SB2: Bill Text

SB2,18,14 (c) In the sentencing 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 paragraph 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.

SB2,18,18 (2) (a) Unless the defendant waives the right to a jury, the jury shall deliberate after hearing all of the evidence and, by a majority vote, shall render an advisory sentence of life imprisonment or death to the court, based upon the following matters:

SB2,18,19 1. The existence of aggravating circumstances under sub. (6).

SB2,18,20 2. The existence of mitigating circumstances under sub. (7).

SB2,19,2 (b) Upon the request of the defendant or the state, the court shall explain to the jury the court's options under sub. (4) (c) to sentence the defendant to life without the possibility of extended supervision or with delayed eligibility for extended supervision. If the defendant is not eligible for release to extended supervision, the court shall also, upon request of the defendant or the state, explain to the jury the defendant's ineligibility for extended supervision.

SB2,19,5 (c) If the jury recommends life imprisonment, it may further recommend restrictions on the defendant's eligibility for extended supervision or recommend that the defendant not be eligible for extended supervision.

SB2,19,17 (3) After the defendant waives the right to a jury under sub. (2) (a), or after the jury renders its advisory opinion regarding a sentence of life imprisonment or death, a defendant who has given notice of the intention to raise mental retardation as a bar to his or her death sentence may file a motion to determine whether he or she has mental retardation. Upon receipt of the motion, the court shall appoint 2 experts in the field of mental illness to evaluate the defendant and report their findings to the court. The court shall hold a hearing to consider the findings of the court-appointed experts and to consider the findings of any other expert that are offered by the state or the defense on the issue of whether the defendant has mental retardation. If the court finds, by clear and convincing evidence, that the defendant has mental retardation, the court may not impose a sentence of death and shall enter a written order that sets forth with specificity the findings in support of the determination.

SB2,19,23 (4) (a) Notwithstanding the recommendation of a majority of the jury, the court, if it made no determination under sub. (3) that the defendant has mental retardation and 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 all of the following facts:

SB2,19,24 1. That sufficient aggravating circumstances exist under sub. (6).

SB2,20,2 2. That there are insufficient mitigating circumstances under sub. (7) to outweigh the aggravating circumstances.

SB2,20,6 (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. (6) and (7) and upon the records of the trial and the sentencing proceedings.

SB2,20,11 (c) If the court does not make the findings required under par. (b) for a death sentence, or if there is a finding under sub. (3) that the defendant has mental retardation, the court shall impose a sentence of life imprisonment and shall make an extended supervision eligibility determination regarding the person and adopt one of the following options:

SB2,20,13 1. The person is eligible for release to extended supervision after serving 20 years.

SB2,20,17 2. The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in subd. 1., but may not set a date that occurs before the earliest possible date under subd. 1.

SB2,20,18 3. The person is not eligible for release to extended supervision.

SB2,20,21 (d) When imposing a sentence of life imprisonment in accordance with par. (c) 1. or 2., the court shall inform the person of the provisions of s. 302.114 (3) and the procedure for petitioning under s. 302.114 (5) for release to extended supervision.

SB2,21,2 (5) 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.

SB2,21,4 (6) The court and jury shall consider one or more of the following as aggravating circumstances:

SB2,21,6 (a) The defendant was on parole or extended supervision under a sentence for a felony or was confined in prison when he or she committed the Class AA felony.

SB2,21,8 (b) The Class AA felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

SB2,21,9 (c) The defendant knowingly created a great risk to many persons.

SB2,21,11 (d) The Class AA felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

SB2,21,13 (e) The defendant intentionally caused bodily harm or mental anguish to the victim or another before the victim died.

SB2,21,15 (f) During the commission of the offense, the defendant enjoyed or was utterly indifferent to the suffering of another.

SB2,21,19 (7) 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:

SB2,21,20 (a) The defendant has no significant history of prior criminal activity.

SB2,21,22 (b) The Class AA felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

SB2,21,24 (c) The defendant was an accomplice in the Class AA felony committed by another person and the defendant's participation was relatively minor.

SB2,22,2 (d) The defendant acted under extreme duress or under the substantial domination of another person.

SB2,22,5 (e) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.

SB2,22,7 (f) The age of the defendant at the time of the crime affected his or her judgment.

SB2,22,9 (g) The victim was a participant in the defendant's conduct or consented to the act.

SB2,22,12 (8) The court that imposes a sentence of death shall set the date for execution. The defendant shall be committed to the Wisconsin state prisons pending the execution of the death sentence.

SB2,22,13 (9) The execution of a death sentence shall be by lethal injection.

SB2, s. 50 Section 50. 973.0147 of the statutes is created to read:

SB2,23,3 973.0147 Execution of death sentence; stay of execution. The secretary of corrections shall designate the executioner who shall provide a person subject to a death sentence with an intravenous injection of one or more substances in a lethal quantity. A person is immune from civil or criminal liability for his or her acts or omissions, in good faith, in regard to a lawful execution under this section. The secretary may not direct a physician to be present or require a physician to announce when death has occurred. A physician may certify the death after a person, other than a physician, has determined or pronounced death. The secretary shall designate 12 citizens to witness the execution. The convicted person may request that certain additional people be allowed to witness the execution. The secretary shall grant any such reasonable request. The secretary may allow representatives of the news media to witness the execution under rules of the department. No other persons may be allowed to witness the execution. The execution of a death sentence may be stayed only by the governor or incident to an appeal.

SB2, s. 51 Section 51. 973.032 (2) (b) of the statutes is amended to read:

SB2,23,9 973.032 (2) (b) Notwithstanding par. (a), the court may not sentence a person under sub. (1) if he or she is convicted of a felony punishable by death or life imprisonment or has at any time been convicted, adjudicated delinquent , or found not guilty or not responsible by reason of insanity or mental disease, defect, or illness for committing a violent offense, as defined in s. 301.048 (2) (bm).

SB2, s. 52 Section 52. 973.09 (1) (c) of the statutes is amended to read:

SB2,23,12 973.09 (1) (c) When a person is convicted of any crime which that is punishable by death or life imprisonment, the court shall may not place the person on probation.

SB2, s. 53 Section 53. 978.07 (1) (c) 1. of the statutes is amended to read:

SB2,23,20 978.07 (1) (c) 1. Any case record of a felony punishable by death or life imprisonment or a related case, after the defendant's parole eligibility date under s. 304.06 (1) or 973.014 (1) or date of eligibility for release to extended supervision under s. 973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2., whichever is applicable, or 50 years after the commencement of the action, whichever occurs later. If there is no parole eligibility date or no date for release to extended supervision, the district attorney may destroy the case record after the defendant's death.

SB2, s. 54 Section 54. Initial applicability.

SB2,23,23 (1) This act first applies to offenses committed on February 1, 2003 or on the effective date of this subsection, whichever is later.

SB2, s. 55 Section 55. Effective date.

SB2,24,2 (1) This act takes effect on February 1, 2003, or on the day after publication, whichever is later.

SB2,24,3 (End)