00 CS FOR HOUSE BILL NO. 9(JUD) 01 "An Act relating to murder; authorizing capital punishment, classifying murder in the 02 first degree as a capital felony, and allowing the imposition of the death penalty for 03 certain murders; establishing sentencing procedures for capital felonies; and amending 04 Rules 16, 32, 32.1, and 32.3, Alaska Rules of Criminal Procedure, and Rules 204, 209, 05 210, and 212, Alaska Rules of Appellate Procedure." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07  * Section 1. AS 05.15.105(b) is amended to read: 08 (b) The department shall adopt regulations that provide that a disqualification 09 of a person under (a) of this section based upon a conviction of that person for a 10 violation 11 (1) of a law of this state that is, or a law or ordinance of another 12 jurisdiction that would be if it was committed in this state, a class B felony other than 13 extortion, a class C felony, or an unclassified felony described outside of AS 11, and 01 that is not a crime of dishonesty or theft or a violation of gambling laws, terminates 10 02 years after the person's conviction; 03 (2) of a law or ordinance of this state or another jurisdiction that is a 04 crime involving theft or dishonesty or a violation of gambling laws, and that is not, or 05 would not be if it was committed in this state, a capital or an unclassified felony 06 described in AS 11, a class A felony, or extortion, terminates 10 years after the 07 person's conviction, if the department determines that the 08 (A) person is of good character, honesty, and integrity; and 09 (B) person's involvement in charitable gaming is not against the 10 public interest. 11  * Sec. 2. AS 05.15.140(b) is amended to read: 12 (b) In an application for a permit, a municipality or qualified organization 13 shall disclose the name and address of each person responsible for the operation of the 14 activity and whether any person named 15 (1) has been convicted of a violation of a law of this state that is, or a 16 law or ordinance of another state that would be if committed in this state, a capital or 17 [AN] unclassified felony described in AS 11, a class A felony, extortion, or a violation 18 of a law or ordinance of this state or another jurisdiction that is a crime involving theft 19 or dishonesty or a violation of gambling laws; or 20 (2) has a prohibited financial interest, as defined in regulations adopted 21 by the department, in the operation of the activity. 22  * Sec. 3. AS 08.64.326(a) is amended to read: 23 (a) The board may impose a sanction if the board finds after a hearing that a 24 licensee 25 (1) secured a license through deceit, fraud, or intentional 26 misrepresentation; 27 (2) engaged in deceit, fraud, or intentional misrepresentation while 28 providing professional services or engaging in professional activities; 29 (3) advertised professional services in a false or misleading manner; 30 (4) has been convicted, including conviction based on a guilty plea or 31 plea of nolo contendere, of 01 (A) a class A, capital, or unclassified felony or a crime in 02 another jurisdiction with elements similar to a class A, capital, or unclassified 03 felony in this jurisdiction; 04 (B) a class B or class C felony or a crime in another jurisdiction 05 with elements similar to a class B or class C felony in this jurisdiction if the 06 felony or other crime is substantially related to the qualifications, functions, or 07 duties of the licensee; or 08 (C) a crime involving the unlawful procurement, sale, 09 prescription, or dispensing of drugs; 10 (5) has procured, sold, prescribed, or dispensed drugs in violation of a 11 law regardless of whether there has been a criminal action; 12 (6) intentionally or negligently permitted the performance of patient 13 care by persons under the licensee's supervision that does not conform to minimum 14 professional standards even if the patient was not injured; 15 (7) failed to comply with this chapter, a regulation adopted under this 16 chapter, or an order of the board; 17 (8) has demonstrated 18 (A) professional incompetence, gross negligence, or repeated 19 negligent conduct; the board may not base a finding of professional 20 incompetence solely on the basis that a licensee's practice is unconventional or 21 experimental in the absence of demonstrable physical harm to a patient; 22 (B) addiction to, severe dependency on, or habitual overuse of 23 alcohol or other drugs that impairs the licensee's ability to practice safely; 24 (C) unfitness because of physical or mental disability; 25 (9) engaged in unprofessional conduct, in sexual misconduct, or in 26 lewd or immoral conduct in connection with the delivery of professional services to 27 patients; in this paragraph, "sexual misconduct" includes sexual contact, as defined by 28 the board in regulations adopted under this chapter, or attempted sexual contact with a 29 patient outside the scope of generally accepted methods of examination or treatment of 30 the patient, regardless of the patient's consent or lack of consent, during the term of the 31 physician-patient relationship, as defined by the board in regulations adopted under 01 this chapter, unless the patient was the licensee's spouse at the time of the contact or, 02 immediately preceding the physician-patient relationship, was in a dating, courtship, 03 or engagement relationship with the licensee; 04 (10) has violated AS 18.16.010; 05 (11) has violated any code of ethics adopted by regulation by the 06 board; 07 (12) has denied care or treatment to a patient or person seeking 08 assistance from the physician if the only reason for the denial is the failure or refusal 09 of the patient to agree to arbitrate as provided in AS 09.55.535(a); or 10 (13) has had a license or certificate to practice medicine in another 11 state or territory of the United States, or a province or territory of Canada, denied, 12 suspended, revoked, surrendered while under investigation for an alleged violation, 13 restricted, limited, conditioned, or placed on probation unless the denial, suspension, 14 revocation, or other action was caused by the failure of the licensee to pay fees to that 15 state, territory, or province. 