Amendment SSA1-SB2

LRBs0009/1

RLR&RPN:kmg:rs

2003 - 2004 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2003 SENATE BILL 2

March 26, 2003 - Offered by Senator A. Lasee.

SB2-SSA1,2,2 An Act to renumber 939.50 (1) (a), 939.50 (3) (a) and 946.50 (1); to renumber and amend 940.01 (1) (b); to amend 115.31 (2g), 118.19 (4) (a), 301.048 (2) (am) 2., 302.11 (1), 303.065 (1) (b) 2., 304.02 (5), 304.06 (1) (b), 304.071 (2), 938.355 (4) (b), 938.538 (3) (a) 1m., 939.30 (2), 939.31, 939.32 (1) (a), 939.50 (2), 939.60, 939.62 (2m) (a) 2m. c., 939.62 (2m) (c), 939.624 (2), 939.63 (1) (b), 939.632 (1) (e) 2., 940.01 (1) (a), 940.01 (2) (intro.), 971.17 (1) (c), 972.03, 972.13 (6), 973.01 (3), 973.03 (3) (e) 1., 973.032 (2) (b) and 973.09 (1) (c); and to create 301.046 (3) (cm), 302.11 (1w), 304.06 (1t), 939.22 (7), 939.50 (1) (ag), 939.50 (3) (ag), 940.01 (1) (am), 940.01 (1) (b) 1. and 2., 946.50 (1g), 961.335 (1m), 967.02 (1m), 973.0145, 973.0147 and 978.07 (1) (c) 1m. of the statutes; relating to: providing a penalty of either death or life imprisonment for certain first-degree intentional homicides, affecting eligibility for supervised release, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, no state crime is punishable by a sentence of death. First degree homicide (causing the death of another human being or an unborn child with the intent to kill that human being, unborn child, or another, except in the case of a legal abortion) is a Class A felony, punishable by life imprisonment.

Unless the defendant is found to be a persistent repeat offender, a court imposing a sentence of life imprisonment must determine whether the defendant will be eligible to petition for release to extended supervision after serving 20 years in prison, after serving a longer period of time in prison, or never. A persistent repeat offender who is sentenced to life imprisonment is not eligible to petition for release to extended supervision.

This substitute amendment provides a penalty of either death or life imprisonment for first degree homicide if the victim is less than 16 years of age, the offender is at least 16 years of age, and the offender is convicted for directly committing the homicide as opposed to being convicted as a party to the crime.

If a person is convicted for a homicide that is punishable by death, the trial court must convene a separate sentencing proceeding. The defendant has a right to a jury at the sentencing proceeding. Generally, the trial jury will serve at the sentencing proceeding. However, if there was no trial jury or if the trial jury cannot continue to serve, a new jury is selected.

At the sentencing proceeding, the defense may present evidence of mitigating circumstances, and the state may present evidence in rebuttal. The jury must consider the circumstances of the crime and evidence of mitigating circumstances and recommend to the court whether to impose a sentence of death. The court may not impose a sentence of death unless the jury unanimously recommends death and the court finds, after considering the circumstances of the crime and evidence of mitigating circumstances, that a sentence of death is appropriate. If the jury recommends a sentence of death and the court finds that a sentence of death is not appropriate, or if the jury recommends a sentence of life imprisonment, the court must sentence the defendant to life imprisonment. Any sentence of death is subject to automatic appellate review by the Wisconsin Supreme Court.

The court may not impose a sentence of death on a person who is mentally retarded. Under the substitute amendment, a person is mentally retarded if he or she has significantly subaverage general intellectual functioning accompanied by significant deficits or impairments in adaptive functioning. If a jury recommends a sentence of death and the defendant claims to be mentally retarded, the court must hold a hearing on the issue of mental retardation and must appoint two mental health experts to examine the defendant and testify at the hearing. The court must determine without a jury whether the defendant is mentally retarded.

The court that imposes a death sentence sets the execution date. The secretary of corrections designates the executioner and at least 12 witnesses. The execution is by lethal injection. A death sentence may be stayed only by the governor or an appellate court.

This substitute amendment applies only to those offenses committed on or after the effective date of the substitute amendment.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB2-SSA1, s. 1 Section 1. 115.31 (2g) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2-SSA1,3,8 115.31 (2g) Notwithstanding subch. II of ch. 111, the state superintendent shall revoke a license granted by the state superintendent, without a hearing, if the licensee is convicted of any Class AA, A, B, C, or D felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs on or after September 12, 1991, or any Class E, F, G, or H felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs on or after February 1, 2003.

SB2-SSA1, s. 2 Section 2. 118.19 (4) (a) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2-SSA1,3,19 118.19 (4) (a) Notwithstanding subch. II of ch. 111, the state superintendent may not grant a license, for 6 years following the date of the conviction, to any person who has been convicted of any Class AA, A, B, C, or D felony under ch. 940 or 948, except ss. 940.08 and 940.205, or of an equivalent crime in another state or country, for a violation that occurs on or after September 12, 1991, or any Class E, F, G, or H felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs on or after February 1, 2003. The state superintendent may grant the license only if the person establishes by clear and convincing evidence that he or she is entitled to the license.

