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(a) The defendant has no significant history of prior criminal convictions
4involving the use of violence against another person.
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(b) The defendant was mentally retarded, as defined in sub. (7) (a), at the time
6of the crime, or the defendant's mental capacity was impaired or his or her ability to
7conform his or her conduct to the requirement of law was impaired, although not so
8impaired as to constitute a defense to prosecution.
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(c) The defendant was under duress or under the domination of another person,
10although not such duress or domination as to constitute a defense to prosecution.
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(d) The defendant was criminally liable for the present offense of murder
12committed by another, but his or her participation in the offense was relatively
13minor, although not so minor as to constitute a defense to prosecution.
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(e) The murder was committed while the defendant was mentally or
15emotionally disturbed or under the influence of alcohol or any drug, although not to
16such an extent as to constitute a defense to prosecution.
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(f) Any other circumstance concerning the crime, the defendant's state of mind
18or condition at the time of the crime, or the defendant's character, background, or
19record that could be relevant to mitigation or punishment for the crime.
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20(6) (a) If the jury unanimously decides that the defendant should be sentenced
21to death, the court shall impose a sentence of death and the jury shall state on the
22record which, if any, mitigating circumstances the jury found. If the jury
23unanimously decides that the defendant should be sentenced to life imprisonment,
24or if the jury does not unanimously agree on a sentence, the court shall sentence the
25defendant to life imprisonment as provided under s. 973.014. If the jury decides that
1the defendant should be sentenced to life imprisonment, the jury may make a
2recommendation as to when, if ever, the defendant should be eligible for release to
3extended supervision. The jury's recommendation regarding eligibility for release
4to extended supervision is not binding on the court.
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(b) If the jury's decision is unanimous, the court shall read the jury's decision
6to the jurors and ask the jurors collectively if they concur with the decision. Upon
7the request of either party, the court shall ask each juror individually if he or she
8agrees with the jury's decision. If any juror responds in the negative, the court shall
9refuse to accept the decision and shall direct the jury to continue deliberating.
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(c) If there is no jury, the court shall consider the evidence presented regarding
11mitigation and either sentence the defendant to death or to life imprisonment as
12provided under s. 973.014. If the court sentences the defendant to death, the court
13shall state on the record which, if any, mitigating circumstances the court found.
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14(7) (a) In this subsection, "mentally retarded" means having significantly
15subaverage general intellectual functioning that exists concurrently with deficits in
16adaptive behavior which were manifested before the age of 18 years.
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(b) If the state is seeking a sentence of death and the defendant files a motion
18showing cause to believe that the defendant is mentally retarded, the court shall hold
19a hearing to determine whether the defendant is mentally retarded before
20conducting the sentencing hearing. The judge shall conduct the hearing on mental
21retardation without a jury. At the hearing on mental retardation, the defendant has
22the burden to prove by a preponderance of the evidence that he or she is mentally
23retarded.
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(c) At the close of the hearing on mental retardation and before the court
25renders a determination on the issue of mental retardation, the court shall conduct
1the sentencing hearing. If the sentence imposed is other than death, the court will
2not rule on the issue of mental retardation. If the defendant is sentenced to death,
3the court shall issue a determination regarding mental retardation. If the court finds
4that the defendant is mentally retarded, the court shall set aside the sentence of
5death and sentence the defendant under s. 973.014. If the court finds that the
6defendant is not mentally retarded, the sentence of death stands.
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(d) The state may appeal a determination that a defendant is mentally
8retarded.
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(e) This subsection does not apply if the homicide for which the defendant is
10being sentenced was committed while the defendant was incarcerated under a
11criminal sentence.
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12(8) (a) In this subsection, "mental health expert" means a psychiatrist,
13psychologist, or other person who has received training or education relating to, or
14has experience relating to, the identification, diagnosis, treatment, or evaluation of
15mental diseases, defects, or conditions.
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(b) If either party intends to present evidence offered by a mental health expert
17of a mental disease, defect, or condition at a sentencing hearing or a hearing on
18mental retardation under this section, the party shall provide notice of the intent and
19a summary of the expert's testimony. If the defendant provides notice of intent to
20present expert mental health testimony, the state may request that the court order
21the defendant to submit to an examination by a mental health expert designated by
22the state.
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(c) Counsel for the defendant and counsel for the state have the right to be
24present at an examination ordered under par. (b). The state shall provide the
25defendant with a transcript of the examination promptly after its conclusion. If the
1court finds that the defendant refused to cooperate fully in an examination ordered
2under par. (b), the court, upon the request of the state, shall instruct the jury that
3the defendant did not submit to or cooperate fully in the examination.
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(d) Statements made by the defendant during an examination ordered under
5par. (b) are inadmissible as evidence in any criminal action or proceeding concerning
6the defendant, except as evidence regarding the existence of a mitigating factor
7under sub. (5) or on the issue mental retardation in a hearing under sub. (7).
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8(9) The court that imposes a sentence of death shall set the date for execution.
9The defendant shall be committed to the Wisconsin state prisons pending the
10execution of the death sentence.
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11(10) The execution of a death sentence shall be by lethal injection.
SB328, s. 59
12Section
59. 973.016 of the statutes is created to read:
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13973.016 Stay of execution of death sentence. The execution of a death
14sentence may be stayed only by the governor or incident to an appeal.
SB328, s. 60
15Section
60. 973.017 of the statutes is created to read:
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16973.017 Execution of death sentence. The secretary of corrections shall
17designate the executioner who shall provide a person subject to a death sentence with
18an intravenous injection of one or more substances in a lethal quantity. A person is
19immune from civil or criminal liability for his or her acts or omissions, in good faith,
20in regard to a lawful execution under this section. The secretary may not direct a
21physician to be present or require a physician to announce when death has occurred.
22A physician may certify the death after a person, other than a physician, has
23determined or pronounced death. The secretary shall designate 12 citizens to
24witness the execution. The convicted person may request that certain additional
25people be allowed to witness the execution. The secretary shall grant any such
1reasonable request. The secretary may allow representatives of the news media to
2witness the execution under rules of the department. No other persons may be
3allowed to witness the execution.
SB328, s. 61
4Section
61. 973.032 (2) (b) of the statutes is amended to read:
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973.032
(2) (b) Notwithstanding par. (a), the court may not sentence a person
6under sub. (1) if he or she is convicted of a felony punishable by
death or life
7imprisonment or has at any time been convicted, adjudicated delinquent
, or found
8not guilty or not responsible by reason of insanity or mental disease, defect
, or illness
9for committing a violent offense, as defined in s. 301.048 (2) (bm).
SB328, s. 62
10Section
62. 973.09 (1) (c) of the statutes is amended to read:
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973.09
(1) (c) When a person is convicted of any crime
which that is punishable
12by
death or life imprisonment, the court
shall may not place the person on probation.
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(1) (a) In this subsection, "department" means the department of justice.
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(b)
Using the procedure under section 227.24 of the statutes, the department
16shall promulgate the rules required under section 175.50 (10q) of the statutes, as
17created by this act, for the period beginning on the effective date of this paragraph
18and ending on the effective date of the permanent rules promulgated under section
19175.50 (10q) of the statutes, as created by this act, but the rules may not remain
20effective for longer than the period authorized under section 227.24 (1) (c) and (2) of
21the statutes. The department shall promulgate the rules required under this
22paragraph no later than the 30th day beginning after the effective date of this
23paragraph. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the
24department is not required to provide evidence that promulgating a rule under this
25paragraph as an emergency rule is necessary for the preservation of the public peace,
1health, safety, or welfare and is not required to provide a finding of emergency for a
2rule promulgated under this paragraph.
SB328, s. 64
3Section
64.
Effective dates. This act takes effect on the day after publication,
4except as follows:
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(1)
Licenses to carry concealed weapons. The treatment of sections 20.455
6(2) (gp), 59.25 (3) (u), 85.57 (2), (3), (4), (5), and (6), 165.82 (2), 167.31 (4) (ar), 175.50
7(1), (2), (2g), (3), (6), (7), (8), (9), (9g), (10), (10q), (11), (12), (13), (14), (14m), (15), (16),
8(17), and (18), 440.26 (3m), 941.235 (2), 941.237 (3) (cg), 941.295 (2) (bm), 946.32 (3),
9and 948.605 (2) (b) 4m. of the statutes, the renumbering and amendment of section
10941.23 of the statutes, and the creation of section 941.23 (2) of the statutes take effect
11on the 30th day beginning after publication.