AB245: Bill Text

AB245,1,11 An Act to renumber 939.50 (1) (a), 939.50 (3) (a) and 973.015; to renumber and amend 940.01 (1); to amend 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., 961.335 (1), 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 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) and (d), 961.335 (1m), 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 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 (without parole eligibility) for first-degree intentional homicide committed by a person 16 years old or older.

The procedure for determining whether or not the death penalty would be imposed is the subject of a proceeding separate from the regular trial. After a conviction finding that the homicide 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 to the court an advisory sentence of either life imprisonment or death. 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 must sentence the person to life imprisonment without the possibility of parole. 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:

AB245, s. 1 Section 1. 301.046 (3) (cm) of the statutes is created to read:

AB245,2,2 301.046 (3) (cm) The prisoner is not awaiting imposition of a death sentence.

AB245, s. 2 Section 2. 301.048 (2) (b) of the statutes is amended to read:

AB245,2,6 301.048 (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.

AB245, s. 3 Section 3. 302.11 (1m) of the statutes is amended to read:

AB245,3,2 302.11 (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.

AB245, s. 4 Section 4. 303.065 (1) of the statutes is amended to read:

AB245,3,9 303.065 (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 973.014 (1) (a) or (b), whichever is applicable, and no person serving a life sentence under s. 939.62 (2m) or, 973.014 (1) (c) or 973.015 (3) (b) or awaiting imposition of a death sentence may be considered for work release.

AB245, s. 5 Section 5. 304.02 (5) of the statutes is amended to read:

AB245,3,13 304.02 (5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life sentence under s. 939.62 (2m) or 973.014 (1) (c) or awaiting imposition of a death sentence is not eligible for release to parole supervision under this section.

AB245, s. 6 Section 6. 304.06 (1) (b) of the statutes is amended to read:

AB245,4,5 304.06 (1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) 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.

AB245, s. 7 Section 7. 304.06 (1t) of the statutes is created to read:

AB245,4,8 304.06 (1t) If the prisoner is serving a life term imposed under s. 973.015 (3) (b), the prisoner is not eligible for parole.

AB245, s. 8 Section 8. 304.071 (2) of the statutes is amended to read:

AB245,4,12 304.071 (2) If a prisoner is not eligible for parole under s. 304.06 (1) (b) or (1t), 939.62 (2m), 961.49 (2), 973.014 (1) (c) or 973.032 (5), he or she is not eligible for parole under this section.

AB245, s. 9 Section 9. 939.22 (7) of the statutes is created to read:

AB245,4,15 939.22 (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.

AB245, s. 10 Section 10. 939.30 (2) of the statutes is amended to read:

AB245,4,19 939.30 (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.

AB245, s. 11 Section 11. 939.31 of the statutes is amended to read:

AB245,5,2 939.31 Conspiracy. Except as provided in ss. 940.43 (4), 940.45 (4) and 961.41 (1x), 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.

AB245, s. 12 Section 12. 939.32 (1) (a) of the statutes is amended to read:

AB245,5,5 939.32 (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.

AB245, s. 13 Section 13. 939.50 (1) (a) of the statutes is renumbered 939.50 (1) (am).

AB245, s. 14 Section 14. 939.50 (1) (ag) of the statutes is created to read:

AB245,5,8 939.50 (1) (ag) Class AA felony.

AB245, s. 15 Section 15. 939.50 (2) of the statutes is amended to read:

AB245,5,11 939.50 (2) A felony is a Class AA, A, B, BC, C, D or E felony when it is so specified in chs. 939 to 951.

AB245, s. 16 Section 16. 939.50 (3) (a) of the statutes is renumbered 939.50 (3) (am).

AB245, s. 17 Section 17. 939.50 (3) (ag) of the statutes is created to read:

AB245,5,15 939.50 (3) (ag) For a Class AA felony, life imprisonment or death, as determined under s. 973.015.

AB245, s. 18 Section 18. 939.60 of the statutes is amended to read:

AB245,5,19 939.60 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.

AB245, s. 19 Section 19. 939.624 (2) of the statutes is amended to read:

AB245,6,2 939.624 (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.

AB245, s. 20 Section 20. 939.625 (1) (b) 2. of the statutes is amended to read:

AB245,6,6 939.625 (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.

AB245, s. 21 Section 21. 939.63 (1) (a) 2. of the statutes is amended to read:

AB245,6,10 939.63 (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.

AB245, s. 22 Section 22. 940.01 (1) of the statutes is renumbered 940.01 (1) (a) and amended to read:

AB245,6,15 940.01 (1) (a) Except as provided in pars. (b) and (c) 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 AA felony.

AB245, s. 23 Section 23. 940.01 (1) (b) of the statutes is created to read:

AB245,6,18 940.01 (1) (b) Notwithstanding s. 939.05, a person is subject to par. (a) as a party to a crime only if that person had intended that a person be killed.

AB245, s. 24 Section 24. 940.01 (1) (c) and (d) of the statutes are created to read:

AB245,6,21 940.01 (1) (c) A person is subject to par. (a) only if the person is 16 years old or older when he or she commits the offense.

AB245,6,24 (d) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another, but who is not subject to par. (a) for any reason provided under par. (b) or (c), is guilty of a Class A felony.

AB245, s. 25 Section 25. 961.335 (1) of the statutes is amended to read:

AB245,7,11 961.335 (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 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.

AB245, s. 26 Section 26. 961.335 (1m) of the statutes is created to read:

AB245,7,15 961.335 (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.

AB245, s. 27 Section 27. 967.02 (1m) of the statutes is created to read:

AB245,7,18 967.02 (1m) "Crime punishable by death or life imprisonment" has the meaning given in s. 939.22 (7).

AB245, s. 28 Section 28. 971.17 (1) of the statutes is amended to read:

AB245,8,5 971.17 (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 family 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. 346.65 (2) (f), (2j) (d) or (3m), 939.62, 939.621, 939.63, 939.635, 939.64, 939.641, 939.645, 940.09 (1b) and 940.25 (1b) and 961.48 and other penalty enhancement statutes, as applicable, subject to the credit provisions of s. 973.155. If the maximum term of imprisonment crime is punishable by death or life imprisonment, the commitment period specified by the court may be life, subject to termination under sub. (5).

AB245, s. 29 Section 29. 972.03 of the statutes is amended to read:

AB245,8,23 972.03 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 felony cases 6 challenges if there are only 2 defendants and 9 challenges if there are more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges and the defendant is entitled to 3 peremptory challenges, except that if there are 2 defendants, the court shall allow the defense 4 peremptory challenges, and if there are more than 2 defendants, the court shall allow the defense 6 peremptory challenges. Each side shall be allowed one additional peremptory challenge if additional jurors are to be impaneled under s. 972.04 (1).

AB245, s. 30 Section 30. 972.13 (6) of the statutes is amended to read:

AB245,8,25 972.13 (6) The following forms may be used for judgments:

AB245,9,1 STATE OF WISCONSIN

AB245,9,2 .... County

AB245,9,4 In .... Court The State of Wisconsin

AB245,9,5 vs.

AB245,9,6 ....(Name of defendant)

AB245,9,7 UPON ALL THE FILES, RECORDS AND PROCEEDINGS,

AB245,9,13 IT IS ADJUDGED That the defendant has been convicted upon the defendant's plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty) (no contest) on the .... day of ...., 19.., of the crime of .... in violation of s. ....; and the court having asked the defendant whether the defendant has anything to state why sentence should not be pronounced, and no sufficient grounds to the contrary being shown or appearing to the court.

AB245,9,14 *IT IS ADJUDGED That the defendant is guilty as convicted.

AB245,9,15 *IT IS ADJUDGED That the defendant shall be executed by lethal injection.

AB245,9,17 *IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin state prisons (county jail of .... county) for an indeterminate term of not more than.....

AB245,9,20 *IT IS ADJUDGED That the defendant is placed in the intensive sanctions program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes and the following conditions:....

AB245,9,23 *IT IS ADJUDGED That the defendant is hereby committed to detention in (the defendant's place of residence or place designated by judge) for a term of not more than....

AB245,9,25 *IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).

AB245,10,1 *IT IS ADJUDGED That the defendant pay restitution to....

AB245,10,3 *IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows:....

AB245,10,5 *The .... at .... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.

AB245,10,7 *IT IS ORDERED That the clerk deliver a duplicate original of this judgment to the sheriff who shall forthwith execute the same and deliver it to the warden.

AB245,10,8 Dated this .... day of ...., 19...