January 28, 1997 - Introduced by Senators A. Lasee, Fitzgerald, Drzewiecki,
Huelsman, Zien, Welch and Buettner, cosponsored by Representatives
Kaufert, Ladwig, Brandemuehl, Musser, Foti, Handrick, Owens, Green,
Dobyns, Kreibich, Hoven and Ott. Referred to Committee on Judiciary,
Campaign Finance Reform and Consumer Affairs.
SB30,1,11
1An Act to renumber 939.50 (1) (a), 939.50 (3) (a) and 973.015;
to renumber and
2amend 940.01 (1);
to amend 301.048 (2) (b), 302.11 (1m), 303.065 (1), 304.02
3(5), 304.06 (1) (b), 304.071 (2), 939.30 (2), 939.31, 939.32 (1) (a), 939.50 (2),
4939.60, 939.624 (2), 939.625 (1) (b) 2., 939.63 (1) (a) 2., 961.335 (1), 971.17 (1),
5972.03, 972.13 (6), 973.013 (1) (b), 973.0135 (3), 973.032 (2) (b), 973.09 (1) (c) and
6978.07 (1) (c) 1.; and
to create 301.046 (3) (cm), 304.06 (1t), 939.22 (7), 939.50
7(1) (ag), 939.50 (3) (ag), 940.01 (1) (b), 940.01 (1) (c), 940.01 (1) (d), 961.335 (1m),
8967.02 (1m), 973.015, 973.016 and 973.017 of the statutes;
relating to:
9providing a penalty of either death or life imprisonment for the first-degree
10intentional homicide of a child younger than 16 years old, affecting parole
11eligibility and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Under current law, no state crime is punishable by the death penalty. This bill
provides for either a death penalty (by lethal injection) or life imprisonment (with or
without parole eligibility restrictions) for any first-degree intentional homicide
committed by a person who is 16 years old or older against a child who is younger
than 16 years old. Other first-degree homicides remain punishable by life
imprisonment.
The procedure for determining whether or not the death penalty would be
imposed is the subject of a proceeding that is separate from the regular trial. After
a conviction finding that a first-degree homicide of a child younger than 16 years old
had occurred, the court reconvenes the trial jury, or, if there was no jury trial or the
trial jury is unable to continue, a new jury is summoned. The defendant may waive
the right to a jury. Evidence is then presented regarding various aggravating or
mitigating circumstances relating to the crime and the defendant.
The jury hears the evidence and then gives an advisory sentence to the court
of either life imprisonment or death. If the jury recommends life imprisonment, it
may further recommend a complete or substantial restriction of the defendant's
parole eligibility. The court, not bound by the advisory sentence, then weighs the
aggravating and mitigating circumstances and enters the sentence of either life
imprisonment or death. If life imprisonment is imposed, the court may completely
or substantially restrict the defendant's parole eligibility. If the court chooses the
death sentence it must set forth its findings in writing. Any death sentence is subject
to automatic appellate review by the supreme court.
The court that imposes the death sentence sets the execution date. The
secretary of corrections designates the executioner. Twelve citizen witnesses must
be present at the execution.
This bill applies only to those offenses committed on or after its effective date
(the day after publication).
For further information see the state 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:
SB30, s. 1
1Section
1. 301.046 (3) (cm) of the statutes is created to read:
SB30,2,22
301.046
(3) (cm) The prisoner is not awaiting imposition of a death sentence.
SB30, s. 2
3Section
2. 301.048 (2) (b) of the statutes is amended to read:
SB30,2,64
301.048
(2) (b) He or she is a prisoner serving a
felony sentence
for a felony not
5punishable by
death or life imprisonment and the department directs him or her to
6participate in the program.
SB30, s. 3
7Section
3. 302.11 (1m) of the statutes is amended to read:
SB30,3,28
302.11
(1m) An inmate serving a life term is not entitled to mandatory release.
9Except as provided in ss.
304.06 (1t), 939.62 (2m) and 973.014, the parole commission
1may parole the inmate as specified in s. 304.06 (1).
An inmate awaiting imposition
2of a death sentence is not eligible for parole.
