HB 162: "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; amending Alaska Rules of Criminal Procedure 32, 32.1, and 32.3 and Alaska Rules of Appellate Procedure 204, 209, 210, and 212; and providing for an effective date."
00HOUSE BILL NO. 162 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; amending Alaska 04 Rules of Criminal Procedure 32, 32.1, and 32.3 and Alaska Rules of Appellate 05 Procedure 204, 209, 210, and 212; and providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. FINDINGS. The legislature finds that imposition of the death penalty for the 08 crime of murder in the first degree 09 (1) is consistent with the criminal sentencing goal of deterrence in that, by the 10 example of its imposition, a member of the community who calculates a murder would 11 rationally consider the harsh consequences of that act; 12 (2) is consistent with the criminal sentencing goal of community condemnation 13 in that, by its use, the state affirms society's norms and condemns most severely the 14 premeditative taking of human life or the taking of life under circumstances manifesting
01 extreme indifference to its value; 02 (3) does not violate state constitutional guarantees against the imposition of 03 cruel and unusual punishment, but rather is fully consistent with those guarantees; 04 (4) conforms to contemporary standards of decency in that there is no evidence 05 that Alaska's tradition and history suggest a significantly different attitude toward capital 06 punishment in this state from those that prevail nationwide, and there is a widely held belief 07 in the society that capital punishment is an appropriate penalty for murder in the first degree; 08 (5) serves the state's interest in justice by punishing the person who is guilty 09 according to what is deserved for the most morally offensive conduct with a sentence more 10 stringent than an extended term of life imprisonment; 11 (6) serves the state's interest in public protection by assuring that the most 12 serious offenders will never again pose a threat to the public; and 13 (7) is consistent with due process requirements in that the circumstances in 14 which the death penalty may be imposed provide guidance to the court and jury that safeguard 15 against the elements of arbitrariness and capriciousness condemned by the United States 16 Supreme Court in cases concerning the death penalty statutes of other states. 17 * Sec. 2. AS 11.41.100(b) is amended to read: 18 (b) Murder in the first degree is a capital [AN UNCLASSIFIED] felony and 19 is punishable as provided in AS 12.55.125(a) [AS 12.55]. 20 * Sec. 3. AS 12.30.020(a) is amended to read: 21 (a) A person charged with an offense shall, at that person's first appearance 22 before a judicial officer, be ordered released pending trial on the person's personal 23 recognizance or upon the execution of an unsecured appearance bond in an amount 24 specified by the judicial officer unless the offense is a capital felony, an unclassified 25 felony, or a class A felony or unless the officer determines that the release of the 26 person will not reasonably assure the appearance of the person as required, or will 27 pose a danger to other persons and the community. If the offense with which a person 28 is charged is a felony, on motion of the prosecuting attorney, the judicial officer may 29 allow the prosecuting attorney up to 48 hours to demonstrate that release of the person 30 on the person's personal recognizance or upon the execution of an unsecured 31 appearance bond will not reasonably assure the appearance of the person, or will pose
01 a danger to other persons and the community. 02 * Sec. 4. AS 12.30.040(b) is amended to read: 03 (b) Notwithstanding the provisions of (a) of this section, if a person has been 04 convicted of an offense that [WHICH] is a capital felony, an unclassified felony, or 05 a class A felony, the person may not be released on bail either before sentencing or 06 pending appeal. 07 * Sec. 5. AS 12.47.110(b) is amended to read: 08 (b) On or before the expiration of the initial 90-day period of commitment, the 09 court shall conduct a hearing to determine whether or not the defendant remains 10 incompetent. If the court finds by a preponderance of the evidence that the defendant 11 remains incompetent, the court may recommit the defendant for a second period of 90 12 days. The court shall determine at the expiration of the second 90-day period whether 13 the defendant has become competent. If at the expiration of the second 90-day period 14 the court determines that the defendant continues to be incompetent to stand trial, the 15 charges against the defendant shall be dismissed without prejudice and continued 16 commitment of the defendant shall be governed by the provisions relating to civil 17 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a 18 crime involving force against a person and the court finds that the defendant presents 19 a substantial danger of physical injury to other persons and that there is a substantial 20 probability that the defendant will regain competency within a reasonable period of 21 time, in which case the court may extend the period of commitment for an additional 22 six months. If the defendant remains incompetent at the expiration of the additional 23 six-month period, the charges shall be dismissed without prejudice and either civil 24 commitment proceedings shall be instituted or the court shall order the release of the 25 defendant. If the defendant remains incompetent for five years after the charges have 26 been dismissed under this subsection, the defendant may not be charged again for an 27 offense arising out of the facts alleged in the original charges, except if the original 28 charge is a class A felony, [OR] unclassified felony, or capital felony. 29 * Sec. 6. AS 12.55.025(i) is amended to read: 30 (i) Except as provided by AS 12.55.125(a)(3), 12.55.125(k), 12.55.145(d), 31 12.55.155(f), and 12.55.165, or in determining if a sentence of death should be
01 imposed under AS 12.58, the preponderance of the evidence standard of proof applies 02 to sentencing proceedings. 03 * Sec. 7. AS 12.55.125(a) is amended to read: 04 (a) A defendant convicted of murder in the first degree shall be sentenced to 05 a definite term of imprisonment of at least 20 years but not more than 99 years, or 06 shall be sentenced to death. A defendant convicted of murder in the first degree, but 07 not sentenced to death, shall be sentenced to a mandatory term of imprisonment of 08 99 years when 09 (1) the defendant is convicted of the murder of a uniformed or 10 otherwise clearly identified peace officer, fire fighter, or correctional officer who was 11 engaged in the performance of official duties at the time of the murder; 12 (2) the defendant has been previously convicted of 13 (A) murder in the first degree under AS 11.41.100 or former 14 AS 11.15.010 or 11.15.020; 15 (B) murder in the second degree under AS 11.41.110 or former 16 AS 11.15.030; or 17 (C) homicide under the laws of another jurisdiction when the 18 offense of which the defendant was convicted contains elements similar to first 19 degree murder under AS 11.41.100 or second degree murder under 20 AS 11.41.110; or 21 (3) the court finds by clear and convincing evidence that the defendant 22 subjected the murder victim to substantial physical torture. 23 * Sec. 8. AS 12.55.125(f) is amended to read: 24 (f) If a defendant is sentenced under (a) or (b) of this section, 25 (1) imprisonment for the prescribed minimum term may not be 26 suspended under AS 12.55.080; 27 (2) imposition of sentence may not be suspended under AS 12.55.085; 28 (3) imprisonment for the prescribed minimum term may not be 29 otherwise reduced; 30 (4) a sentence of death may not be suspended under AS 12.55.080. 31 * Sec. 9. AS 12.55.145(a) is amended to read:
01 (a) For purposes of considering prior convictions in imposing sentence under 02 AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i) 03 (1) a prior conviction may not be considered if a period of 10 or more 04 years has elapsed between the date of the defendant's unconditional discharge on the 05 immediately preceding offense and commission of the present offense unless the prior 06 conviction was for a capital, [AN] unclassified, or class A felony; 07 (2) a conviction in this or another jurisdiction of an offense having 08 elements similar to those of a felony defined as such under Alaska law at the time the 09 offense was committed is considered a prior felony conviction; 10 (3) two or more convictions arising out of a single, continuous criminal 11 episode during which there was no substantial change in the nature of the criminal 12 objective are considered a single conviction unless the defendant was sentenced to 13 consecutive sentences for the crimes; offenses committed while attempting to escape 14 or avoid detection or apprehension after the commission of another offense are not part 15 of the same criminal episode or objective. 16 * Sec. 10. AS 12.55.155(f) is amended to read: 17 (f) Under this section, if [IF] the state seeks to establish a factor in 18 aggravation at sentencing or if the defendant seeks to establish a factor in mitigation 19 at sentencing, written notice must be served on the opposing party and filed with the 20 court not later than 10 days before the date set for imposition of sentence. Under this 21 section, factors [FACTORS] in aggravation and factors in mitigation must be 22 established by clear and convincing evidence before the court sitting without a jury. 23 All findings must be set out with specificity. 24 * Sec. 11. AS 12 is amended by adding a new chapter to read: 25 CHAPTER 58. CAPITAL PUNISHMENT. 26 ARTICLE 1. ELECTION TO SEEK DEATH PENALTY. 27 Sec. 12.58.010. PROSECUTOR'S ELECTION TO SEEK DEATH PENALTY. 28 The district attorney assigned to the prosecution of a capital felony shall determine 29 whether to seek the death penalty against the defendant. If the prosecutor elects to 30 seek the death penalty, the prosecutor shall give notice of election to the court, the 31 defendant, and the defendant's attorney within 10 days of arraignment of the defendant
01 on the capital felony indictment, or within 10 days of arraignment of the defendant if 02 indictment has been waived. 03 ARTICLE 2. IMPOSITION OF SENTENCE. 04 Sec. 12.58.100. SENTENCING PROCEDURE FOR A CAPITAL FELONY. 05 (a) If, after a trial by jury, a defendant is convicted of a capital felony for which the 06 district attorney has elected under AS 12.58.010 to seek the death penalty, the court 07 shall conduct a separate sentencing proceeding before the trial jury as soon as 08 practicable. If a jury trial has been waived or if the defendant has pled guilty, the 09 sentencing proceeding shall be held before a jury impaneled for the purpose. 10 (b) During the sentencing proceeding, evidence may be presented as to any 11 aggravating or mitigating factor that the court considers to have probative value, 12 regardless of the admissibility of the evidence under the rules of evidence. The 13 defendant shall have an opportunity to rebut hearsay evidence that is admitted. The 14 state and the defendant or the defendant's counsel shall be permitted to present oral 15 statements. This subsection does not authorize the introduction of evidence in 16 violation of the Constitution of the State of Alaska or the Constitution of the United 17 States. 18 (c) After hearing the evidence, the jury shall deliberate and recommend a 19 sentence to the court. The recommended sentence must include written findings of 20 whether the jury finds 21 (1) unanimously beyond a reasonable doubt that a statutory aggravating 22 factor or factors exist to justify the death sentence; 23 (2) unanimously by a preponderance of the evidence that the 24 aggravating factor or factors outweigh any mitigating factors found to exist by a 25 preponderance of the evidence by one or more of the jurors; and 26 (3) that the defendant should be sentenced to death. 27 Sec. 12.58.110. SENTENCE IMPOSITION FOR CAPITAL FELONY. (a) 28 After considering the evidence and the recommended sentence, the court shall enter 29 a sentence of death or a term of imprisonment in accordance with AS 12.55.125(a). 30 The court may not impose the death sentence unless the jury (1) finds beyond a 31 reasonable doubt at least one statutory aggravating factor, (2) finds by a preponderance
01 of the evidence that that factor or those factors are not outweighed by any mitigating 02 factors found to exist by a preponderance of the evidence, and (3) recommends that 03 the defendant be sentenced to death. If the jury findings include a statutory 04 aggravating factor or factors that are not outweighed by one or more of the mitigating 05 factors and if the jury recommends a sentence of death, the court shall sentence the 06 defendant to death. If a sentence of death is not recommended by the jury, the court 07 shall sentence the defendant to a term of imprisonment under AS 12.55.125(a). 08 (b) When the court enters a sentence of death, it shall state in writing the 09 jury's findings of 10 (1) aggravating factors that exist to justify the sentence; and 11 (2) mitigating factors considered but found insufficient to outweigh the 12 aggravating factors. 13 (c) A judgment of conviction for which a sentence of death is imposed is 14 subject to automatic review under AS 12.58.200. 15 Sec. 12.58.120. AGGRAVATING FACTORS. In determining whether to 16 impose a sentence of death, the following aggravating factors may be considered: 17 (1) the defendant's conduct during the commission of the offense 18 manifested deliberate cruelty to another person in that it involved torture or an 19 aggravated battery; 20 (2) the defendant's conduct caused the death of two or more persons, 21 other than accomplices; 22 (3) the defendant's conduct created a risk of imminent physical injury 23 to three or more persons, other than accomplices; 24 (4) the defendant has a prior conviction for a felony that involved the 25 use of violence against a person or for murder under AS 11.41.100 - 11.41.110, former 26 AS 11.15.010 or 11.15.030, or the law of another jurisdiction with substantially similar 27 elements; 28 (5) the defendant knowingly directed the conduct constituting the 29 offense at the President of the United States or the governor of this state; 30 (6) the defendant knowingly directed the conduct constituting the 31 offense at an active or former law enforcement officer, prosecuting attorney, fire
01 fighter, judicial officer, or correctional officer during or because of the exercise of 02 official duties; 03 (7) the defendant committed the offense under an agreement that the 04 defendant either pay or be paid for the commission of the offense, or for other 05 pecuniary gain; 06 (8) the defendant was on release under AS 12.30.020 - 12.30.040 for 07 another felony charge or conviction having assault as a necessary element; 08 (9) the defendant was a member of an organized group of five or more 09 persons, and the offense was committed to further the criminal objectives of the group. 10 Sec. 12.58.130. MITIGATING FACTORS. In determining whether to impose 11 the death sentence, all mitigating factors shall be considered, including, but not limited 12 to, the following: 13 (1) the defendant committed the offense under a degree of duress, 14 coercion, threat, or compulsion that was insufficient to constitute a defense but that 15 significantly affected the defendant's conduct; 16 (2) the conduct of a youthful defendant was substantially influenced by 17 a person more mature than the defendant; 18 (3) the defendant acted with serious provocation from the victim; 19 (4) the defendant assisted authorities to detect or apprehend other 20 persons who committed the offense with the defendant. 21 ARTICLE 3. SENTENCE REVIEW. 22 Sec. 12.58.200. REVIEW OF JUDGMENT OF CONVICTION OF A 23 CAPITAL FELONY. (a) A judgment of conviction of a capital felony for which a 24 sentence of death is imposed shall automatically be reviewed by the supreme court 25 within 60 days after imposition of the sentence. This time limit may be extended by 26 the supreme court for good cause. 27 (b) A review under this section has priority over all other cases and the case 28 shall be heard in accordance with rules adopted by the supreme court. On review, the 29 court shall determine whether 30 (1) the sentence was imposed under the influence of passion, prejudice, 31 or other arbitrary factor;
01 (2) the evidence supports the finding of an aggravating factor under 02 AS 12.58.120 and whether the jury has properly considered mitigating factors under 03 AS 12.58.130; 04 (3) the sentence is excessive or disproportionate to the penalty imposed 05 in similar cases, considering both the crime and the defendant; and 06 (4) any other issue that the defendant may raise as a point on appeal. 07 (c) In its consideration of an automatic appeal under (a) and (b) of this section, 08 the supreme court 09 (1) may not require the defendant to file a notice of appeal unless the 10 defendant raises an issue as a point on appeal under (b)(4) of this section; 11 (2) may not require the defendant to pay a fee; 12 (3) shall designate the entire record of the proceedings before the 13 sentencing court as the record on appeal; 14 (4) shall prepare the transcript of the proceedings for the record on 15 appeal at public expense; and 16 (5) may not require the defendant to submit and file a brief unless the 17 defendant raises an issue as a point on appeal under (b)(4) of this section. 18 Sec. 12.58.210. ISSUANCE OF DEATH WARRANT. If the supreme court 19 upholds a judgment of conviction and sentence of death, the court shall issue a death 20 warrant that specifies a date of execution. The specified date of execution must be not 21 less than 30 days nor more than 60 days after the date of the warrant. The death 22 warrant shall be delivered to the commissioner of corrections. 23 ARTICLE 4. ADMINISTRATION OF THE DEATH PENALTY. 24 Sec. 12.58.300. ADMINISTRATION OF THE DEATH PENALTY. The 25 commissioner shall establish a procedure for the execution of a sentence of death 26 ordered by the state supreme court at the time and place legally appointed. 27 Sec. 12.58.310. EXECUTION UNDER SUPREME COURT DEATH 28 WARRANT. After receiving a supreme court warrant issued under AS 12.58.210, the 29 commissioner shall specify the time and place of execution. 30 Sec. 12.58.320. MANNER OF EXECUTION. (a) The punishment of death 31 shall be inflicted
01 (1) by hanging by the neck until death is pronounced by a licensed 02 physician; or 03 (2) at the election of the defendant, by continuous, intravenous 04 administration of a lethal dose of sodium thiopental until death is pronounced by a 05 licensed physician. 06 (b) A death sentence shall be carried out within a state correctional facility. 07 Sec. 12.58.330. RETURN OF DEATH WARRANT. After the execution the 08 commissioner shall make a return upon the death warrant showing the time and place 09 in which the defendant was executed. 10 ARTICLE 5. STAY OF EXECUTION. 11 Sec. 12.58.400. INCOMPETENCY OR PREGNANCY OF PERSON 12 SENTENCED TO DEATH. If, after a sentence of death is imposed, the commissioner 13 has reason to believe that the defendant has become incompetent to proceed with the 14 execution or that the defendant is pregnant, the commissioner shall immediately give 15 written notice to the court in which the sentence of death was imposed, the prosecuting 16 attorney, and counsel for the defendant. The execution of sentence shall be stayed 17 pending further order of the court. 18 Sec. 12.58.410. EXAMINATION INTO COMPETENCY. (a) On receipt of 19 notice under AS 12.58.400 that the defendant is believed to be incompetent, the 20 sentencing court shall examine the mental condition of the defendant in the same 21 manner as provided for examining persons for competency to stand trial under 22 AS 12.47.070. 23 (b) If the sentencing court finds that the defendant is incompetent, the court 24 shall immediately certify that finding to the supreme court and the commissioner and 25 shall enter an order for commitment in the same manner as provided for commitment 26 under AS 12.47.110. 27 (c) If the sentencing court finds that the defendant is competent, the court shall 28 immediately certify the finding to the supreme court and the commissioner. The 29 supreme court shall issue and deliver another warrant to the commissioner under 30 AS 12.58.210, together with a copy of the certified finding. Unless the sentencing 31 court's finding is appealed in accordance with applicable court rule, the warrant shall
01 specify a date of execution that is not less than 30 days nor more than 60 days after 02 the date of the warrant. 03 Sec. 12.58.420. DISPOSITION PENDING PREGNANCY. (a) If the 04 defendant is pregnant, the sentencing court shall immediately certify that finding to the 05 supreme court and the commissioner. The supreme court shall issue an order staying 06 the execution of the sentence of death during the pregnancy. 07 (b) When the defendant is no longer pregnant, the sentencing court shall 08 immediately certify the finding to the supreme court and the commissioner. The 09 supreme court shall issue and deliver another warrant under AS 12.58.210, together 10 with a copy of the certified finding. Unless the sentencing court's finding is appealed 11 under applicable court rule, the warrant shall specify a date of execution not less than 12 30 days nor more than 60 days after the date of the warrant. 13 ARTICLE 6. GENERAL PROVISIONS. 14 Sec. 12.58.900. DEFINITIONS. In this chapter, 15 (1) "commissioner" means the commissioner of corrections; 16 (2) "department" means the Department of Corrections. 17 * Sec. 12. AS 22.07.020(a) is amended to read: 18 (a) The court of appeals has appellate jurisdiction in actions and proceedings 19 commenced in the superior court involving: 20 (1) criminal prosecution, except prosecution for a capital felony for 21 which a death sentence is imposed; 22 (2) post-conviction relief; 23 (3) children's court matters under AS 47.10.010(a)(1), including waiver 24 of children's court jurisdiction over a minor under AS 47.10; 25 (4) extradition; 26 (5) habeas corpus; 27 (6) probation and parole; and 28 (7) bail. 29 * Sec. 13. AS 22.07.020(b) is amended to read: 30 (b) Except for appeals of a death sentence, the [THE] court of appeals has 31 jurisdiction to hear appeals of sentences of imprisonment imposed by the superior court
01 on the grounds that the sentence is excessive or too lenient and, in the exercise of this 02 jurisdiction, may modify the sentence as provided by law and the state constitution. 03 * Sec. 14. The lieutenant governor shall place before the qualified voters of the state at the 04 November 1994 general election a question advisory to the legislature of whether capital 05 punishment should be an authorized sentence for murder in the first degree. The question 06 shall appear on the ballot in the following form: 07 Q U E S T I O N 08 Should capital punishment for murder in the first degree as now 09 authorized by law go into effect June 1, 1995? 10 Yes [ ] No [ ] 11 * Sec. 15. APPLICABILITY TO CRIMINAL RULES. AS 12.58, added by sec. 11 of this 12 Act, has the effect of modifying the sentencing provisions of Rules 32, 32.1, and 32.3, Alaska 13 Rules of Criminal Procedure, by establishing exclusive procedures for imposition of death 14 sentence by a trial court and by authorizing automatic appeal of those sentences to the Alaska 15 Supreme Court. 16 * Sec. 16. APPLICABILITY TO APPELLATE RULES. AS 12.58.200, added by sec. 11 17 of this Act, has the effect of amending Rules 204, 209, 210, and 212, Alaska Rules of 18 Appellate Procedure, by establishing procedures and limitations on procedures relating to the 19 filing and disposition of appeals of sentences in cases in which the death penalty is imposed. 20 * Sec. 17. Section 14 of this Act takes effect immediately under AS 01.10.070(c). 21 * Sec. 18. Except for sec. 14 of this Act, this Act takes effect June 1, 1995.