SB2: Bill Text

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 An Act to renumber 939.50 (1) (a), 939.50 (3) (a) and 946.50 (1); to renumber and amend 940.01 (1) (b); to amend 115.31 (2g), 118.19 (4) (a), 301.048 (2) (am) 2., 302.11 (1), 302.114 (1), 302.114 (2), 302.114 (3) (a) (intro.), 302.114 (3) (b), 302.114 (3) (c), 303.065 (1) (b), 304.02 (5), 304.06 (1) (b), 304.071 (2), 938.355 (4) (b), 938.538 (3) (a) 1m., 939.30 (2), 939.31, 939.32 (1) (a), 939.50 (2), 939.60, 939.62 (2m) (a) 2m. c., 939.62 (2m) (c), 939.624 (2), 939.63 (1) (b), 939.632 (1) (e) 2., 940.01 (1) (a), 940.01 (2) (intro.), 971.17 (1) (c), 972.03, 972.13 (6), 973.01 (3), 973.014 (1g) (a) (intro.), 973.032 (2) (b), 973.09 (1) (c) and 978.07 (1) (c) 1.; and to create 301.046 (3) (cm), 302.11 (1w), 304.06 (1t), 939.22 (7), 939.22 (19m), 939.50 (1) (ag), 939.50 (3) (ag), 940.01 (1) (am), 940.01 (1) (b) 1. and 2., 946.50 (1g), 961.335 (1m), 967.02 (1m), 973.0145 and 973.0147 of the statutes; relating to: providing a penalty of either death or life imprisonment for first-degree intentional homicide, affecting eligibility for supervised release, and 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 Section 1. 115.31 (2g) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2,4,6 115.31 (2g) Notwithstanding subch. II of ch. 111, the state superintendent shall revoke a license granted by the state superintendent, without a hearing, if the licensee is convicted of any Class AA, A, B, C, or D felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs on or after September 12, 1991, or any Class E, F, G, or H felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs on or after February 1, 2003.

SB2, s. 2 Section 2. 118.19 (4) (a) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2,4,17 118.19 (4) (a) Notwithstanding subch. II of ch. 111, the state superintendent may not grant a license, for 6 years following the date of the conviction, to any person who has been convicted of any Class AA, A, B, C, or D felony under ch. 940 or 948, except ss. 940.08 and 940.205, or of an equivalent crime in another state or country, for a violation that occurs on or after September 12, 1991, or any Class E, F, G, or H felony under ch. 940 or 948, except ss. 940.08 and 940.205, for a violation that occurs on or after February 1, 2003. The state superintendent may grant the license only if the person establishes by clear and convincing evidence that he or she is entitled to the license.

SB2, s. 3 Section 3. 301.046 (3) (cm) of the statutes is created to read:

SB2,4,19 301.046 (3) (cm) The prisoner is not awaiting imposition of a death sentence.

SB2, s. 4 Section 4. 301.048 (2) (am) 2. of the statutes is amended to read:

SB2,4,24 301.048 (2) (am) 2. He or she is a prisoner serving a felony sentence for a felony that is not punishable by death or life imprisonment and the department directs him or her to participate in the program. This subdivision does not apply to a prisoner serving a bifurcated sentence imposed under s. 973.01.

SB2, s. 5 Section 5. 302.11 (1) of the statutes is amended to read:

SB2,5,6 302.11 (1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs. (1g), (1m), (1q), (1w), (1z), (7), and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

SB2, s. 6 Section 6. 302.11 (1w) of the statutes is created to read:

SB2,5,10 302.11 (1w) An inmate serving a sentence of life imprisonment imposed under s. 973.0145 (4) (c) or awaiting imposition of a death sentence is not entitled to mandatory release on parole under this section.

SB2, s. 7 Section 7. 302.114 (1) of the statutes is amended to read:

SB2,5,15 302.114 (1) An inmate is subject to this section if he or she is serving a life sentence imposed under s. 973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2. An inmate serving a life sentence under s. 939.62 (2m) or , 973.014 (1g) (a) 3., or 973.0145 (4) (c) 3. is not eligible for release to extended supervision under this section.

SB2, s. 8 Section 8. 302.114 (2) of the statutes is amended to read:

SB2,5,22 302.114 (2) Except as provided in subs. (3) and (9), an inmate subject to this section may petition the sentencing court for release to extended supervision after he or she has served 20 years, if the inmate was sentenced under s. 973.014 (1g) (a) 1. or 973.0145 (4) (c) 1., or after he or she has reached the extended supervision eligibility date set by the court, if the inmate was sentenced under s. 973.014 (1g) (a) 2. or 973.0145 (4) (c) 2.

SB2, s. 9 Section 9. 302.114 (3) (a) (intro.) of the statutes is amended to read:

SB2,6,4 302.114 (3) (a) (intro.) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If any inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2., whichever is applicable, as follows:

SB2, s. 10 Section 10. 302.114 (3) (b) of the statutes is amended to read:

SB2,6,13 302.114 (3) (b) In addition to the sanctions under par. (a), if an inmate subject to this section is placed in adjustment, program, or controlled segregation status, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2., whichever is applicable, by a number of days equal to 50% of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program, or controlled segregation status under departmental rules in effect at the time that an inmate is placed in that status.

SB2, s. 11 Section 11. 302.114 (3) (c) of the statutes is amended to read:

SB2,6,22 302.114 (3) (c) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall have his or her extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2. or 973.0145 (4) (c) 1. or 2., whichever is applicable, extended by the number of days specified in the court order prepared under s. 807.15 (3). Upon receiving a court order issued under s. 807.15, the department shall recalculate the date on which the inmate to whom the order applies will be entitled to petition for release to extended supervision and shall inform the inmate of that date.

SB2, s. 12 Section 12. 303.065 (1) (b) of the statutes is amended to read:

SB2,7,4 303.065 (1) (b) 1. A person serving a life sentence, other than a life sentence specified in subd. 2., may be considered for work release only after he or she has reached parole eligibility under s. 304.06 (1) (b) or 973.014 (1) (a) or (b), whichever is applicable, or he or she has reached his or her extended supervision eligibility date under s. 302.114 (9) (a) or (am), 973.014 (1g) (a) 1. or 2., or 973.0145 (4) (c) 1. or 2., whichever is applicable.

SB2,7,7 2. A person serving a life sentence under s. 939.62 (2m) (c) or, 973.014 (1) (c) or (1g) (a) 3., or 973.0145 (4) (c) 3., or awaiting imposition of a death sentence, may not be considered for work release.

SB2, s. 13 Section 13. 304.02 (5) of the statutes is amended to read:

SB2,7,12 304.02 (5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life sentence under s. 939.62 (2m) (c) or, 973.014 (1) (c) or (1g), or 973.0145 (4) (c), or who is awaiting imposition of a death sentence, is not eligible for release to parole supervision under this section.

SB2, s. 14 Section 14. 304.06 (1) (b) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2,8,4 304.06 (1) (b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m) or (1t), or s. 302.045 (3), 973.01 (6), or 973.0135, the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in a county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater. Except as provided in sub. (1t) or s. 939.62 (2m) (c) or 973.014 (1) (b) or (c), (1g), or (2), the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11 (1) and subject to extension under s. 302.11 (1q) and (2), if applicable. The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing.

SB2, s. 15 Section 15. 304.06 (1t) of the statutes is created to read:

SB2,8,7 304.06 (1t) The parole commission may not parole an inmate who is sentenced to life imprisonment or death under s. 973.0145.

SB2, s. 16 Section 16. 304.071 (2) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2,8,12 304.071 (2) If a prisoner is not eligible ineligible for parole under s. 961.49 (2), 1999 stats., or s. 304.06 (1t), 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c) or (1g), or 973.032 (5), he or she is not eligible for parole under this section.

SB2, s. 17 Section 17. 938.355 (4) (b) of the statutes, as affected by 2001 Wisconsin Act 109, section 533b, is amended to read:

SB2,9,6 938.355 (4) (b) Except as provided in s. 938.368, an order under s. 938.34 (4d) or (4m) made before the juvenile reaches 18 years of age may apply for up to 2 years after its entry or until the juvenile's 18th birthday, whichever is earlier, unless the court specifies a shorter period of time or the court terminates the order sooner. Except as provided in s. 938.368, an order under s. 938.34 (4h) made before the juvenile reaches 18 years of age shall apply for 5 years after its entry, if the juvenile is adjudicated delinquent for committing a violation of s. 943.10 (2) or for committing an act that would be punishable as a Class B or C felony if committed by an adult, or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class AA or A felony if committed by an adult. Except as provided in s. 938.368, an extension of an order under s. 938.34 (4d), (4h), (4m), or (4n) made before the juvenile reaches 17 years of age shall terminate at the end of one year after its entry unless the court specifies a shorter period of time or the court terminates the order sooner. No extension under s. 938.365 of an original dispositional order under s. 938.34 (4d), (4h), (4m), or (4n) may be granted for a juvenile who is 17 years of age or older when the original dispositional order terminates.

SB2, s. 18 Section 18. 938.538 (3) (a) 1m. of the statutes is amended to read:

SB2,9,14 938.538 (3) (a) 1m. If the participant has been adjudicated delinquent for committing an act that would be a Class AA or A felony if committed by an adult, placement in a Type 1 secured correctional facility, a secured child caring institution or, if the participant is 17 years of age or over or 15 years of age or over and transferred under s. 938.357 (4) (d), a Type 1 prison, as defined in s. 301.01 (5), until the participant reaches 25 years of age, unless the participant is released sooner, subject to a mandatory minimum period of confinement of not less than one year.

SB2, s. 19 Section 19. 939.22 (7) of the statutes is created to read:

SB2,9,17 939.22 (7) "Crime that is punishable by death or life imprisonment" means a crime for which one or more of the possible penalties is death or life imprisonment.

SB2, s. 20 Section 20. 939.22 (19m) of the statutes is created to read:

SB2,9,22 939.22 (19m) "Mental retardation" means significantly subaverage general intellectual functioning usually defined as an intelligence quotient level of 70 or below accompanied by significant deficits or impairments in adaptive functioning with onset before the age of 18 years.

SB2, s. 21 Section 21. 939.30 (2) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2,10,3 939.30 (2) For a solicitation to commit a crime for which the penalty is that is punishable by death or life imprisonment, the actor is guilty of a Class F felony. For a solicitation to commit a Class I felony, the actor is guilty of a Class I felony.

SB2, s. 22 Section 22. 939.31 of the statutes is amended to read:

SB2,10,11 939.31 Conspiracy. Except as provided in ss. 940.43 (4), 940.45 (4), and 961.41 (1x), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does do an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is that is punishable by death or life imprisonment, the actor is guilty of a Class B felony.

SB2, s. 23 Section 23. 939.32 (1) (a) of the statutes is amended to read:

SB2,10,14 939.32 (1) (a) Whoever attempts to commit a crime for which the penalty is that is punishable by death or life imprisonment is guilty of a Class B felony.

SB2, s. 24 Section 24. 939.50 (1) (a) of the statutes is renumbered 939.50 (1) (am).

SB2, s. 25 Section 25. 939.50 (1) (ag) of the statutes is created to read:

SB2,10,17 939.50 (1) (ag) Class AA felony.

SB2, s. 26 Section 26. 939.50 (2) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2,10,21 939.50 (2) A felony is a Class AA, A, B, C, D, E, F, G, H, or I felony when it is so specified in the statutes.

SB2, s. 27 Section 27. 939.50 (3) (a) of the statutes is renumbered 939.50 (3) (am).

SB2, s. 28 Section 28. 939.50 (3) (ag) of the statutes is created to read:

SB2,10,25 939.50 (3) (ag) For a Class AA felony, life imprisonment or death, as determined under s. 973.0145.

SB2, s. 29 Section 29. 939.60 of the statutes is amended to read:

SB2,11,4 939.60 Felony and misdemeanor defined. A crime that is punishable by death or imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.

SB2, s. 30 Section 30. 939.62 (2m) (a) 2m. c. of the statutes is amended to read:

SB2,11,7 939.62 (2m) (a) 2m. c. The solicitation, conspiracy , or attempt, under s. 939.30, 939.31, or 939.32, to commit a Class AA felony or a Class A felony.

SB2, s. 31 Section 31. 939.62 (2m) (c) of the statutes is amended to read:

SB2,11,12 939.62 (2m) (c) If the actor is a persistent repeater and the actor is not sentenced to death under s. 973.0145, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.

SB2, s. 32 Section 32. 939.624 (2) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB2,11,21 939.624 (2) If a person has one or more prior convictions for a serious violent crime or a crime that is punishable by death or life imprisonment and subsequently commits a serious violent crime, the court shall impose a bifurcated sentence under s. 973.01. The term of confinement in prison portion of a bifurcated sentence imposed under this subsection may not be less than 3 years and 6 months, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court may not place the defendant on probation.

SB2, s. 33 Section 33. 939.63 (1) (b) of the statutes, as affected 2001 Wisconsin Act 109, is amended to read:

SB2,12,3 939.63 (1) (b) If the maximum term of imprisonment for a felony is more than 5 years or is a life term or the felony is punishable by death, the maximum term of imprisonment for the felony may be increased by not more than 5 years.

SB2, s. 34 Section 34. 939.632 (1) (e) 2. of the statutes is amended to read: