txt

SB 52: "An Act authorizing capital punishment, classifying murder in the first degree as a capital felony, and establishing sentencing procedures for capital felonies; authorizing an advisory vote on instituting capital punishment; and providing for an effective date."

00 SENATE BILL NO. 52                                                                                                      
01 "An Act authorizing capital punishment, classifying murder in the first degree as                                       
02 a capital felony, and establishing sentencing procedures for capital felonies;                                          
03 authorizing an advisory vote on instituting capital punishment; and providing for                                       
04 an effective date."                                                                                                     
05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
06    * Section 1.  AS 11.41.100(b) is amended to read:                                                                    
07  (b)  Murder in the first degree is a capital [AN UNCLASSIFIED] felony and                                           
08 is punishable as provided in AS12.55.125(a) [AS 12.55].                                                               
09      * Sec. 2.  AS12.30.020(a) is amended to read:                                                                      
10     (a)  A person charged with an offense shall, at that person's first appearance                                     
11 before a judicial officer, be ordered released pending trial on the person's personal                                   
12 recognizance or upon the execution of an unsecured appearance bond in an amount                                         
13 specified by the judicial officer unless the offense is a capital felony, an unclassified                             
14 felony, or a class A felony or unless the officer determines that the release of the                                
01 person will not reasonably assure the appearance of the person as required, or will                                     
02 pose a danger to other persons and the community.  If the offense with which a person                                   
03 is charged is a felony, on motion of the prosecuting attorney, the judicial officer may                                 
04 allow the prosecuting attorney up to 48 hours to demonstrate that release of the person                                 
05 on the person's personal recognizance or upon the execution of an unsecured                                             
06 appearance bond will not reasonably assure the appearance of the person, or will pose                                   
07 a danger to other persons and the community.                                                                            
08    * Sec. 3.  AS12.30.040(b) is amended to read:                                                                        
09     (b)  Notwithstanding the provisions of (a) of this section, if a person has been                                   
10 convicted of an offense that [WHICH] is a capital felony, an unclassified felony, or                              
11 a class A felony, the person may not be released on bail either before sentencing or                                    
12 pending appeal.                                                                                                         
13    * Sec. 4.  AS12.47.110(b) is amended to read:                                                                        
14     (b)  On or before the expiration of the initial 90-day period of commitment, the                                 
15 court shall conduct a hearing to determine whether or not the defendant remains                                         
16 incompetent.  If the court finds by a preponderance of the evidence that the defendant                                  
17 remains incompetent, the court may recommit the defendant for a second period of 90                                     
18 days.  The court shall determine at the expiration of the second 90-day period whether                                  
19 the defendant has become competent.  If at the expiration of the second 90-day period                                   
20 the court determines that the defendant continues to be incompetent to stand trial, the                                 
21 charges against the defendant shall be dismissed without prejudice and continued                                        
22 commitment of the defendant shall be governed by the provisions relating to civil                                       
23 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a                                       
24 crime involving force against a person and the court finds that the defendant presents                                  
25 a substantial danger of physical injury to other persons and that there is a substantial                                
26 probability that the defendant will regain competency within a reasonable period of                                     
27 time, in which case the court may extend the period of commitment for an additional                                     
28 six months.  If the defendant remains incompetent at the expiration of the additional                                   
29 six-month period, the charges shall be dismissed without prejudice and either civil                                     
30 commitment proceedings shall be instituted or the court shall order the release of the                                  
31 defendant.  If the defendant remains incompetent for five years after the charges have                                  
01 been dismissed under this subsection, the defendant may not be charged again for an                                     
02 offense arising out of the facts alleged in the original charges, except if the original                                
03 charge is a class A felony, [OR] unclassified felony, or capital felony.                                            
04    * Sec. 5.  AS 12.55.025(i) is amended to read:                                                                       
05  (i)  Except as provided by AS 12.55.125(a)(3), 12.55.125(k), 12.55.145(d),                                            
06 12.55.155(f), and 12.55.165, or in determining if a sentence of death should be                                        
07 imposed under AS 12.58, the preponderance of the evidence standard of proof applies                                    
08 to sentencing proceedings.                                                                                              
09    * Sec. 6.  AS 12.55.125(a) is amended to read:                                                                       
10  (a)  A defendant convicted of murder in the first degree shall be sentenced to                                        
11 a definite term of imprisonment of at least 20 years but not more than 99 years, or                                    
12 shall be sentenced to death.  A defendant convicted of murder in the first degree, but                                
13 not sentenced to death, shall be sentenced to a mandatory term of imprisonment of                                      
14 99 years when                                                                                                           
15   (1)  the defendant is convicted of the murder of a uniformed or                                                      
16 otherwise clearly identified peace officer, fire fighter, or correctional officer who was                               
17 engaged in the performance of official duties at the time of the murder;                                                
18   (2)  the defendant has been previously convicted of                                                                  
19   (A) murder in the first degree under AS 11.41.100 or former                                                         
20 AS 11.15.010 or 11.15.020;                                                                                              
21   (B)  murder in the second degree under AS 11.41.110 or former                                                       
22 AS 11.15.030; or                                                                                                        
23   (C)  homicide under the laws of another jurisdiction when the                                                       
24 offense of which the defendant was convicted contains elements similar to first                                         
25 degree murder under AS 11.41.100 or second degree murder under                                                          
26 AS 11.41.110; or                                                                                                        
27   (3)  the court finds by clear and convincing evidence that the defendant                                             
28 subjected the murder victim to substantial physical torture.                                                            
29    * Sec. 7.  AS 12.55.125(f) is amended to read:                                                                       
30  (f)  If a defendant is sentenced under (a) or (b) of this section,                                                    
31   (1)  imprisonment for the prescribed minimum term may not be                                                         
01 suspended under AS 12.55.080;                                                                                           
02   (2)  imposition of sentence may not be suspended under AS 12.55.085;                                                 
03   (3)  imprisonment for the prescribed minimum term may not be                                                         
04 otherwise reduced;                                                                                                     
05   (4)  a sentence of death may not be suspended under AS 12.55.080.                                                   
06    * Sec. 8.  AS 12.55.145(a) is amended to read:                                                                       
07  (a)  For purposes of considering prior convictions in imposing sentence under                                         
08 AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i)                                                                 
09   (1)  a prior conviction may not be considered if a period of 10 or more                                              
10 years has elapsed between the date of the defendant's unconditional discharge on the                                    
11 immediately preceding offense and commission of the present offense unless the prior                                    
12 conviction was for a capital, [AN] unclassified, or class A felony;                                                 
13   (2)  a conviction in this or another jurisdiction of an offense having                                               
14 elements similar to those of a felony defined as such under Alaska law at the time the                                  
15 offense was committed is considered a prior felony conviction;                                                          
16   (3)  two or more convictions arising out of a single, continuous criminal                                            
17 episode during which there was no substantial change in the nature of the criminal                                      
18 objective are considered a single conviction unless the defendant was sentenced to                                      
19 consecutive sentences for the crimes; offenses committed while attempting to escape                                     
20 or avoid detection or apprehension after the commission of another offense are not part                                 
21 of the same criminal episode or objective.                                                                              
22    * Sec. 9.  AS 12.55.155(f) is amended to read:                                                                       
23  (f)  Under this section, if [IF] the state seeks to establish a factor in                                           
24 aggravation at sentencing or if the defendant seeks to establish a factor in mitigation                                 
25 at sentencing, written notice must be served on the opposing party and filed with the                                   
26 court not later than 10 days before the date set for imposition of sentence.  Under this                               
27 section, factors [FACTORS] in aggravation and factors in mitigation must be                                            
28 established by clear and convincing evidence before the court sitting without a jury.                                   
29 All findings must be set out with specificity.                                                                          
30    * Sec. 10.  AS12 is amended by adding a new chapter to read:                                                         
31 CHAPTER 58.  CAPITAL PUNISHMENT.                                                                                        
01 ARTICLE 1.  IMPOSITION OF SENTENCE.                                                                                     
02     Sec. 12.58.010.  SENTENCING PROCEDURE FOR A CAPITAL FELONY.                                                        
03 (a)  If, after a trial by jury, a defendant is convicted of a capital felony, the court shall                           
04 conduct a separate sentencing proceeding before the trial jury as soon as practicable.                                  
05 If a jury trial has been waived or if the defendant has pled guilty, the sentencing                                     
06 proceeding shall be held before a jury impaneled for the purpose.                                                       
07     (b)  During the sentencing proceeding, evidence may be presented as to any                                         
08 aggravating or mitigating factor that the court considers to have probative value,                                      
09 regardless of the admissibility of the evidence under the rules of evidence.  The                                       
10 defendant shall have an opportunity to rebut hearsay evidence that is admitted.  The                                    
11 state and the defendant or the defendant's counsel shall be permitted to present oral                                   
12 statements.  This subsection does not authorize the introduction of evidence in                                         
13 violation of the Constitution of the State of Alaska or the Constitution of the United                                  
14 States.                                                                                                                 
15     (c)  After hearing the evidence, the jury shall deliberate and recommend a                                         
16 sentence to the court.  The recommended sentence must include written findings of                                       
17 whether the jury unanimously finds                                                                                      
18          (1)  beyond a reasonable doubt that an aggravating factor or factors exist                                    
19 to justify the death sentence;                                                                                          
20          (2)  by a preponderance of the evidence that the aggravating factor or                                        
21 factors outweigh any mitigating factors found to exist by a preponderance of the                                        
22 evidence; and                                                                                                           
23          (3)  that the defendant should be sentenced to death.                                                         
24     Sec. 12.58.020.  SENTENCE IMPOSITION FOR CAPITAL FELONY.  (a)                                                      
25 After considering the evidence and the recommended sentence, the court shall enter                                      
26 a sentence of death or a term of imprisonment in accordance with AS 12.55.125(a).                                       
27 The court may not impose the death sentence unless the jury (1) finds beyond a                                          
28 reasonable doubt at least one aggravating factor, (2) finds by a preponderance of the                                   
29 evidence that that factor or those factors are not outweighed by any mitigating factors                                 
30 found to exist by a preponderance of the evidence, and (3) recommends that the                                          
31 defendant be sentenced to death.  If the jury findings include an aggravating factor or                                 
01 factors that are not outweighed by one or more of the mitigating factors and if the jury                                
02 recommends a sentence of death, the court shall sentence the defendant to death.  If                                    
03 a sentence of death is not recommended by the jury, the court shall sentence the                                        
04 defendant to a term of imprisonment under AS 12.55.125(a).                                                              
05     (b)  When the court enters a sentence of death, it shall state in writing the                                      
06 jury's findings of                                                                                                      
07          (1)  aggravating factors that exist to justify the sentence; and                                              
08          (2)  mitigating factors considered but found insufficient to outweigh the                                     
09 aggravating factors.                                                                                                    
10     (c)  A judgment of conviction for which a sentence of death is imposed is                                          
11 subject to automatic review under AS 12.58.100.                                                                         
12     Sec. 12.58.030.  AGGRAVATING FACTORS.  In determining whether to                                                   
13 impose a sentence of death, the following aggravating factors may be considered:                                        
14          (1)  the defendant's conduct during the commission of the offense                                             
15 manifested deliberate cruelty to another person in that it involved torture or an                                       
16 aggravated battery;                                                                                                     
17          (2)  the defendant's conduct caused the death of two or more persons,                                         
18 other than accomplices;                                                                                                 
19          (3)  the defendant's conduct created a risk of imminent physical injury                                       
20 to three or more persons, other than accomplices;                                                                       
21          (4)  the defendant has a prior conviction for a felony that involved the                                      
22 use of violence against a person or for murder under AS 11.41.100 - 11.41.110, former                                   
23 AS11.15.010 or 11.15.030, or the law of another jurisdiction with substantially similar                                 
24 elements;                                                                                                               
25          (5)  the defendant knowingly directed the conduct constituting the                                            
26 offense at the President of the United States or the governor of this state;                                            
27          (6)  the defendant knowingly directed the conduct constituting the                                            
28 offense at an active or former law enforcement officer, prosecuting attorney, fire                                      
29 fighter, judicial officer, or correctional officer during or because of the exercise of                                 
30 official duties;                                                                                                        
31          (7)  the defendant committed the offense under an agreement that the                                          
01 defendant either pay or be paid for the commission of the offense, or for other                                         
02 pecuniary gain;                                                                                                         
03          (8)  the defendant was on release under AS 12.30.020 - 12.30.040 for                                          
04 another felony charge or conviction having assault as a necessary element;                                              
05   (9)  the defendant was a member of an organized group of five or more                                                
06 persons, and the offense was committed to further the criminal objectives of the group.                                 
07     Sec. 12.58.040.  MITIGATING FACTORS.  In determining whether to impose                                             
08 the death sentence, all mitigating factors shall be considered, including, but not limited                              
09 to, the following:                                                                                                      
10          (1)  the defendant committed the offense under a degree of duress,                                            
11 coercion, threat, or compulsion that was insufficient to constitute a defense but that                                  
12 significantly affected the defendant's conduct;                                                                         
13          (2)  the conduct of a youthful defendant was substantially influenced by                                      
14 a person more mature than the defendant;                                                                                
15          (3)  the defendant acted with serious provocation from the victim;                                            
16          (4)  the defendant assisted authorities to detect or apprehend other                                          
17 persons who committed the offense with the defendant.                                                                   
18 ARTICLE 2.  SENTENCE REVIEW.                                                                                            
19     Sec. 12.58.100.  REVIEW OF JUDGMENT OF CONVICTION OF A                                                             
20 CAPITAL FELONY.  (a)  A judgment of conviction of a capital felony for which a                                          
21 sentence of death is imposed shall automatically be reviewed by the supreme court                                       
22 within 60 days after imposition of the sentence. This time limit may be extended by                                     
23 the supreme court for good cause.                                                                                       
24     (b)  A review under this section has priority over all other cases and the case                                    
25 shall be heard in accordance with rules adopted by the supreme court.  On review, the                                   
26 court shall determine whether                                                                                           
27          (1)  the sentence was imposed under the influence of passion, prejudice,                                      
28 or other arbitrary factor;                                                                                              
29          (2)  the evidence supports the finding of an aggravating factor under                                         
30 AS 12.58.030 and whether the jury has properly considered mitigating factors under                                      
31 AS 12.58.040;                                                                                                           
01          (3)  the sentence is excessive or disproportionate to the penalty imposed                                     
02 in similar cases, considering both the crime and the defendant; and                                                     
03          (4)  any other issue that the defendant may raise as a point on appeal.                                       
04     (c)  In its consideration of an automatic appeal under (a) and (b) of this section,                                
05 the supreme court                                                                                                       
06          (1)  may not require the defendant to file a notice of appeal unless the                                      
07 defendant raises an issue as a point on appeal under (b)(4) of this section;                                            
08          (2)  may not require the defendant to pay a fee;                                                              
09          (3)  shall designate the entire record of the proceedings before the                                          
10 sentencing court as the record on appeal;                                                                               
11          (4)  shall prepare the transcript of the proceedings for the record on                                        
12 appeal at public expense; and                                                                                           
13          (5)  may not require the defendant to submit and file a brief unless the                                      
14 defendant raises an issue as a point on appeal under (b)(4) of this section.                                            
15     Sec. 12.58.110.  ISSUANCE OF DEATH WARRANT.  If the supreme court                                                  
16 upholds a judgment of conviction and sentence of death, the court shall issue a death                                   
17 warrant that specifies a date of execution.  The specified date of execution must be not                                
18 less than 30 days nor more than 60 days after the date of the warrant.  The death                                       
19 warrant shall be delivered to the commissioner of corrections.                                                          
20 ARTICLE 3.  ADMINISTRATION OF THE DEATH PENALTY.                                                                        
21  Sec. 12.58.200.  ADMINISTRATION OF THE DEATH PENALTY.  The                                                            
22 commissioner shall establish a procedure for the execution of a sentence of death                                       
23 ordered by the state supreme court at the time and place legally appointed.                                             
24     Sec. 12.58.210.  EXECUTION UNDER SUPREME COURT DEATH                                                               
25 WARRANT.  After receiving a supreme court warrant issued under AS 12.58.110, the                                        
26 commissioner shall specify the time and place of execution.                                                             
27  Sec. 12.58.220.  MANNER OF EXECUTION.  (a)  The punishment of death                                                   
28 shall be inflicted                                                                                                      
29   (1)  by hanging by the neck until death is pronounced by a licensed                                                  
30 physician; or                                                                                                           
31   (2)  at the election of the defendant, by continuous, intravenous                                                    
01 administration of a lethal dose of sodium thiopental until death is pronounced by a                                     
02 licensed physician.                                                                                                     
03  (b)  A death sentence shall be carried out within a state correctional facility.                                      
04     Sec. 12.58.230.  RETURN OF DEATH WARRANT.  After the execution the                                                 
05 commissioner shall make a return upon the death warrant showing the time and place                                      
06 in which the defendant was executed.                                                                                    
07 ARTICLE 4.  STAY OF EXECUTION.                                                                                          
08     Sec. 12.58.300.  INCOMPETENCY OR PREGNANCY OF PERSON                                                               
09 SENTENCED TO DEATH.  If, after a sentence of death is imposed, the commissioner                                         
10 has reason to believe that the defendant has become incompetent to proceed with the                                     
11 execution or that the defendant is pregnant, the commissioner shall immediately give                                    
12 written notice to the court in which the sentence of death was imposed, the prosecuting                                 
13 attorney, and counsel for the defendant.  The execution of sentence shall be stayed                                     
14 pending further order of the court.                                                                                     
15     Sec. 12.58.310.  EXAMINATION INTO COMPETENCY.  (a)  On receipt of                                                  
16 notice under AS 12.58.300 that the defendant is believed to be incompetent, the                                         
17 sentencing court shall examine the mental condition of the defendant in the same                                        
18 manner as provided for examining persons for competency to stand trial under                                            
19 AS 12.47.070.                                                                                                           
20     (b)  If the sentencing court finds that the defendant is incompetent, the court                                    
21 shall immediately certify that finding to the supreme court and the commissioner and                                    
22 shall enter an order for commitment in the same manner as provided for commitment                                       
23 under AS12.47.110.                                                                                                      
24     (c)  If the sentencing court finds that the defendant is competent, the court shall                                
25 immediately certify the finding to the supreme court and the commissioner.  The                                         
26 supreme court shall issue and deliver another warrant to the commissioner under                                         
27 AS 12.58.110, together with a copy of the certified finding.  Unless the sentencing                                     
28 court's finding is appealed in accordance with applicable court rule, the warrant shall                                 
29 specify a date of execution that is not less than 30 days nor more than 60 days after                                   
30 the date of the warrant.                                                                                                
31     Sec. 12.58.320.  DISPOSITION PENDING PREGNANCY.  (a)  If the                                                       
01 defendant is pregnant, the sentencing court shall immediately certify that finding to the                               
02 supreme court and the commissioner.  The supreme court shall issue an order staying                                     
03 the execution of the sentence of death during the pregnancy.                                                            
04     (b)  When the defendant is no longer pregnant, the sentencing court shall                                          
05 immediately certify the finding to the supreme court and the commissioner.  The                                         
06 supreme court shall issue and deliver another warrant under AS12.58.110, together                                       
07 with a copy of the certified finding.  Unless the sentencing court's finding is appealed                                
08 under applicable court rule, the warrant shall specify a date of execution not less than                                
09 30 days nor more than 60 days after the date of the warrant.                                                            
10 ARTICLE 5.  GENERAL PROVISIONS.                                                                                         
11     Sec. 12.58.900.  DEFINITIONS.  In this chapter,                                                                    
12          (1)  "commissioner" means the commissioner of corrections;                                                    
13          (2)  "department" means the Department of Corrections.                                                        
14    * Sec. 11.  AS 22.07.020(a) is amended to read:                                                                      
15     (a)  The court of appeals has appellate jurisdiction in actions and proceedings                                    
16 commenced in the superior court involving:                                                                              
17          (1)  criminal prosecution, except prosecution for a capital felony for                                       
18 which a death sentence is imposed;                                                                                     
19          (2)  post-conviction relief;                                                                                  
20          (3)  children's court matters under AS 47.10.010(a)(1), including waiver                                      
21 of children's court jurisdiction over a minor under AS 47.10;                                                           
22          (4)  extradition;                                                                                             
23          (5)  habeas corpus;                                                                                           
24          (6)  probation and parole; and                                                                                
25          (7)  bail.                                                                                                    
26    * Sec. 12.  AS 22.07.020(b) is amended to read:                                                                      
27     (b)  Except for appeals of a death sentence, the [THE] court of appeals has                                      
28 jurisdiction to hear appeals of sentences of imprisonment imposed by the superior court                                 
29 on the grounds that the sentence is excessive or too lenient and, in the exercise of this                               
30 jurisdiction, may modify the sentence as provided by law and the state constitution.                                    
31    * Sec. 13.  The lieutenant governor shall place before the qualified voters of the state at the                      
01 November 1996 general election a question advisory to the legislature of whether capital                                
02 punishment should be an authorized sentence for murder in the first degree.  The question                               
03 shall appear on the ballot in the following form:                                                                       
04 Q U E S T I O N                                                                                                         
05 Should capital punishment for murder in the first degree as now                                                       
06 authorized by law go into effect June 1, 1997?                                                                          
07     Yes [ ]    No [ ]                                                                                                   
08    * Sec. 14.  Section 13 of this Act takes effect immediately.                                                         
09    * Sec. 15.  Except for sec. 13 of this Act, this Act takes effect June 1, 1997.