January 10, 2003 - Introduced by Senators A. Lasee, Roessler, Welch, S.
Fitzgerald
and Zien, cosponsored by Representatives F. Lasee, Suder,
Kreibich, Hines, Owens, Ainsworth
and Vrakas. Referred to Committee on
Judiciary, Corrections and Privacy.
SB2,2,2 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), 302.114 (1), 302.114 (2), 302.114 (3) (a) (intro.), 302.114 (3)
4(b), 302.114 (3) (c), 303.065 (1) (b), 304.02 (5), 304.06 (1) (b), 304.071 (2), 938.355
5(4) (b), 938.538 (3) (a) 1m., 939.30 (2), 939.31, 939.32 (1) (a), 939.50 (2), 939.60,
6939.62 (2m) (a) 2m. c., 939.62 (2m) (c), 939.624 (2), 939.63 (1) (b), 939.632 (1) (e)
72., 940.01 (1) (a), 940.01 (2) (intro.), 971.17 (1) (c), 972.03, 972.13 (6), 973.01 (3),
8973.014 (1g) (a) (intro.), 973.032 (2) (b), 973.09 (1) (c) and 978.07 (1) (c) 1.; and
9to create 301.046 (3) (cm), 302.11 (1w), 304.06 (1t), 939.22 (7), 939.22 (19m),
10939.50 (1) (ag), 939.50 (3) (ag), 940.01 (1) (am), 940.01 (1) (b) 1. and 2., 946.50
11(1g), 961.335 (1m), 967.02 (1m), 973.0145 and 973.0147 of the statutes;
12relating to: providing a penalty of either death or life imprisonment for

1first-degree intentional homicide, affecting eligibility for supervised release,
2and 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. A court imposing
a life sentence has the discretion to determine whether the defendant is eligible to
petition for release on extended supervision after serving 20 years in prison or after
some greater specified period, or whether the person is not eligible for release to
extended supervision. (No person convicted for a crime committed on or after
December 31, 1999, is eligible for parole under a sentence for that crime.)
This bill provides a penalty of either death or life imprisonment for certain first
degree homicides. The death penalty is applicable to a first degree intentional
homicide if the victim is under age 16 or is an unborn child, the offender is at least
16 years of age at the time of the offense, 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 crime 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 prosecution and defense present evidence of
aggravating and mitigating circumstances concerning the offense or the defendant.
In order for a judge to sentence a person to death, the judge must find that at least
one of the following six aggravating circumstances applies to the offense or
defendant:
1. The defendant was on parole or extended supervision or was confined in
prison when he or she committed the offense.
2. The offense was committed for the purpose of avoiding or preventing arrest
or for the purpose of effecting an escape from custody.
3. The defendant knowingly created a great risk to many persons.
4. The offense was committed to disrupt or hinder the exercise of government
or the enforcement of law.
5. The defendant intentionally caused the victim bodily harm or mental
anguish before the victim died.
6. The defendant enjoyed or was utterly indifferent to the victim's suffering.
The judge and jury must consider and weigh the existence of the specified
aggravating circumstances against the existence of any mitigating factors such as
whether the defendant acted under extreme mental or emotional duress, the
defendant's capacity to appreciate the criminality of his or her conduct, whether the

defendant has a prior criminal history, whether the victim participated in the
defendant's conduct or consented to the defendant's act, and the defendant's age.
The jury makes a recommendation to the judge by majority vote as to whether
the defendant should be sentenced to death or be sentenced to imprisonment for life.
The jury's recommendation is only advisory. If the defendant intends to raise mental
retardation as a bar to execution, based on the U.S. Supreme Court decision in Atkins
v. Virginia
, .... US .... (2002), he or she must make a motion to the court after the jury
has made its recommendation. The court appoints two experts in mental illness to
evaluate the defendant. The court then holds a hearing to determine if the defendant
has mental retardation. At the hearing, the defendant and the state may provide
expert testimony as to the defendant's mental retardation. If the judge determines,
by clear and convincing evidence, that the defendant has mental retardation, the
judge may not impose a death sentence. If the judge determines that the defendant
does not have mental retardation, the judge must review the aggravating and
mitigating circumstances. If the judge does not find that one of the six aggravating
circumstances applies, the judge must sentence the defendant to life imprisonment
and make a determination as to whether and when the defendant is eligible to
petition for release to extended supervision. If the judge does find that an
aggravating circumstance applies, the judge must weigh the aggravating and
mitigating circumstances and sentence the person either to death or to life
imprisonment. If the judge imposes a death sentence, the judge must specify on the
record his or her findings with regard to the existence of aggravating and mitigating
circumstances. 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 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 bill applies only to those offenses committed on or after the effective date
of the bill.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
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:
SB2, s. 1 1Section 1. 115.31 (2g) of the statutes, as affected by 2001 Wisconsin Act 109,
2is amended to read:
SB2,4,6
1115.31 (2g) Notwithstanding subch. II of ch. 111, the state superintendent shall
2revoke a license granted by the state superintendent, without a hearing, if the
3licensee is convicted of any Class AA, A, B, C, or D felony under ch. 940 or 948, except
4ss. 940.08 and 940.205, for a violation that occurs on or after September 12, 1991, or
5any Class E, F, G, or H felony under ch. 940 or 948, except ss. 940.08 and 940.205,
6for a violation that occurs on or after February 1, 2003.
SB2, s. 2 7Section 2. 118.19 (4) (a) of the statutes, as affected by 2001 Wisconsin Act 109,
8is amended to read:
SB2,4,179 118.19 (4) (a) Notwithstanding subch. II of ch. 111, the state superintendent
10may not grant a license, for 6 years following the date of the conviction, to any person
11who has been convicted of any Class AA, A, B, C, or D felony under ch. 940 or 948,
12except ss. 940.08 and 940.205, or of an equivalent crime in another state or country,
13for a violation that occurs on or after September 12, 1991, or any Class E, F, G, or H
14felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs
15on or after February 1, 2003. The state superintendent may grant the license only
16if the person establishes by clear and convincing evidence that he or she is entitled
17to the license.
SB2, s. 3 18Section 3. 301.046 (3) (cm) of the statutes is created to read:
SB2,4,1919 301.046 (3) (cm) The prisoner is not awaiting imposition of a death sentence.
SB2, s. 4 20Section 4. 301.048 (2) (am) 2. of the statutes is amended to read:
SB2,4,2421 301.048 (2) (am) 2. He or she is a prisoner serving a felony sentence for a felony
22that is
not punishable by death or life imprisonment and the department directs him
23or her to participate in the program. This subdivision does not apply to a prisoner
24serving a bifurcated sentence imposed under s. 973.01.
SB2, s. 5 25Section 5. 302.11 (1) of the statutes is amended to read:
SB2,5,6
1302.11 (1) The warden or superintendent shall keep a record of the conduct of
2each inmate, specifying each infraction of the rules. Except as provided in subs. (1g),
3(1m), (1q), (1w), (1z), (7), and (10), each inmate is entitled to mandatory release on
4parole by the department. The mandatory release date is established at two-thirds
5of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b)
6resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.
SB2, s. 6 7Section 6. 302.11 (1w) of the statutes is created to read:
SB2,5,108 302.11 (1w) An inmate serving a sentence of life imprisonment imposed under
9s. 973.0145 (4) (c) or awaiting imposition of a death sentence is not entitled to
10mandatory release on parole under this section.
SB2, s. 7 11Section 7. 302.114 (1) of the statutes is amended to read:
SB2,5,1512 302.114 (1) An inmate is subject to this section if he or she is serving a life
13sentence imposed under s. 973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2. An
14inmate serving a life sentence under s. 939.62 (2m) or , 973.014 (1g) (a) 3., or 973.0145
15(4) (c) 3.
is not eligible for release to extended supervision under this section.
SB2, s. 8 16Section 8. 302.114 (2) of the statutes is amended to read:
SB2,5,2217 302.114 (2) Except as provided in subs. (3) and (9), an inmate subject to this
18section may petition the sentencing court for release to extended supervision after
19he or she has served 20 years, if the inmate was sentenced under s. 973.014 (1g) (a)
201. or 973.0145 (4) (c) 1., or after he or she has reached the extended supervision
21eligibility date set by the court, if the inmate was sentenced under s. 973.014 (1g) (a)
222. or 973.0145 (4) (c) 2.
SB2, s. 9 23Section 9. 302.114 (3) (a) (intro.) of the statutes is amended to read:
SB2,6,424 302.114 (3) (a) (intro.) The warden or superintendent shall keep a record of the
25conduct of each inmate subject to this section, specifying each infraction of the rules.

1If any inmate subject to this section violates any regulation of the prison or refuses
2or neglects to perform required or assigned duties, the department may extend the
3extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2. or 973.0145
4(4) (c) 1. or 2.
, whichever is applicable, as follows:
SB2, s. 10 5Section 10. 302.114 (3) (b) of the statutes is amended to read:
SB2,6,136 302.114 (3) (b) In addition to the sanctions under par. (a), if an inmate subject
7to this section is placed in adjustment, program, or controlled segregation status, the
8department may extend the extended supervision eligibility date set under s.
9973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2., whichever is applicable, by a
10number of days equal to 50% of the number of days spent in segregation status. In
11administering this paragraph, the department shall use the definition of
12adjustment, program, or controlled segregation status under departmental rules in
13effect at the time that an inmate is placed in that status.
SB2, s. 11 14Section 11. 302.114 (3) (c) of the statutes is amended to read:
SB2,6,2215 302.114 (3) (c) An inmate subject to this section who files an action or special
16proceeding, including a petition for a common law writ of certiorari, to which s.
17807.15 applies shall have his or her extended supervision eligibility date set under
18s. 973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2., whichever is applicable, extended
19by the number of days specified in the court order prepared under s. 807.15 (3). Upon
20receiving a court order issued under s. 807.15, the department shall recalculate the
21date on which the inmate to whom the order applies will be entitled to petition for
22release to extended supervision and shall inform the inmate of that date.
SB2, s. 12 23Section 12. 303.065 (1) (b) of the statutes is amended to read:
SB2,7,424 303.065 (1) (b) 1. A person serving a life sentence, other than a life sentence
25specified in subd. 2., may be considered for work release only after he or she has

1reached parole eligibility under s. 304.06 (1) (b) or 973.014 (1) (a) or (b), whichever
2is applicable, or he or she has reached his or her extended supervision eligibility date
3under s. 302.114 (9) (a) or (am), 973.014 (1g) (a) 1. or 2., or 973.0145 (4) (c) 1. or 2.,
4whichever is applicable.
SB2,7,75 2. A person serving a life sentence under s. 939.62 (2m) (c) or, 973.014 (1) (c)
6or (1g) (a) 3., or 973.0145 (4) (c) 3., or awaiting imposition of a death sentence, may
7not be considered for work release.
SB2, s. 13 8Section 13. 304.02 (5) of the statutes is amended to read:
SB2,7,129 304.02 (5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life
10sentence under s. 939.62 (2m) (c) or, 973.014 (1) (c) or (1g), or 973.0145 (4) (c), or who
11is awaiting imposition of a death sentence,
is not eligible for release to parole
12supervision under this section.
SB2, s. 14 13Section 14. 304.06 (1) (b) of the statutes, as affected by 2001 Wisconsin Act
14109
, is amended to read:
SB2,8,415 304.06 (1) (b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m) or (1t),
16or s. 302.045 (3), 973.01 (6), or 973.0135, the parole commission may parole an
17inmate of the Wisconsin state prisons or any felon or any person serving at least one
18year or more in a county house of correction or a county reforestation camp organized
19under s. 303.07, when he or she has served 25% of the sentence imposed for the
20offense, or 6 months, whichever is greater. Except as provided in sub. (1t) or s. 939.62
21(2m) (c) or 973.014 (1) (b) or (c), (1g), or (2), the parole commission may parole an
22inmate serving a life term when he or she has served 20 years, as modified by the
23formula under s. 302.11 (1) and subject to extension under s. 302.11 (1q) and (2), if
24applicable. The person serving the life term shall be given credit for time served prior
25to sentencing under s. 973.155, including good time under s. 973.155 (4). The

1secretary may grant special action parole releases under s. 304.02. The department
2or the parole commission shall not provide any convicted offender or other person
3sentenced to the department's custody any parole eligibility or evaluation until the
4person has been confined at least 60 days following sentencing.
