LRB-5218/1
MJW:cdc
2023 - 2024 LEGISLATURE
December 12, 2023 - Introduced by Senators James,
L. Johnson, Larson, Pfaff,
Roys, Spreitzer, Taylor and Wirch, cosponsored by Representatives Novak,
Andraca, Baldeh, Bare, Billings, Clancy, Drake, Goyke, Kitchens,
Madison, Maxey, Moore Omokunde, Mursau, Neubauer, Ohnstad,
Ortiz-Velez, Schmidt, Shelton, Snodgrass, Spiros, Stubbs, Subeck and
Sinicki. Referred to Committee on Judiciary and Public Safety.
SB801,1,7
1An Act to amend 302.113 (2), 302.114 (1), 302.114 (2), 303.065 (1) (b) 1., 304.02
2(5), 304.06 (1) (b), 304.071 (2), 939.62 (2m) (b) (intro.), 950.04 (1v) (g), 950.04 (1v)
3(gm), 950.04 (1v) (m), 973.01 (3), 973.01 (4), 973.014 (1) (intro.), 973.014 (1g) (a)
4(intro.), 973.15 (2m) (a) 1. and 978.07 (1) (c) 1.; and
to create 302.114 (5) (cs),
5304.06 (1) (a) 3., 304.06 (1) (bc), 973.014 (3), 973.017 (2c), 973.018 and 977.05
6(4) (i) 10. of the statutes;
relating to: sentencing for crimes committed by a
7person who is under the age of 18.
Analysis by the Legislative Reference Bureau
This bill creates a sentence adjustment procedure for a “youthful offender,”
defined under the bill as an individual who committed the crime for which the
individual is being sentenced before he or she turned 18 years old. This bill also
prohibits a court from sentencing a youthful offender to life imprisonment without
the possibility of parole or release to extended supervision, and creates new
mitigating factors that a court must consider when sentencing a youthful offender.
Finally, this bill eliminates statutory mandatory life sentences without parole or
release to extended supervision for youthful offenders in order to align with federal
constitutional law.
Sentence adjustment procedure for youthful offenders
This bill creates a new procedure for an incarcerated youthful offender to
petition the sentencing court for a sentence adjustment after serving 15 years of his
or her sentence in prison, or, if the person is serving a sentence for a crime that is a
felony that caused the death of a person or is a felony sexual assault of a child, after
serving 20 years in prison. Under the bill, one year before the youthful offender is
eligible to petition for the sentence adjustment, the Department of Corrections is
required to notify the youthful offender of his or her eligibility. If the youthful
offender files a petition, the court is required to hold a hearing on the petition and
is required to consider the sentencing factors on mitigation for youth created under
the bill in determining whether to adjust the youthful offender's sentence. Notice of
the youthful offender's eligibility for a sentence adjustment hearing, of the petition,
and of the hearing must be sent to the district attorney and the crime victim. The
youthful offender has the right to present evidence and cross-examine witnesses at
the hearing and the crime victim has the right to be heard.
If the court finds that the interests of justice warrant a sentence adjustment,
the court may reduce the term of confinement in prison for the youthful offender and
may modify the conditions of extended supervision. If the youthful offender is
serving an indeterminate sentence or a life sentence without parole or release to
extended supervision, the court may convert the sentence to a bifurcated sentence
and set a date on which the petitioner will be eligible for release to extended
supervision. Under the bill, the sentencing court may reduce the overall sentence
length, but may not impose a term of extended supervision that is less than three
years. Under the bill, if the youthful offender is serving multiple sentences
concurrently or consecutively, the concurrent or consecutive sentences are treated as
a single sentence for the purposes of the sentence adjustment procedure.
If the court denies the petition under the bill, or adjusts the sentence to provide
a date for release to extended supervision that is more than three years after the
hearing, the court must provide in writing the reasons for the denial or the delayed
release eligibility date. A youthful offender may petition again after three years.
Under the bill, DOC is required to send a notice regarding the petition process to all
youthful offenders who are eligible to petition for a sentence adjustment at the time
the bill becomes law or who will become eligible within one year of that date. The
bill also specifies that DOC must consider an individual's status as a youthful
offender and proximity to a sentence adjustment hearing date when determining the
individual's eligibility for available programming.
Under current law, an inmate who is serving a bifurcated sentence for a crime
other than a Class B felony can petition to reduce the confinement portion of his or
her bifurcated sentence after serving a certain proportion of the sentence. An inmate
who is serving a life sentence can petition to be released to extended supervision or
parole after serving at least 20 years of his or her sentence or after another date set
by the sentencing court.
Sentencing; mitigating factors
Under current law, when a court makes a sentencing decision, it must consider
certain factors, including whether there were any aggravating factors present.
Under this bill, when a court is sentencing a youthful offender, it must also consider
mitigating factors related to the age and maturity of the youthful offender. Under
the bill, these mitigating factors must also be considered when a court hears a
petition for a sentence adjustment for a youthful offender, and must be considered
by the Parole Commission when determining whether to parole a youthful offender.
Eliminating life sentences without parole or extended supervision for
youthful offenders
Under current law, if a person is sentenced to a term of life imprisonment, the
sentencing court must either set a date on which the person is eligible for release to
parole or extended supervision, or determine that the person is not eligible for
release to parole or extended supervision. Under this bill, when the court sentences
a youthful offender to life imprisonment, it must set a date on which the person is
eligible for release to parole or extended supervision.
Under current law, if a person is convicted of a serious felony on three separate
occasions or a serious child sex offense on two separate occasions, the person is a
repeat offender subject to a mandatory life sentence without the possibility of parole
or extended supervision. However, in Miller v. Alabama, 567 U.S. 460 (2012), the
U.S. Supreme Court held that imposing a mandatory life sentence without parole for
a juvenile constitutes cruel and unusual punishment and therefore violates the
eighth amendment of the U.S. Constitution. This bill clarifies that the statutory
mandatory sentence of life imprisonment without the possibility of parole or
extended supervision for repeat offenders does not apply to youthful offenders.
For further information see the state and local 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:
SB801,1
1Section
1. 302.113 (2) of the statutes is amended to read:
SB801,3,62
302.113
(2) Except as provided in subs. (3) and (9), an inmate subject to this
3section is entitled to release to extended supervision after he or she has served the
4term of confinement in prison portion of the sentence imposed under s. 973.01, as
5modified by the sentencing court under sub. (9g) or s. 302.045 (3m) (b) 1., 302.05 (3)
6(c) 2. a.,
973.018, 973.195 (1r), or 973.198, if applicable.
SB801,2
7Section
2. 302.114 (1) of the statutes is amended to read:
SB801,4,28
302.114
(1) An inmate is subject to this section if he or she is serving a life
9sentence imposed under s. 973.014 (1g) (a) 1. or 2.
or (3) (c). An inmate serving a life
1sentence under s. 939.62 (2m) or 973.014 (1g) (a) 3. is not eligible for release to
2extended supervision under this section.
SB801,3
3Section
3. 302.114 (2) of the statutes is amended to read:
SB801,4,84
302.114
(2) Except as provided in subs. (3) and (9), an inmate subject to this
5section may petition the sentencing court for release to extended supervision after
6he or she has served 20 years, if the inmate was sentenced under s. 973.014 (1g) (a)
71., or after he or she has reached the extended supervision eligibility date set by the
8court, if the inmate was sentenced under s. 973.014 (1g) (a) 2.
or (3) (c).
SB801,4
9Section
4. 302.114 (5) (cs) of the statutes is created to read:
SB801,4,1310
302.114
(5) (cs) If the inmate is a youthful offender, as defined in s. 973.014 (3)
11(a), the court shall consider the mitigating factors under s. 973.017 (2c) (a) to (o) and
12any relevant information described in s. 973.018 (5) (b) when determining eligibility
13for release to extended supervision under this subsection.
SB801,5
14Section
5. 303.065 (1) (b) 1. of the statutes is amended to read:
SB801,4,2015
303.065
(1) (b) 1. A person serving a life sentence, other than a life sentence
16specified in subd. 2., may be considered for work release only after he or she has
17reached parole eligibility under s. 304.06 (1) (b) or 973.014 (1) (a) or (b)
or (3) (b),
18whichever is applicable, or he or she has reached his or her extended supervision
19eligibility date under s. 302.114 (9) (am) or 973.014 (1g) (a) 1. or 2.
or (3) (c), whichever
20is applicable.