16  * Sec. 4. AS 09.65.210 is amended to read: 17 Sec. 09.65.210. Damages resulting from commission of a felony or while  18 under the influence of alcohol or drugs. A person who suffers personal injury or 19 death or the person's personal representative under AS 09.55.570 or 09.55.580 may 20 not recover damages for the personal injury or death if the injury or death occurred 21 while the person was 22 (1) engaged in the commission of a felony, the person has been 23 convicted of the felony, including conviction based on a guilty plea or plea of nolo 24 contendere, and the party defending against the claim proves by clear and convincing 25 evidence that the felony substantially contributed to the personal injury or death; 26 (2) engaged in conduct that would constitute the commission of a  27 capital felony, an unclassified felony, a class A felony, or a class B felony for which 28 the person was not convicted and the party defending against the claim proves by clear 29 and convincing evidence 30 (A) the felonious conduct; and 31 (B) that the felonious conduct substantially contributed to the 01 personal injury or death; 02 (3) fleeing after the commission, by that person, of conduct that would 03 constitute a capital felony, an unclassified felony, a class A felony, or a class B felony 04 or being apprehended for conduct that would constitute a capital felony, an 05 unclassified felony, a class A felony, or a class B felony if the party defending against 06 the claim proves by clear and convincing evidence 07 (A) the felonious conduct; and 08 (B) that the conduct during the flight or apprehension 09 substantially contributed to the injury or death; 10 (4) operating a vehicle, aircraft, or watercraft while under the influence 11 of intoxicating liquor or any controlled substance in violation of AS 28.35.030, was 12 convicted, including conviction based on a guilty plea or plea of nolo contendere, and 13 the party defending against the claim proves by clear and convincing evidence that the 14 conduct substantially contributed to the personal injury or death; or 15 (5) engaged in conduct that would constitute a violation of 16 AS 28.35.030 for which the person was not convicted if the party defending against 17 the claim proves by clear and convincing evidence 18 (A) the violation of AS 28.35.030; and 19 (B) that the conduct substantially contributed to the personal 20 injury or death. 21  * Sec. 5. AS 11.31.100(d) is amended to read: 22 (d) An attempt is 23 (1) an unclassified felony if the crime attempted is murder in the first 24 degree; 25 (2) a class A felony if the crime attempted is an unclassified felony 26 [OTHER THAN MURDER IN THE FIRST DEGREE]; 27 (3) a class B felony if the crime attempted is a class A felony; 28 (4) a class C felony if the crime attempted is a class B felony; 29 (5) a class A misdemeanor if the crime attempted is a class C felony; 30 (6) a class B misdemeanor if the crime attempted is a class A or class 31 B misdemeanor. 01  * Sec. 6. AS 11.31.110(c) is amended to read: 02 (c) Solicitation is 03 (1) an unclassified felony if the crime solicited is murder in the first 04 degree; 05 (2) a class A felony if the crime solicited is an unclassified felony 06 [OTHER THAN MURDER IN THE FIRST DEGREE]; 07 (3) a class B felony if the crime solicited is a class A felony; 08 (4) a class C felony if the crime solicited is a class B felony; 09 (5) a class A misdemeanor if the crime solicited is a class C felony; 10 (6) a class B misdemeanor if the crime solicited is a class A or class B 11 misdemeanor. 12  * Sec. 7. AS 11.31.120(i) is amended to read: 13 (i) Conspiracy is 14 (1) an unclassified felony if the object of the conspiracy is murder in 15 the first degree; 16 (2) a class A felony if the object of the conspiracy is a crime 17 punishable as an unclassified felony [OTHER THAN MURDER IN THE FIRST 18 DEGREE]; 19 (3) a class B felony if the object of the conspiracy is a crime 20 punishable as a class A felony; 21 (4) a class C felony if the object of the conspiracy is a crime 22 punishable as a class B felony. 23  * Sec. 8. AS 11.31.120(h)(2) is amended to read: 24 (2) "serious felony offense" means an offense 25 (A) against the person under AS 11.41, punishable as a capital, 26 an unclassified, or a class A felony; 27 (B) involving controlled substances under AS 11.71, 28 punishable as an unclassified, a class A, or a class B felony; 29 (C) that is criminal mischief in the first degree under 30 AS 11.46.475; or 31 (D) that is terroristic threatening in the first degree under 01 AS 11.56.807. 02  * Sec. 9. AS 11.41.100(b) is amended to read: 03 (b) Murder in the first degree is a capital [AN UNCLASSIFIED] felony and 04 is punishable as provided in AS 12.55.125(a) [AS 12.55]. 05  * Sec. 10. AS 12.30.020(a) is amended to read: 06 (a) A person charged with an offense shall, at that person's first appearance 07 before a judicial officer, be ordered released pending trial on the person's personal 08 recognizance or upon the execution of an unsecured appearance bond in an amount 09 specified by the judicial officer unless the offense is a capital felony, an unclassified 10 felony, or a class A felony or unless the officer determines that the release of the 11 person will not reasonably assure the appearance of the person as required or will pose 12 a danger to the alleged victim, other persons, or the community. If the offense with 13 which a person is charged is a felony, on motion of the prosecuting attorney, the 14 judicial officer may allow the prosecuting attorney up to 48 hours to demonstrate that 15 release of the person on the person's personal recognizance or upon the execution of 16 an unsecured appearance bond will not reasonably assure the appearance of the person 17 or will pose a danger to the alleged victim, other persons, or the community. 