SB2-SSA1, s. 3 Section 3. 301.046 (3) (cm) of the statutes is created to read:

SB2-SSA1,4,2 301.046 (3) (cm) The prisoner is not awaiting imposition of a death sentence.

SB2-SSA1, s. 4 Section 4. 301.048 (2) (am) 2. of the statutes is amended to read:

SB2-SSA1,4,7 301.048 (2) (am) 2. He or she is a prisoner serving a felony sentence for a felony that is not punishable by death or life imprisonment and the department directs him or her to participate in the program. This subdivision does not apply to a prisoner serving a bifurcated sentence imposed under s. 973.01.

SB2-SSA1, s. 5 Section 5. 302.11 (1) of the statutes is amended to read:

SB2-SSA1,4,14 302.11 (1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs. (1g), (1m), (1q), (1w), (1z), (7), and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

SB2-SSA1, s. 6 Section 6. 302.11 (1w) of the statutes is created to read:

SB2-SSA1,4,17 302.11 (1w) An inmate who is sentenced to death or life imprisonment under s. 976.0145 is not entitled to mandatory release on parole under this section.

SB2-SSA1, s. 7 Section 7. 303.065 (1) (b) 2. of the statutes is amended to read:

SB2-SSA1,4,21 303.065 (1) (b) 2. A person serving a life sentence under s. 939.62 (2m) (c) or 973.014 (1) (c) or (1g) (a) 3. or awaiting imposition of a death sentence may not be considered for work release.

SB2-SSA1, s. 8 Section 8. 304.02 (5) of the statutes is amended to read:

SB2-SSA1,5,2 304.02 (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 who is awaiting imposition of a death sentence is not eligible for release to parole supervision under this section.

SB2-SSA1, s. 9 Section 9. 304.06 (1) (b) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2-SSA1,5,19 304.06 (1) (b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m) or (1t), or s. 302.045 (3), 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.

SB2-SSA1, s. 10 Section 10. 304.06 (1t) of the statutes is created to read:

SB2-SSA1,5,22 304.06 (1t) The parole commission may not parole an inmate who is sentenced to life imprisonment or death under s. 973.0145.

SB2-SSA1, s. 11 Section 11. 304.071 (2) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2-SSA1,6,3 304.071 (2) If a prisoner is not eligible ineligible for parole under s. 961.49 (2), 1999 stats., or s. 304.06 (1t), 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c) or (1g), or 973.032 (5), he or she is not eligible for parole under this section.

SB2-SSA1, s. 12 Section 12. 938.355 (4) (b) of the statutes, as affected by 2001 Wisconsin Act 109, section 533b, is amended to read:

SB2-SSA1,6,22 938.355 (4) (b) Except as provided in s. 938.368, an order under s. 938.34 (4d) or (4m) made before the juvenile reaches 18 years of age may apply for up to 2 years after its entry or until the juvenile's 18th birthday, whichever is earlier, unless the court specifies a shorter period of time or the court terminates the order sooner. Except as provided in s. 938.368, an order under s. 938.34 (4h) made before the juvenile reaches 18 years of age shall apply for 5 years after its entry, if the juvenile is adjudicated delinquent for committing a violation of s. 943.10 (2) or for committing an act that would be punishable as a Class B or C felony if committed by an adult, or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class AA or A felony if committed by an adult. Except as provided in s. 938.368, an extension of an order under s. 938.34 (4d), (4h), (4m), or (4n) made before the juvenile reaches 17 years of age shall terminate at the end of one year after its entry unless the court specifies a shorter period of time or the court terminates the order sooner. No extension under s. 938.365 of an original dispositional order under s. 938.34 (4d), (4h), (4m), or (4n) may be granted for a juvenile who is 17 years of age or older when the original dispositional order terminates.

SB2-SSA1, s. 13 Section 13. 938.538 (3) (a) 1m. of the statutes is amended to read:

SB2-SSA1,7,5 938.538 (3) (a) 1m. If the participant has been adjudicated delinquent for committing an act that would be a Class AA or A felony if committed by an adult, placement in a Type 1 secured correctional facility, a secured child caring institution or, if the participant is 17 years of age or over or 15 years of age or over and transferred under s. 938.357 (4) (d), a Type 1 prison, as defined in s. 301.01 (5), until the participant reaches 25 years of age, unless the participant is released sooner, subject to a mandatory minimum period of confinement of not less than one year.

SB2-SSA1, s. 14 Section 14. 939.22 (7) of the statutes is created to read:

SB2-SSA1,7,8 939.22 (7) "Crime that is punishable by death or life imprisonment" means a crime for which one or more of the possible penalties is death or life imprisonment.

SB2-SSA1, s. 15 Section 15. 939.30 (2) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2-SSA1,7,13 939.30 (2) For a solicitation to commit a crime for which the penalty is that is punishable by death or life imprisonment, the actor is guilty of a Class F felony. For a solicitation to commit a Class I felony, the actor is guilty of a Class I felony.

SB2-SSA1, s. 16 Section 16. 939.31 of the statutes is amended to read:

SB2-SSA1,7,21 939.31 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 do 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 that is punishable by death or life imprisonment, the actor is guilty of a Class B felony.

SB2-SSA1, s. 17 Section 17. 939.32 (1) (a) of the statutes is amended to read: