Amendment ASA1-AB298

AB298-ASA1, s. 20 Section 20. 939.50 (3) (ag) of the statutes is created to read:

AB298-ASA1,6,16 939.50 (3) (ag) For a Class AA felony, life imprisonment or death, as determined under s. 973.015.

AB298-ASA1, s. 21 Section 21. 939.60 of the statutes is amended to read:

AB298-ASA1,6,20 939.60 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-ASA1, s. 22 Section 22. 939.624 (2) of the statutes is amended to read:

AB298-ASA1,7,2 939.624 (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.

AB298-ASA1, s. 23 Section 23. 939.625 (1) (b) 2. of the statutes is amended to read:

AB298-ASA1,7,6 939.625 (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.

AB298-ASA1, s. 24 Section 24. 939.63 (1) (a) 2. of the statutes is amended to read:

AB298-ASA1,7,10 939.63 (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.

AB298-ASA1, s. 25 Section 25. 940.01 (1) of the statutes is renumbered 940.01 (1) (a) and amended to read:

AB298-ASA1,7,15 940.01 (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-ASA1, s. 26 Section 26. 940.01 (1) (b) of the statutes is created to read:

AB298-ASA1,7,19 940.01 (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 victim has not attained the age of 16 years.

AB298-ASA1, s. 27 Section 27. 940.01 (1) (c) of the statutes is created to read:

AB298-ASA1,7,22 940.01 (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-ASA1, s. 28 Section 28. 940.01 (1) (d) of the statutes is created to read:

AB298-ASA1,7,25 940.01 (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-ASA1, s. 29 Section 29. 967.02 (1m) of the statutes is created to read:

AB298-ASA1,8,3 967.02 (1m) "Crime punishable by death or life imprisonment" has the meaning given in s. 939.22 (7).

AB298-ASA1, s. 30 Section 30. 971.17 (1) of the statutes is amended to read:

AB298-ASA1,8,14 971.17 (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-ASA1, s. 31 Section 31. 972.03 of the statutes is amended to read:

AB298-ASA1,9,3 972.03 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-ASA1, s. 32 Section 32. 972.13 (6) of the statutes is amended to read:

AB298-ASA1,9,5 972.13 (6) The following forms may be used for judgments:

AB298-ASA1,9,6 STATE OF WISCONSIN

AB298-ASA1,9,7 .... County

AB298-ASA1,9,8 In .... Court

AB298-ASA1,9,9 The State of Wisconsin

AB298-ASA1,9,10 vs.

AB298-ASA1,9,11 ....(Name of defendant)

AB298-ASA1,9,12 UPON ALL THE FILES, RECORDS AND PROCEEDINGS,

AB298-ASA1,9,18 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.

AB298-ASA1,9,19 *IT IS ADJUDGED That the defendant is guilty as convicted.

AB298-ASA1,9,20 *IT IS ADJUDGED That the defendant shall be executed by lethal injection.

AB298-ASA1,9,22 *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.....

AB298-ASA1,9,25 *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:....

AB298-ASA1,10,3 *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....

AB298-ASA1,10,5 *IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).

AB298-ASA1,10,6 *IT IS ADJUDGED That the defendant pay restitution to....

AB298-ASA1,10,8 *IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows:....

AB298-ASA1,10,10 *The .... at .... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.

AB298-ASA1,10,12 *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.

AB298-ASA1,10,13 Dated this .... day of ...., 19...

AB298-ASA1,10,14 BY THE COURT ....

AB298-ASA1,10,15 Date of Offense ....,

AB298-ASA1,10,16 District Attorney ....,

AB298-ASA1,10,17 Defense Attorney ....

AB298-ASA1,10,18 *Strike inapplicable paragraphs.

AB298-ASA1,10,19 STATE OF WISCONSIN

AB298-ASA1,10,20 .... County

AB298-ASA1,10,21 In .... Court

AB298-ASA1,10,22 The State of Wisconsin

AB298-ASA1,10,23 vs.

AB298-ASA1,10,24 ....(Name of defendant)

AB298-ASA1,11,2 On the .... day of ...., 19.., the district attorney appeared for the state and the defendant appeared in person and by .... the defendant's attorney.

AB298-ASA1,11,3 UPON ALL THE FILES, RECORDS AND PROCEEDINGS

AB298-ASA1,11,5 IT IS ADJUDGED That the defendant has been found not guilty by the verdict of the jury (by the court) and is therefore ordered discharged forthwith.

AB298-ASA1,11,6 Dated this .... day of ...., 19...

AB298-ASA1,11,7 BY THE COURT ....

AB298-ASA1, s. 33 Section 33. 973.013 (1) (b) of the statutes is amended to read:

AB298-ASA1,11,16 973.013 (1) (b) The sentence shall have the effect of a sentence at hard labor for the maximum term fixed by the court, subject to the power of actual release from confinement by parole by the department or by pardon as provided by law. If a person is sentenced for a definite time for an offense for which the person may be sentenced under this section, the person is in legal effect sentenced as required by this section, said definite time being the maximum period. A Except as provided in s. 973.015, a defendant convicted of a crime for which the minimum penalty is life shall be sentenced for life.

AB298-ASA1,11,17 Section 34 973.0135 (3) of the statutes is amended to read:

AB298-ASA1,11,19 973.0135 (3) A person is not subject to this section if the current serious felony is punishable by death or life imprisonment.

AB298-ASA1, s. 35 Section 35. 973.014 (1) (intro.) of the statutes is amended to read:

AB298-ASA1,11,24 973.014 (1) (intro.)  Except as provided in sub. (2) and s. 973.015, when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, the court shall make a parole eligibility determination regarding the person and choose one of the following options:

AB298-ASA1, s. 36 Section 36. 973.015 of the statutes is renumbered 973.019.

AB298-ASA1, s. 37 Section 37. 973.015 of the statutes is created to read:

AB298-ASA1,12,11 973.015 Sentence of death or life imprisonment for Class AA felony. (1) (a) Upon conviction of a defendant of a Class AA felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. The trial judge shall conduct the proceeding before the trial jury, if there was a jury trial, as soon as practicable. If the trial jury is unable to reconvene for a hearing on the issue of the penalty, the trial judge may summon a new jury to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the court shall conduct the sentencing proceeding before a jury summoned for that purpose, unless waived by the defendant.

AB298-ASA1,12,22 (b) In the proceeding, the court shall admit any evidence that may be relevant to the sentence regarding any mitigating circumstance. The court shall admit any other evidence according to the rules of evidence applicable at a criminal trial. The court shall provide the defendant with a fair opportunity to rebut any hearsay statements. This subsection does not authorize the introduction of any evidence secured in violation of the state or federal constitution. The state has the burden of proof, beyond a reasonable doubt, regarding the existence of aggravating circumstances. The defendant has the burden of proof, by a preponderance of the evidence, regarding mitigating circumstances. The court shall permit the state and the defendant or his or her counsel to present arguments for or against a sentence of death.

AB298-ASA1,13,2 (2) (a) Unless the defendant waives the right to a jury, the jury shall deliberate after hearing all the evidence and, by a majority vote, shall render an advisory sentence to the court of life imprisonment or death, based upon the following matters:

AB298-ASA1,13,3 1. The existence of aggravating circumstances under sub. (5).

AB298-ASA1,13,4 2. The existence of mitigating circumstances under sub. (6).

AB298-ASA1,13,7 (b) If the jury recommends life imprisonment, it may further recommend restrictions on the defendant's eligibility for parole or recommend that the defendant not be eligible for parole.

AB298-ASA1,13,10 (c) Upon the request of the defendant or the state, the court shall explain to the jury the court's options under sub. (3) (b) to sentence the defendant to life without the possibility of parole or with delayed parole eligibility.

AB298-ASA1,13,15 (3) (a) Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

AB298-ASA1,13,16 1. That sufficient aggravating circumstances exist under sub. (5); and

AB298-ASA1,13,18 2. That there are insufficient mitigating circumstances under sub. (6) to outweigh the aggravating circumstances.

AB298-ASA1,13,25 (b) In each case in which the court imposes the death sentence, the court must support its determination by specific written findings of fact based upon the circumstances in subs. (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment. If the court imposes life imprisonment, it may provide that the sentence is without the possibility of parole or choose any option under s. 973.014 (1).

AB298-ASA1,14,6 (4) If a death sentence is imposed, the judgment of conviction and sentence of death is subject to automatic review by the supreme court within 60 days after certification by the sentencing court of the entire record, unless the supreme court, for good cause shown, extends the time for an additional period not to exceed 30 days. The review by the supreme court has priority over all other cases and shall be heard in accordance with rules promulgated by the supreme court.

AB298-ASA1,14,8 (5) The court and jury shall consider one or more of the following as aggravating circumstances:

AB298-ASA1,14,10 (a) The Class AA felony was committed by a person under a sentence of imprisonment.

AB298-ASA1,14,11 (b) The defendant knowingly created a great risk of death to many persons.

AB298-ASA1,14,13 (c) The Class AA felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

AB298-ASA1,14,15 (d) The Class AA felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

AB298-ASA1,14,17 (e) The defendant intentionally caused bodily harm or mental anguish to the victim or another before the victim died.

AB298-ASA1,14,19 (f) During the commission of the offense, the defendant enjoyed or was utterly indifferent to the suffering of another.

AB298-ASA1,14,23 (6) The court and jury shall consider as a mitigating factor any aspect of the defendant's character, background or record or any of the circumstances of the offense that the defendant offers as a basis for a sentence other than death. Mitigating circumstances may include, but are not limited to, any of the following: