SB328: Bill Text

LRB-3845/3

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2001 - 2002 LEGISLATURE

2001 Senate BILL 328

November 21, 2001 - Introduced by Senators Welch, Zien, S. Fitzgerald and Huelsman, cosponsored by Representatives Huebsch, Freese, Vrakas, Musser, Suder, Gunderson, McCormick, Albers, Ott, Krawczyk, Owens, F. Lasee, Loeffelholz, Stone and Leibham. Referred to Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.

SB328,2,5 An Act to repeal 947.015; to renumber and amend 939.648 (3) and 941.23; to amend 165.82 (2), 227.01 (5), 301.048 (2) (am) 2., 301.048 (2) (bm) 1. a., 302.11 (1), 303.065 (1) (b) 2., 304.02 (5), 304.06 (1) (b), 304.071 (2), 440.26 (3m), 895.035 (4a) (a) 2., 939.30 (1), 939.30 (2), 939.31, 939.32 (1) (a), 939.60, 939.62 (2m) (c), 939.624 (2), 939.625 (1) (b) 2., 939.63 (1) (a) 2., 939.648 (2) (b) 1., 939.648 (2) (c), 941.235 (2), 946.47 (1) (intro.), 946.82 (4), 969.08 (10) (b), 971.17 (1), 972.03, 972.13 (6), 973.01 (3), 973.032 (2) (b) and 973.09 (1) (c); and to create 20.455 (2) (gp), 59.25 (3) (u), 85.57, 167.31 (4) (ar), 175.50, 301.046 (3) (cm), 302.11 (1w), 304.06 (1t), 939.22 (7), 939.22 (18m), 939.648 (3) (b), 939.648 (3m), 941.23 (2), 941.237 (3) (cg), 941.295 (2) (bm), 946.32 (3), 946.47 (1m), 947.07, 947.08, 947.09, 947.10, 948.605 (2) (b) 4m., 961.335 (1m), 967.02 (1m), 973.0145, 973.016 and 973.017 of the statutes; relating to: certain felonies committed with intent to terrorize, threats to use weapons of mass destruction, threats to commit acts of terrorism, supporting acts of terrorism, harboring a terrorist, a sentence of death or life imprisonment for certain first-degree intentional homicides, licenses to carry a concealed weapon, possession of firearms in certain places, providing an exemption from emergency rule procedures, requiring the exercise of rule-making authority, and making an appropriation and providing penalties.

Analysis by the Legislative Reference Bureau

Terrorism penalty enhancer

Current law authorizes increased penalties for certain felonies (crimes punishable by incarceration in prison) that are committed with intent to terrorize. The penalty enhancer is applicable to felonies committed under one of the following circumstances (terrorism offenses): 1) the felony results in bodily harm or death to another; 2) the felony results in damage of $25,000 or more to the property of another; or 3) the felony involves the use of force or violence or the threat of force or violence. A person has intent to terrorize if he or she has intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision. If a person is convicted of a felony and the terrorism enhancer is found to apply, the maximum fine for the underlying felony may be increased by up to $50,000, and the maximum term of imprisonment for the underlying felony may be increased by up to ten years.

This bill expands intent to terrorize to include intent to affect the conduct of a governmental unit by homicide or kidnapping and to include intent to intimidate or coerce a civilian population. The bill also modifies intent to influence the policy of a governmental unit to require that the actor intend to influence by intimidation or coercion. The bill specifies that the terrorism penalty enhancer applies to a felony if the perpetrator causes bodily harm or death to another while in immediate flight after committing the felony. The bill also authorizes a sentence of death for first-degree intentional homicide with intent to terrorize, if the person who commits the homicide is at least 18 years of age.

Threat crimes

Under current law, it is a Class E felony to intentionally make a false threat or convey false information concerning an attempt or alleged attempt to destroy property by means of explosives. (The maximum penalties for classified felonies are listed below.)

This bill repeals the crime concerning false threats to use explosives and creates a new Class E felony that prohibits a person from intentionally threatening to use a destructive device or harmful substance to harm another or destroy property. A "destructive device" is defined as a bomb, a grenade, a rocket having a propellant charge of more than four ounces, a missile having an explosive or incendiary charge of more than one-quarter ounce, a mine, or a similar explosive device. A "harmful substance" is defined as radioactive material that is dangerous to human life, a toxic or poisonous chemical, the precursor of a toxic or poisonous chemical, or a disease organism.

The bill also makes it a Class D felony to threaten, with intent to terrorize, to commit a terrorism offense, if the threat induces a reasonable expectation or fear that the offense will be committed.