SB30, s. 4
3Section
4. 303.065 (1) of the statutes is amended to read:
SB30,3,94
303.065
(1) The department may grant work release privileges to any person
5incarcerated within the state prisons, except that no person serving a life sentence
6may be considered for work release until he or she has reached parole eligibility
7under s. 304.06 (1) (b)
or (1t) or 973.014 (1) (a) or (b), whichever is applicable, and no
8person serving a life sentence under s. 939.62 (2m) or 973.014 (1) (c)
or awaiting
9imposition of a death sentence may be considered for work release.
SB30, s. 5
10Section
5. 304.02 (5) of the statutes is amended to read:
SB30,3,1311
304.02
(5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life
12sentence under s. 939.62 (2m) or 973.014 (1) (c)
or awaiting imposition of a death
13sentence is not eligible for release to parole supervision under this section.
SB30, s. 6
14Section
6. 304.06 (1) (b) of the statutes is amended to read:
SB30,4,515
304.06
(1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) or
16973.0135, the parole commission may parole an inmate of the Wisconsin state
17prisons or any felon or any person serving at least one year or more in a county house
18of correction or a county reforestation camp organized under s. 303.07, when he or
19she has served 25% of the sentence imposed for the offense, or 6 months, whichever
20is greater. Except as provided in
sub. (1t) or s. 939.62 (2m) or 973.014, the parole
21commission may parole an inmate serving a life term when he or she has served 20
22years, as modified by the formula under s. 302.11 (1) and subject to extension using
23the formulas under s. 302.11 (2). The person serving the life term shall be given
24credit for time served prior to sentencing under s. 973.155, including good time under
25s. 973.155 (4). The secretary may grant special action parole releases under s.
1304.02. The department or the parole commission shall not provide any convicted
2offender or other person sentenced to the department's custody any parole eligibility
3or evaluation until the person has been confined at least 60 days following
4sentencing.
The parole commission may not parole an inmate who is awaiting
5imposition of a death sentence.
SB30, s. 7
6Section
7. 304.06 (1t) of the statutes is created to read:
SB30,4,97
304.06
(1t) If the prisoner is serving a life term imposed under s. 973.015, the
8prisoner is eligible for parole only when authorized by the sentencing court under s.
9973.015 (3) (c).
SB30, s. 8
10Section
8. 304.071 (2) of the statutes is amended to read:
SB30,4,1311
304.071
(2) If a prisoner is not eligible for parole under s.
304.06 (1) (b) or (1t), 12939.62 (2m), 961.49 (2), 973.014 (1) (c) or 973.032 (5), he or she is not eligible for
13parole under this section.
SB30, s. 9
14Section
9. 939.22 (7) of the statutes is created to read:
SB30,4,1615
939.22
(7) "Crime punishable by death or life imprisonment" means a crime for
16which one or more of the possible penalties is death or life imprisonment.
SB30, s. 10
17Section
10. 939.30 (2) of the statutes is amended to read:
SB30,4,2018
939.30
(2) For a solicitation to commit a crime
for which the penalty is 19punishable by death or life imprisonment, the actor is guilty of a Class C felony. For
20a solicitation to commit a Class E felony, the actor is guilty of a Class E felony.
SB30, s. 11
21Section
11. 939.31 of the statutes is amended to read:
SB30,5,3
22939.31 Conspiracy. Except as provided in ss. 161.41 (1x), 940.43 (4) and
23940.45 (4), whoever, with intent that a crime be committed, agrees or combines with
24another for the purpose of committing that crime may, if one or more of the parties
25to the conspiracy does an act to effect its object, be fined or imprisoned or both not
1to exceed the maximum provided for the completed crime; except that for a
2conspiracy to commit a crime
for which the penalty is
punishable by death or life
3imprisonment, the actor is guilty of a Class B felony.
SB30, s. 12
4Section
12. 939.32 (1) (a) of the statutes is amended to read:
SB30,5,65
939.32
(1) (a) Whoever attempts to commit a crime
for which the penalty is 6punishable by death or life imprisonment is guilty of a Class B felony.
SB30, s. 13
7Section
13. 939.50 (1) (a) of the statutes is renumbered 939.50 (1) (am).
SB30, s. 14
8Section
14. 939.50 (1) (ag) of the statutes is created to read:
SB30,5,99
939.50
(1) (ag) Class AA felony.
SB30, s. 15
10Section
15. 939.50 (2) of the statutes is amended to read:
SB30,5,1211
939.50
(2) A felony is a Class
AA, A, B, BC, C, D or E felony when it is so
12specified in chs. 939 to 951.
SB30, s. 16
13Section
16. 939.50 (3) (a) of the statutes is renumbered 939.50 (3) (am).
SB30, s. 17
14Section
17. 939.50 (3) (ag) of the statutes is created to read:
SB30,5,1615
939.50
(3) (ag) For a Class AA felony, life imprisonment or death, as determined
16under s. 973.015.
SB30, s. 18
17Section
18. 939.60 of the statutes is amended to read:
SB30,5,20
18939.60 Felony and misdemeanor defined. A crime punishable by
death or 19imprisonment in the Wisconsin state prisons is a felony. Every other crime is a
20misdemeanor.
SB30, s. 19
21Section
19. 939.624 (2) of the statutes is amended to read:
SB30,6,222
939.624
(2) If a person has one or more prior convictions for a serious violent
23crime or a crime punishable by
death or life imprisonment and subsequently
24commits a serious violent crime, the court shall sentence the person to not less than
255 years' imprisonment, but otherwise the penalties for the crime apply, subject to any
1applicable penalty enhancement. The court shall not place the defendant on
2probation.
SB30, s. 20
3Section
20. 939.625 (1) (b) 2. of the statutes is amended to read:
SB30,6,64
939.625
(1) (b) 2. If the maximum term of imprisonment for a felony is more
5than 5 years or is a life term
or the felony is punishable by death, the maximum term
6of imprisonment for the felony may be increased by not more than 5 years.
SB30, s. 21
7Section
21. 939.63 (1) (a) 2. of the statutes is amended to read:
SB30,6,108
939.63
(1) (a) 2. If the maximum term of imprisonment for a felony is more than
95 years or is a life term
or the felony is punishable by death, the maximum term of
10imprisonment for the felony may be increased by not more than 5 years.
SB30, s. 22
11Section
22. 940.01 (1) of the statutes is renumbered 940.01 (1) (a) and
12amended to read:
SB30,6,1513
940.01
(1) (a) Except as provided in
par. (b) and sub. (2), whoever causes the
14death of another human being with intent to kill that person or another is guilty of
15a Class A felony.
SB30, s. 23
16Section
23. 940.01 (1) (b) of the statutes is created to read:
SB30,6,1917
940.01
(1) (b) Except as provided in pars. (c) and (d) and sub. (2), whoever
18causes the death of another human being with intent to kill that person or another
19is guilty of a Class AA felony if the victim has not attained the age of 16 years.
SB30, s. 24
20Section
24. 940.01 (1) (c) of the statutes is created to read:
SB30,6,2221
940.01
(1) (c) Notwithstanding s. 939.05, a person is subject to par. (b) as a party
22to a crime only if that person had intended that a person be killed.
SB30, s. 25
23Section
25. 940.01 (1) (d) of the statutes is created to read:
SB30,6,2524
940.01
(1) (d) A person is subject to par. (b) only if the person is 16 years old
25or older when he or she commits the offense.
SB30, s. 26
1Section
26. 961.335 (1) of the statutes is amended to read:
SB30,7,122
961.335
(1) Upon Except as provided in sub. (1m), upon application
, the
3controlled substances board may issue a permit authorizing a person to
4manufacture, obtain, possess, use, administer or dispense a controlled substance for
5purposes of scientific research, instructional activities, chemical analysis or other
6special uses, without restriction because of enumeration. No person
shall may 7engage in any such activity without a permit issued under this section, except that
8an individual may be designated and authorized to receive the permit for a college
9or university department, research unit or similar administrative organizational
10unit and students, laboratory technicians, research specialists or chemical analysts
11under his or her supervision may be permitted possession and use of controlled
12substances for these purposes without obtaining an individual permit.
SB30, s. 27
13Section
27. 961.335 (1m) of the statutes is created to read:
SB30,7,1614
961.335
(1m) Upon application of the secretary of corrections for a permit to
15obtain a controlled substance for purposes of an execution under s. 973.017, the
16controlled substances board shall issue a permit under this section.
SB30, s. 28
17Section
28. 967.02 (1m) of the statutes is created to read:
SB30,7,1918
967.02
(1m) "Crime punishable by death or life imprisonment" has the
19meaning given in s. 939.22 (7).
SB30, s. 29
20Section
29. 971.17 (1) of the statutes is amended to read:
SB30,8,621
971.17
(1) Commitment period. When a defendant is found not guilty by reason
22of mental disease or mental defect, the court shall commit the person to the
23department of health and family services for a specified period not exceeding
24two-thirds of the maximum term of imprisonment that could be imposed under s.
25973.15 (2) (a) against an offender convicted of the same crime or crimes, including
1imprisonment authorized by ss. 346.65 (2) (f), (2j) (d) or (3m), 939.62, 939.621,
2939.63, 939.635, 939.64, 939.641, 939.645, 940.09 (1b) and 940.25 (1b) and 961.48
3and other penalty enhancement statutes, as applicable, subject to the credit
4provisions of s. 973.155. If the
maximum term of imprisonment is crime is
5punishable by death or life
imprisonment, the commitment period specified by the
6court may be life, subject to termination under sub. (5).
SB30, s. 30
7Section
30. 972.03 of the statutes is amended to read:
SB30,8,24
8972.03 Peremptory challenges. Each side is entitled to only 4 peremptory
9challenges except as otherwise provided in this section. When the crime charged is
10punishable by
death or life imprisonment the state is entitled to 6 peremptory
11challenges and the defendant is entitled to 6 peremptory challenges. If there is more
12than one defendant, the court shall divide the challenges as equally as practicable
13among them; and if their defenses are adverse and the court is satisfied that the
14protection of their rights so requires, the court may allow the defendants additional
15challenges. If the crime is punishable by
death or life imprisonment, the total
16peremptory challenges allowed the defense shall not exceed 12 if there are only 2
17defendants and 18 if there are more than 2 defendants; in other felony cases 6
18challenges if there are only 2 defendants and 9 challenges if there are more than 2.
19In misdemeanor cases, the state is entitled to 3 peremptory challenges and the
20defendant is entitled to 3 peremptory challenges, except that if there are 2
21defendants, the court shall allow the defense 4 peremptory challenges, and if there
22are more than 2 defendants, the court shall allow the defense 6 peremptory
23challenges. Each side shall be allowed one additional peremptory challenge if
24additional jurors are to be impaneled under s. 972.04 (1).
SB30, s. 31
25Section
31. 972.13 (6) of the statutes is amended to read:
SB30,9,1
1972.13
(6) The following forms may be used for judgments:
SB30,9,22
STATE OF WISCONSIN
SB30,9,54
In .... Court
5
The State of Wisconsin
SB30,9,77
....(Name of defendant)
SB30,9,88
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,
SB30,9,149
IT IS ADJUDGED That the defendant has been convicted upon the defendant's
10plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty)
11(no contest) on the .... day of ...., 19.., of the crime of .... in violation of s. ....; and the
12court having asked the defendant whether the defendant has anything to state why
13sentence should not be pronounced, and no sufficient grounds to the contrary being
14shown or appearing to the court.
SB30,9,1515
*IT IS ADJUDGED That the defendant is guilty as convicted.
SB30,9,16
16*IT IS ADJUDGED That the defendant shall be executed by lethal injection.
SB30,9,1817
*IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin
18state prisons (county jail of .... county) for an indeterminate term of not more than.....
SB30,9,2119
*IT IS ADJUDGED That the defendant is placed in the intensive sanctions
20program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes
21and the following conditions:....
SB30,9,2422
*IT IS ADJUDGED That the defendant is hereby committed to detention in
23(the defendant's place of residence or place designated by judge) for a term of not
24more than....
SB30,10,2
1*IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the
2costs of this action).
SB30,10,33
*IT IS ADJUDGED That the defendant pay restitution to....