section 31. 972.13 (6) of the statutes is amended to read:

AB298,9,4 972.13 (6) The following forms may be used for judgments:

AB298,9,5 STATE OF WISCONSIN

AB298,9,6 .... County

AB298,9,8 In .... Court The State of Wisconsin

AB298,9,9 vs.