18  * Sec. 11. AS 12.30.040(b) is amended to read: 19 (b) Notwithstanding the provisions of (a) of this section, a person may not be 20 released on bail either before sentencing or pending appeal if the person has been 21 convicted of an offense that is 22 (1) a capital felony, an unclassified felony, or a class A felony; or 23 (2) a class B or class C felony if the person has been previously 24 convicted of an offense in this state that is a capital felony, an unclassified felony, a 25 class A felony, or a violation of AS 11.41.260, 11.41.420 - 11.41.425, or 11.41.436 - 26 11.41.438 or of an offense in another jurisdiction with elements substantially similar 27 to an offense of this state described in this paragraph. 28  * Sec. 12. AS 12.47.110(b) is amended to read: 29 (b) On or before the expiration of the initial 90-day period of commitment, the 30 court shall conduct a hearing to determine whether or not the defendant remains 31 incompetent. If the court finds by a preponderance of the evidence that the defendant 01 remains incompetent, the court may recommit the defendant for a second period of 90 02 days. The court shall determine at the expiration of the second 90-day period whether 03 the defendant has become competent. If, at the expiration of the second 90-day period, 04 the court determines that the defendant continues to be incompetent to stand trial, the 05 charges against the defendant shall be dismissed without prejudice, and continued 06 commitment of the defendant shall be governed by the provisions relating to civil 07 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a 08 crime involving force against a person and the court finds that the defendant presents a 09 substantial danger of physical injury to other persons and that there is a substantial 10 probability that the defendant will regain competency within a reasonable period of 11 time, in which case the court may extend the period of commitment for an additional 12 six months. If the defendant remains incompetent at the expiration of the additional 13 six-month period, the charges shall be dismissed without prejudice, and continued 14 commitment proceedings shall be governed by the provisions relating to civil 15 commitment under AS 47.30.700 - 47.30.915. If the defendant remains incompetent 16 for five years after the charges have been dismissed under this subsection, the 17 defendant may not be charged again for an offense arising out of the facts alleged in 18 the original charges, except if the original charge is a class A felony, an [OR] 19 unclassified felony, or a capital felony. 20  * Sec. 13. AS 12.50.101(i)(1) is amended to read: 21 (1) "higher-level felony" means an unclassified, capital, or class A 22 felony; 23  * Sec. 14. AS 12.55.025(i) is amended to read: 24 (i) Except as provided by AS 12.55.125(a)(3), 12.55.145(d), 12.55.155(f), and 25 12.55.165, or in determining if a sentence of death should be imposed under  26 AS 12.58, the preponderance of the evidence standard of proof applies to sentencing 27 proceedings. 28  * Sec. 15. AS 12.55.125(a) is amended to read: 29 (a) A defendant convicted of murder in the first degree [OR MURDER OF 30 AN UNBORN CHILD UNDER AS 11.41.150(a)(1)] shall be sentenced to a definite 31 term of imprisonment of at least 20 years but not more than 99 years, or shall be  01 sentenced to death. A defendant convicted of murder of an unborn child under  02 AS 11.41.150(a)(1) shall be sentenced to a definite term of imprisonment of at  03 least 20 years but not more than 99 years. A defendant convicted of murder in the 04 first degree, but not sentenced to death, shall be sentenced to a mandatory term of 05 imprisonment of 99 years when 06 (1) the defendant is convicted of the murder of a uniformed or 07 otherwise clearly identified peace officer, fire fighter, or correctional employee who 08 was engaged in the performance of official duties at the time of the murder; 09 (2) the defendant has been previously convicted of 10 (A) murder in the first degree under AS 11.41.100 or former 11 AS 11.15.010 or 11.15.020; 12 (B) murder in the second degree under AS 11.41.110 or former 13 AS 11.15.030; or 14 (C) homicide under the laws of another jurisdiction when the 15 offense of which the defendant was convicted contains elements similar to first 16 degree murder under AS 11.41.100 or second degree murder under 17 AS 11.41.110; 18 (3) the court finds by clear and convincing evidence that the defendant 19 subjected the murder victim to substantial physical torture; 20 (4) the defendant is convicted of the murder of and personally caused 21 the death of a person, other than a participant, during a robbery; or 22 (5) the court finds by clear and convincing evidence that the defendant 23 is a peace officer who used the officer's authority as a peace officer to facilitate the 24 murder. 25  * Sec. 16. AS 12.55.125(f) is amended to read: 26 (f) If a defendant is sentenced under (a) or (b) of this section, 27 (1) imprisonment for the prescribed minimum or mandatory term may 28 not be suspended under AS 12.55.080; 29 (2) imposition of sentence may not be suspended under AS 12.55.085; 30 (3) imprisonment for the prescribed minimum or mandatory term may 31 not be reduced, except as provided in (j) of this section;  01 (4) a sentence of death may not be suspended under AS 12.55.080. 02  * Sec. 17. AS 12.55.125(l) is amended to read: 03 (l) Notwithstanding any other provision of law, a defendant convicted of a  04 capital, an unclassified, or a class A felony offense, and not sentenced to death or 05 subject to a mandatory 99-year sentence under (a) of this section, shall be sentenced to 06 a definite term of imprisonment of 99 years when the defendant has been previously 07 convicted of two or more most serious felonies. If a defendant is sentenced to a 08 definite term under this subsection, 09 (1) imprisonment for the prescribed definite term may not be 10 suspended under AS 12.55.080; 11 (2) imposition of sentence may not be suspended under AS 12.55.085; 12 (3) imprisonment for the prescribed definite term may not be reduced, 13 except as provided in (j) of this section. 14 * Sec. 18. AS 12.55.145(a) is amended to read: 15 (a) For purposes of considering prior convictions in imposing sentence under 16 (1) AS 12.55.125(c), (d), or (e), 17 (A) a prior conviction may not be considered if a period of 10 18 or more years has elapsed between the date of the defendant's unconditional 19 discharge on the immediately preceding offense and commission of the present 20 offense unless the prior conviction was for a capital, an unclassified, or a class 21 A felony; 22 (B) a conviction in this or another jurisdiction of an offense 23 having elements similar to those of a felony defined as such under Alaska law 24 at the time the offense was committed is considered a prior felony conviction; 25 (C) two or more convictions arising out of a single, continuous 26 criminal episode during which there was no substantial change in the nature of 27 the criminal objective are considered a single conviction unless the defendant 28 was sentenced to consecutive sentences for the crimes; offenses committed 29 while attempting to escape or avoid detection or apprehension after the 30 commission of another offense are not part of the same criminal episode or 31 objective; 01 (2) AS 12.55.125(l), 02 (A) a conviction in this or another jurisdiction of an offense 03 having elements similar to those of a most serious felony is considered a prior 04 most serious felony conviction; 05 (B) commission of and conviction for offenses relied on as 06 prior most serious felony offenses must occur in the following order: 07 conviction for the first offense must occur before commission of the second 08 offense, and conviction for the second offense must occur before commission 09 of the offense for which the defendant is being sentenced; 10 (3) AS 12.55.135(g), 11 (A) a prior conviction may not be considered if a period of five 12 or more years has elapsed between the date of the defendant's unconditional 13 discharge on the immediately preceding offense and commission of the present 14 offense unless the prior conviction was for a capital, an unclassified, or a class 15 A felony; 16 (B) a conviction in this or another jurisdiction of an offense 17 having elements similar to those of a crime against a person or a crime 18 involving domestic violence is considered a prior conviction; 19 (C) two or more convictions arising out of a single, continuous 20 criminal episode during which there was no substantial change in the nature of 21 the criminal objective are considered a single conviction unless the defendant 22 was sentenced to consecutive sentences for the crimes; offenses committed 23 while attempting to escape or avoid detection or apprehension after the 24 commission of another offense are not part of the same criminal episode or 25 objective; 26 (4) AS 12.55.125(i), 27 (A) a conviction in this or another jurisdiction of an offense 28 having elements similar to those of a sexual felony is a prior conviction for a 29 sexual felony; 30 (B) a felony conviction in another jurisdiction making it a 31 crime to commit any lewd and lascivious act upon a child under the age of 16 01 years, with the intent of arousing, appealing to, or gratifying the sexual desires 02 of the defendant or the victim is a prior conviction for a sexual felony; 03 (C) two or more convictions arising out of a single, continuous 04 criminal episode during which there was no substantial change in the nature of 05 the criminal objective are considered a single conviction unless the defendant 06 was sentenced to consecutive sentences for the crimes; offenses committed 07 while attempting to escape or avoid detection or apprehension after the 08 commission of another offense are not part of the same criminal episode or 09 objective. 10  * Sec. 19. AS 12.55.155(f) is amended to read: 11 (f) Under this section, if [IF] the state seeks to establish a factor in 12 aggravation at sentencing 13 (1) under (c)(7), (8), (12), (15), (18)(B), (19), (20), (21), or (31) of this 14 section, or if the defendant seeks to establish a factor in mitigation at sentencing, 15 written notice must be served on the opposing party and filed with the court not later 16 than 10 days before the date set for imposition of sentence; the factors in aggravation 17 listed in this paragraph and factors in mitigation must be established by clear and 18 convincing evidence before the court sitting without a jury; all findings must be set out 19 with specificity; 20 (2) other than one listed in (1) of this subsection, the factor shall be 21 presented to a trial jury under procedures set by the court, unless the defendant waives 22 trail by jury, stipulates to the existence of the factor, or consents to have the factor 23 proven under procedures set out in (1) of this subsection; a factor in aggravation 24 presented to a jury is established if proved beyond a reasonable doubt; written notice 25 of the intent to establish a factor in aggravation must be served on the defendant and 26 filed with the court 27 (A) 20 days before trial, or at another time specified by the 28 court; 29 (B) within 48 hours, or at a time specified by the court, if the 30 court instructs the jury about the option to return a verdict for a lesser included 31 offense; or 01 (C) five days before entering a plea that results in a finding of 02 guilt, or at another time specified by the court. 03  * Sec. 20. AS 12.55.185(10) is amended to read: 04 (10) "most serious felony" means 05 (A) arson in the first degree, promoting prostitution in the first 06 degree under AS 11.66.110(a)(2), or any capital, unclassified, or class A 07 felony prescribed under AS 11.41; or 08 (B) an attempt, or conspiracy to commit, or criminal 09 solicitation under AS 11.31.110 of, a capital or an unclassified felony 10 prescribed under AS 11.41; 11  * Sec. 21. AS 12 is amended by adding a new chapter to read: 12 Chapter 58. Capital Punishment.  13 Article 1. Election to Seek Death Penalty.  14 Sec. 12.58.010. Attorney general's election to seek death penalty. The 15 attorney general shall determine whether to seek the death penalty against the 16 defendant. If the attorney general elects to seek the death penalty, the district attorney 17 shall give notice of election and the applicable aggravating factor or factors in 18 AS 12.58.040 to the court, the defendant, and the defendant's attorney within 120 days 19 of arraignment of the defendant on the capital felony indictment, or within 120 days of 20 arraignment of the defendant if indictment has been waived. The time period for 21 giving notice of election may be extended by the court. The attorney general may not 22 elect to seek the death penalty under this section unless the state is prepared to present 23 to the jury at trial 24 (1) biological evidence or deoxyribonucleic acid evidence that links 25 the defendant to the act of murder; 26 (2) a videotaped voluntary confession by the defendant to the murder; 27 or 28 (3) a video recording that conclusively links the defendant to the 29 murder. 30 Article 2. Imposition of Sentence. 31 Sec. 12.58.020. Sentencing procedure for a capital felony. (a) If a defendant 01 is convicted of a capital felony, the court shall conduct a separate sentencing 02 proceeding before the jury as soon as practicable. If a jury trial has been waived or if 03 the defendant has pled guilty, the sentencing proceeding shall be held before a jury 04 impaneled for the purpose. 05 (b) During the sentencing proceeding, evidence that the court considers to 06 have probative value may be presented as to any aggravating factor under 07 AS 12.58.040 or any mitigating factor, regardless of the admissibility of the evidence 08 under the rules of evidence. The defendant shall have an opportunity to rebut hearsay 09 evidence that is admitted. The state and the defendant or the defendant's counsel shall 10 be permitted to present oral statements. This subsection does not authorize the 11 introduction of evidence in violation of the Constitution of the State of Alaska or the 12 Constitution of the United States. 13 (c) After hearing the evidence, the jury shall deliberate and recommend a 14 sentence to the court. The recommended sentence must include written findings of 15 whether the jury unanimously finds 16 (1) beyond a reasonable doubt that at least one aggravating factor 17 under AS 12.58.040 exists to justify the death sentence and the aggravating factor was 18 noticed by the district attorney under AS 12.58.010; the jury does not have to 19 unanimously agree with regard to a specific aggravating factor; 20 (2) beyond a reasonable doubt that the aggravating factor or factors 21 outweigh any mitigating factors found to exist by a preponderance of the evidence; 22 (3) that the state presented 23 (A) biological evidence or deoxyribonucleic acid evidence that 24 links the defendant to the act of murder; 25 (B) a videotaped voluntary confession by the defendant to the 26 murder; or 27 (C) a video recording that conclusively links the defendant to 28 the murder; 29 (4) that death is the appropriate sentence for the defendant. 30 Sec. 12.58.030. Sentence imposition for capital felony. (a) After considering 31 the evidence and the recommended sentence, the court shall enter a sentence of death 01 or a term of imprisonment in accordance with AS 12.55.125(a). The court may not 02 impose the death sentence unless the jury makes the findings required by 03 AS 12.58.020. If the jury makes the findings required by AS 12.58.020, the court shall 04 sentence the defendant to death unless the court finds the defendant was mentally 05 retarded under AS 12.58.060. If a sentence of death is not recommended by the jury, 06 the court shall sentence the defendant to a term of imprisonment under 07 AS 12.55.125(a). 08 (b) When the court enters a sentence of death, it shall state in writing the jury's 09 findings 10 (1) of the aggravating factor or factors that exist to justify the sentence; 11 (2) of mitigating factors considered but found insufficient to outweigh 12 the aggravating factors; and 13 (3) that the state presented 14 (A) biological evidence or deoxyribonucleic acid evidence that 15 links the defendant to the act of murder; 16 (B) a videotaped voluntary confession by the defendant to the 17 murder; or 18 (C) a video recording that conclusively links the defendant to 19 the murder; 20 (4) that death is the appropriate sentence for the defendant. 21 (c) A judgment of conviction for which a sentence of death is imposed is 22 subject to automatic review under AS 12.58.100. 23 Sec. 12.58.040. Aggravating factors. In determining whether to impose a 24 sentence of death, the following aggravating factors may be considered: 25 (1) the defendant's conduct caused the death of a child under 18 years 26 of age, the defendant, at the time of the offense, was at least two years older than the 27 child, and the defendant 28 (A) was kidnapping, assaulting, or sexually assaulting, or was 29 attempting to kidnap, assault, or sexually assault, the child; or 30 (B) had kidnapped, assaulted, or sexually assaulted the child; 31 (2) the victim was a uniformed or otherwise clearly identified peace 01 officer, fire fighter, emergency medical technician, paramedic, ambulance attendant, 02 or corrections employee who was engaged in the performance of official duties at the 03 time of the murder; 04 (3) the defendant has been convicted of murdering two or more 05 individuals under AS 11.41.100, or a similar law of this or another jurisdiction, 06 regardless of whether the deaths occurred as the result of the same act or of several 07 related or unrelated acts; 08 (4) at the time of the act resulting in the death, the defendant was 09 serving a term of imprisonment, had escaped, or was on authorized or unauthorized 10 leave in or from a state facility or program for the incarceration or treatment of 11 persons adjudicated guilty of crimes; 12 (5) the defendant committed the murder under an agreement to receive 13 money or any other thing of value for committing the murder; 14 (6) the defendant solicited another person to commit the murder and 15 had paid or had agreed to pay money or any other thing of value for the other person's 16 committing the murder; 17 (7) the defendant committed the murder to obtain or maintain the 18 defendant's membership or to advance the defendant's position in the hierarchy of an 19 organization, association, or identifiable group; 20 (8) the victim was a judge, juror or former juror, prospective, current, 21 or former witness in an adjudicative proceeding, prosecuting attorney, deputy 22 prosecuting attorney, defense attorney, member of the board of parole, or probation or 23 parole officer, and the murder was related to the exercise of official duties performed 24 or to be performed by the victim; 25 (9) the defendant committed the murder to conceal the commission of 26 a crime or to protect or conceal the identity of any person committing a crime; 27 (10) there was more than one victim and the murders were part of a 28 common scheme or plan or the result of a single act of the defendant; 29 (11) at the time the defendant committed the murder, there existed a 30 court order, issued in this or any other state, that prohibited the defendant from 31 contacting the victim, molesting the victim, or disturbing the peace of the victim, and 01 the defendant had knowledge of the existence of that order. 02 Sec. 12.58.050. Mitigating factors. In determining whether to impose the 03 death sentence, all relevant mitigating factors may be considered, including the 04 following: 05 (1) the defendant committed the offense under a degree of duress, 06 coercion, threat, or compulsion that was insufficient to constitute a defense but that 07 significantly affected the defendant's conduct; 08 (2) the conduct of a youthful defendant was substantially influenced by 09 a person more mature than the defendant; 10 (3) the defendant acted with serious provocation from the victim; 11 (4) the defendant assisted authorities to detect or apprehend other 12 persons who committed the offense with the defendant; 13 (5) the defendant did not have a significant history, either as a juvenile 14 or an adult, of prior criminal activity; 15 (6) the murder was committed while the defendant was under the 16 influence of extreme mental disturbance; 17 (7) the victim consented to the act of murder; 18 (8) the defendant was an accomplice to a murder committed by another 19 person where the defendant's participation in the murder was relatively minor; 20 (9) the capacity of the defendant to appreciate the wrongfulness of the 21 defendant's conduct or to conform the defendant's conduct to the requirements of law 22 was substantially impaired as a result of mental disease or defect; however, a person 23 found to be mentally retarded under AS 12.58.060 may not be sentenced to death; 24 (10) there is not a likelihood that the defendant will pose a danger to 25 others in the future. 26 Sec. 12.58.060. Finding of mental retardation. If the jury recommends a 27 sentence of death, the court shall determine if the defendant was mentally retarded 28 under the definition of mental retardation in this section at the time the crime was 29 committed. A diagnosis of mental retardation shall be documented by a licensed 30 psychiatrist or licensed psychologist designated by the court who is an expert in the 31 diagnosis and evaluation of mental retardation. The defense shall establish mental 01 retardation by a preponderance of the evidence, and the court shall make a finding as 02 to the existence of mental retardation. If the court makes the finding of mental 03 retardation, the court shall proceed to sentence the defendant to a term of 04 imprisonment under AS 12.55.125(a). In this section, 05 (1) "adaptive behavior" means the effectiveness or degree with which 06 an individual meets the standards of personal independence and social responsibility 07 expected for the individual's age; 08 (2) "developmental period" means the period of time between 09 conception and the 18th birthday; 10 (3) "general intellectual functioning" means the results obtained by 11 assessment with one or more of the individually administered general intelligence tests 12 developed for the purpose of assessing intellectual functioning; 13 (4) "mentally retarded" means the individual has 14 (A) significantly subaverage general intellectual functioning 15 that exists concurrently with deficits in adaptive behavior; and 16 (B) both significantly subaverage general intellectual 17 functioning and deficits in adaptive behavior that were manifested during the 18 developmental period; 19 (5) "significantly subaverage general intellectual functioning" means 20 an intelligence quotient of 70 or below. 21 Sec. 12.58.070. Discovery. (a) Except as provided in (b) of this section, Rule 22 16, Alaska Rules of Criminal Procedure, applies to discovery in the penalty phase of a 23 capital felony prosecution if the prosecution is seeking the death penalty. 24 (b) Thirty days before the guilt phase of a capital felony case is scheduled to 25 begin, the prosecution and the defense shall provide to the opposing party a list of 26 witnesses, other than expert witnesses, that the party is likely to call at the penalty 27 phase if the defendant is found guilty of a charge that is the foundation for the death 28 penalty. In addition to the witness lists, the parties shall include the witnesses' written 29 or recorded statements, a summary of any other statements, and a summary of the 30 testimony the witness will provide the court. 31 (c) Nothing in this section affects discovery related to expert witnesses under 01 Rule 16, Alaska Rules of Criminal Procedure. 02 Article 3. Sentence Review. 03 Sec. 12.58.100. Review of judgment of conviction of a capital felony. (a) A 04 judgment of conviction of a capital felony for which a sentence of death is imposed 05 shall automatically be reviewed by the supreme court within 60 days after imposition 06 of the sentence. This time limit may be extended by the supreme court for good cause. 07 (b) A review under this section has priority over all other cases, and the case 08 shall be heard in accordance with rules adopted by the supreme court. On review, the 09 court shall determine 10 (1) whether the sentence was imposed under the influence of passion, 11 prejudice, or other arbitrary factor; 12 (2) whether the evidence supports the finding of an aggravating factor 13 under AS 12.58.040 and whether the jury has properly considered mitigating factors 14 under AS 12.58.050; 15 (3) whether the sentence is excessive compared to the penalty imposed 16 in similar cases, considering both the crime and the defendant; and 17 (4) any other issue that the defendant may raise as a point on appeal. 18 (c) In its consideration of an automatic appeal under (a) and (b) of this section, 19 the supreme court 20 (1) may not require the defendant to file a notice of appeal unless the 21 defendant raises an issue as a point on appeal under (b)(4) of this section; 22 (2) may not require the defendant to pay a fee; 23 (3) shall designate the entire record of the proceedings before the 24 sentencing court as the record on appeal; 25 (4) shall prepare the transcript of the proceedings for the record on 26 appeal at public expense; and 27 (5) may not require the defendant to submit and file a brief unless the 28 defendant raises an issue as a point on appeal under (b)(4) of this section. 29 Sec. 12.58.110. Issuance of death warrant. If the supreme court upholds a 30 judgment of conviction and sentence of death, the court shall issue a death warrant that 31 specifies a date of execution. The specified date of execution must be not less than 30 01 days nor more than 60 days after the date of the warrant. The death warrant shall be 02 delivered to the commissioner of corrections. 03 Article 4. Administration of the Death Penalty. 04 Sec. 12.58.200. Administration of the death penalty. The commissioner shall 05 establish a procedure for the execution of a sentence of death ordered by the state 06 supreme court at the time and place legally appointed. 07 Sec. 12.58.210. Execution under supreme court death warrant. After 08 receiving a supreme court warrant issued under AS 12.58.110, the commissioner shall 09 specify the time and place of execution. 10 Sec. 12.58.220. Manner of execution. (a) The punishment of death shall be 11 inflicted by continuous, intravenous administration of a lethal dose of a substance or 12 substances until death is pronounced by a licensed physician. 13 (b) A death sentence shall be carried out within a state correctional facility. 14 Sec. 12.58.230. Return of death warrant. After the execution, the 15 commissioner shall make a return upon the death warrant showing the time and place 16 in which the defendant was executed. 17 Article 5. Stay of Execution. 18 Sec. 12.58.300. Incompetency or pregnancy of person sentenced to death.  19 If, after a sentence of death is imposed, the commissioner has reason to believe that 20 the defendant has become incompetent to proceed with the execution or that the 21 defendant is pregnant, the commissioner shall immediately give written notice to the 22 court in which the sentence of death was imposed, the prosecuting attorney, and 23 counsel for the defendant. The execution of sentence shall be stayed pending further 24 order of the court. 25 Sec. 12.58.310. Examination into competency. (a) On receipt of notice under 26 AS 12.58.300 that the defendant is believed to be incompetent, the sentencing court 27 shall examine the mental condition of the defendant in the same manner as provided 28 for examining persons for competency to stand trial under AS 12.47.070. 29 (b) If the sentencing court finds that the defendant is incompetent, the court 30 shall immediately certify that finding to the supreme court and the commissioner, shall 31 sentence the defendant under AS 12.55.125(a), and shall order the defendant confined 01 in the same manner as provided for persons under AS 12.47.050. 02 (c) If the sentencing court finds that the defendant is competent, the court shall 03 immediately certify the finding to the supreme court and the commissioner. The 04 supreme court shall issue and deliver another warrant to the commissioner under 05 AS 12.58.110, together with a copy of the certified finding. Unless the sentencing 06 court's finding is appealed in accordance with applicable court rule, the warrant shall 07 specify a date of execution that is not less than 30 days nor more than 60 days after the 08 date of the warrant. 09 Sec. 12.58.320. Disposition pending pregnancy. (a) If the defendant is 10 pregnant, the sentencing court shall immediately certify that finding to the supreme 11 court and the commissioner. The supreme court shall issue an order staying the 12 execution of the sentence of death during the pregnancy. 13 (b) When the defendant is no longer pregnant, the sentencing court shall 14 immediately certify the finding to the supreme court and the commissioner. The 15 supreme court shall issue and deliver another warrant under AS 12.58.110, together 16 with a copy of the certified finding. Unless the sentencing court's finding is appealed 17 under applicable court rule, the warrant shall specify a date of execution not less than 18 30 days nor more than 60 days after the date of the warrant. 19 Article 6. General Provisions. 20 Sec. 12.58.900. Definitions. In this chapter, 21 (1) "biological evidence" means 22 (A) the contents of a sexual assault forensic examination kit; 23 (B) semen, blood, hair, saliva, skin tissue, fingernail scrapings, 24 bone, bodily fluids, or other identifiable human bodily material, collected as 25 part of a criminal investigation; 26 (2) "commissioner" means the commissioner of corrections; 27 (3) "department" means the Department of Corrections. 28  * Sec. 22. AS 22.07.020(a) is amended to read: 29 (a) The court of appeals has appellate jurisdiction in actions and proceedings 30 commenced in the superior court involving 31 (1) criminal prosecution, except prosecution for a capital felony for  01 which a death sentence is imposed; 02 (2) post-conviction relief; 03 (3) matters under AS 47.12, including waiver of jurisdiction over a 04 minor under AS 47.12.100; 05 (4) extradition; 06 (5) habeas corpus; 07 (6) probation and parole; and 08 (7) bail. 09  * Sec. 23. AS 22.07.020(b) is amended to read: 10 (b) Except as limited in AS 12.55.120 and in this subsection, the court of 11 appeals has jurisdiction to hear appeals of unsuspended sentences of imprisonment 12 exceeding two years for a felony offense or 120 days for a misdemeanor offense 13 imposed by the superior court on the grounds that the sentence is excessive, or a 14 sentence of any length on the grounds that it is too lenient. The court of appeals, in the 15 exercise of this jurisdiction, may modify the sentence as provided by law and the state 16 constitution. The court of appeals does not have jurisdiction to hear appeals of  17 death sentences.  18  * Sec. 24. AS 47.12.030(a) is amended to read: 19 (a) When a minor who was at least 16 years of age at the time of the offense is 20 charged by complaint, information, or indictment with an offense specified in this 21 subsection, this chapter and the Alaska Delinquency Rules do not apply to the offense 22 for which the minor is charged or to any additional offenses joinable to it under the 23 applicable rules of court governing criminal procedure. The minor shall be charged, 24 held, released on bail, prosecuted, sentenced, and incarcerated in the same manner as 25 an adult. If the minor is convicted of an offense other than an offense specified in this 26 subsection, the minor may attempt to prove, by a preponderance of the evidence, that 27 the minor is amenable to treatment under this chapter. If the court finds that the minor 28 is amenable to treatment under this chapter, the minor shall be treated as though the 29 charges had been heard under this chapter, and the court shall order disposition of the 30 charges of which the minor is convicted under AS 47.12.120(b). The provisions of this 31 subsection apply when the minor is charged by complaint, information, or indictment 01 with an offense 02 (1) that is a capital felony, an unclassified felony, or a class A felony 03 and the felony is a crime against a person; 04 (2) of arson in the first degree; 05 (3) that is a class B felony and the felony is a crime against a person in 06 which the minor is alleged to have used a deadly weapon in the commission of the 07 offense and the minor was previously adjudicated as a delinquent or convicted as an 08 adult, in this or another jurisdiction, as a result of an offense that involved use of a 09 deadly weapon in the commission of a crime against a person or an offense in another 10 jurisdiction having elements substantially identical to those of a crime against a 11 person, and the previous offense was punishable as a felony; in this paragraph, "deadly 12 weapon" has the meaning given in AS 11.81.900(b); or 13 (4) that is misconduct involving weapons in the first degree under 14 (A) AS 11.61.190(a)(1); or 15 (B) AS 11.61.190(a)(2) when the firearm was discharged under 16 circumstances manifesting substantial and unjustifiable risk of physical injury 17 to a person. 18  * Sec. 25. AS 47.12.100(c) is amended to read: 19 (c) For purposes of making a determination under this section, 20 (1) the standard of proof is by a preponderance of the evidence; and 21 (2) the burden of proof that a minor is not amenable to treatment under 22 this chapter is on the state; however, if the petition filed under AS 47.12.040 seeking 23 to have the court declare a minor a delinquent is based on the minor's alleged 24 commission of an offense that is a capital felony, an unclassified felony, or a class A 25 felony and that is a crime against a person, the minor 26 (A) is rebuttably presumed not to be amenable to treatment 27 under this chapter; and 28 (B) has the burden of proof of showing that the minor is 29 amenable to treatment under this chapter. 30  * Sec. 26. The uncodified law of the State of Alaska is amended by adding a new section to 31 read: 01 INDIRECT COURT RULE AMENDMENTS. (a) AS 12.58, added by sec. 21 of this 02 Act, has the effect of modifying the sentencing provisions of Rules 32, 32.1, and 32.3, Alaska 03 Rules of Criminal Procedure, by establishing exclusive procedures for imposition of death 04 sentence by a trial court and by authorizing automatic appeal of those sentences to the Alaska 05 Supreme Court.  06 (b) AS 12.58.100, added by sec. 21 of this Act, has the effect of amending Rules 204, 07 209, 210, and 212, Alaska Rules of Appellate Procedure, by establishing procedures and 08 limitations on procedures relating to the filing and disposition of appeals of sentences in cases 09 in which the death penalty is imposed. 10 (c) AS 12.58.070, added by sec. 21 of this Act, has the effect of modifying Rule 16, 11 Alaska Rules of Criminal Procedure, by providing for the exchange of the names of 12 witnesses, their written or recorded statements, and summaries of their testimony by the 13 prosecution and defense for the penalty phase of a capital felony death penalty prosecution. 14  * Sec. 27. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 EXCESSIVE REVIEW. AS 12.58.100(b)(3), added by sec. 21 of this Act, provides 17 that the Alaska Supreme Court will review whether a sentence of death is excessive compared 18 to the penalty imposed in similar cases. Under that review, a sentence of death may not be 19 found excessive compared to the penalty imposed in similar cases based on the fact that a 20 sentence of death has not been previously authorized as a penalty for murder in this state.