Wisconsin has not executed anyone since 1851. For more than 170 years, the state has rejected capital punishment as a tool of justice, making it one of the longest standing abolitions in the country. That record was recently tested. In March 2026, two Republican lawmakers introduced a bill to reinstate the Wisconsin death penalty for certain child sex offenses. The bill is already dead for this legislative session, but the arguments behind it deserve a serious response. The proposal fails on constitutional, practical, and moral grounds, and it could make children less safe.
At Van Severen Law Office, we defend people accused of serious criminal offenses, including sex crimes. Our opposition to this bill is not about minimizing the severity of crimes against children. These offenses are among the most serious in Wisconsin’s criminal code, and the existing penalties reflect that. Our opposition is about the Constitution, about evidence, and about outcomes for the very victims this bill claimed to protect.
What Senate Bill 1094 proposed
Sen. Chris Kapenga (R-Delafield) and Rep. Elija Behnke (R-Town of Chase) introduced Senate Bill 1094 and its companion, Assembly Bill 1132, in early March 2026. The bill would have created a death penalty option for defendants convicted of first degree sexual assault of a child under Wis. Stat. § 948.02. It targeted two categories: sexual contact or intercourse with a child under 13 that causes great bodily harm, and sexual intercourse with a child under 12.
The bill included several procedural requirements:
- DNA evidence would need to link the defendant to the crime.
- Prosecutors would need to notify the court at the time of filing if they intended to seek death.
- A separate sentencing hearing would follow conviction, and a jury would have to unanimously recommend execution before a judge could impose it.
- The bill excluded defendants who were minors at the time of the offense or who have intellectual disabilities.
The Wisconsin Assembly concluded its floor session and this bill died without advancing. But the arguments it raised, and the arguments against it, are worth examining closely.
Wisconsin abolished the death penalty in 1853 for good reason
Wisconsin’s history with capital punishment is brief and ugly. The state carried out exactly one execution in its entire history, and the result was so disturbing that it helped end the practice for good.
On August 21, 1851, John McCaffary was hanged in Kenosha for drowning his wife. Roughly 3,000 spectators gathered to watch. The execution did not go as planned. McCaffary struggled for five minutes after the rope tightened around his neck. Doctors checked his pulse. He continued to slowly strangle for another ten to fifteen minutes before he finally died. The Wisconsin Historical Society describes the scene as a turning point in the state’s attitude toward state-sanctioned killing.
Christopher Latham Sholes, a state senator and newspaper editor who witnessed the execution, led the fight to end the practice. He wrote in the Kenosha Telegraph: “We do not complain that the law has been enforced. We complain that the law exists.” On July 10, 1853, Governor Leonard Farwell signed the Death Penalty Repeal Act, making Wisconsin the first state to permanently abolish capital punishment for all crimes.
This was not a fluke. Legislators tried to bring it back after three mob lynchings in 1854 and 1855. They tried again in the 1990s, when public outrage over Jeffrey Dahmer’s crimes led to 22 reinstatement bills between 1991 and 1996. None made it through committee. In 2006, voters approved a non-binding advisory referendum supporting the death penalty by a 55.5% margin, and the legislature still declined to act.
The United States Supreme Court already rejected this exact approach
The biggest legal problem with Senate Bill 1094 is that the United States Supreme Court has already declared this type of law unconstitutional.
In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court struck down a Louisiana statute that authorized the death penalty for child rape. The Court held that the Eighth Amendment prohibits capital punishment for crimes against individuals that do not result in, and were not intended to result in, the victim’s death. The decision was 5 to 4, with Justice Anthony Kennedy writing for the majority.
The Court reasoned that the death penalty should remain reserved for offenses that take the victim’s life. It found no national consensus supporting execution for child sexual assault, noting that only six states had enacted such laws and that no one in the United States had been executed for any form of rape since 1964. The opinion explicitly addressed child sexual assault and drew a clear line: the Eighth Amendment bars the death penalty for this category of crime.
Several states have recently passed laws challenging Kennedy, including Florida in 2023. Wisconsin’s bill appeared to follow that strategy. But as of this writing, the Supreme Court has not revisited or overturned Kennedy v. Louisiana. Any prosecution under a law like this one would face an immediate constitutional challenge grounded in binding Supreme Court precedent.
The Wisconsin death penalty would not deter these crimes
Sen. Kapenga wrote in his newsletter that “jail time doesn’t scare these people, but the death penalty will.” There is no credible evidence to support that claim. It is the kind of claim that sounds edgy and aggressive in a newsletter but collapses the moment you talk to anyone who actually prosecutes, defends, or studies these cases.
In 2012, the National Research Council of the National Academies published an exhaustive review of more than three decades of deterrence research. The report concluded that existing studies claiming a deterrent effect are “fundamentally flawed” and should not inform policy decisions. The Council specifically recommended that lawmakers stop relying on these studies as justification for capital punishment.
The evidence is not just neutral. It sometimes points in the opposite direction. The Death Penalty Information Center’s review of deterrence studies documents how multiple researchers have reached conflicting conclusions using the same underlying data. The NRC committee found that none of the existing research accounts for the possible deterrent effect of alternative punishments like life without parole. In other words, even the studies that claim to show deterrence never bothered to ask whether a life sentence would accomplish the same thing.
According to Amnesty International, in 2004 the average murder rate in states that used the death penalty was 5.71 per 100,000, compared to 4.02 per 100,000 in states that did not. The deterrence argument falls apart under scrutiny, and it falls apart even harder when applied to child sexual assault, where the dynamics driving offending have little to do with calculated risk assessment of potential penalties.
Child advocates say this bill could put kids at greater risk
This is the point that proponents of the Wisconsin death penalty bill seemed least willing to engage with. Organizations that work directly with child sexual assault survivors have consistently warned that making these offenses eligible for the death penalty could reduce reporting and increase danger to victims.
The Children’s Cove, a child advocacy center in Massachusetts, has laid out the core problem: more than 90% of child sexual abuse perpetrators are someone the child knows, trusts, and most likely loves. Thirty to 40% are family members. Only about one in ten victims ever disclose their abuse, and children weigh the consequences of disclosure at a remarkably early age. If the abuser is the family’s primary breadwinner, or if the child fears blame for tearing the family apart, disclosure becomes even less likely when the potential consequence is death.
The Supreme Court recognized these dynamics in Kennedy. The majority opinion stated that capital cases require a long term commitment from those testifying for the prosecution, and that asking a child to participate in seeking the death penalty over the course of years “forces a moral choice on the child, who is not of mature age to make that choice.” An amicus brief filed by the National Association of Social Workers and four other organizations argued that the death penalty for child rape would worsen the underreporting of sexual abuse and increase the incentive for offenders to kill their victims.
Wrongful convictions make the death penalty irreversible and unacceptable
Criminal defense attorneys understand something that legislators pushing death penalty bills often ignore: the system gets it wrong. A peer reviewed study in the Proceedings of the National Academy of Sciences estimated that at least 4.1% of defendants sentenced to death in the United States are innocent. The researchers called that a conservative number. They found that the high rate of exoneration among death row defendants is driven by the threat of execution itself, but that most death sentenced defendants eventually get removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. In other words, the 4.1% figure only captures the cases where someone kept looking. The real number is higher.
According to the Innocence Project, at least 200 people have been exonerated from death row since 1973. Cases that led to those exonerations involved police and prosecutorial misconduct, ineffective defense counsel, eyewitness misidentification, unreliable forensic evidence, and racial bias. The threat of execution also causes innocent people to plead guilty and induces false testimony from witnesses, meaning the true scope of wrongful convictions in capital cases is larger than the exoneration count alone suggests.
None of this is abstract. These are cases where real people sat in a cell waiting to die for crimes they did not commit. Some came within days of execution before the truth surfaced. A life sentence allows the system to correct its mistakes. An execution does not. Wisconsin does not need to learn this lesson firsthand.
Wisconsin already imposes severe penalties for these offenses
The bill’s supporters framed this proposal as filling a gap in the law. That framing ignores the fact that Wisconsin already punishes first degree sexual assault of a child with some of the harshest penalties in the criminal code.
Under Wis. Stat. § 948.02(1)(am), sexual contact or intercourse with a child under 13 that causes great bodily harm is a Class A felony. A Class A felony carries an automatic sentence of life in prison. The sentencing judge determines whether and when the defendant becomes eligible for extended supervision under Wis. Stat. § 973.014(1g)(a)1. If the judge sets an ES eligibility date, it cannot be sooner than 20 years after the start of the sentence. For this specific offense, Wis. Stat. § 939.616 raises that floor to 25 years. The judge can also decline to set a parole date at all, meaning the defendant dies in prison. Sexual intercourse with a child under 12 is a Class B felony under § 948.02(1)(b), carrying up to 60 years in prison with a mandatory minimum of 25 years.
These are not light sentences. A defendant convicted of the most serious form of first degree sexual assault of a child faces life behind bars. The system already ensures that convicted offenders are removed from society permanently. Adding execution to that framework does not improve public safety. It introduces constitutional problems, creates new risks for victims, and costs taxpayers significantly more than life imprisonment.
The broader problem of overcriminalization
This bill fits a larger pattern of politicians responding to genuine public horror with legislation that sounds tough but does not work. The impulse to “do something” in response to child sexual abuse is understandable. But effective policy requires more than escalating punishments.
Wisconsin could invest in child advocacy centers, forensic interview programs, and trauma-informed investigation. It could strengthen mandatory reporting systems and provide better training for the professionals who interact with children. It could fund the kind of early intervention that actually prevents abuse before it happens. These approaches have evidence behind them. The death penalty does not.
Criminal defense attorneys see this pattern regularly. Legislators introduce bills that expand penalties, create new crimes, or ratchet up sentences in ways that sound satisfying in a press release but do nothing to address the underlying problem. The Wisconsin death penalty bill is a textbook example. It proposed the most extreme punishment available in American law for crimes that the Supreme Court has already ruled cannot constitutionally carry that punishment, all while ignoring the voices of the people who actually work with child abuse survivors every day.
Talk to a Milwaukee criminal defense attorney
If you face criminal charges in Wisconsin, including allegations involving sex offenses or crimes against children, contact Van Severen Law Office at (414) 270-0202. Our criminal attorneys provide aggressive, intelligent defense for clients facing the most serious charges in Wisconsin’s criminal justice system.
Frequently asked questions about the Wisconsin death penalty
Does Wisconsin have the death penalty?
No. Wisconsin abolished the death penalty in 1853 and has not executed anyone since John McCaffary’s hanging in 1851. It was the first state to permanently abolish capital punishment for all crimes.
What did the 2026 Wisconsin death penalty bill propose?
Senate Bill 1094 and Assembly Bill 1132 would have created a death penalty for defendants convicted of first degree sexual assault of a child under Wis. Stat. § 948.02. The bill required DNA evidence and a unanimous jury recommendation for a death sentence. It excluded defendants who were minors at the time of the offense or who have intellectual disabilities. The bill died without advancing after the Assembly concluded its floor session.
Would the Wisconsin death penalty bill have been constitutional?
Almost certainly not under current law. The United States Supreme Court held in Kennedy v. Louisiana, 554 U.S. 407 (2008), that the Eighth Amendment prohibits the death penalty for crimes that do not result in, and were not intended to result in, the victim’s death. That ruling directly addresses child sexual assault.
Why do child advocacy groups oppose the death penalty for child sex crimes?
Child advocacy organizations have warned that the death penalty for child sexual abuse could reduce victim reporting. Most abuse is committed by family members or people the child knows and trusts. The threat of a loved one’s execution raises barriers to disclosure. Capital cases also take decades to resolve, requiring victims to repeatedly testify and relive their trauma.
What penalties does Wisconsin currently impose for first degree sexual assault of a child?
Under Wis. Stat. § 948.02(1)(am), sexual contact or intercourse with a child under 13 causing great bodily harm is a Class A felony carrying an automatic sentence of life in prison. The sentencing judge decides whether the defendant will ever become eligible for extended supervision, and if so, that date cannot be sooner than 25 years after the start of the sentence. Sexual intercourse with a child under 12 is a Class B felony carrying up to 60 years in prison with a mandatory minimum of 25 years.