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
1An Act to renumber 939.50 (1) (a), 939.50 (3) (a) and 946.50 (1);
to renumber
2and amend 940.01 (1) (b);
to amend 115.31 (2g), 118.19 (4) (a), 301.048 (2)
3(am) 2., 302.11 (1), 303.065 (1) (b) 2., 304.02 (5), 304.06 (1) (b), 304.071 (2),
4938.355 (4) (b), 938.538 (3) (a) 1m., 939.30 (2), 939.31, 939.32 (1) (a), 939.50 (2),
5939.60, 939.62 (2m) (a) 2m. c., 939.62 (2m) (c), 939.624 (2), 939.63 (1) (b),
6939.632 (1) (e) 2., 940.01 (1) (a), 940.01 (2) (intro.), 971.17 (1) (c), 972.03, 972.13
7(6), 973.01 (3), 973.03 (3) (e) 1., 973.032 (2) (b) and 973.09 (1) (c); and
to create
8301.046 (3) (cm), 302.11 (1w), 304.06 (1t), 939.22 (7), 939.50 (1) (ag), 939.50 (3)
9(ag), 940.01 (1) (am), 940.01 (1) (b) 1. and 2., 946.50 (1g), 961.335 (1m), 967.02
10(1m), 973.0145, 973.0147 and 978.07 (1) (c) 1m. of the statutes;
relating to:
11providing a penalty of either death or life imprisonment for certain first-degree
1intentional homicides, affecting eligibility for supervised release, and granting
2rule-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-SSA1,3,83
115.31
(2g) Notwithstanding subch. II of ch. 111, the state superintendent shall
4revoke a license granted by the state superintendent, without a hearing, if the
5licensee is convicted of any Class
AA, A, B, C, or D felony under ch. 940 or 948, except
6ss. 940.08 and 940.205, for a violation that occurs on or after September 12, 1991, or
7any Class E, F, G, or H felony under ch. 940 or 948, except ss. 940.08 and 940.205,
8for a violation that occurs on or after February 1, 2003.
SB2-SSA1,3,1911
118.19
(4) (a) Notwithstanding subch. II of ch. 111, the state superintendent
12may not grant a license, for 6 years following the date of the conviction, to any person
13who has been convicted of any Class
AA, A, B, C, or D felony under ch. 940 or 948,
14except ss. 940.08 and 940.205, or of an equivalent crime in another state or country,
15for a violation that occurs on or after September 12, 1991, or any Class E, F, G, or H
16felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs
17on or after February 1, 2003. The state superintendent may grant the license only
18if the person establishes by clear and convincing evidence that he or she is entitled
19to the license.
SB2-SSA1, s. 3
1Section
3. 301.046 (3) (cm) of the statutes is created to read:
SB2-SSA1,4,22
301.046
(3) (cm) The prisoner is not awaiting imposition of a death sentence.
SB2-SSA1, s. 4
3Section
4. 301.048 (2) (am) 2. of the statutes is amended to read:
SB2-SSA1,4,74
301.048
(2) (am) 2. He or she is a prisoner serving a
felony sentence
for a felony
5that is not punishable by
death or life imprisonment and the department directs him
6or her to participate in the program. This subdivision does not apply to a prisoner
7serving a bifurcated sentence imposed under s. 973.01.
SB2-SSA1, s. 5
8Section
5. 302.11 (1) of the statutes is amended to read:
SB2-SSA1,4,149
302.11
(1) The warden or superintendent shall keep a record of the conduct of
10each inmate, specifying each infraction of the rules. Except as provided in subs. (1g),
11(1m), (1q),
(1w), (1z), (7)
, and (10), each inmate is entitled to mandatory release on
12parole by the department. The mandatory release date is established at two-thirds
13of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b)
14resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.
SB2-SSA1, s. 6
15Section
6. 302.11 (1w) of the statutes is created to read:
SB2-SSA1,4,1716
302.11
(1w) An inmate who is sentenced to death or life imprisonment under
17s. 976.0145 is not entitled to mandatory release on parole under this section.
SB2-SSA1, s. 7
18Section
7. 303.065 (1) (b) 2. of the statutes is amended to read:
SB2-SSA1,4,2119
303.065
(1) (b) 2. A person serving a life sentence under s. 939.62 (2m) (c) or
20973.014 (1) (c) or (1g) (a) 3.
or awaiting imposition of a death sentence may not be
21considered for work release.
SB2-SSA1, s. 8
22Section
8. 304.02 (5) of the statutes is amended to read:
SB2-SSA1,5,223
304.02
(5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life
24sentence under s. 939.62 (2m) (c) or 973.014 (1) (c) or (1g)
or who is awaiting
1imposition of a death sentence is not eligible for release to parole supervision under
2this section.
SB2-SSA1,5,195
304.06
(1) (b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m)
or (1t), 6or s. 302.045 (3), 973.01 (6)
, or 973.0135, the parole commission may parole an
7inmate of the Wisconsin state prisons or any felon or any person serving at least one
8year or more in a county house of correction or a county reforestation camp organized
9under s. 303.07, when he or she has served 25% of the sentence imposed for the
10offense, or 6 months, whichever is greater. Except as provided in
sub. (1t) or s. 939.62
11(2m) (c) or 973.014 (1) (b) or (c), (1g)
, or (2), the parole commission may parole an
12inmate serving a life term when he or she has served 20 years, as modified by the
13formula under s. 302.11 (1) and subject to extension under s. 302.11 (1q) and (2), if
14applicable. The person serving the life term shall be given credit for time served prior
15to sentencing under s. 973.155, including good time under s. 973.155 (4). The
16secretary may grant special action parole releases under s. 304.02. The department
17or the parole commission shall not provide any convicted offender or other person
18sentenced to the department's custody any parole eligibility or evaluation until the
19person has been confined at least 60 days following sentencing.
SB2-SSA1, s. 10
20Section
10. 304.06 (1t) of the statutes is created to read:
SB2-SSA1,5,2221
304.06
(1t) The parole commission may not parole an inmate who is sentenced
22to life imprisonment or death under s. 973.0145.
SB2-SSA1,6,3
1304.071
(2) If a prisoner is
not eligible ineligible for parole under s. 961.49 (2),
21999 stats., or s.
304.06 (1t), 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c) or (1g)
, or
3973.032 (5), he or she is not eligible for parole under this section.
SB2-SSA1,6,226
938.355
(4) (b) Except as provided in s. 938.368, an order under s. 938.34 (4d)
7or (4m) made before the juvenile reaches 18 years of age may apply for up to 2 years
8after its entry or until the juvenile's 18th birthday, whichever is earlier, unless the
9court specifies a shorter period of time or the court terminates the order sooner.
10Except as provided in s. 938.368, an order under s. 938.34 (4h) made before the
11juvenile reaches 18 years of age shall apply for 5 years after its entry, if the juvenile
12is adjudicated delinquent for committing a violation of s. 943.10 (2) or for committing
13an act that would be punishable as a Class B or C felony if committed by an adult,
14or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent
15for committing an act that would be punishable as a Class
AA or A felony if
16committed by an adult. Except as provided in s. 938.368, an extension of an order
17under s. 938.34 (4d), (4h), (4m), or (4n) made before the juvenile reaches 17 years of
18age shall terminate at the end of one year after its entry unless the court specifies
19a shorter period of time or the court terminates the order sooner. No extension under
20s. 938.365 of an original dispositional order under s. 938.34 (4d), (4h), (4m), or (4n)
21may be granted for a juvenile who is 17 years of age or older when the original
22dispositional order terminates.
SB2-SSA1, s. 13
23Section
13. 938.538 (3) (a) 1m. of the statutes is amended to read:
SB2-SSA1,7,524
938.538
(3) (a) 1m. If the participant has been adjudicated delinquent for
25committing an act that would be a Class
AA or A felony if committed by an adult,
1placement in a Type 1 secured correctional facility, a secured child caring institution
2or, if the participant is 17 years of age or over or 15 years of age or over and
3transferred under s. 938.357 (4) (d), a Type 1 prison, as defined in s. 301.01 (5), until
4the participant reaches 25 years of age, unless the participant is released sooner,
5subject to a mandatory minimum period of confinement of not less than one year.
SB2-SSA1, s. 14
6Section
14. 939.22 (7) of the statutes is created to read:
SB2-SSA1,7,87
939.22
(7) "Crime that is punishable by death or life imprisonment" means a
8crime for which one or more of the possible penalties is death or life imprisonment.
SB2-SSA1,7,1311
939.30
(2) For a solicitation to commit a crime
for which the penalty is that is
12punishable by death or life imprisonment, the actor is guilty of a Class F felony. For
13a solicitation to commit a Class I felony, the actor is guilty of a Class I felony.
SB2-SSA1,7,21
15939.31 Conspiracy. Except as provided in ss. 940.43 (4), 940.45 (4)
, and
16961.41 (1x), whoever, with intent that a crime be committed, agrees or combines with
17another for the purpose of committing that crime may, if one or more of the parties
18to the conspiracy
does do an act to effect its object, be fined or imprisoned or both not
19to exceed the maximum provided for the completed crime; except that for a
20conspiracy to commit a crime
for which the penalty is
that is punishable by death or 21life imprisonment
, the actor is guilty of a Class B felony.
SB2-SSA1, s. 17
22Section
17. 939.32 (1) (a) of the statutes is amended to read: