SB2: Bill Text

SB2, s. 39 Section 39. 940.01 (2) (intro.) of the statutes is amended to read:

SB2,13,9 940.01 (2) Mitigating circumstances. (intro.) The following are affirmative defenses to prosecution under this section which that mitigate the offense offenses under sub. (1) to 2nd-degree intentional homicide under s. 940.05:

SB2, s. 40 Section 40. 946.50 (1) of the statutes is renumbered 946.50 (1m).

SB2, s. 41 Section 41. 946.50 (1g) of the statutes is created to read:

SB2,13,13 946.50 (1g) A Class AA felony, if the person was adjudicated delinquent for committing an act that would be a Class AA felony if committed by an adult.

SB2, s. 42 Section 42. 961.335 (1m) of the statutes is created to read:

SB2,13,18 961.335 (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. 973.0165, the controlled substances board shall issue a permit under this section.

SB2, s. 43 Section 43. 967.02 (1m) of the statutes is created to read:

SB2,13,21 967.02 (1m) "Crime that is punishable by death or life imprisonment" has the meaning given in s. 939.22 (7).

SB2, s. 44 Section 44. 971.17 (1) (c) of the statutes is amended to read:

SB2,14,2 971.17 (1) (c) Felonies punishable by death or life imprisonment. If a defendant is found not guilty by reason of mental disease or mental defect of a felony that is punishable by death or life imprisonment, the commitment period specified by the court may be life, subject to termination under sub. (5).

SB2, s. 45 Section 45. 972.03 of the statutes is amended to read:

SB2,14,20 972.03 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).

SB2, s. 46 Section 46. 972.13 (6) of the statutes is amended to read:

SB2,14,22 972.13 (6) The following forms may be used for judgments:

SB2,14,23 STATE OF WISCONSIN

SB2,14,24 .... County

SB2,14,25 In.... Court

SB2,15,1 The State of Wisconsin

SB2,15,2 vs.

SB2,15,3 ....(Name of defendant)

SB2,15,4 UPON ALL THE FILES, RECORDS AND PROCEEDINGS,

SB2,15,10 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.

SB2,15,11 *IT IS ADJUDGED That the defendant is guilty as convicted.

SB2,15,12 *IT IS ADJUDGED That the defendant shall be executed by lethal injection.

SB2,15,14 *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.....

SB2,15,17 *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.

SB2,15,20 *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:....

SB2,15,23 *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....

SB2,15,25 *IT IS ADJUDGED That the defendant is placed on lifetime supervision by the department of corrections under section 939.615 of the Wisconsin Statutes.

SB2,16,2 *IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).

SB2,16,3 *IT IS ADJUDGED That the defendant pay restitution to....

SB2,16,5 *IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows:....

SB2,16,7 *The.... at.... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.

SB2,16,9 *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.

SB2,16,10 Dated this.... day of...., .... (year)

SB2,16,11 BY THE COURT....

SB2,16,12 Date of Offense....,

SB2,16,13 District Attorney....,

SB2,16,14 Defense Attorney....

SB2,16,15 *Strike inapplicable paragraphs.

SB2,16,16 STATE OF WISCONSIN

SB2,16,17 .... County

SB2,16,18 In.... Court

SB2,16,19 The State of Wisconsin

SB2,16,20 vs.

SB2,16,21 ....(Name of defendant)

SB2,16,23 On the.... day of...., .... (year), the district attorney appeared for the state and the defendant appeared in person and by.... the defendant's attorney.

SB2,16,24 UPON ALL THE FILES, RECORDS AND PROCEEDINGS

SB2,17,2 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.

SB2,17,3 Dated this.... day of...., .... (year)

SB2,17,4 BY THE COURT....

SB2, s. 47 Section 47. 973.01 (3) of the statutes is amended to read:

SB2,17,9 973.01 (3) Not applicable to life or death 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.

SB2, s. 48 Section 48. 973.014 (1g) (a) (intro.) of the statutes is amended to read:

SB2,17,14 973.014 (1g) (a) (intro.) Except as provided in sub. (2) or s. 973.0145 (4) (c), when a court sentences a person to life imprisonment for a crime committed on or after December 31, 1999, the court shall make an extended supervision eligibility date determination regarding the person and choose one of the following options:

SB2, s. 49 Section 49. 973.0145 of the statutes is created to read:

SB2,17,21 973.0145 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. A defendant charged with a Class AA felony who intends to raise mental retardation as a bar to his or her death sentence shall give notice of that intention upon his or her conviction of a Class AA felony.

