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.
SB115, s. 17
12Section
17. 939.62 (2m) (c) of the statutes is amended to read:
SB115,6,1613
939.62
(2m) (c) If the actor is a persistent repeater
and the actor is not
14sentenced to death under s. 973.0145, the term of imprisonment for the felony for
15which the persistent repeater presently is being sentenced under ch. 973 is life
16imprisonment without the possibility of parole or extended supervision.
SB115, s. 18
17Section
18. 939.63 (1) (b) of the statutes is amended to read:
SB115,6,2118
939.63
(1) (b) If the maximum term of imprisonment for a felony is more than
195 years or is a life term
or the felony is a crime that is punishable by death or life
20imprisonment, the maximum term of imprisonment for the felony may be increased
21by not more than 5 years.
SB115, s. 19
22Section
19. 961.335 (1m) of the statutes is created to read:
SB115,7,223
961.335
(1m) Notwithstanding sub. (1), upon the application of the secretary
24of corrections for a permit to obtain a controlled substance for purposes of an
1execution under s. 973.0147, the controlled substances board shall issue a permit
2under this section.
SB115, s. 20
3Section
20. 967.02 (1m) of the statutes is created to read:
SB115,7,54
967.02
(1m) "Crime that is punishable by death or life imprisonment" has the
5meaning given in s. 939.22 (7).
SB115, s. 21
6Section
21. 971.01 (3) of the statutes is created to read:
SB115,7,97
971.01
(3) If the information charges an offense under s. 940.01, the
8information shall contain a statement as to whether the state seeks a sentence of
9death for the offense.
SB115, s. 22
10Section
22. 971.17 (1) (c) of the statutes is amended to read:
SB115,7,1411
971.17
(1) (c)
Felonies punishable by
death or life imprisonment. If a defendant
12is found not guilty by reason of mental disease or mental defect of a felony that is
a
13crime that is punishable by
death or life imprisonment, the commitment period
14specified by the court may be life, subject to termination under sub. (5).
SB115, s. 23
15Section
23. 972.03 of the statutes is amended to read:
SB115,8,7
16972.03 Peremptory challenges. Each side is entitled to only 4 peremptory
17challenges except as otherwise provided in this section. When the crime charged is
18a crime that is punishable by
death or life imprisonment, the state is entitled to 6
19peremptory challenges and the defendant is entitled to 6 peremptory challenges. If
20there is more than one defendant, the court shall divide the challenges as equally as
21practicable among them; and if their defenses are adverse and the court is satisfied
22that the protection of their rights so requires, the court may allow the defendants
23additional challenges. If the crime is
a crime that is punishable by
death or life
24imprisonment, the total peremptory challenges allowed the defense shall not exceed
2512 if there are only 2 defendants and 18 if there are more than 2 defendants; in other
1felony cases 6 challenges if there are only 2 defendants and 9 challenges if there are
2more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges
3and the defendant is entitled to 3 peremptory challenges, except that if there are 2
4defendants
, the court shall allow the defense 4 peremptory challenges
, and
, if there
5are more than 2 defendants, the court shall allow the defense 6 peremptory
6challenges. Each side shall be allowed one additional peremptory challenge if
7additional jurors are to be selected under s. 972.04 (1).
SB115, s. 24
8Section
24. 972.13 (6) of the statutes is amended to read:
SB115,8,99
972.13
(6) The following forms may be used for judgments:
SB115,8,1010
STATE OF WISCONSIN
SB115,8,1212
In.... Court
SB115,8,1313
The State of Wisconsin
SB115,8,1515
....(Name of defendant)
SB115,8,1616
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,
SB115,8,2217
IT IS ADJUDGED That the defendant has been convicted upon the defendant's
18plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty)
19(no contest) on the.... day of...., .... (year), of the crime of.... in violation of s.....; and
20the court having asked the defendant whether the defendant has anything to state
21why sentence should not be pronounced, and no sufficient grounds to the contrary
22being shown or appearing to the court.
SB115,8,2323
*IT IS ADJUDGED That the defendant is guilty as convicted.
SB115,8,24
24*IT IS ADJUDGED That the defendant shall be executed by lethal injection.
SB115,9,2
1*IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin
2state prisons (county jail of.... county) for an indeterminate term of not more than.....
SB115,9,53
*IT IS ADJUDGED That the defendant is ordered to serve a bifurcated
4sentence consisting of .... year(s) of confinement in prison and .... months/years of
5extended supervision.
SB115,9,86
*IT IS ADJUDGED That the defendant is placed in the intensive sanctions
7program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes
8and the following conditions:....
SB115,9,119
*IT IS ADJUDGED That the defendant is hereby committed to detention in
10(the defendant's place of residence or place designated by judge) for a term of not
11more than....
SB115,9,1312
*IT IS ADJUDGED That the defendant is placed on lifetime supervision by the
13department of corrections under section 939.615 of the Wisconsin Statutes.
SB115,9,1514
*IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the
15costs of this action).
SB115,9,1616
*IT IS ADJUDGED That the defendant pay restitution to....
SB115,9,1817
*IT IS ADJUDGED That the defendant is restricted in his or her use of
18computers as follows:....
SB115,9,2019
*The.... at.... is designated as the Reception Center to which the defendant shall
20be delivered by the sheriff.
SB115,9,2221
*IT IS ORDERED That the clerk deliver a duplicate original of this judgment
22to the sheriff who shall forthwith execute the same and deliver it to the warden.
SB115,9,2323
Dated this.... day of...., .... (year)
SB115,9,2424
BY THE COURT....
SB115,9,2525
Date of Offense....,
