LRB-5150/1
EAW:amn
2019 - 2020 LEGISLATURE
February 12, 2020 - Introduced by Senators L. Taylor, Johnson, Smith and
Larson, cosponsored by Representatives Bowen,
Novak, Anderson, Brostoff,
Goyke, Kolste, Neubauer, Stubbs, Stuck, Zamarripa, Crowley, Billings,
Considine, Gruszynski, L. Myers, Spreitzer, Subeck, C. Taylor and Cabrera.
Referred to Committee on Judiciary and Public Safety.
SB815,1,7
1An Act to amend 302.113 (title), 302.113 (1), 302.113 (2), 302.114 (1), 303.065
2(1) (b) 1., 304.02 (5), 304.06 (1) (b), 304.071 (2), 939.616 (1g), 939.62 (2m) (b)
3(intro.), 950.04 (1v) (gm), 950.04 (1v) (m), 973.01 (3), 973.01 (4), 973.014 (1)
4(intro.), 973.014 (1g) (a) (intro.), 973.15 (2m) (a) 1. and 978.07 (1) (c) 1.; and
to
5create 973.014 (3), 973.017 (2c), 973.018 and 977.05 (4) (i) 10. of the statutes;
6relating to: sentencing for crimes committed by a person who is under the age
7of 18.
Analysis by the Legislative Reference Bureau
This bill creates a sentence adjustment procedure for a “youthful offender,”
defined under the bill as a person who committed a crime before he or she turned 18
years old. This bill also prohibits a court from sentencing a youthful offender to life
imprisonment without the possibility of parole or release to extended supervision,
and creates new mitigating factors in the sentencing criteria when sentencing a
youthful offender. Finally, this bill eliminates statutory mandatory life sentences
without parole for youthful offenders in order to align with federal constitutional law.
Under current law, an inmate can petition to reduce the confinement portion
of his or her bifurcated sentence after serving a certain proportion of the sentence.
An inmate who is serving a life sentence can petition to be released to extended
supervision or parole after serving at least 20 years of his or her sentence or after
another date set by the sentencing court. This bill creates a new procedure for a
youthful offender, including a youthful offender who is serving a life sentence, to
receive a sentence adjustment after serving 15 years of his or her sentence. Under
the bill, one year before the inmate is eligible to petition for the sentence adjustment,
the Department of Corrections is required to notify the youthful offender of his or her
eligibility. The court may reduce the term of imprisonment for the youthful offender
and may modify the conditions of parole or extended supervision if the court
determines that the interests of justice warrant a reduction, taking into account the
factors enumerated in the bill. If the court denies the petition under the bill, the
youthful offender may petition again every five years, up to five times. Under the
bill, DOC is required to send a notice to all youthful offenders who have served at
least 14 years of their sentences within six months after the bill takes effect.
Under current law, when a court makes a sentencing decision, it must consider
certain guidelines, including whether there were any aggravating factors present.
Under this bill, when a court is sentencing a youthful offender, it must also consider
mitigating factors related to the age and maturity of the youthful offender. These
sentencing guidelines for youthful offenders take effect retroactively under the bill,
meaning that they apply to any conviction for which sentencing has already
occurred.
Under current law, if a person is convicted of a serious felony on three separate
occasions or a serious child sex offense on two separate occasions, the person is
subject to a mandatory life sentence without the possibility of parole or extended
supervision. However, in Miller v. Alabama, 567 U.S. 460 (2012), the U.S. Supreme
Court held that imposing a mandatory life sentence without parole for a juvenile
constitutes cruel and unusual punishment and therefore violates the eighth
amendment of the Constitution. This bill clarifies that the statutory mandatory
sentence of life imprisonment without the possibility of parole or extended
supervision for repeat offenders does not apply to youthful offenders. This bill also
prohibits a court from imposing a life sentence without the possibility of parole or
extended supervision for a youthful offender. These changes to sentencing also apply
retroactively under the bill.
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:
SB815,1
1Section
1. 302.113 (title) of the statutes is amended to read:
SB815,2,3
2302.113 (title)
Release to extended supervision for felony offenders not
3serving life sentences and youthful offenders.
SB815,2
4Section
2. 302.113 (1) of the statutes is amended to read:
SB815,3,5
1302.113
(1) An inmate is subject to this section if he or she is serving a
2bifurcated sentence imposed under s. 973.01
or, if the inmate is a youthful offender,
3as defined in s. 973.014 (3) (a), a life sentence imposed under s. 973.014 (3) (b) or (c)
4or, if the youthful offender is sentenced before the effective date of this subsection ....
5[LRB inserts date], s. 973.014 (1g).
SB815,3
6Section
3. 302.113 (2) of the statutes is amended to read:
SB815,3,117
302.113
(2) Except as provided in subs. (3) and (9), an inmate subject to this
8section is entitled to release to extended supervision after he or she has served the
9term of confinement in prison portion of the sentence imposed under s. 973.01, as
10modified by the sentencing court under sub. (9g) or s. 302.045 (3m) (b) 1., 302.05 (3)
11(c) 2. a.,
973.018, 973.195 (1r), or 973.198, if applicable.
SB815,4
12Section
4. 302.114 (1) of the statutes is amended to read:
SB815,3,1813
302.114
(1) An inmate is subject to this section if he or she is serving a life
14sentence imposed under s. 973.014 (1g) (a) 1. or 2. An inmate serving a life sentence
15under s. 939.62 (2m) or 973.014 (1g) (a) 3. is not eligible for release to extended
16supervision under this section.
This section does not apply to a youthful offender, as
17defined in s. 973.014 (3) (a), who was sentenced under s. 973.014 (1g) before the
18effective date of this subsection .... [LRB inserts date].
SB815,5
19Section
5. 303.065 (1) (b) 1. of the statutes is amended to read:
SB815,3,2520
303.065
(1) (b) 1. A person serving a life sentence, other than a life sentence
21specified in subd. 2., may be considered for work release only after he or she has
22reached parole eligibility under s. 304.06 (1) (b) or 973.014 (1) (a) or (b)
or (3) (b),
23whichever is applicable, or he or she has reached his or her extended supervision
24eligibility date under s. 302.114 (9) (am) or 973.014 (1g) (a) 1. or 2.
or (3) (c), whichever
25is applicable.
SB815,6
1Section
6. 304.02 (5) of the statutes is amended to read:
SB815,4,42
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 (3) (c) is not eligible for
4release to parole supervision under this section.
SB815,7
5Section
7. 304.06 (1) (b) of the statutes is amended to read:
SB815,4,216
304.06
(1) (b) Except as provided in s. 961.49 (2), 1999 stats., sub. (1m) or s.
7302.045 (3), 302.05 (3) (b), 973.01 (6),
or 973.0135
, or 973.018, the parole commission
8may parole an inmate of the Wisconsin state prisons or any felon or any person
9serving at least one year or more in a county house of correction or a county
10reforestation camp organized under s. 303.07, when he or she has served 25 percent
11of the sentence imposed for the offense, or 6 months, whichever is greater. Except
12as provided in s. 939.62 (2m) (c) or 973.014 (1) (b) or (c), (1g)
or, (2)
, or (3) (b) or (c),
13the parole commission may parole an inmate serving a life term when he or she has
14served 20 years, as modified by the formula under s. 302.11 (1) and subject to
15extension under s. 302.11 (1q) and (2),
or reduction under s. 973.018, if applicable.
16The person serving the life term shall be given credit for time served prior to
17sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary
18may grant special action parole releases under s. 304.02. The department or the
19parole commission shall not provide any convicted offender or other person
20sentenced to the department's custody any parole eligibility or evaluation until the
21person has been confined at least 60 days following sentencing.
SB815,8
22Section
8. 304.071 (2) of the statutes is amended to read:
SB815,4,2523
304.071
(2) If a prisoner is not eligible for parole under s. 961.49 (2), 1999 stats.,
24or s. 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c)
or
, (1g)
, or (3) (c), or 973.032 (5), he or
25she is not eligible for parole under this section.
SB815,9
1Section
9. 939.616 (1g) of the statutes is amended to read:
SB815,5,62
939.616
(1g) If a person is convicted of a violation of s. 948.02 (1) (am) or
3948.025 (1) (a), notwithstanding s. 973.014 (1g) (a) 1. and 2.
and except as provided
4under s. 973.018, the court may not make an extended supervision eligibility date
5determination on a date that will occur before the person has served a 25-year term
6of confinement in prison.
SB815,10
7Section
10. 939.62 (2m) (b) (intro.) of the statutes is amended to read:
SB815,5,108
939.62
(2m) (b) (intro.) The actor is a persistent repeater if
the offense for which
9he or she is presently being sentenced was committed after he or she attained the age
10of 18 and one of the following applies:
SB815,11
11Section
11. 950.04 (1v) (gm) of the statutes is amended to read:
SB815,5,1412
950.04
(1v) (gm) To have reasonable attempts made to notify the victim of
13petitions for sentence adjustment as provided under s.
973.018 (3) (e), 973.09 (3m),
14973.195 (1r) (d), or 973.198.
SB815,12
15Section
12. 950.04 (1v) (m) of the statutes is amended to read:
SB815,5,1816
950.04
(1v) (m) To provide statements concerning sentencing, disposition, or
17parole, as provided under ss. 304.06 (1) (e), 938.32 (1) (b) 1g., 938.335 (3m) (ag),
and 18972.14 (3) (a)
, and 973.018 (4) (d).
SB815,13
19Section
13. 973.01 (3) of the statutes is amended to read:
SB815,5,2220
973.01
(3) Not applicable to life sentences. If a person is being sentenced for
21a felony that is punishable by life imprisonment, he or she is not subject to this
22section but shall be sentenced under s. 973.014 (1g)
or (3).
SB815,14
23Section
14. 973.01 (4) of the statutes is amended to read:
SB815,6,424
973.01
(4) No good time; extension or reduction of term of imprisonment. A
25person sentenced to a bifurcated sentence under sub. (1) shall serve the term of
1confinement in prison portion of the sentence without reduction for good behavior.
2The term of confinement in prison portion is subject to extension under s. 302.113 (3)
3and, if applicable, to reduction under s. 302.045 (3m), 302.05 (3) (c) 2. a., 302.113 (9g),
4973.018, 973.195 (1r), or 973.198.
SB815,15
5Section
15. 973.014 (1) (intro.) of the statutes is amended to read:
SB815,6,96
973.014
(1) (intro.) Except as provided in sub. (2)
or (3), when a court sentences
7a person to life imprisonment for a crime committed on or after July 1, 1988, but
8before December 31, 1999, the court shall make a parole eligibility determination
9regarding the person and choose one of the following options:
SB815,16
10Section
16. 973.014 (1g) (a) (intro.) of the statutes is amended to read:
SB815,6,1411
973.014
(1g) (a) (intro.) Except as provided in sub. (2)
or (3), when a court
12sentences a person to life imprisonment for a crime committed on or after December
1331, 1999, the court shall make an extended supervision eligibility date determination
14regarding the person and choose one of the following options:
SB815,17
15Section
17. 973.014 (3) of the statutes is created to read:
SB815,6,1716
973.014
(3) (a) In this subsection, “youthful offender” means a person who
17committed an offense before the person attained the age of 18 years.
SB815,6,2018
(b) When a court sentences a youthful offender to life imprisonment for a crime
19committed on or after July 1, 1988, but before December 31, 1999, the court shall set
20a date on which the youthful offender is eligible for parole.
SB815,6,2321
(c) When a court sentences a youthful offender to life imprisonment for a crime
22committed on or after December 31, 1999, the court shall set a date on which the
23youthful offender is eligible for release to extended supervision.
SB815,7,3
1(d) When sentencing a youthful offender to life imprisonment under par. (b) or
2(c), the court shall inform the youthful offender of the procedure for petitioning for
3a sentence adjustment under s. 973.018.
SB815,7,64
(e) When sentencing a youthful offender to life imprisonment under par. (b) or
5(c), the court shall consider, in addition to all other relevant factors, all of the
6following:
SB815,7,97
1. That, because children are less criminally culpable and more amenable to
8reform, youthful offenders are constitutionally different from adults for the purposes
9of sentencing.
SB815,7,1110
2. That the sentencing goals of deterrence, retribution, and incapacitation are
11secondary to the goal of rehabilitation when sentencing youthful offenders.
SB815,7,1512
3. That unless the state proves beyond a reasonable doubt that the youthful
13offender is permanently incorrigible and is therefore unable to be rehabilitated,
14youthful offenders must have a meaningful opportunity to obtain release from prison
15based on maturity and rehabilitation.
SB815,18
16Section
18. 973.017 (2c) of the statutes is created to read:
SB815,7,1917
973.017
(2c) Mitigation for youth. When making a sentencing decision for a
18person who had not attained the age of 18 years at the time the crime was committed,
19the court shall consider all of the following mitigating factors:
SB815,7,2220
(a) That, because children are less criminally culpable and more amenable to
21reform, youthful offenders are constitutionally different from adults for the purposes
22of sentencing.
SB815,7,2423
(b) That the sentencing goals of deterrence, retribution, and incapacitation are
24secondary to the goal of rehabilitation when sentencing youthful offenders.
SB815,8,4
1(c) That unless the state proves beyond a reasonable doubt that the youthful
2offender is permanently incorrigible and is therefore unable to be rehabilitated,
3youthful offenders must have a meaningful opportunity to obtain release from prison
4based on maturity and rehabilitation.
SB815,19
5Section
19. 973.018 of the statutes is created to read:
SB815,8,7
6973.018 Sentence adjustment for youthful offenders. (1) Definition. In
7this section, “youthful offender” has the meaning given in s. 973.014 (3) (a).
SB815,8,12
8(2) Sentence adjustment; factors. A court may reduce a term of
9imprisonment, including life imprisonment under s. 973.014 (3), for a youthful
10offender who has served 15 years of his or her term of imprisonment if the court finds
11that the interests of justice warrant a reduction. In making its determination, the
12court shall consider all of the following:
SB815,8,1313
(a) The sentencing factors set forth in ss. 973.014 (3) (e) and 973.017 (2c).
SB815,8,1514
(b) The youthful offender's subsequent growth, behavior, and rehabilitation
15while incarcerated.
SB815,8,23
16(3) Petition for sentence adjustment. (a) One year before the youthful
17offender becomes eligible for a sentence adjustment under this section, the
18department shall provide written notice of the eligibility to the qualifying youthful
19offender, the sentencing court, the district attorney for the county in which the
20youthful offender was sentenced, and the state public defender. Notice under this
21paragraph shall include notice of the youthful offender's right to counsel and notice
22that if the youthful offender believes that he or she cannot afford an attorney, the
23youthful offender may ask the state public defender to represent him or her.
SB815,9,3
1(b) A youthful offender has a right to counsel in the sentence adjustment
2proceedings under this section. The right to counsel begins at the service of notice
3under par. (a).