HB 166: "An Act authorizing capital punishment, classifying murder in the first degree as a capital felony, and allowing the imposition of the death penalty when certain of those murders are committed against children; establishing sentencing procedures for capital felonies; and amending Rules 32, 32.1, and 32.3, Alaska Rules of Criminal Procedure, and Rules 204, 209, 210, and 212, Alaska Rules of Appellate Procedure."
00HOUSE BILL NO. 166 01 "An Act authorizing capital punishment, classifying murder in the first degree as 02 a capital felony, and allowing the imposition of the death penalty when certain 03 of those murders are committed against children; establishing sentencing procedures 04 for capital felonies; and amending Rules 32, 32.1, and 32.3, Alaska Rules of 05 Criminal Procedure, and Rules 204, 209, 210, and 212, Alaska Rules of Appellate 06 Procedure." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 05.15.140(b) is amended to read: 09 (b) In an application for a permit, a municipality or qualified organization shall 10 disclose the name and address of each person responsible for the operation of the 11 activity and whether any person named 12 (1) has been convicted of a violation of a law of this state that is, or 13 a law or ordinance of another state that would be if committed in this state, a capital 14 or [AN] unclassified felony described in AS 11, a class A felony, extortion, or a
01 violation of a law or ordinance of this state or another jurisdiction that is a crime 02 involving theft or dishonesty or a violation of gambling laws; or 03 (2) has a prohibited financial interest, as defined in regulations adopted 04 by the department, in the operation of the activity. 05 * Sec. 2. AS 11.31.100(d) is amended to read: 06 (d) An attempt is 07 (1) an unclassified felony if the crime attempted is murder in the first 08 degree; 09 (2) a class A felony if the crime attempted is an unclassified felony 10 [OTHER THAN MURDER IN THE FIRST DEGREE]; 11 (3) a class B felony if the crime attempted is a class A felony; 12 (4) a class C felony if the crime attempted is a class B felony; 13 (5) a class A misdemeanor if the crime attempted is a class C felony; 14 (6) a class B misdemeanor if the crime attempted is a class A or class 15 B misdemeanor. 16 * Sec. 3. AS 11.31.110(c) is amended to read: 17 (c) Solicitation is a 18 (1) class A felony if the crime solicited is a capital or [AN] 19 unclassified felony; 20 (2) class B felony if the crime solicited is a class A felony; 21 (3) class C felony if the crime solicited is a class B felony; 22 (4) class A misdemeanor if the crime solicited is a class C felony; 23 (5) class B misdemeanor if the crime solicited is a class A or class B 24 misdemeanor. 25 * Sec. 4. AS 11.31.120(h) is amended to read: 26 (h) Conspiracy is 27 (1) an unclassified felony if the object of the conspiracy is murder in 28 the first degree; 29 (2) a class A felony if the object of the conspiracy is a crime 30 punishable as an unclassified felony [OTHER THAN MURDER IN THE FIRST 31 DEGREE];
01 (3) a class B felony if the object of the conspiracy is a crime 02 punishable as a class A felony; 03 (4) a class C felony if the object of the conspiracy is a crime 04 punishable as a class B felony. 05 * Sec. 5. AS 11.31.120(i) is amended to read: 06 (i) In this section, 07 (1) "overt act in furtherance of the conspiracy" means an act of such 08 character that it manifests a purpose on the part of the actor that the object of the 09 conspiracy be completed; 10 (2) "serious felony offense" means an offense 11 (A) against the person under AS 11.41, punishable as a capital, 12 an unclassified, or a class A felony; or 13 (B) involving controlled substances under AS 11.71, punishable 14 as an unclassified, a class A, or a class B felony. 15 * Sec. 6. AS 11.41.100(b) is amended to read: 16 (b) Murder in the first degree is a capital [AN UNCLASSIFIED] felony and 17 is punishable as provided in AS 12.55.125(a) [AS 12.55]. 18 * Sec. 7. AS 12.30.020(a) is amended to read: 19 (a) A person charged with an offense shall, at that person's first appearance 20 before a judicial officer, be ordered released pending trial on the person's personal 21 recognizance or upon the execution of an unsecured appearance bond in an amount 22 specified by the judicial officer unless the offense is a capital felony, an unclassified 23 felony, or a class A felony or unless the officer determines that the release of the 24 person will not reasonably assure the appearance of the person as required, or will 25 pose a danger to other persons and the community. If the offense with which a person 26 is charged is a felony, on motion of the prosecuting attorney, the judicial officer may 27 allow the prosecuting attorney up to 48 hours to demonstrate that release of the person 28 on the person's personal recognizance or upon the execution of an unsecured 29 appearance bond will not reasonably assure the appearance of the person, or will pose 30 a danger to other persons and the community. 31 * Sec. 8. AS 12.30.040(b) is amended to read:
01 (b) Notwithstanding the provisions of (a) of this section, a person may not be 02 released on bail either before sentencing or pending appeal if the person has been 03 convicted of an offense that is 04 (1) a capital felony, an unclassified felony, or a class A felony; or 05 (2) a class B or class C felony if the person has been previously 06 convicted of an offense in this state that is a capital felony an unclassified felony, a 07 class A felony, or a violation of AS 11.41.260, 11.41.420 - 11.41.425, or 11.41.436 - 08 11.41.438 or of an offense in another jurisdiction with elements substantially similar 09 to an offense of this state described in this paragraph. 10 * Sec. 9. AS 12.47.110(b) is amended to read: 11 (b) On or before the expiration of the initial 90-day period of commitment the 12 court shall conduct a hearing to determine whether or not the defendant remains 13 incompetent. If the court finds by a preponderance of the evidence that the defendant 14 remains incompetent, the court may recommit the defendant for a second period of 90 15 days. The court shall determine at the expiration of the second 90-day period whether 16 the defendant has become competent. If at the expiration of the second 90-day period 17 the court determines that the defendant continues to be incompetent to stand trial, the 18 charges against the defendant shall be dismissed without prejudice and continued 19 commitment of the defendant shall be governed by the provisions relating to civil 20 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a 21 crime involving force against a person and the court finds that the defendant presents 22 a substantial danger of physical injury to other persons and that there is a substantial 23 probability that the defendant will regain competency within a reasonable period of 24 time, in which case the court may extend the period of commitment for an additional 25 six months. If the defendant remains incompetent at the expiration of the additional 26 six-month period, the charges shall be dismissed without prejudice and either civil 27 commitment proceedings shall be instituted or the court shall order the release of the 28 defendant. If the defendant remains incompetent for five years after the charges have 29 been dismissed under this subsection, the defendant may not be charged again for an 30 offense arising out of the facts alleged in the original charges, except if the original 31 charge is a class A felony, an [OR] unclassified felony, or a capital felony.
01 * Sec. 10. AS 12.55.025(i) is amended to read: 02 (i) Except as provided by AS 12.55.125(a)(3), 12.55.125(k), 12.55.145(d), 03 12.55.155(f), and 12.55.165, or in determining if a sentence of death should be 04 imposed under AS 12.58, the preponderance of the evidence standard of proof applies 05 to sentencing proceedings. 06 * Sec. 11. AS 12.55.125(a) is amended to read: 07 (a) A defendant convicted of murder in the first degree shall be sentenced to 08 a definite term of imprisonment of at least 20 years but not more than 99 years, or 09 shall be sentenced to death. A defendant convicted of murder in the first degree, but 10 not sentenced to death, shall be sentenced to a mandatory term of imprisonment of 11 99 years when 12 (1) the defendant is convicted of the murder of a uniformed or 13 otherwise clearly identified peace officer, fire fighter, or correctional employee who 14 was engaged in the performance of official duties at the time of the murder; 15 (2) the defendant has been previously convicted of 16 (A) murder in the first degree under AS 11.41.100 or former 17 AS 11.15.010 or 11.15.020; 18 (B) murder in the second degree under AS 11.41.110 or former 19 AS 11.15.030; or 20 (C) homicide under the laws of another jurisdiction when the 21 offense of which the defendant was convicted contains elements similar to first 22 degree murder under AS 11.41.100 or second degree murder under 23 AS 11.41.110; or 24 (3) the court finds by clear and convincing evidence that the defendant 25 subjected the murder victim to substantial physical torture. 26 * Sec. 12. AS 12.55.125(f) is amended to read: 27 (f) If a defendant is sentenced under (a) or (b) of this section, 28 (1) imprisonment for the prescribed minimum or mandatory term may 29 not be suspended under AS 12.55.080; 30 (2) imposition of sentence may not be suspended under AS 12.55.085; 31 (3) imprisonment for the prescribed minimum or mandatory term may
01 not be reduced, except as provided in (j) of this section; 02 (4) a sentence of death may not be suspended in AS 12.55.080. 03 * Sec. 13. AS 12.55.125(l) is amended to read: 04 (l) Notwithstanding any other provision of law, a defendant convicted of a 05 capital, an unclassified, or a class A felony offense, and not sentenced to death or 06 subject to a mandatory 99-year sentence under (a) of this section, shall be sentenced 07 to a definite term of imprisonment of at least 40 years but not more than 99 years 08 when the defendant has been previously convicted of two or more most serious 09 felonies and the prosecuting attorney has filed a notice of intent to seek a definite 10 sentence under this subsection at the time the defendant was arraigned in superior 11 court. If a defendant is sentenced to a definite term under this section, 12 (1) imprisonment for the prescribed definite term may not be suspended 13 under AS 12.55.080; 14 (2) imposition of sentence may not be suspended under AS 12.55.085; 15 (3) imprisonment for the prescribed definite term may not be reduced, 16 except as provided in (j) of this section. 17 * Sec. 14. AS 12.55.145(a) is amended to read: 18 (a) For purposes of considering prior convictions in imposing sentence under 19 (1) AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i), 20 (A) a prior conviction may not be considered if a period of 10 21 or more years has elapsed between the date of the defendant's unconditional 22 discharge on the immediately preceding offense and commission of the present 23 offense unless the prior conviction was for a capital, an unclassified, or a class 24 A felony; 25 (B) a conviction in this or another jurisdiction of an offense 26 having elements similar to those of a felony defined as such under Alaska law 27 at the time the offense was committed is considered a prior felony conviction; 28 (C) two or more convictions arising out of a single, continuous 29 criminal episode during which there was no substantial change in the nature of 30 the criminal objective are considered a single conviction unless the defendant 31 was sentenced to consecutive sentences for the crimes; offenses committed
01 while attempting to escape or avoid detection or apprehension after the 02 commission of another offense are not part of the same criminal episode or 03 objective; 04 (2) AS 12.55.125(l), 05 (A) a conviction in this or another jurisdiction of an offense 06 having elements similar to those of a most serious felony is considered a prior 07 most serious felony conviction; 08 (B) commission of and conviction for offenses relied on as prior 09 most serious felony offenses must occur in the following order: conviction for 10 the first offense must occur before commission of the second offense, and 11 conviction for the second offense must occur before commission of the offense 12 for which the defendant is being sentenced. 13 * Sec. 15. AS 12.55.155(f) is amended to read: 14 (f) Under this section, if [IF] the state seeks to establish a factor in 15 aggravation at sentencing or if the defendant seeks to establish a factor in mitigation 16 at sentencing, written notice must be served on the opposing party and filed with the 17 court not later than 10 days before the date set for imposition of sentence. Under this 18 section, factors [FACTORS] in aggravation and factors in mitigation must be 19 established by clear and convincing evidence before the court sitting without a jury. 20 All findings must be set out with specificity. 21 * Sec. 16. AS 12.55.185(8) is amended to read: 22 (8) "most serious felony" means 23 (A) arson in the first degree, promoting prostitution in the first 24 degree under AS 11.66.110(a)(2), or any capital, unclassified, or a class A 25 felony prescribed under AS 11.41; or 26 (B) an attempt, or conspiracy to commit, or criminal solicitation 27 under AS 11.31.110 of, a capital or an unclassified felony prescribed under 28 AS 11.41; 29 * Sec. 17. AS 12 is amended by adding a new chapter to read: 30 Chapter 58. Capital Punishment. 31 Article 1. Imposition of Sentence.
01 Sec. 12.58.010. Sentencing procedure for a capital felony. (a) If, after a 02 trial by jury, a defendant is convicted of a capital felony, the court shall conduct a 03 separate sentencing proceeding before the trial jury as soon as practicable. If a jury 04 trial has been waived or if the defendant has pled guilty, the sentencing proceeding 05 shall be held before a jury impaneled for the purpose. 06 (b) During the sentencing proceeding, evidence may be presented as to any 07 aggravating or mitigating factor that the court considers to have probative value, 08 regardless of the admissibility of the evidence under the rules of evidence. The 09 defendant shall have an opportunity to rebut hearsay evidence that is admitted. The 10 state and the defendant or the defendant's counsel shall be permitted to present oral 11 statements. This subsection does not authorize the introduction of evidence in 12 violation of the Constitution of the State of Alaska or the Constitution of the United 13 States. 14 (c) After hearing the evidence, the jury shall deliberate and recommend a 15 sentence to the court. The recommended sentence must include written findings of 16 whether the jury unanimously finds 17 (1) beyond a reasonable doubt that an aggravating factor or factors exist 18 to justify the death sentence; 19 (2) by a preponderance of the evidence that the aggravating factor or 20 factors outweigh any mitigating factors found to exist by a preponderance of the 21 evidence; and 22 (3) that the defendant should be sentenced to death. 23 Sec. 12.58.020. Sentence imposition for capital felony. (a) After 24 considering the evidence and the recommended sentence, the court shall enter a 25 sentence of death or a term of imprisonment in accordance with AS 12.55.125(a). The 26 court may not impose the death sentence unless the jury (1) finds beyond a reasonable 27 doubt at least one aggravating factor, (2) finds by a preponderance of the evidence that 28 that factor or those factors are not outweighed by any mitigating factors found to exist 29 by a preponderance of the evidence, and (3) recommends that the defendant be 30 sentenced to death. If the jury findings include an aggravating factor or factors that 31 are not outweighed by one or more of the mitigating factors and if the jury
01 recommends a sentence of death, the court shall sentence the defendant to death. If 02 a sentence of death is not recommended by the jury, the court shall sentence the 03 defendant to a term of imprisonment under AS 12.55.125(a). 04 (b) When the court enters a sentence of death, it shall state in writing the 05 jury's findings of 06 (1) aggravating factors that exist to justify the sentence; and 07 (2) mitigating factors considered but found insufficient to outweigh the 08 aggravating factors. 09 (c) A judgment of conviction for which a sentence of death is imposed is 10 subject to automatic review under AS 12.58.100. 11 Sec. 12.58.030. Aggravating factors. In determining whether to impose a 12 sentence of death, the following aggravating factors may be considered: the 13 defendant's conduct caused the death of a child under 18 years of age, the defendant, 14 at the time of the offense, was at least two years older than the child, and the 15 defendant 16 (1) was kidnaping, assaulting, or sexually assaulting, or was attempting 17 to kidnap, assault, or sexually assault, the child; or 18 (2) had kidnaped, assaulted, or sexually assaulted the child. 19 Sec. 12.58.040. Mitigating factors. In determining whether to impose the 20 death sentence, all mitigating factors shall be considered, including, but not limited to, 21 the following: 22 (1) the defendant committed the offense under a degree of duress, 23 coercion, threat, or compulsion that was insufficient to constitute a defense but that 24 significantly affected the defendant's conduct; 25 (2) the conduct of a youthful defendant was substantially influenced by 26 a person more mature than the defendant; 27 (3) the defendant acted with serious provocation from the victim; 28 (4) the defendant assisted authorities to detect or apprehend other 29 persons who committed the offense with the defendant. 30 Article 2. Sentence Review. 31 Sec. 12.58.100. Review of judgment of conviction of a capital felony. (a)
01 A judgment of conviction of a capital felony for which a sentence of death is imposed 02 shall automatically be reviewed by the supreme court within 60 days after imposition 03 of the sentence. This time limit may be extended by the supreme court for good cause. 04 (b) A review under this section has priority over all other cases and the case 05 shall be heard in accordance with rules adopted by the supreme court. On review, the 06 court shall determine whether 07 (1) the sentence was imposed under the influence of passion, prejudice, 08 or other arbitrary factor; 09 (2) the evidence supports the finding of an aggravating factor under 10 AS 12.58.030 and whether the jury has properly considered mitigating factors under 11 AS 12.58.040; 12 (3) the sentence is excessive or disproportionate to the penalty imposed 13 in similar cases, considering both the crime and the defendant; and 14 (4) any other issue that the defendant may raise as a point on appeal. 15 (c) In its consideration of an automatic appeal under (a) and (b) of this section, 16 the supreme court 17 (1) may not require the defendant to file a notice of appeal unless the 18 defendant raises an issue as a point on appeal under (b)(4) of this section; 19 (2) may not require the defendant to pay a fee; 20 (3) shall designate the entire record of the proceedings before the 21 sentencing court as the record on appeal; 22 (4) shall prepare the transcript of the proceedings for the record on 23 appeal at public expense; and 24 (5) may not require the defendant to submit and file a brief unless the 25 defendant raises an issue as a point on appeal under (b)(4) of this section. 26 Sec. 12.58.110. Issuance of death warrant. If the supreme court upholds a 27 judgment of conviction and sentence of death, the court shall issue a death warrant that 28 specifies a date of execution. The specified date of execution must be not less than 29 30 days nor more than 60 days after the date of the warrant. The death warrant shall 30 be delivered to the commissioner of corrections. 31 Article 3. Administration of the Death Penalty.
01 Sec. 12.58.200. Administration of the death penalty. The commissioner 02 shall establish a procedure for the execution of a sentence of death ordered by the state 03 supreme court at the time and place legally appointed. 04 Sec. 12.58.210. Execution under supreme court death warrant. After 05 receiving a supreme court warrant issued under AS 12.58.110, the commissioner shall 06 specify the time and place of execution. 07 Sec. 12.58.220. Manner of execution. (a) The punishment of death shall be 08 inflicted by continuous, intravenous administration of a lethal dose of sodium 09 thiopental until death is pronounced by a licensed physician. 10 (b) A death sentence shall be carried out within a state correctional facility. 11 Sec. 12.58.230. Return of death warrant. After the execution the 12 commissioner shall make a return upon the death warrant showing the time and place 13 in which the defendant was executed. 14 Article 4. Stay of Execution. 15 Sec. 12.58.300. Incompetency or pregnancy of person sentenced to death. 16 If, after a sentence of death is imposed, the commissioner has reason to believe that 17 the defendant has become incompetent to proceed with the execution or that the 18 defendant is pregnant, the commissioner shall immediately give written notice to the 19 court in which the sentence of death was imposed, the prosecuting attorney, and 20 counsel for the defendant. The execution of sentence shall be stayed pending further 21 order of the court. 22 Sec. 12.58.310. Examination into competency. (a) On receipt of notice 23 under AS 12.58.300 that the defendant is believed to be incompetent, the sentencing 24 court shall examine the mental condition of the defendant in the same manner as 25 provided for examining persons for competency to stand trial under AS 12.47.070. 26 (b) If the sentencing court finds that the defendant is incompetent, the court 27 shall immediately certify that finding to the supreme court and the commissioner and 28 shall enter an order for commitment in the same manner as provided for commitment 29 under AS 12.47.110. 30 (c) If the sentencing court finds that the defendant is competent, the court shall 31 immediately certify the finding to the supreme court and the commissioner. The
01 supreme court shall issue and deliver another warrant to the commissioner under 02 AS 12.58.110, together with a copy of the certified finding. Unless the sentencing 03 court's finding is appealed in accordance with applicable court rule, the warrant shall 04 specify a date of execution that is not less than 30 days nor more than 60 days after 05 the date of the warrant. 06 Sec. 12.58.320. Disposition pending pregnancy. (a) If the defendant is 07 pregnant, the sentencing court shall immediately certify that finding to the supreme 08 court and the commissioner. The supreme court shall issue an order staying the 09 execution of the sentence of death during the pregnancy. 10 (b) When the defendant is no longer pregnant, the sentencing court shall 11 immediately certify the finding to the supreme court and the commissioner. The 12 supreme court shall issue and deliver another warrant under AS 12.58.110, together 13 with a copy of the certified finding. Unless the sentencing court's finding is appealed 14 under applicable court rule, the warrant shall specify a date of execution not less than 15 30 days nor more than 60 days after the date of the warrant. 16 Article 5. General Provisions. 17 Sec. 12.58.900. Definitions. In this chapter, 18 (1) "commissioner" means the commissioner of corrections; 19 (2) "department" means the Department of Corrections. 20 * Sec. 18. AS 22.07.020(a) is amended to read: 21 (a) The court of appeals has appellate jurisdiction in actions and proceedings 22 commenced in the superior court involving [:] 23 (1) criminal prosecution, except prosecution for a capital felony for 24 which a death sentence is imposed; 25 (2) post-conviction relief; 26 (3) matters under AS 47.12, including waiver of jurisdiction over a 27 minor under AS 47.12.100; 28 (4) extradition; 29 (5) habeas corpus; 30 (6) probation and parole; and 31 (7) bail.
01 * Sec. 19. AS 22.07.020(b) is amended to read: 02 (b) Except as limited in AS 12.55.120 and in this subsection, the court of 03 appeals has jurisdiction to hear appeals of unsuspended sentences of imprisonment 04 exceeding two years for a felony offense or 120 days for a misdemeanor offense 05 imposed by the superior court on the grounds that the sentence is excessive, or a 06 sentence of any length on the grounds that it is too lenient. The court of appeals, in 07 the exercise of this jurisdiction, may modify the sentence as provided by law and the 08 state constitution. The court of appeals does not have jurisdiction to hear appeals 09 of death sentences. 10 * Sec. 20. AS 47.12.030(a) is amended to read: 11 (a) When a minor who was at least 16 years of age at the time of the offense 12 is arraigned on a charge for an offense specified in this subsection, this chapter and 13 the Alaska Delinquency Rules do not apply to the offense for which the minor is 14 arraigned or to any additional offenses joinable to it under the applicable rules of court 15 governing criminal procedure. The minor shall be charged, prosecuted, and sentenced 16 in the superior court in the same manner as an adult unless the minor is convicted of 17 some offense other than an offense specified in this subsection, in which event the 18 minor may attempt to prove, by a preponderance of the evidence, that the minor is 19 amenable to treatment under this chapter. If the court finds that the minor is amenable 20 to treatment under this chapter, the minor shall be treated as though the charges had 21 been heard under this chapter, and the court shall order disposition of the charges of 22 which the minor is convicted under AS 47.12.120(b). The provisions of this 23 subsection apply when the minor is arraigned on a charge 24 (1) that is a capital felony, an unclassified felony, or a class A felony 25 and the felony is a crime against a person; or 26 (2) of arson in the first degree. 27 * Sec. 21. AS 47.12.100(c) is amended to read: 28 (c) For purposes of making a determination under this section, 29 (1) the standard of proof is by a preponderance of the evidence; and 30 (2) the burden of proof that a minor is not amenable to treatment under 31 this chapter is on the state; however, if the petition filed under AS 47.12.040 seeking
01 to have the court declare a minor a delinquent is based on the minor's alleged 02 commission of an offense that is a capital felony, an unclassified felony, or a class 03 A felony and that is a crime against a person, the minor 04 (A) is rebuttably presumed not to be amenable to treatment 05 under this chapter; and 06 (B) has the burden of proof of showing that the minor is 07 amenable to treatment under this chapter. 08 * Sec. 22. APPLICABILITY TO CRIMINAL RULES. AS 12.58, added by sec. 17 of this 09 Act, has the effect of modifying the sentencing provisions of Rules 32, 32.1, and 32.3, Alaska 10 Rules of Criminal Procedure, by establishing exclusive procedures for imposition of death 11 sentence by a trial court and by authorizing automatic appeal of those sentences to the Alaska 12 Supreme Court. 13 * Sec. 23. APPLICABILITY TO APPELLATE RULES. AS 12.58.100, added by sec. 17 14 of this Act, has the effect of amending Rules 204, 209, 210, and 212, Alaska Rules of 15 Appellate Procedure, by establishing procedures and limitations on procedures relating to the 16 filing and disposition of appeals of sentences in cases in which the death penalty is imposed.