Soliciting or supporting terrorism

Under current law, a person who intends that a felony be committed and who advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of the crime of solicitation. Solicitation is generally a Class D felony. However, if the crime that the person advises another to commit is punishable by life imprisonment, the penalty for solicitation is a Class C felony. If the underlying crime is a Class E felony, solicitation of that crime is also a Class E felony.

Also under current law, a person who intends that a crime be committed and agrees or combines with another for the purpose of committing that crime is guilty of conspiracy to commit the crime, if one or more of the parties to the conspiracy does an act to effect its object. The penalty for conspiracy is the same as the penalty for the completed crime, except that conspiracy to commit a crime punishable by life imprisonment is a Class B felony.

The bill clarifies that the crime of solicitation applies to solicitation of an act of terrorism regardless of whether the solicited act is to be committed in this state, as long as the act would be a crime if committed in this state. The penalties for advising another to commit a terrorism offense outside Wisconsin are the same as the penalties for the crime of solicitation.

This bill also makes it a crime to provide, ask another to provide, or collect material support or resources with the intent that the support or resources be used to plan, commit, conceal, or flee a terrorism offense or an act that would be a terrorism offense if committed in this state, if the person providing, requesting, or collecting material support or resources intends that the offense or act terrorize. If the material support or resources are valued at not more than $1,000, the crime is a Class D felony. If the material support or resources are valued at more than $1,000, the crime is a Class C felony.

Harboring a terrorist

Under current law, it is a Class E felony for a person who intends to prevent the apprehension of a felon to harbor or aid that felon, and for a person who intends to prevent the apprehension, prosecution, or conviction of a felon to destroy, alter, hide or disguise physical evidence or to place false evidence.

This bill makes it a Class C felony to commit the crime of harboring or aiding a felon, if the felon, with intent to terrorize, committed a terrorism offense or an act outside this state that would be a terrorism offense if committed in this state. If the terrorism offense or act resulted in the death of another, the person who harbors or aids the felony is guilty of a Class BC felony.

Penalties for classified felonies

The maximum penalties for classified felonies are a fine not to exceed $10,000 or imprisonment for the following number of years or both (a term of imprisonment consists of a term of confinement in prison followed by a term of extended supervision): - See PDF for table

Capital punishment

Currently, no Wisconsin crimes are punishable by death. First-degree homicide is punishable by life imprisonment. The bill makes commission of a first-degree homicide by a person who is 18 years of age or older and who has intent to terrorize punishable by death or life imprisonment.

Under the bill, if a person is convicted of committing first-degree homicide with intent to terrorize, the trial court convenes a separate sentencing hearing at which the defendant is entitled to a jury. If the defendant elects to have a jury at sentencing, the trial jury will serve unless there was no trial jury or if the jury is found to lack impartiality with respect to sentencing. If necessary, the court will assemble a new jury for sentencing.

At a sentencing hearing, the defense may present evidence relevant to mitigation of the defendant's crime. The prosecution may rebut evidence presented by the defense. Relevant mitigating circumstances include the following:

1. The defendant has no significant history of prior criminal convictions involving the use of violence against another person.

2. The defendant was mentally retarded at the time of the crime, or the defendant's mental capacity was impaired or his or her ability to conform his or her conduct to the requirement of law was impaired, although not so impaired as to constitute a defense to prosecution.

3. The defendant was under duress or under the domination of another person, although not such duress or domination as to constitute a defense to prosecution.

4. The defendant was criminally liable for the present offense of murder committed by another, but his or her participation in the offense was relatively minor, although not so minor as to constitute a defense to prosecution.

5. The homicide was committed while the defendant was mentally or emotionally disturbed or under the influence of alcohol or any drug, although not to such an extent as to constitute a defense to prosecution.

6. Any other circumstance concerning the crime, the defendant's state of mind or condition at the time of the crime, or the defendant's character, background, or record that would be relevant to mitigation or punishment for the crime.

If there is a jury, the court must instruct the jury prior to its deliberations that the jury's sentencing determination must be unanimous or the court will not accept it. The court must further instruct the jury that if the jury does not agree on a sentence the court will sentence the defendant to life imprisonment and that under a sentence of life imprisonment the defendant will serve a minimum of 20 years in prison and that the judge will determine as part of the sentence whether the defendant will be eligible for release to extended supervision, and if so at what time after 20 years. Finally, upon motion from any party, the court must inform the jury whether the defendant is a repeat offender who is barred from ever being released to extended supervision.

If the jury unanimously determines that the defendant should be sentenced to death, the court must sentence the defendant to death. If the jury unanimously determines that the defendant should be sentenced to life imprisonment, or if the jury cannot agree on a sentence, the judge must sentence the defendant to life imprisonment and make a determination regarding the defendant's eligibility to petition for release to extended supervision, unless the defendant is permanently barred from release to extended supervision. If there is no jury, the court must review the evidence of mitigation and determine whether to sentence the defendant to death or to life imprisonment.

If after the finding of guilt and before sentencing the defendant files a motion alleging that he or she is mentally retarded and shows cause to believe that he or she is mentally retarded, the court must hold a hearing on the issue of mental retardation unless the defendant is being sentenced for a crime committed while the defendant was incarcerated under a criminal sentence. Under the bill, "mentally retarded" means having significantly subaverage general intellectual functioning that exists concurrently with deficits in adaptive behavior which were manifested before the age of 18 years. The court will withhold determination in the hearing on mental retardation until the sentence is determined. If the defendant is sentenced to death and the court finds that the defendant is mentally retarded, the court must set aside the sentence of death and instead sentence the defendant to life imprisonment. If the defendant is sentenced to life imprisonment, the court will not make a determination regarding mental retardation.

The court that imposes the death sentence sets the execution date. The secretary of corrections designates the executioner and at least 12 witnesses. The execution is by lethal injection. A death sentence may be stayed only by the governor or an appellate court.

Licenses to carry concealed weapons

Currently, no person other than a peace officer may carry a concealed and dangerous weapon. A person who violates this prohibition may be fined not more than $10,000 or imprisoned for not more than nine months or both.

In addition, current law prohibits being armed with a firearm while in a public building, in or on the grounds of a school, or within 1,000 feet of the grounds of a school. Current law also prohibits going armed with a handgun on any premises (such as a tavern) that has a license or permit to sell alcohol beverages for consumption on those premises. A person who violates these prohibitions may be fined not more than $10,000 or imprisoned for not more than nine months or both, except that a person who goes armed in a public building may be fined not more than $1,000 or imprisoned for not more than 90 days or both. Finally, current law prohibits the possession or transportation of a loaded or unencased firearm in or on a motorboat (if the motor is running), a vehicle, or an aircraft. A person who violates the prohibition relating to the possession or transportation of a firearm in or on a motorboat or a vehicle may be required to forfeit not more than $100. A person who violates the prohibition relating to possession or transportation of a firearm in or on an aircraft may be fined not more than $1,000 or imprisoned not more than 90 days or both.

Certain exceptions apply to each of the prohibitions relating to possessing or transporting firearms in specific places (firearm restriction areas) described in the preceding paragraph. Through these exceptions, peace officers are generally not subject to any of those prohibitions.

This bill creates a procedure by which certain persons may apply to a county sheriff for a license to carry a concealed weapon. Such a license authorizes a person to carry a concealed weapon anywhere in this state except in places in which the carrying of a weapon is prohibited by federal law. A person holding a valid license to carry a concealed weapon is also exempt from the prohibitions relating to possessing or transporting a firearm in a firearm restriction area in the same way as a peace officer. A licensee carrying a concealed weapon anywhere or possessing or transporting a weapon in a firearm restriction area must carry the license document while carrying, possessing, or transporting the weapon and must present it upon request of a law enforcement officer.

Under the bill, a county sheriff must authorize the issuance of a license to carry a concealed weapon to a person who meets the qualifications established in the bill for the license. Those qualifications require that the person be one of the following: 1) someone who is employed and who has undergone weapons training as a condition of his or her employment; 2) a retired law enforcement officer; 3) a member of the U.S. armed forces; or 4) a member of a reserve component of the U.S. armed forces or a national guard member who has been been called into active service. Moreover, the person must be eligible to possess a firearm under federal law and may not be prohibited from possessing a firearm due to a felony conviction, a juvenile delinquency adjudication, an order issued in a civil mental commitment case, or any other order prohibiting the person from possessing a firearm. In addition, the bill requires a sheriff to conduct a background check of a person who applies for a license to carry a concealed weapon to help determine the person's eligibility for a license. The background check requirement does not apply to a person applying for a license if the person is currently employed and has been trained to use a firearm as a condition of his or her current employment.

If the person meets these requirements and the background check does not indicate the person is ineligible for a license, the sheriff must inform the department of transportation (DOT) that the person is eligible for a license. Upon receiving this notification, DOT is required to issue the person a license document. Once issued, the license remains valid until the person's circumstances change such that he or she no longer meets the requirements for obtaining a license.

In addition, the bill does all of the following:

1. Requires a sheriff to revoke a license to carry a concealed weapon if the licensee no longer meets all of the requirements for licensure.

2. Requires a person to whom a license has been issued to surrender the license document to the sheriff upon being notified of a revocation or upon becoming ineligible for a license.

3. Provides that a person whose application for a license is denied or whose license is revoked may appeal the sheriff's or DOT's action to circuit court for review by a judge.

4. Specifies the information that must be on an application for a license to carry a concealed weapon and requires the department of justice (DOJ) to design the license application forms.