SB2,18,3 (b) The trial judge shall conduct the sentencing 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 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 the defendant waives the right to a jury.

SB2,18,14 (c) In the sentencing 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 paragraph 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.

SB2,18,18 (2) (a) Unless the defendant waives the right to a jury, the jury shall deliberate after hearing all of the evidence and, by a majority vote, shall render an advisory sentence of life imprisonment or death to the court, based upon the following matters:

SB2,18,19 1. The existence of aggravating circumstances under sub. (6).

SB2,18,20 2. The existence of mitigating circumstances under sub. (7).

SB2,19,2 (b) Upon the request of the defendant or the state, the court shall explain to the jury the court's options under sub. (4) (c) to sentence the defendant to life without the possibility of extended supervision or with delayed eligibility for extended supervision. If the defendant is not eligible for release to extended supervision, the court shall also, upon request of the defendant or the state, explain to the jury the defendant's ineligibility for extended supervision.

SB2,19,5 (c) If the jury recommends life imprisonment, it may further recommend restrictions on the defendant's eligibility for extended supervision or recommend that the defendant not be eligible for extended supervision.

SB2,19,17 (3) After the defendant waives the right to a jury under sub. (2) (a), or after the jury renders its advisory opinion regarding a sentence of life imprisonment or death, a defendant who has given notice of the intention to raise mental retardation as a bar to his or her death sentence may file a motion to determine whether he or she has mental retardation. Upon receipt of the motion, the court shall appoint 2 experts in the field of mental illness to evaluate the defendant and report their findings to the court. The court shall hold a hearing to consider the findings of the court-appointed experts and to consider the findings of any other expert that are offered by the state or the defense on the issue of whether the defendant has mental retardation. If the court finds, by clear and convincing evidence, that the defendant has mental retardation, the court may not impose a sentence of death and shall enter a written order that sets forth with specificity the findings in support of the determination.

SB2,19,23 (4) (a) Notwithstanding the recommendation of a majority of the jury, the court, if it made no determination under sub. (3) that the defendant has mental retardation and 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 all of the following facts:

SB2,19,24 1. That sufficient aggravating circumstances exist under sub. (6).

SB2,20,2 2. That there are insufficient mitigating circumstances under sub. (7) to outweigh the aggravating circumstances.

SB2,20,6 (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. (6) and (7) and upon the records of the trial and the sentencing proceedings.

SB2,20,11 (c) If the court does not make the findings required under par. (b) for a death sentence, or if there is a finding under sub. (3) that the defendant has mental retardation, the court shall impose a sentence of life imprisonment and shall make an extended supervision eligibility determination regarding the person and adopt one of the following options:

SB2,20,13 1. The person is eligible for release to extended supervision after serving 20 years.

SB2,20,17 2. The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in subd. 1., but may not set a date that occurs before the earliest possible date under subd. 1.

SB2,20,18 3. The person is not eligible for release to extended supervision.

SB2,20,21 (d) When imposing a sentence of life imprisonment in accordance with par. (c) 1. or 2., the court shall inform the person of the provisions of s. 302.114 (3) and the procedure for petitioning under s. 302.114 (5) for release to extended supervision.

SB2,21,2 (5) 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.

SB2,21,4 (6) The court and jury shall consider one or more of the following as aggravating circumstances:

SB2,21,6 (a) The defendant was on parole or extended supervision under a sentence for a felony or was confined in prison when he or she committed the Class AA felony.

SB2,21,8 (b) The Class AA felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

SB2,21,9 (c) The defendant knowingly created a great risk to many persons.

SB2,21,11 (d) The Class AA felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

SB2,21,13 (e) The defendant intentionally caused bodily harm or mental anguish to the victim or another before the victim died.

SB2,21,15 (f) During the commission of the offense, the defendant enjoyed or was utterly indifferent to the suffering of another.

SB2,21,19 (7) 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:

SB2,21,20 (a) The defendant has no significant history of prior criminal activity.

SB2,21,22 (b) The Class AA felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

SB2,21,24 (c) The defendant was an accomplice in the Class AA felony committed by another person and the defendant's participation was relatively minor.

SB2,22,2 (d) The defendant acted under extreme duress or under the substantial domination of another person.

SB2,22,5 (e) 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.