LRB-1526/1
RLR:cjs:pg
2007 - 2008 LEGISLATURE
March 27, 2007 - Introduced by Senators A. Lasee and Roessler, cosponsored by
Representatives Kaufert, F. Lasee, LeMahieu, Owens and Gunderson.
Referred to Committee on Ethics Reform and Government Operations.
SB115,1,8
1An Act to amend 301.048 (2) (am) 2., 302.11 (1), 303.065 (1) (b) 2., 304.02 (5),
2304.06 (1) (b), 304.071 (2), 939.30 (2), 939.31, 939.32 (1) (a), 939.50 (3) (a),
3939.60, 939.619 (2), 939.62 (2m) (c), 939.63 (1) (b), 971.17 (1) (c), 972.03, 972.13
4(6), 973.01 (3), 973.09 (1) (c) and 978.07 (1) (c) 1.; and
to create 301.046 (3) (cm),
5302.11 (1w), 304.06 (1t), 939.22 (7), 961.335 (1m), 967.02 (1m), 971.01 (3),
6973.0145, 973.0147, 973.15 (2m) (a) 2. c. and 978.07 (1) (c) 1m. of the statutes;
7relating to: providing a penalty of death or life imprisonment for a first-degree
8intentional homicide that is vicious.
Analysis by the Legislative Reference Bureau
Under current law, no state crime is punishable by a sentence of death.
First-degree intentional 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. Unless the defendant is found to be a persistent repeat offender, a
court imposing a sentence of life imprisonment must determine whether the
defendant will be eligible to petition for release to extended supervision after serving
20 years in prison, after serving a longer period of time in prison, or never. A
persistent repeat offender who is sentenced to life imprisonment is not eligible to
petition for release to extended supervision.
This bill allows a penalty of death for a first-degree intentional homicide that
is vicious. If the state intends to seek a death sentence for a first-degree intentional
homicide, the state must provide notice of intent to seek a death sentence as part of
the court filing that charges the first-degree intentional homicide.
For a death penalty case, the court must hold a sentencing hearing separate
from the trial. The defendant has a right to a jury at the sentencing hearing.
Generally, the trial jury will serve at the sentencing hearing. However, if the trial
was held without a jury or if the trial jury cannot continue to serve, a new jury must
be selected. If the defendant waives the right to a jury for the sentencing hearing the
hearing will be held before the court alone.
At the sentencing hearing, the parties may present evidence relating to the
nature of the offense, deoxyribonucleic acid (DNA) evidence related to the offense,
the history and background of the defendant, and any mitigating circumstances. The
jury may not recommend and the court may not impose a sentence of death unless
it finds that the offense was vicious. The jury and court must consider any DNA
evidence related to the offense and any mitigating circumstances in determining
whether a sentence of death is appropriate. If the sentencing hearing is before a jury,
the court must instruct the jury that a mitigating circumstance need not be found by
all members of the jury and need only be proved to the satisfaction of an individual
juror in order to be considered in the individual juror's sentencing recommendation.
Further, if the defendant is a persistent repeat offender and thus not eligible for
release to extended supervision, the court must instruct the jury that if it does not
recommend a sentence of death the defendant will be imprisoned for life without the
possibility of release.
If the jury unanimously recommends a sentence of death, the court must
impose a sentence of death unless the court finds that a sentence of death is not
appropriate, in which case the court must impose a sentence of life imprisonment.
If the jury does not unanimously recommend a sentence of death, the court must
impose a sentence of life imprisonment. The court may not sentence to death a
person who is mentally retarded.
Any sentence of death is subject to automatic appellate review by the Wisconsin
Supreme Court. The court that imposes a 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 incident to an appeal.
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 and local 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:
SB115, s. 1
1Section
1. 301.046 (3) (cm) of the statutes is created to read:
SB115,3,22
301.046
(3) (cm) The prisoner is not awaiting execution of a death sentence.
SB115, s. 2
3Section
2. 301.048 (2) (am) 2. of the statutes is amended to read:
SB115,3,74
301.048
(2) (am) 2. He or she is a prisoner serving a
felony sentence
for a felony
5that is not punishable by
death or life imprisonment and the department directs him
6or her to participate in the program. This subdivision does not apply to a prisoner
7serving a bifurcated sentence imposed under s. 973.01.
SB115, s. 3
8Section
3. 302.11 (1) of the statutes is amended to read:
SB115,3,149
302.11
(1) The warden or superintendent shall keep a record of the conduct of
10each inmate, specifying each infraction of the rules. Except as provided in subs. (1g),
11(1m), (1q),
(1w), (1z), (7)
, and (10), each inmate is entitled to mandatory release on
12parole by the department. The mandatory release date is established at two-thirds
13of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b)
14resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.
SB115, s. 4
15Section
4. 302.11 (1w) of the statutes is created to read:
SB115,3,1716
302.11
(1w) An inmate who is sentenced to death or life imprisonment under
17s. 973.0145 is not entitled to mandatory release on parole under this section.
