SB357: Bill Text

SB357,271,6 973.01 (4) No good time; extension or reduction of term of imprisonment. A person sentenced to a bifurcated sentence under sub. (1) shall serve the term of confinement in prison portion of the sentence without reduction for good behavior. The term of confinement in prison portion is subject to extension under s. 302.113 (3) and, if applicable, to reduction under s. 302.045 (3m) or 302.113 (9g).

SB357, s. 933 Section 933. 973.01 (5) of the statutes is amended to read:

SB357,271,10 973.01 (5) Other extended supervision conditions. Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision, including drug treatment under s. 973.031.

SB357, s. 934 Section 934. 973.01 (7m) of the statutes is created to read:

SB357,271,18 973.01 (7m) Modification of bifurcated sentence. A court may at any time modify a bifurcated sentence that the court previously imposed by reducing the term of confinement in prison portion of the sentence and lengthening the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change. A proceeding to modify a bifurcated sentence under this subsection shall be conducted using the procedure established and the factors specified by the director of state courts under s. 758.19 (8).

SB357, s. 935 Section 935. 973.0135 (1) (b) 2. of the statutes is amended to read:

SB357,271,25 973.0135 (1) (b) 2. Any felony under s. 940.09 (1), 1997 stats., s. 943.23 (1m) or (1r), 1997 stats., s. 948.35 (1) (b) or (c), 1997 stats., or s. 948.36, 1997 stats., s. 940.01, 940.02, 940.03, 940.05, 940.09 (1) (1c), 940.16, 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43, 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, or 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

SB357, s. 936 Section 936. 973.017 of the statutes is created to read:

SB357,272,7 973.017 Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors. (1) Definition. In this section, "sentencing decision" means a decision as to whether to impose a bifurcated sentence under s. 973.01 or to place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine and the length of a term of probation.

SB357,272,11 (2) General requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after the effective date of this subsection .... [revisor inserts date], the court shall consider all of the following:

SB357,272,16 (a) If the offense is a felony, the sentencing guidelines adopted by the sentencing commission under s. 973.30 or, if the sentencing commission has not adopted a guideline for the offense, any applicable temporary sentencing guideline adopted by the criminal penalties study committee created under 1997 Wisconsin Act 283.

SB357,272,18 (b) Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs. (3) to (8).

SB357,272,20 (3) Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:

SB357,272,23 (a) The fact that the person committed the crime while his or her usual appearance was concealed, disguised or altered, with the intent to make it less likely that he or she would be identified with the crime.

SB357,272,25 (b) The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46.

SB357,273,4 (c) The fact that the person committed the crime for the benefit of, at the direction of or in association with any criminal gang, as defined in s. 939.22 (9), with the specific intent to promote, further or assist in any criminal conduct by criminal gang members, as defined in s. 939.22 (9g).

SB357,273,7 (d) The fact that the person committed the felony while wearing a vest or other garment designed, redesigned or adapted to prevent bullets from penetrating the garment.

SB357,273,11 (e) 1. Subject to subd. 2., the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person:

SB357,273,12 a. The person caused bodily harm, great bodily harm or death to another.

SB357,273,16 b. The person caused damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subd. 1. b., property is reduced in value by the amount that it would cost either to repair or to replace it, whichever is less.

SB357,273,17 c. The person used force or violence or the threat of force or violence.

SB357,273,22 2. a. In this subdivision, "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employe.

SB357,273,24 b. Subdivision 1. does not apply to conduct arising out of or in connection with a labor dispute.

SB357,274,2 (4) Aggravating factors; serious sex crimes committed while infected with certain diseases. (a) In this subsection:

SB357,274,4 1. "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

SB357,274,6 2. "Serious sex crime" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025.

SB357,274,8 3. "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C or chlamydia.

SB357,274,11 4. "Significantly exposed" means sustaining a contact which carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:

SB357,274,14 a. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.

SB357,274,18 b. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.

SB357,274,22 c. Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.

SB357,274,25 (b) When making a sentencing decision concerning a person convicted of a serious sex crime, the court shall consider as an aggravating factor the fact that the serious sex crime was committed under all of the following circumstances:

SB357,275,4 1. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime had a sexually transmitted disease or acquired immunodeficiency syndrome or had had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

SB357,275,9 2. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime knew that he or she had a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she had had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

SB357,275,12 3. The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.

SB357,275,14 (5) Aggravating factors; violent felony committed against elder person. (a) In this subsection:

SB357,275,15 1. "Elder person" means any individual who is 62 years of age or older.

SB357,275,17 2. "Violent felony" means any felony under s. 940.19 (2), (4), (5) or (6), 940.225 (1), (2) or (3), 940.23 or 943.32.

SB357,275,21 (b) When making a sentencing decision concerning a person convicted of a violent felony, the court shall consider as an aggravating factor the fact that the victim of the violent felony was an elder person. This paragraph applies even if the person mistakenly believed that the victim had not attained the age of 62 years.

SB357,276,3 (6) Aggravating factors; child sexual assault or child abuse by certain persons. (a) In this subsection, "person responsible for the welfare the child" includes the child's parent, stepparent, guardian, foster parent or treatment foster parent; an employe of a public or private residential home, institution or agency; any other person legally responsible for the child's welfare in a residential setting; or a person employed by one who is legally responsible for the child's welfare to exercise temporary control or care for the child.

SB357,276,7 (b) When making a sentencing decision concerning a person convicted of a violation of s. 948.02 (1) or (2), 948.025 (1) or 948.03 (2) or (3), the court shall consider as an aggravating factor the fact that the person was a person responsible for the welfare of the child who was the victim of the violation.

SB357,276,12 (7) Aggravating factors; homicide or injury by intoxicated use of a vehicle. When making a sentencing decision concerning a person convicted of a violation of s. 940.09 (1) or 940.25 (1), the court shall consider as an aggravating factor the fact that, at the time of the violation, there was a minor passenger under 16 years of age or an unborn child in the person's motor vehicle.

SB357,276,15 (8) Aggravating factors; controlled substances offenses. (a) Distribution or delivery to prisoners. 1. In this paragraph, "precinct" means a place where any activity is conducted by a prison, jail or house of correction.

SB357,276,20 2. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail or house of correction.

SB357,277,2 (b) Distribution or delivery on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing or possessing with intent to deliver or distribute a controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II and that the person knowingly used a public transit vehicle during the violation.

SB357,277,7 (9) Aggravating factors not an element of the crime. The aggravating factors listed in this section are not elements of any crime. A prosecutor is not required to charge any aggravating factor or otherwise allege the existence of an aggravating factor in any pleading for a court to consider the aggravating factor when making a sentencing decision.

SB357,277,14 (10) Use of guidelines; no right to or basis for appeal. The requirement under sub. (2) (a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline.

SB357,277,20 (11) Required findings of fact. The court shall make explicit findings of fact on the record to support each element of its sentencing decision, including its decision as to whether to impose a bifurcated sentence under s. 973.01 or to place a person on probation and its decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine and the length of a term of probation.

SB357,277,25 (12) Standard of review on appeal. In an appeal from a court's sentencing decision, the appellate court shall reverse the sentencing decision if it determines that the sentencing court erroneously exercised its discretion in making the sentencing decision or there is not substantial evidence in the record to support the sentencing decision.

SB357, s. 937 Section 937. 973.03 (3) (e) 1. and 2. of the statutes are amended to read:

SB357,278,2 973.03 (3) (e) 1. A crime which is a Class A or, B or C felony.

SB357,278,4 2. A crime which is a Class C D, E, F or G felony listed in s. 969.08 (10) (b), but not including any crime specified in s. 943.10.

SB357, s. 938 Section 938. 973.03 (3) (e) 3. of the statutes is repealed.

SB357, s. 939 Section 939. 973.031 of the statutes is created to read:

SB357,278,14 973.031 Court-ordered drug treatment. Whenever the court imposes a sentence or places a person on probation for any offense committed on or after July 1, 2000, the court may order the person to participate in a drug treatment program as a condition of probation or, in the case of a person sentenced under s. 973.01, while the person is in prison or as a condition of extended supervision or both. The court may order the department to pay for the cost of drug treatment under this section from the appropriation under s. 20.410 (1) (a) for persons in jail or prison or under s. 20.410 (1) (b) for persons on probation or extended supervision.

SB357, s. 940 Section 940. 973.032 (4) (c) 2. of the statutes is amended to read:

SB357,278,18 973.032 (4) (c) 2. The person is sentenced for the escape under s. 946.42 (4) (b) to a sentence of imprisonment concurrent with the sentence to the intensive sanctions program.

SB357, s. 941 Section 941. 973.075 (1) (b) 1m. e. of the statutes is amended to read:

SB357,278,21 973.075 (1) (b) 1m. e. To cause more than $1,000 $2,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

SB357, s. 942 Section 942. 973.075 (2) (d) of the statutes is amended to read:

SB357,279,4 973.075 (2) (d) The officer has probable cause to believe that the property was derived from or realized through a crime or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47 or which was used to cause more than $1,000 $2,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

SB357, s. 943 Section 943. 973.09 (2) (b) 1. of the statutes is amended to read:

SB357,279,9 973.09 (2) (b) 1. Except as provided in subd. 2., for felonies, not less than one year nor more than either the statutory maximum term of imprisonment confinement in prison for the crime, as specified in s. 973.01 (2) (b), or 3 years, whichever is greater.

SB357, s. 944 Section 944. 973.09 (6) of the statutes is created to read:

SB357,279,12 973.09 (6) The court may require as a condition of probation that the person participate in a drug treatment program under s. 973.031.

SB357, s. 945 Section 945. 973.15 (2) (am) of the statutes is created to read:

SB357,279,17 973.15 (2) (am) 1. If a court provides that a bifurcated sentence imposed under s. 973.01 is to run concurrent with or consecutive to a sentence to the Wisconsin state prisons other than another bifurcated sentence imposed under s. 973.01, the court shall do all of the following:

SB357,279,20 a. Order the term of confinement in prison under the bifurcated sentence to be concurrent with or consecutive to the term of confinement in prison required under the nonbifurcated sentence.

SB357,279,23 b. Order the period of parole under the nonbifurcated sentence to be concurrent with or consecutive to the term of extended supervision required under the bifurcated sentence.

SB357,280,2 2. If a court imposes a sentence to the Wisconsin state prisons that is not a bifurcated sentence imposed under s. 973.01 and provides that the nonbifurcated sentence is to run concurrent with or consecutive to a bifurcated sentence under s. 973.01, the court shall do all of the following:

SB357,280,5 a. Order the term of confinement in prison under the nonbifurcated sentence to be concurrent with or consecutive to the term of confinement in prison required under the bifurcated sentence.

SB357,280,8 b. Order the period of parole under the nonbifurcated sentence to be concurrent with or consecutive to the term of extended supervision required under the bifurcated sentence.

SB357, s. 946 Section 946 . 973.30 of the statutes is created to read:

SB357,280,11 973.30 Sentencing commission. (1) Duties. The sentencing commission shall do all of the following:

SB357,280,13 (a) Select an executive director having appropriate training and experience to study sentencing practices and prepare proposed sentencing guidelines.

SB357,280,14 (b) Monitor and compile data regarding sentencing practices in the state.

SB357,280,18 (c) Adopt advisory sentencing guidelines for felonies committed on or after the effective date of this paragraph .... [revisor inserts date], to promote public safety, to reflect changes in sentencing practices and to preserve the integrity of the criminal justice and correctional systems.

SB357,280,21 (d) Provide information to the legislature, state agencies and the public regarding the costs to and other needs of the department which result from sentencing practices.

SB357,280,22 (e) Provide information to judges and lawyers about the sentencing guidelines.

SB357,281,2 (f) Publish and distribute to all circuit judges hearing criminal cases an annual report regarding its work, which shall include all sentencing guidelines and all changes in existing sentencing guidelines adopted during the 12 months preceding the report.

SB357,281,5 (g) Study whether race is a basis for imposing sentences in criminal cases and submit a report and recommendations on this issue to the governor, to each house of the legislature under s. 13.172 (2) and to the supreme court.

SB357,281,7 (h) Assist the legislature in assessing the cost of enacting new or revising existing statutes affecting criminal sentencing.

SB357,281,13 (i) At least semiannually, submit reports to all circuit judges, and to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3), containing statistics regarding criminal sentences imposed in this state. Each report shall have a different focus and need not contain statistics regarding every crime. Each report shall contain information regarding sentences imposed statewide and in each of the following geographic areas:

SB357,281,14 1. Milwaukee County.

SB357,281,15 2. Dane and Rock counties.

SB357,281,16 3. Brown, Outagamie, Calumet and Winnebago counties.

SB357,281,17 4. Racine and Kenosha counties.

SB357,281,18 5. All other counties.

SB357,281,19 (j) Study how sentencing options affect various types of offenders and offenses.