SB328: Bill Text

SB328,32,13 (a) Under s. 939.30 for solicitation.

SB328,32,14 (b) Under s. 939.31 for conspiracy.

SB328,32,15 (c) Under s. 939.32 for attempt.

SB328,32,16 (d) Under s. 939.05 as a party to a crime.

SB328, s. 50 Section 50. 948.605 (2) (b) 4m. of the statutes is created to read:

SB328,32,19 948.605 (2) (b) 4m. By an individual holding a valid license issued under s. 85.57 who is carrying a concealed weapon as permitted under s. 175.50;

SB328, s. 51 Section 51. 961.335 (1m) of the statutes is created to read:

SB328,32,24 961.335 (1m) Notwithstanding sub. (1), upon the application of the secretary of corrections for a permit to obtain a controlled substance for purposes of an execution under s. 973.017, the controlled substances board shall issue a permit under this section.

SB328, s. 52 Section 52. 967.02 (1m) of the statutes is created to read:

SB328,33,2 967.02 (1m) "Crime punishable by death or life imprisonment" has the meaning given in s. 939.22 (7).

SB328, s. 53 Section 53. 969.08 (10) (b) of the statutes is amended to read:

SB328,33,11 969.08 (10) (b) "Serious crime" means any crime specified in s. 346.62 (4), 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19 (5), 940.195 (5), 940.20, 940.201, 940.203, 940.21, 940.225 (1) to (3), 940.23, 940.24, 940.25, 940.29, 940.295 (3) (b) 1g., 1m., 1r., 2. or 3., 940.31, 941.20 (2) or (3), 941.26, 941.30, 941.327, 943.01 (2) (c), 943.011, 943.013, 943.02, 943.03, 943.04, 943.06, 943.10, 943.23 (1g), (1m) or (1r), 943.30, 943.32, 946.01, 946.02, 946.43, 947.015 947.07, 947.08, 947.09, 947.10, 948.02 (1) or (2), 948.025, 948.03, 948.04, 948.05, 948.06, 948.07 or 948.30.

SB328, s. 54 Section 54. 971.17 (1) of the statutes is amended to read:

SB328,33,23 971.17 (1) Commitment period. When a defendant is found not guilty by reason of mental disease or mental defect, the court shall commit the person to the department of health and family services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed under s. 973.15 (2) (a) against an offender convicted of the same crime or crimes, including imprisonment authorized by ss. 346.65 (2) (f), (2j) (d), or (3m), 939.62, 939.621, 939.63, 939.635, 939.64, 939.641, 939.645, 940.09 (1b), 940.25 (1b) , and 961.48 and other penalty enhancement statutes, as applicable, subject to the credit provisions of s. 973.155. If the maximum term of imprisonment is crime is punishable by death or life imprisonment, the commitment period specified by the court may be life, subject to termination under sub. (5).

SB328, s. 55 Section 55. 972.03 of the statutes is amended to read:

SB328,34,17 972.03 Peremptory challenges. Each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. When the crime charged is punishable by death or life imprisonment, the state is entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. If there is more than one defendant, the court shall divide the challenges as equally as practicable among them; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional challenges. If the crime is punishable by death or life imprisonment, the total peremptory challenges allowed the defense shall not exceed 12 if there are only 2 defendants and 18 if there are more than 2 defendants; in other felony cases 6 challenges if there are only 2 defendants and 9 challenges if there are more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges and the defendant is entitled to 3 peremptory challenges, except that if there are 2 defendants, the court shall allow the defense 4 peremptory challenges, and, if there are more than 2 defendants, the court shall allow the defense 6 peremptory challenges. Each side shall be allowed one additional peremptory challenge if additional jurors are to be selected under s. 972.04 (1).

SB328, s. 56 Section 56. 972.13 (6) of the statutes is amended to read:

SB328,34,19 972.13 (6) The following forms may be used for judgments:

SB328,34,20 STATE OF WISCONSIN

SB328,34,21 .... County

SB328,34,22 In.... Court

SB328,34,23 The State of Wisconsin

SB328,34,24 vs.

SB328,34,25 ....(Name of defendant)

SB328,35,1 UPON ALL THE FILES, RECORDS AND PROCEEDINGS,

SB328,35,7 IT IS ADJUDGED That the defendant has been convicted upon the defendant's plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty) (no contest) on the.... day of...., .... (year), of the crime of.... in violation of s.....; and the court having asked the defendant whether the defendant has anything to state why sentence should not be pronounced, and no sufficient grounds to the contrary being shown or appearing to the court.

SB328,35,8 *IT IS ADJUDGED That the defendant is guilty as convicted.

SB328,35,9 *IT IS ADJUDGED That the defendant shall be executed by lethal injection.

SB328,35,11 *IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin state prisons (county jail of.... county) for an indeterminate term of not more than.....

SB328,35,14 *IT IS ADJUDGED That the defendant is ordered to serve a bifurcated sentence consisting of .... year(s) of confinement in prison and .... months/years of extended supervision.

SB328,35,17 *IT IS ADJUDGED That the defendant is placed in the intensive sanctions program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes and the following conditions:....

SB328,35,20 *IT IS ADJUDGED That the defendant is hereby committed to detention in (the defendant's place of residence or place designated by judge) for a term of not more than....

SB328,35,22 *IT IS ADJUDGED That the defendant is placed on lifetime supervision by the department of corrections under section 939.615 of the Wisconsin Statutes.

SB328,35,24 *IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).

SB328,35,25 *IT IS ADJUDGED That the defendant pay restitution to....

SB328,36,2 *IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows:....

SB328,36,4 *The.... at.... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.

SB328,36,6 *IT IS ORDERED That the clerk deliver a duplicate original of this judgment to the sheriff who shall forthwith execute the same and deliver it to the warden.

SB328,36,7 Dated this.... day of...., .... (year)

SB328,36,8 BY THE COURT....

SB328,36,9 Date of Offense....,

SB328,36,10 District Attorney....,

SB328,36,11 Defense Attorney....

SB328,36,12 *Strike inapplicable paragraphs.

SB328,36,13 STATE OF WISCONSIN

SB328,36,14 .... County

SB328,36,15 In.... Court

SB328,36,16 The State of Wisconsin

SB328,36,17 vs.

SB328,36,18 ....(Name of defendant)

SB328,36,20 On the.... day of...., .... (year), the district attorney appeared for the state and the defendant appeared in person and by.... the defendant's attorney.

SB328,36,21 UPON ALL THE FILES, RECORDS AND PROCEEDINGS

SB328,36,23 IT IS ADJUDGED That the defendant has been found not guilty by the verdict of the jury (by the court) and is therefore ordered discharged forthwith.

SB328,36,24 Dated this.... day of...., .... (year)

SB328,36,25 BY THE COURT....

SB328, s. 57 Section 57. 973.01 (3) of the statutes is amended to read:

SB328,37,5 973.01 (3) Not applicable to life sentences. If a person is being sentenced for a felony that is punishable by life imprisonment or by death, he or she is not subject to this section but shall be sentenced under s. 973.014 (1g) or 973.0145, whichever is applicable.

SB328, s. 58 Section 58. 973.0145 of the statutes is created to read:

SB328,37,14 973.0145 Sentence of death or life imprisonment for homicide by terrorist. (1) Upon conviction of a defendant of a homicide under s. 940.01 to which s. 939.648 (2) and (3) (b) are found to apply, the court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment. Nothing in this section precludes the state at any time from retracting its decision to seek a sentence of death. If the state chooses not to seek a sentence of death, the court shall sentence the defendant to life imprisonment as provided under s. 973.014.

SB328,38,6 (2) The trial judge shall conduct the hearing before the trial jury, if there was a jury trial, as soon as practicable. Before commencing the sentencing hearing with the trial jury, the court shall determine whether the jurors can impartially render a sentencing determination based on evidence presented in the sentencing hearing. The court shall examine each juror individually outside the presence of the other jurors. The court shall determine the scope of the examination of individual jurors and may use questions proposed by any of the parties. The individual juror examinations shall be conducted on the record, but the court may seal the record of an individual juror's examination upon the motion of any party and a showing of good cause. If the court finds that a juror is not impartial, the court shall discharge that juror and replace the juror with the next alternate juror. If no alternate juror is available, the court shall dismiss the trial jury and impanel a new jury. If the trial jury is unable to reconvene for a hearing on the issue of 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 hearing before a jury summoned for that purpose unless the defendant waives the right to a jury.

SB328,38,13 (3) At the sentencing hearing, the defendant may present any evidence that is relevant to a mitigating circumstance under sub. (5). The state may not offer evidence or argument relating to any mitigating factor except in rebuttal of evidence offered by the defendant. 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.

SB328,38,23 (4) The court shall instruct the jury to consider the evidence of mitigating circumstances and to determine whether the defendant should be sentenced to death or to life imprisonment. The court shall further instruct the jury that, if the jury does not reach a unanimous decision, the court shall impose a sentence of life imprisonment under which the defendant will serve at least 20 years in prison and that the judge shall determine whether the defendant may be eligible for release to extended supervision at some time after 20 years, and if so when, or whether the defendant is not eligible for release to extended supervision. Upon the motion of any party, the court shall further inform the jury if the defendant is ineligible for release to extended supervision under s. 939.62 (2m) (c).

SB328,39,2 (5) The jury shall consider as a mitigating circumstance 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 any of the following:

SB328,39,4 (a) The defendant has no significant history of prior criminal convictions involving the use of violence against another person.

SB328,39,8 (b) The defendant was mentally retarded, as defined in sub. (7) (a), at the time of the crime, or the defendant's mental capacity was impaired or his or her ability to conform his or her conduct to the requirement of law was impaired, although not so impaired as to constitute a defense to prosecution.

SB328,39,10 (c) The defendant was under duress or under the domination of another person, although not such duress or domination as to constitute a defense to prosecution.

SB328,39,13 (d) The defendant was criminally liable for the present offense of murder committed by another, but his or her participation in the offense was relatively minor, although not so minor as to constitute a defense to prosecution.

SB328,39,16 (e) The murder was committed while the defendant was mentally or emotionally disturbed or under the influence of alcohol or any drug, although not to such an extent as to constitute a defense to prosecution.

SB328,39,19 (f) Any other circumstance concerning the crime, the defendant's state of mind or condition at the time of the crime, or the defendant's character, background, or record that could be relevant to mitigation or punishment for the crime.

SB328,40,4 (6) (a) If the jury unanimously decides that the defendant should be sentenced to death, the court shall impose a sentence of death and the jury shall state on the record which, if any, mitigating circumstances the jury found. If the jury unanimously decides that the defendant should be sentenced to life imprisonment, or if the jury does not unanimously agree on a sentence, the court shall sentence the defendant to life imprisonment as provided under s. 973.014. If the jury decides that the defendant should be sentenced to life imprisonment, the jury may make a recommendation as to when, if ever, the defendant should be eligible for release to extended supervision. The jury's recommendation regarding eligibility for release to extended supervision is not binding on the court.

SB328,40,9 (b) If the jury's decision is unanimous, the court shall read the jury's decision to the jurors and ask the jurors collectively if they concur with the decision. Upon the request of either party, the court shall ask each juror individually if he or she agrees with the jury's decision. If any juror responds in the negative, the court shall refuse to accept the decision and shall direct the jury to continue deliberating.

SB328,40,13 (c) If there is no jury, the court shall consider the evidence presented regarding mitigation and either sentence the defendant to death or to life imprisonment as provided under s. 973.014. If the court sentences the defendant to death, the court shall state on the record which, if any, mitigating circumstances the court found.

SB328,40,16 (7) (a) In this subsection, "mentally retarded" means having significantly subaverage general intellectual functioning that exists concurrently with deficits in adaptive behavior which were manifested before the age of 18 years.

SB328,40,23 (b) If the state is seeking a sentence of death and the defendant files a motion showing cause to believe that the defendant is mentally retarded, the court shall hold a hearing to determine whether the defendant is mentally retarded before conducting the sentencing hearing. The judge shall conduct the hearing on mental retardation without a jury. At the hearing on mental retardation, the defendant has the burden to prove by a preponderance of the evidence that he or she is mentally retarded.

SB328,41,6 (c) At the close of the hearing on mental retardation and before the court renders a determination on the issue of mental retardation, the court shall conduct the sentencing hearing. If the sentence imposed is other than death, the court will not rule on the issue of mental retardation. If the defendant is sentenced to death, the court shall issue a determination regarding mental retardation. If the court finds that the defendant is mentally retarded, the court shall set aside the sentence of death and sentence the defendant under s. 973.014. If the court finds that the defendant is not mentally retarded, the sentence of death stands.

SB328,41,8 (d) The state may appeal a determination that a defendant is mentally retarded.

SB328,41,11 (e) This subsection does not apply if the homicide for which the defendant is being sentenced was committed while the defendant was incarcerated under a criminal sentence.

SB328,41,15 (8) (a) In this subsection, "mental health expert" means a psychiatrist, psychologist, or other person who has received training or education relating to, or has experience relating to, the identification, diagnosis, treatment, or evaluation of mental diseases, defects, or conditions.

SB328,41,22 (b) If either party intends to present evidence offered by a mental health expert of a mental disease, defect, or condition at a sentencing hearing or a hearing on mental retardation under this section, the party shall provide notice of the intent and a summary of the expert's testimony. If the defendant provides notice of intent to present expert mental health testimony, the state may request that the court order the defendant to submit to an examination by a mental health expert designated by the state.

SB328,42,3 (c) Counsel for the defendant and counsel for the state have the right to be present at an examination ordered under par. (b). The state shall provide the defendant with a transcript of the examination promptly after its conclusion. If the court finds that the defendant refused to cooperate fully in an examination ordered under par. (b), the court, upon the request of the state, shall instruct the jury that the defendant did not submit to or cooperate fully in the examination.

SB328,42,7 (d) Statements made by the defendant during an examination ordered under par. (b) are inadmissible as evidence in any criminal action or proceeding concerning the defendant, except as evidence regarding the existence of a mitigating factor under sub. (5) or on the issue mental retardation in a hearing under sub. (7).

SB328,42,10 (9) 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.

SB328,42,11 (10) The execution of a death sentence shall be by lethal injection.

SB328, s. 59 Section 59. 973.016 of the statutes is created to read:

SB328,42,14 973.016 Stay of execution of death sentence. The execution of a death sentence may be stayed only by the governor or incident to an appeal.

SB328, s. 60 Section 60. 973.017 of the statutes is created to read:

SB328,43,3 973.017 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. 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 may not direct a physician to be present or require a physician to announce when death has occurred. A physician may certify the death after a person, other than a physician, has determined or pronounced death. The secretary shall designate 12 citizens to witness the execution. 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.

SB328, s. 61 Section 61. 973.032 (2) (b) of the statutes is amended to read:

SB328,43,9 973.032 (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 or has at any time been convicted, adjudicated delinquent , or found not guilty or not responsible by reason of insanity or mental disease, defect, or illness for committing a violent offense, as defined in s. 301.048 (2) (bm).