AB352: Bill Text

AB352, s. 36 Section 36. 973.015 of the statutes is created to read:

AB352,12,8 973.015 Sentence of death or life imprisonment for Class AA felony. (1) (a) Upon conviction of a defendant of a Class AA felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. The trial judge shall conduct the proceeding before the trial jury, if there was a jury trial, as soon as practicable. If the trial jury is unable to reconvene for a hearing on the issue of the penalty, the trial judge may summon a new jury to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the court shall conduct the sentencing proceeding before a jury summoned for that purpose, unless waived by the defendant.

AB352,12,19 (b) In the 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 subsection 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.

AB352,12,23 (2) (a) Unless the defendant waives the right to a jury, the jury shall deliberate after hearing all the evidence and, by a majority vote, shall render an advisory sentence to the court of life imprisonment or death, based upon the following matters:

AB352,12,24 1. The existence of aggravating circumstances under sub. (5).

AB352,12,25 2. The existence of mitigating circumstances under sub. (6).

AB352,13,3 (b) If the jury recommends life imprisonment, it may further recommend restrictions on the defendant's eligibility for parole or recommend that the defendant not be eligible for parole.

AB352,13,6 (c) Upon the request of the defendant or the state, the court shall explain to the jury the court's options under sub. (3) (c) to sentence the defendant to life without the possibility of parole or with delayed parole eligibility.

AB352,13,11 (3) (a) Notwithstanding the recommendation of a majority of the jury, the court, 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 the facts:

AB352,13,12 1. That sufficient aggravating circumstances exist under sub. (5); and

AB352,13,14 2. That there are insufficient mitigating circumstances under sub. (6) to outweigh the aggravating circumstances.

AB352,13,21 (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. (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment. If the court imposes life imprisonment, it may provide that the sentence is without the possibility of parole or choose any option under s. 973.014 (1).

AB352,14,2 (4) 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.

AB352,14,4 (5) The court and jury shall consider one or more of the following as aggravating circumstances:

AB352,14,6 (a) The Class AA felony was committed by a person under a sentence of imprisonment.

AB352,14,7 (b) The defendant knowingly created a great risk of death to many persons.

AB352,14,9 (c) The Class AA felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

AB352,14,11 (d) The Class AA felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

AB352,14,13 (e) The defendant intentionally caused bodily harm or mental anguish to the victim or another before the victim died.

AB352,14,15 (f) During the commission of the offense, the defendant enjoyed or was utterly indifferent to the suffering of another.

AB352,14,19 (6) 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:

AB352,14,20 (a) The defendant has no significant history of prior criminal activity.

AB352,14,22 (b) The Class AA felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

AB352,14,24 (c) The victim was a participant in the defendant's conduct or consented to the act.

AB352,15,2 (d) The defendant was an accomplice in the Class AA felony committed by another person and the defendant's participation was relatively minor.

AB352,15,4 (e) The defendant acted under extreme duress or under the substantial domination of another person.

AB352,15,7 (f) 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.

AB352,15,8 (g) The age of the defendant at the time of the crime.

AB352,15,11 (7) 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.

AB352,15,12 (8) The execution of a death sentence shall be by lethal injection.

AB352, s. 37 Section 37. 973.016 of the statutes is created to read:

AB352,15,15 973.016 Stay of execution of death sentence. The execution of a death sentence may be stayed only by the governor or incident to an appeal.

AB352, s. 38 Section 38. 973.017 of the statutes is created to read:

AB352,16,3 973.017 Execution of death sentence. 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. The executioner must be a physician or acting under the direction of a physician. 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 shall designate 12 citizens to witness the execution. The secretary shall direct a physician to be present and to announce when death has occurred. 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.

AB352, s. 39 Section 39. 973.032 (2) (b) of the statutes is amended to read:

AB352,16,7 973.032 (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.

AB352, s. 40 Section 40. 973.09 (1) (c) of the statutes is amended to read:

AB352,16,10 973.09 (1) (c) When a person is convicted of any crime which that is punishable by death or life imprisonment, the court shall not place the person on probation.

AB352, s. 41 Section 41. 978.07 (1) (c) 1. of the statutes is amended to read:

AB352,16,16 978.07 (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 or 50 years after the commencement of the action, whichever occurs later. If there is no parole eligibility date, the district attorney may destroy the case record after the defendant's death.

AB352, s. 42 Section 42. Initial applicability.

AB352,16,19 (1)  This act first applies to offenses committed on the effective date of this subsection.

AB352,16,20 (End)