September 9, 1997 - Introduced by Representatives Green, Jensen, Wasserman,
Ourada, Plouff, Seratti, Dobyns, Porter, Ladwig, Urban, Freese, Gard, Ott,
Gunderson, Handrick, Walker, Jeskewitz, Lazich and Musser, cosponsored
by Senators Rosenzweig, A. Lasee, Drzewiecki and Welch. Referred to
Committee on Judiciary.
1An Act to repeal
939.626; to renumber and amend
939.62 (2m) (a) 1., 2., 3. and 2
4. and 939.62 (2m) (b); to amend
302.11 (1m), 303.065 (1), 304.02 (5), 304.06 3
(1) (b), 304.071 (2), 939.62 (2m) (a) (intro.), 939.62 (2m) (d), 939.623 (1) and 4
973.014 (2); and to create
939.62 (2m) (a) 1m. and 939.62 (2m) (b) 2. of the 5
statutes; relating to: persistent child sex offenders and providing penalties.
Analysis by the Legislative Reference Bureau
Under current law, a person who has been convicted of a crime and who has
certain prior criminal convictions may be sentenced as a persistent repeater. A
person is a persistent repeater under current law if he or she has 2 convictions for
any of certain serious felonies and is then convicted a 3rd time for another serious
felony (the so-called "3 strikes, you're out" law). A person who is a persistent
repeater must be sentenced to life without parole. The persistent repeater law
applies to persons convicted of serious violations such as homicide, battery, sexual
assault, mayhem, kidnapping, taking hostages, arson, armed burglary, armed
robbery, carjacking, assault by a prisoner, crimes against children and the unlawful
manufacture, sale and possession of controlled substances.
Current law also provides minimum or increased penalties for persons who
commit a certain sex crime after having been previously convicted of that same type
of sex crime. A person who has one or more prior convictions for a serious sex crime
(whether against an adult or a child) and who is subsequently convicted of
committing another serious sex crime must be sentenced to at least 5 years'
imprisonment and may not be placed on probation. In addition, if a person has one
or more prior convictions for a child sex crime and he or she is subsequently convicted
of committing another child sex crime, the maximum term of imprisonment for the
subsequent child sex crime may be increased by not more than 10 years.
This bill creates a new category of persistent repeater. Specifically, the bill
provides that a person is a persistent repeater if he or she has one or more prior
convictions for a serious child sex offense and is subsequently convicted of
committing another serious child sex offense. Like a person with 3 serious felony
convictions under current law, a person who is a persistent repeater based on
convictions for serious child sex offenses must be sentenced to life without parole.
The serious child sex offenses covered by the bill are sexual assault of a child, sexual
exploitation of a child, incest with a child, child enticement, soliciting a child for
prostitution, sexual assault of a student by a school instructional staff person,
causing a child to view or listen to sexual activity, exposing a child to harmful
material and, if the victim was a minor and the convicted person was not the victim's
parent, false imprisonment and kidnapping.
Because the bill provides for a sentence of life without parole for an offender
who is convicted of a serious child sex offense and who has one prior serious child sex
offense, the bill also eliminates the current 5 year minimum penalty and 10-year
penalty enhancer for repeat child sex offenders.
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:
AB505, s. 1
302.11 (1m) of the statutes is amended to read:
An inmate serving a life term is not entitled to mandatory release. 3
Except as provided in ss. 939.62 (2m) (c)
and 973.014, the parole commission may 4
parole the inmate as specified in s. 304.06 (1).
AB505, s. 2
303.065 (1) of the statutes is amended to read:
The department may grant work release privileges to any person 7
incarcerated within the state prisons, except that no person serving a life sentence 8
may be considered for work release until he or she has reached parole eligibility 9
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) (c)
or 973.014 (1) (c) may be considered 2
for work release.
AB505, s. 3
304.02 (5) of the statutes is amended to read:
Notwithstanding subs. (1) to (3), a prisoner who is serving a life 5
sentence under s. 939.62 (2m) (c)
or 973.014 (1) (c) is not eligible for release to parole 6
supervision under this section.
AB505, s. 4
304.06 (1) (b) of the statutes is amended to read:
(b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) or 9
973.0135, the parole commission may parole an inmate of the Wisconsin state 10
prisons or any felon or any person serving at least one year or more in a county house 11
of correction or a county reforestation camp organized under s. 303.07, when he or 12
she has served 25% of the sentence imposed for the offense, or 6 months, whichever 13
is greater. Except as provided in s. 939.62 (2m) (c)
or 973.014, the parole commission 14
may parole an inmate serving a life term when he or she has served 20 years, as 15
modified by the formula under s. 302.11 (1) and subject to extension using the 16
formulas under s. 302.11 (2). The person serving the life term shall be given credit 17
for time served prior to sentencing under s. 973.155, including good time under s. 18
973.155 (4). The secretary may grant special action parole releases under s. 304.02. 19
The department or the parole commission shall not provide any convicted offender 20
or other person sentenced to the department's custody any parole eligibility or 21
evaluation until the person has been confined at least 60 days following sentencing.
AB505, s. 5
304.071 (2) of the statutes is amended to read:
If a prisoner is not eligible for parole under s. 939.62 (2m) (c)
, 961.49 24
(2), 973.014 (1) (c) or 973.032 (5), he or she is not eligible for parole under this section.
AB505, s. 6
939.62 (2m) (a) (intro.) of the statutes amended to read:
(a) (intro.) In this subsection
, "serious felony":
22m. "Serious felony"
means any of the following:
AB505, s. 7
939.62 (2m) (a) 1., 2., 3. and 4. of the statutes are renumbered 939.62 4
(2m) (a) 2m. a., b., c. and d., and 939.62 (2m) (a) 2m. d., as renumbered, is amended 5
(a) 2m. d. A crime at any time under federal law or the law of any 7
other state or, prior to April 28, 1994, under the law of this state that is comparable 8
to a crime specified in subd. 1., 2. or 3 2m. a., b. or c
AB505, s. 8
939.62 (2m) (a) 1m. of the statutes is created to read:
(a) 1m. "Serious child sex offense" means any of the following:
a. A violation of s. 948.02, 948.025, 948.05, 948.055, 948.06, 948.07, 948.08, 12
948.095 or 948.11 (2) (a) or, if the victim was a minor and the convicted person was 13
not the victim's parent, a violation of s. 940.30 or 940.31.
b. A crime at any time under federal law or the law of any other state or, prior 15
to the effective date of this subd. 1m. b. .... [revisor inserts date], under the law of this 16
state that is comparable to a crime specified in subd. 1m. a.
AB505, s. 9
939.62 (2m) (b) of the statutes is renumbered 939.62 (2m) (b) (intro.) 18
and amended to read:
(b) (intro.) The actor is a persistent repeater if he or she one of the
211. The actor
has been convicted of a serious felony on 2 or more separate 22
occasions at any time preceding the serious felony for which he or she presently is 23
being sentenced under ch. 973, which convictions remain of record and unreversed 24
of the 2 or more previous convictions, at least one conviction must have
occurred before the date of violation of at least one of the other felonies for which the 2
actor was previously convicted. It
3(bm) For purposes of counting a conviction under par. (b), it
is immaterial that 4
the sentence for a the
previous conviction was stayed, withheld or suspended, or that 5he or she the actor
was pardoned, unless the pardon was granted on the ground of 6
7(c) If the actor is a persistent repeater, the
term of imprisonment for the felony 8
for which the persistent repeater presently is being sentenced under ch. 973 is life 9
imprisonment without the possibility of parole.
AB505, s. 10
939.62 (2m) (b) 2. of the statutes is created to read:
(b) 2. The actor has been convicted of a serious child sex offense 12
on at least one occasion at any time preceding the date of violation of the serious child 13
sex offense for which he or she presently is being sentenced under ch. 973, which 14
conviction remains of record and unreversed.
AB505, s. 11
939.62 (2m) (d) of the statutes is amended to read:
(d) If a prior conviction is being considered as being covered under 17
par. (a) 4. 1m. b. or 2m. d.
as comparable to a felony specified under par. (a) 1., 2. or
183. 1m. a. or 2m. a., b. or c.
, the conviction may be counted as a prior conviction under 19
par. (b) only if the court determines, beyond a reasonable doubt, that the violation 20
relating to that conviction would constitute a felony specified under par. (a) 1., 2. or
213. 1m. a. or 2m. a., b. or c.
if committed by an adult in this state.
AB505, s. 12
939.623 (1) of the statutes is amended to read:
In this section, "serious sex crime" means a violation of s. 940.225 24
(1) or (2), 948.02 (1) or (2) or 948.025
AB505, s. 13
939.626 of the statutes is repealed.
AB505, s. 14
973.014 (2) of the statutes is amended to read:
When a court sentences a person to life imprisonment under s. 3
939.62 (2m) (c)
, the court shall provide that the sentence is without the possibility 4
(1) The treatment of section 939.62 (2m) (b) 2. of the statutes first applies to 7
serious child sex offenses committed on the effective date of this subsection, but does 8
not preclude the counting of other serious child sex offenses as prior serious child sex 9
offenses for sentencing a person as a persistent repeater under section 939.62 (2m) 10
(b) 2. of the statutes, as created by this act.