SB153: Bill Text

LRB-0452/1

JEO:jlg:ijs

1999 - 2000 LEGISLATURE

1999 Senate BILL 153

May 13, 1999 - Introduced by Senators A. Lasee, Drzewiecki, Fitzgerald and Zien, cosponsored by Representatives F. Lasee, Musser, Handrick, Gunderson, Ainsworth, Hoven, Hundertmark, Kreibich and Kaufert. Referred to Committee on Judiciary and Consumer Affairs.

SB153,2,2 An Act to renumber 939.50 (1) (a), 939.50 (3) (a) and 973.015; to renumber and amend 940.01 (1) (a) and 940.01 (1) (b); to amend 301.048 (2) (b), 302.11 (1m), 302.114 (1), 302.114 (2), 302.114 (3) (a) (intro.), 302.114 (3) (b), 302.114 (3) (c), 303.065 (1) (b), 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), 973.032 (2) (b), 973.09 (1) (c) and 978.07 (1) (c) 1.; and to create 301.046 (3) (cm), 303.065 (1) (b) 3., 304.06 (1t), 939.22 (7), 939.50 (1) (ag), 939.50 (3) (ag), 940.01 (1) (a) 2., 3. and 4., 940.01 (1) (b) 2. and 3., 961.335 (1m), 967.02 (1m), 973.01 (3d), 973.015, 973.016 and 973.017 of the statutes; relating to: providing a penalty of either death or life imprisonment for the first-degree intentional homicide of a child younger than 16 years old, affecting parole and extended supervision 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 any first-degree intentional homicide committed by a person who is 16 years old or older against a child who is younger than 16 years old. Other first-degree homicides remain punishable by life imprisonment.

The procedure for determining whether or not the death penalty would be imposed is the subject of a proceeding that is separate from the regular trial. After a conviction finding that a first-degree homicide of a child younger than 16 years old had 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.

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 or extended supervision 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 or extended supervision 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. Twelve 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:

SB153, s. 1 Section 1. 301.046 (3) (cm) of the statutes is created to read:

SB153,2,4 301.046 (3) (cm) The prisoner is not awaiting imposition of a death sentence.

SB153, s. 2 Section 2. 301.048 (2) (b) of the statutes is amended to read:

SB153,3,4 301.048 (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. This paragraph does not apply to a prisoner serving a bifurcated sentence imposed under s. 973.01.

SB153, s. 3 Section 3. 302.11 (1m) of the statutes is amended to read:

SB153,3,9 302.11 (1m) An inmate serving a life term is not entitled to mandatory release. Except as provided in ss. 304.06 (1t), 939.62 (2m) (c) 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.

SB153, s. 4 Section 4. 302.114 (1) of the statutes is amended to read:

SB153,3,16 302.114 (1) An inmate is subject to this section if he or she is serving a life sentence imposed under s. 973.014 (1g) (a) 1. or 2. or if he or she is serving a life sentence imposed under s. 973.015 and the sentencing court has authorized release to extended supervision under s. 973.015 (3) (c). An inmate serving a life sentence under s. 939.62 (2m) or 973.014 (1g) (a) 3. is not eligible for release to extended supervision under this section.

SB153, s. 5 Section 5. 302.114 (2) of the statutes is amended to read:

SB153,3,22 302.114 (2) Except as provided in subs. (3) and (9), an inmate subject to this section may petition the sentencing court for release to extended supervision after he or she has served 20 years, if the inmate was sentenced under s. 973.014 (1g) (a) 1., or after he or she has reached the extended supervision eligibility date set by the court, if the inmate was sentenced under s. 973.014 (1g) (a) 2. or 973.015 (3) (c).

SB153, s. 6 Section 6. 302.114 (3) (a) (intro.) of the statutes is amended to read:

SB153,4,4 302.114 (3) (a) (intro.) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If any inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2. or 973.015 (3) (c), whichever is applicable, as follows:

SB153, s. 7 Section 7. 302.114 (3) (b) of the statutes is amended to read:

SB153,4,13 302.114 (3) (b) In addition to the sanctions under par. (a), if an inmate subject to this section is placed in adjustment, program or controlled segregation status, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2. or 973.015 (3) (c), whichever is applicable, by a number of days equal to 50% of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.

SB153, s. 8 Section 8. 302.114 (3) (c) of the statutes is amended to read:

SB153,4,22 302.114 (3) (c) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall have his or her extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2. or 973.015 (3) (c), whichever is applicable, extended by the number of days specified in the court order prepared under s. 807.15 (3). Upon receiving a court order issued under s. 807.15, the department shall recalculate the date on which the inmate to whom the order applies will be entitled to petition for release to extended supervision and shall inform the inmate of that date.

SB153, s. 9 Section 9. 303.065 (1) (b) of the statutes is amended to read:

SB153,5,4 303.065 (1) (b) 1. A person serving a life sentence, other than a life sentence specified in subd. 2., may be considered for work release only after he or she has reached parole eligibility under s. 304.06 (1) (b) or (1t) or 973.014 (1) (a) or (b), whichever is applicable, or he or she has reached his or her extended supervision eligibility date under s. 302.114 (9) (b) or, 973.014 (1g) (a) 1. or 2. or 973.015 (3) (c), whichever is applicable.

SB153,5,9 2. A person serving a life sentence under s. 939.62 (2m) (c) or 973.014 (1) (c) or (1g) (a) 3. may not be considered for work release. A person serving a life sentence imposed under s. 973.015 may not be considered for work release if the sentencing court has determined under s. 973.015 (3) (c) that the person is not eligible for release to extended supervision.

SB153, s. 10 Section 10. 303.065 (1) (b) 3. of the statutes is created to read:

SB153,5,12 303.065 (1) (b) 3. A person awaiting imposition of a death sentence may not be considered for work release.

SB153, s. 11 Section 11. 304.02 (5) of the statutes is amended to read:

SB153,5,17 304.02 (5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life sentence under s. 939.62 (2m) (c) or, 973.014 (1) (c) or (1g) or 973.015 or who is awaiting imposition of a death sentence is not eligible for release to parole supervision under this section.

SB153, s. 12 Section 12. 304.06 (1) (b) of the statutes is amended to read:

SB153,6,9 304.06 (1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2), 973.01 (6) 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) (c) or 973.014 (1) (b) or (c), (1g) or (2), 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 under s. 302.11 (1q) and (2), if applicable. 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.

SB153, s. 13 Section 13. 304.06 (1t) of the statutes is created to read:

SB153,6,13 304.06 (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) (c).

SB153, s. 14 Section 14. 304.071 (2) of the statutes is amended to read:

SB153,6,17 304.071 (2) If a prisoner is not eligible for parole under s. 304.06 (1) (b) or (1t), 939.62 (2m) (c), 961.49 (2), 973.01 (6), 973.014 (1) (c) or (1g) or 973.032 (5), he or she is not eligible for parole under this section.

SB153, s. 15 Section 15. 939.22 (7) of the statutes is created to read:

SB153,6,20 939.22 (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.

SB153, s. 16 Section 16. 939.30 (2) of the statutes is amended to read:

SB153,6,24 939.30 (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.

SB153, s. 17 Section 17. 939.31 of the statutes is amended to read:

SB153,7,7 939.31 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.

SB153, s. 18 Section 18. 939.32 (1) (a) of the statutes is amended to read:

SB153,7,10 939.32 (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.

SB153, s. 19 Section 19. 939.50 (1) (a) of the statutes is renumbered 939.50 (1) (am).

SB153, s. 20 Section 20. 939.50 (1) (ag) of the statutes is created to read:

SB153,7,13 939.50 (1) (ag) Class AA felony.

SB153, s. 21 Section 21. 939.50 (2) of the statutes is amended to read:

SB153,7,16 939.50 (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.

SB153, s. 22 Section 22. 939.50 (3) (a) of the statutes is renumbered 939.50 (3) (am).

SB153, s. 23 Section 23. 939.50 (3) (ag) of the statutes is created to read:

SB153,7,20 939.50 (3) (ag) For a Class AA felony, life imprisonment or death, as determined under s. 973.015.

SB153, s. 24 Section 24. 939.60 of the statutes is amended to read:

SB153,7,24 939.60 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.

SB153, s. 25 Section 25. 939.624 (2) of the statutes is amended to read:

SB153,8,6 939.624 (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.

SB153, s. 26 Section 26. 939.625 (1) (b) 2. of the statutes is amended to read:

SB153,8,10 939.625 (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.

SB153, s. 27 Section 27. 939.63 (1) (a) 2. of the statutes is amended to read:

SB153,8,14 939.63 (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.

SB153, s. 28 Section 28. 940.01 (1) (a) of the statutes is renumbered 940.01 (1) (a) 1. and amended to read:

SB153,8,19 940.01 (1) (a) 1. Except as provided in subd. 2. 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.

SB153, s. 29 Section 29. 940.01 (1) (a) 2., 3. and 4. of the statutes are created to read:

SB153,8,23 940.01 (1) (a) 2. Except as provided in subds. 3. and 4. 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.

SB153,8,25 3. Notwithstanding s. 939.05, a person is subject to subd. 2. as a party to a crime only if that person had intended that a person be killed.

SB153,9,2 4. A person is subject to subd. 2. only if the person is 16 years old or older when he or she commits the offense.

SB153, s. 30 Section 30. 940.01 (1) (b) of the statutes is renumbered 940.01 (1) (b) 1. and amended to read:

SB153,9,8 940.01 (1) (b) 1. Except as provided in subds. 2. and 3. and sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A AA felony.