SB115, s. 5
18Section
5. 303.065 (1) (b) 2. of the statutes is amended to read:
SB115,3,2119
303.065
(1) (b) 2. A person serving a life sentence under s. 939.62 (2m) (c) or
20973.014 (1) (c) or (1g) (a) 3.
or awaiting execution of a death sentence may not be
21considered for work release.
SB115, s. 6
1Section
6. 304.02 (5) of the statutes is amended to read:
SB115,4,42
304.02
(5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life
3sentence under s. 939.62 (2m) (c) or 973.014 (1) (c) or (1g)
or who is awaiting execution
4of a death sentence is not eligible for release to parole supervision under this section.
SB115, s. 7
5Section
7. 304.06 (1) (b) of the statutes is amended to read:
SB115,4,206
304.06
(1) (b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m)
or (1t), 7or s. 302.045 (3), 973.01 (6), or 973.0135, the parole commission may parole an
8inmate of the Wisconsin state prisons or any felon or any person serving at least one
9year or more in a county house of correction or a county reforestation camp organized
10under s. 303.07, when he or she has served
25% 25 percent of the sentence imposed
11for the offense, or 6 months, whichever is greater. Except as provided in
sub. (1t) or 12s. 939.62 (2m) (c) or 973.014 (1) (b) or (c), (1g)
, or (2), the parole commission may
13parole an inmate serving a life term when he or she has served 20 years, as modified
14by the formula under s. 302.11 (1) and subject to extension under s. 302.11 (1q) and
15(2), if applicable. The person serving the life term shall be given credit for time served
16prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The
17secretary may grant special action parole releases under s. 304.02. The department
18or the parole commission shall not provide any convicted offender or other person
19sentenced to the department's custody any parole eligibility or evaluation until the
20person has been confined at least 60 days following sentencing.
SB115, s. 8
21Section
8. 304.06 (1t) of the statutes is created to read:
SB115,4,2322
304.06
(1t) The parole commission may not parole an inmate who is sentenced
23to life imprisonment or death under s. 973.0145.
SB115, s. 9
24Section
9. 304.071 (2) of the statutes is amended to read:
SB115,5,3
1304.071
(2) If a prisoner is
not eligible ineligible for parole under s. 961.49 (2),
21999 stats., or s.
304.06 (1t), 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c) or (1g)
, or
3973.032 (5), he or she is not eligible for parole under this section.
SB115, s. 10
4Section
10. 939.22 (7) of the statutes is created to read:
SB115,5,65
939.22
(7) "Crime that is punishable by death or life imprisonment" means a
6crime for which one or more of the possible penalties is death or life imprisonment.
SB115, s. 11
7Section
11. 939.30 (2) of the statutes is amended to read:
SB115,5,108
939.30
(2) For a solicitation to commit a crime
for which the penalty is that is
9punishable by death or life imprisonment, the actor is guilty of a Class F felony. For
10a solicitation to commit a Class I felony, the actor is guilty of a Class I felony.
SB115, s. 12
11Section
12. 939.31 of the statutes is amended to read:
SB115,5,18
12939.31 Conspiracy. Except as provided in ss. 940.43 (4), 940.45 (4)
, and
13961.41 (1x), whoever, with intent that a crime be committed, agrees or combines with
14another for the purpose of committing that crime may, if one or more of the parties
15to the conspiracy
does do an act to effect its object, be fined or imprisoned or both not
16to exceed the maximum provided for the completed crime; except that for a
17conspiracy to commit a crime
for which the penalty is
that is punishable by death or 18life imprisonment
, the actor is guilty of a Class B felony.
SB115, s. 13
19Section
13. 939.32 (1) (a) of the statutes is amended to read:
SB115,5,2120
939.32
(1) (a) Whoever attempts to commit a crime
for which the penalty is that
21is punishable by death or life imprisonment is guilty of a Class B felony.
SB115, s. 14
22Section
14. 939.50 (3) (a) of the statutes is amended to read:
SB115,5,2423
939.50
(3) (a) For a Class A felony, life imprisonment
, except the penalty for a
24violation of s. 940.01 (1) is death or life imprisonment.
SB115, s. 15
25Section
15. 939.60 of the statutes is amended to read:
SB115,6,3
1939.60 Felony and misdemeanor defined. A crime
that is punishable by
2death or imprisonment in the Wisconsin state prisons is a felony. Every other crime
3is a misdemeanor.
SB115, s. 16
4Section
16. 939.619 (2) of the statutes is amended to read:
SB115,6,115
939.619
(2) If a person has one or more prior convictions for a serious violent
6crime or a crime
that is punishable by
death or life imprisonment and subsequently
7commits a serious violent crime, the court shall impose a bifurcated sentence under
8s. 973.01. The term of confinement in prison portion of a bifurcated sentence imposed
9under this subsection may not be less than 3 years and 6 months, but otherwise the
10penalties for the crime apply, subject to any applicable penalty enhancement. The
11court may not place the defendant on probation.