SB2, s. 15 5Section 15. 304.06 (1t) of the statutes is created to read:
SB2,8,76 304.06 (1t) The parole commission may not parole an inmate who is sentenced
7to life imprisonment or death under s. 973.0145.
SB2, s. 16 8Section 16. 304.071 (2) of the statutes, as affected by 2001 Wisconsin Act 109,
9is amended to read:
SB2,8,1210 304.071 (2) If a prisoner is not eligible ineligible for parole under s. 961.49 (2),
111999 stats., or s. 304.06 (1t), 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c) or (1g), or
12973.032 (5), he or she is not eligible for parole under this section.
SB2, s. 17 13Section 17. 938.355 (4) (b) of the statutes, as affected by 2001 Wisconsin Act
14109
, section 533b, is amended to read:
SB2,9,615 938.355 (4) (b) Except as provided in s. 938.368, an order under s. 938.34 (4d)
16or (4m) made before the juvenile reaches 18 years of age may apply for up to 2 years
17after its entry or until the juvenile's 18th birthday, whichever is earlier, unless the
18court specifies a shorter period of time or the court terminates the order sooner.
19Except as provided in s. 938.368, an order under s. 938.34 (4h) made before the
20juvenile reaches 18 years of age shall apply for 5 years after its entry, if the juvenile
21is adjudicated delinquent for committing a violation of s. 943.10 (2) or for committing
22an act that would be punishable as a Class B or C felony if committed by an adult,
23or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent
24for committing an act that would be punishable as a Class AA or A felony if
25committed by an adult. Except as provided in s. 938.368, an extension of an order

1under s. 938.34 (4d), (4h), (4m), or (4n) made before the juvenile reaches 17 years of
2age shall terminate at the end of one year after its entry unless the court specifies
3a shorter period of time or the court terminates the order sooner. No extension under
4s. 938.365 of an original dispositional order under s. 938.34 (4d), (4h), (4m), or (4n)
5may be granted for a juvenile who is 17 years of age or older when the original
6dispositional order terminates.
SB2, s. 18 7Section 18. 938.538 (3) (a) 1m. of the statutes is amended to read:
SB2,9,148 938.538 (3) (a) 1m. If the participant has been adjudicated delinquent for
9committing an act that would be a Class AA or A felony if committed by an adult,
10placement in a Type 1 secured correctional facility, a secured child caring institution
11or, if the participant is 17 years of age or over or 15 years of age or over and
12transferred under s. 938.357 (4) (d), a Type 1 prison, as defined in s. 301.01 (5), until
13the participant reaches 25 years of age, unless the participant is released sooner,
14subject to a mandatory minimum period of confinement of not less than one year.
SB2, s. 19 15Section 19. 939.22 (7) of the statutes is created to read:
SB2,9,1716 939.22 (7) "Crime that is punishable by death or life imprisonment" means a
17crime for which one or more of the possible penalties is death or life imprisonment.
SB2, s. 20 18Section 20. 939.22 (19m) of the statutes is created to read:
SB2,9,2219 939.22 (19m) "Mental retardation" means significantly subaverage general
20intellectual functioning usually defined as an intelligence quotient level of 70 or
21below accompanied by significant deficits or impairments in adaptive functioning
22with onset before the age of 18 years.
SB2, s. 21 23Section 21. 939.30 (2) of the statutes, as affected by 2001 Wisconsin Act 109,
24is amended to read:
SB2,10,3
1939.30 (2) For a solicitation to commit a crime for which the penalty is that is
2punishable by death or
life imprisonment, the actor is guilty of a Class F felony. For
3a solicitation to commit a Class I felony, the actor is guilty of a Class I felony.
SB2, s. 22 4Section 22. 939.31 of the statutes is amended to read:
SB2,10,11 5939.31 Conspiracy. Except as provided in ss. 940.43 (4), 940.45 (4), and
6961.41 (1x), whoever, with intent that a crime be committed, agrees or combines with
7another for the purpose of committing that crime may, if one or more of the parties
8to the conspiracy does do an act to effect its object, be fined or imprisoned or both not
9to exceed the maximum provided for the completed crime; except that for a
10conspiracy to commit a crime for which the penalty is that is punishable by death or
11life imprisonment, the actor is guilty of a Class B felony.
SB2, s. 23 12Section 23. 939.32 (1) (a) of the statutes is amended to read:
SB2,10,1413 939.32 (1) (a) Whoever attempts to commit a crime for which the penalty is that
14is punishable by death or
life imprisonment is guilty of a Class B felony.
SB2, s. 24 15Section 24. 939.50 (1) (a) of the statutes is renumbered 939.50 (1) (am).
SB2, s. 25 16Section 25. 939.50 (1) (ag) of the statutes is created to read:
SB2,10,1717 939.50 (1) (ag) Class AA felony.
SB2, s. 26 18Section 26. 939.50 (2) of the statutes, as affected by 2001 Wisconsin Act 109,
19is amended to read:
SB2,10,2120 939.50 (2) A felony is a Class AA, A, B, C, D, E, F, G, H, or I felony when it is
21so specified in the statutes.
SB2, s. 27 22Section 27. 939.50 (3) (a) of the statutes is renumbered 939.50 (3) (am).
SB2, s. 28 23Section 28. 939.50 (3) (ag) of the statutes is created to read:
SB2,10,2524 939.50 (3) (ag) For a Class AA felony, life imprisonment or death, as determined
25under s. 973.0145.
SB2, s. 29
1Section 29. 939.60 of the statutes is amended to read:
SB2,11,4 2939.60 Felony and misdemeanor defined. A crime that is punishable by
3death or imprisonment in the Wisconsin state prisons is a felony. Every other crime
4is a misdemeanor.
SB2, s. 30 5Section 30. 939.62 (2m) (a) 2m. c. of the statutes is amended to read:
SB2,11,76 939.62 (2m) (a) 2m. c. The solicitation, conspiracy , or attempt, under s. 939.30,
7939.31, or 939.32, to commit a Class AA felony or a Class A felony.
SB2, s. 31 8Section 31. 939.62 (2m) (c) of the statutes is amended to read:
SB2,11,129 939.62 (2m) (c) If the actor is a persistent repeater and the actor is not
10sentenced to death under s. 973.0145
, the term of imprisonment for the felony for
11which the persistent repeater presently is being sentenced under ch. 973 is life
12imprisonment without the possibility of parole or extended supervision.
SB2, s. 32 13Section 32. 939.624 (2) of the statutes, as affected by 2001 Wisconsin Act 109,
14is amended to read:
SB2,11,2115 939.624 (2) If a person has one or more prior convictions for a serious violent
16crime or a crime that is punishable by death or life imprisonment and subsequently
17commits a serious violent crime, the court shall impose a bifurcated sentence under
18s. 973.01. The term of confinement in prison portion of a bifurcated sentence imposed
19under this subsection may not be less than 3 years and 6 months, but otherwise the
20penalties for the crime apply, subject to any applicable penalty enhancement. The
21court may not place the defendant on probation.
SB2, s. 33 22Section 33. 939.63 (1) (b) of the statutes, as affected 2001 Wisconsin Act 109,
23is amended to read:
SB2,12,3
1939.63 (1) (b) If the maximum term of imprisonment for a felony is more than
25 years or is a life term or the felony is punishable by death, the maximum term of
3imprisonment for the felony may be increased by not more than 5 years.
SB2, s. 34 4Section 34. 939.632 (1) (e) 2. of the statutes is amended to read:
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