SB801,6
21Section
6. 304.02 (5) of the statutes is amended to read:
SB801,4,2422
304.02
(5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life
23sentence under s. 939.62 (2m) (c) or 973.014 (1) (c)
or
, (1g)
, or (3) (c) is not eligible for
24release to parole supervision under this section.
SB801,7
25Section
7. 304.06 (1) (a) 3. of the statutes is created to read:
SB801,5,1
1304.06
(1) (a) 3. “Youthful offender” has the meaning given in s. 973.014 (3) (a).
SB801,8
2Section
8. 304.06 (1) (b) of the statutes is amended to read:
SB801,5,183
304.06
(1) (b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m) or s.
4302.045 (3), 302.05 (3) (b), 973.01 (6),
or 973.0135
, or 973.018, the parole commission
5may parole an inmate of the Wisconsin state prisons or any felon or any person
6serving at least one year or more in a county house of correction or a county
7reforestation camp organized under s. 303.07, when he or she has served 25 percent
8of the sentence imposed for the offense, or 6 months, whichever is greater. Except
9as provided in s. 939.62 (2m) (c) or 973.014 (1) (b) or (c), (1g)
or, (2)
, or (3) (b) or (c),
10the parole commission may parole an inmate serving a life term when he or she has
11served 20 years, as modified by the formula under s. 302.11 (1) and subject to
12extension under s. 302.11 (1q) and (2), if applicable. The person serving the life term
13shall be given credit for time served prior to sentencing under s. 973.155, including
14good time under s. 973.155 (4). The secretary may grant special action parole
15releases under s. 304.02. The department or the parole commission shall not provide
16any convicted offender or other person sentenced to the department's custody any
17parole eligibility or evaluation until the person has been confined at least 60 days
18following sentencing.
SB801,9
19Section
9. 304.06 (1) (bc) of the statutes is created to read:
SB801,5,2320
304.06
(1) (bc) 1. If the inmate who applies for parole under this subsection is
21a youthful offender, the parole commission shall consider the mitigating factors
22under s. 973.017 (2c) (a) to (o) and any relevant information described in s. 973.018
23(5) (b) when determining whether to release the inmate to parole.
SB801,5,2524
2. A youthful offender has the right to attend and may be represented by
25counsel at any interviews or hearings concerning his or her application for parole.
SB801,6,4
13. If the parole commission denies a youthful offender's application for parole,
2the parole commission shall provide in writing the reasons for the denial, and shall
3set a date for reconsideration that is no more than 3 years after the date of the
4hearing.
SB801,10
5Section
10. 304.071 (2) of the statutes is amended to read:
SB801,6,86
304.071
(2) If a prisoner is not eligible for parole under s. 961.49 (2), 1999 stats.,
7or s. 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c)
or
, (1g)
, or (3) (c), 973.018, or 973.032
8(5), he or she is not eligible for parole under this section.
SB801,11
9Section
11. 939.62 (2m) (b) (intro.) of the statutes is amended to read:
SB801,6,1210
939.62
(2m) (b) (intro.) The actor is a persistent repeater if
the offense for which
11he or she is presently being sentenced was committed on or after the date he or she
12attained the age of 18 and one of the following applies:
SB801,12
13Section 12
. 950.04 (1v) (g) of the statutes is amended to read:
SB801,6,1614
950.04
(1v) (g) To have reasonable attempts made to notify the victim of
15hearings or court proceedings, as provided under ss. 302.113 (9g) (g) 2., 302.114 (6),
16938.27 (4m) and (6), 938.273 (2), 971.095 (3)
and
, 972.14 (3) (b)
, and 973.018 (5).
SB801,13
17Section
13. 950.04 (1v) (gm) of the statutes is amended to read:
SB801,6,2018
950.04
(1v) (gm) To have reasonable attempts made to notify the victim of
19petitions for sentence adjustment as provided under s.
973.018 (4) (a) and (e), 973.09
20(3m), 973.195 (1r) (d), or 973.198.
SB801,14
21Section
14. 950.04 (1v) (m) of the statutes is amended to read:
SB801,6,2422
950.04
(1v) (m) To provide statements concerning sentencing, disposition, or
23parole, as provided under ss. 304.06 (1) (e), 938.32 (1) (b) 1g., 938.335 (3m) (ag),
and 24972.14 (3) (a)
, and 973.018 (5) (d).