SSSB 52: "An Act authorizing capital punishment, classifying murder in the first degree as a capital felony, and establishing sentencing procedures for capital felonies; authorizing an advisory vote on instituting capital punishment; and providing for an effective date."
00SPONSOR SUBSTITUTE FOR SENATE BILL NO. 52 01 "An Act authorizing capital punishment, classifying murder in the first degree as 02 a capital felony, and establishing sentencing procedures for capital felonies; 03 authorizing an advisory vote on instituting capital punishment; and providing for 04 an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 05.15.140(b) is amended to read: 07 (b) In an application for a permit, a municipality or qualified organization shall 08 disclose the name and address of each person responsible for the operation of the 09 activity and whether any person named 10 (1) has been convicted of a violation of a law of this state that is, or 11 a law or ordinance of another state that would be if committed in this state, a capital 12 or [AN] unclassified felony described in AS 11, a Class A felony, extortion, or a 13 violation of a law or ordinance of this state or another jurisdiction that is a crime 14 involving theft or dishonesty or a violation of gambling laws; or
01 (2) has a prohibited financial interest, as defined in regulations adopted 02 by the department, in the operation of the activity. 03 * Sec. 2. AS 11.31.100(d) is amended to read: 04 (d) An attempt is 05 (1) an unclassified felony if the crime attempted is murder in the first 06 degree; 07 (2) a class A felony if the crime attempted is an unclassified felony 08 [OTHER THAN MURDER IN THE FIRST DEGREE]; 09 (3) a class B felony if the crime attempted is a class A felony; 10 (4) a class C felony if the crime attempted is a class B felony; 11 (5) a class A misdemeanor if the crime attempted is a class C felony; 12 (6) a class B misdemeanor if the crime attempted is a class A or class 13 B misdemeanor. 14 * Sec. 3. AS 11.31.110(c) is amended to read: 15 (c) Solicitation is a 16 (1) class A felony if the crime solicited is a capital or [AN] 17 unclassified felony; 18 (2) class B felony if the crime solicited is a class A felony; 19 (3) class C felony if the crime solicited is a class B felony; 20 (4) class A misdemeanor if the crime solicited is a class C felony; 21 (5) class B misdemeanor if the crime solicited is a class A or class B 22 misdemeanor. 23 * Sec. 4. AS 11.31.120(h) is amended to read: 24 (h) Conspiracy is 25 (1) an unclassified felony if the object of the conspiracy is murder in 26 the first degree; 27 (2) a class A felony if the object of the conspiracy is a crime 28 punishable as an unclassified felony [OTHER THAN MURDER IN THE FIRST 29 DEGREE]; 30 (3) a class B felony if the object of the conspiracy is a crime 31 punishable as a class A felony;
01 (4) a class C felony if the object of the conspiracy is a crime 02 punishable as a class B felony. 03 * Sec. 5. AS 11.31.120(i) is amended to read: 04 (i) In this section, 05 (1) "overt act in furtherance of the conspiracy" means an act of such 06 character that it manifests a purpose on the part of the actor that the object of the 07 conspiracy be completed; 08 (2) "serious felony offense" means an offense 09 (A) against the person under AS 11.41, punishable as a capital, 10 an unclassified, or class A felony; or 11 (B) involving controlled substances under AS 11.71, punishable 12 as an unclassified, class A, or class B felony. 13 * Sec. 6. AS 11.41.100(b) is amended to read: 14 (b) Murder in the first degree is a capital [AN UNCLASSIFIED] felony and 15 is punishable as provided in AS 12.55.125(a) [AS 12.55]. 16 * Sec. 7. AS 12.30.020(a) is amended to read: 17 (a) A person charged with an offense shall, at that person's first appearance 18 before a judicial officer, be ordered released pending trial on the person's personal 19 recognizance or upon the execution of an unsecured appearance bond in an amount 20 specified by the judicial officer unless the offense is a capital felony, an unclassified 21 felony, or a class A felony or unless the officer determines that the release of the 22 person will not reasonably assure the appearance of the person as required, or will 23 pose a danger to other persons and the community. If the offense with which a person 24 is charged is a felony, on motion of the prosecuting attorney, the judicial officer may 25 allow the prosecuting attorney up to 48 hours to demonstrate that release of the person 26 on the person's personal recognizance or upon the execution of an unsecured 27 appearance bond will not reasonably assure the appearance of the person, or will pose 28 a danger to other persons and the community. 29 * Sec. 8. AS 12.30.040(b) is amended to read: 30 (b) Notwithstanding the provisions of (a) of this section, if a person has been 31 convicted of an offense that [WHICH] is a capital felony, an unclassified felony, or
01 a class A felony, the person may not be released on bail either before sentencing or 02 pending appeal. 03 * Sec. 9. AS 12.47.110(b) is amended to read: 04 (b) On or before the expiration of the initial 90-day period of commitment the 05 court shall conduct a hearing to determine whether or not the defendant remains 06 incompetent. If the court finds by a preponderance of the evidence that the defendant 07 remains incompetent, the court may recommit the defendant for a second period of 90 08 days. The court shall determine at the expiration of the second 90-day period whether 09 the defendant has become competent. If at the expiration of the second 90-day period 10 the court determines that the defendant continues to be incompetent to stand trial, the 11 charges against the defendant shall be dismissed without prejudice and continued 12 commitment of the defendant shall be governed by the provisions relating to civil 13 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a 14 crime involving force against a person and the court finds that the defendant presents 15 a substantial danger of physical injury to other persons and that there is a substantial 16 probability that the defendant will regain competency within a reasonable period of 17 time, in which case the court may extend the period of commitment for an additional 18 six months. If the defendant remains incompetent at the expiration of the additional 19 six-month period, the charges shall be dismissed without prejudice and either civil 20 commitment proceedings shall be instituted or the court shall order the release of the 21 defendant. If the defendant remains incompetent for five years after the charges have 22 been dismissed under this subsection, the defendant may not be charged again for an 23 offense arising out of the facts alleged in the original charges, except if the original 24 charge is a class A felony, [OR] unclassified felony, or capital felony. 25 * Sec. 10. AS 12.55.025(i) is amended to read: 26 (i) Except as provided by AS 12.55.125(a)(3), 12.55.125(k), 12.55.145(d), 27 12.55.155(f), and 12.55.165, or in determining if a sentence of death should be 28 imposed under AS 12.58, the preponderance of the evidence standard of proof applies 29 to sentencing proceedings. 30 * Sec. 11. AS 12.55.125(a) is amended to read: 31 (a) A defendant convicted of murder in the first degree shall be sentenced to
01 a definite term of imprisonment of at least 20 years but not more than 99 years, or 02 shall be sentenced to death. A defendant convicted of murder in the first degree, but 03 not sentenced to death, shall be sentenced to a mandatory term of imprisonment of 04 99 years when 05 (1) the defendant is convicted of the murder of a uniformed or 06 otherwise clearly identified peace officer, fire fighter, or correctional officer who was 07 engaged in the performance of official duties at the time of the murder; 08 (2) the defendant has been previously convicted of 09 (A) murder in the first degree under AS 11.41.100 or former 10 AS 11.15.010 or 11.15.020; 11 (B) murder in the second degree under AS 11.41.110 or former 12 AS 11.15.030; or 13 (C) homicide under the laws of another jurisdiction when the 14 offense of which the defendant was convicted contains elements similar to first 15 degree murder under AS 11.41.100 or second degree murder under 16 AS 11.41.110; or 17 (3) the court finds by clear and convincing evidence that the defendant 18 subjected the murder victim to substantial physical torture. 19 * Sec. 12. AS 12.55.125(f) is amended to read: 20 (f) If a defendant is sentenced under (a) or (b) of this section, 21 (1) imprisonment for the prescribed minimum term may not be 22 suspended under AS 12.55.080; 23 (2) imposition of sentence may not be suspended under AS 12.55.085; 24 (3) imprisonment for the prescribed minimum term may not be 25 otherwise reduced; 26 (4) a sentence of death may not be suspended under AS 12.55.080. 27 * Sec. 13. AS 12.55.145(a) is amended to read: 28 (a) For purposes of considering prior convictions in imposing sentence under 29 AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i) 30 (1) a prior conviction may not be considered if a period of 10 or more 31 years has elapsed between the date of the defendant's unconditional discharge on the
01 immediately preceding offense and commission of the present offense unless the prior 02 conviction was for a capital, [AN] unclassified, or class A felony; 03 (2) a conviction in this or another jurisdiction of an offense having 04 elements similar to those of a felony defined as such under Alaska law at the time the 05 offense was committed is considered a prior felony conviction; 06 (3) two or more convictions arising out of a single, continuous criminal 07 episode during which there was no substantial change in the nature of the criminal 08 objective are considered a single conviction unless the defendant was sentenced to 09 consecutive sentences for the crimes; offenses committed while attempting to escape 10 or avoid detection or apprehension after the commission of another offense are not part 11 of the same criminal episode or objective. 12 * Sec. 14. AS 12.55.155(f) is amended to read: 13 (f) Under this section, if [IF] the state seeks to establish a factor in 14 aggravation at sentencing or if the defendant seeks to establish a factor in mitigation 15 at sentencing, written notice must be served on the opposing party and filed with the 16 court not later than 10 days before the date set for imposition of sentence. Under this 17 section, factors [FACTORS] in aggravation and factors in mitigation must be 18 established by clear and convincing evidence before the court sitting without a jury. 19 All findings must be set out with specificity. 20 * Sec. 15. AS 12 is amended by adding a new chapter to read: 21 CHAPTER 58. CAPITAL PUNISHMENT. 22 ARTICLE 1. IMPOSITION OF SENTENCE. 23 Sec. 12.58.010. SENTENCING PROCEDURE FOR A CAPITAL FELONY. 24 (a) If, after a trial by jury, a defendant is convicted of a capital felony, the court shall 25 conduct a separate sentencing proceeding before the trial jury as soon as practicable. 26 If a jury trial has been waived or if the defendant has pled guilty, the sentencing 27 proceeding shall be held before a jury impaneled for the purpose. 28 (b) During the sentencing proceeding, evidence may be presented as to any 29 aggravating or mitigating factor that the court considers to have probative value, 30 regardless of the admissibility of the evidence under the rules of evidence. The 31 defendant shall have an opportunity to rebut hearsay evidence that is admitted. The
01 state and the defendant or the defendant's counsel shall be permitted to present oral 02 statements. This subsection does not authorize the introduction of evidence in 03 violation of the Constitution of the State of Alaska or the Constitution of the United 04 States. 05 (c) After hearing the evidence, the jury shall deliberate and recommend a 06 sentence to the court. The recommended sentence must include written findings of 07 whether the jury unanimously finds 08 (1) beyond a reasonable doubt that an aggravating factor or factors exist 09 to justify the death sentence; 10 (2) by a preponderance of the evidence that the aggravating factor or 11 factors outweigh any mitigating factors found to exist by a preponderance of the 12 evidence; and 13 (3) that the defendant should be sentenced to death. 14 Sec. 12.58.020. SENTENCE IMPOSITION FOR CAPITAL FELONY. (a) 15 After considering the evidence and the recommended sentence, the court shall enter 16 a sentence of death or a term of imprisonment in accordance with AS 12.55.125(a). 17 The court may not impose the death sentence unless the jury (1) finds beyond a 18 reasonable doubt at least one aggravating factor, (2) finds by a preponderance of the 19 evidence that that factor or those factors are not outweighed by any mitigating factors 20 found to exist by a preponderance of the evidence, and (3) recommends that the 21 defendant be sentenced to death. If the jury findings include an aggravating factor or 22 factors that are not outweighed by one or more of the mitigating factors and if the jury 23 recommends a sentence of death, the court shall sentence the defendant to death. If 24 a sentence of death is not recommended by the jury, the court shall sentence the 25 defendant to a term of imprisonment under AS 12.55.125(a). 26 (b) When the court enters a sentence of death, it shall state in writing the 27 jury's findings of 28 (1) aggravating factors that exist to justify the sentence; and 29 (2) mitigating factors considered but found insufficient to outweigh the 30 aggravating factors. 31 (c) A judgment of conviction for which a sentence of death is imposed is
01 subject to automatic review under AS 12.58.100. 02 Sec. 12.58.030. AGGRAVATING FACTORS. In determining whether to 03 impose a sentence of death, the following aggravating factors may be considered: 04 (1) the defendant's conduct during the commission of the offense 05 manifested deliberate cruelty to another person in that it involved torture or an 06 aggravated battery; 07 (2) the defendant's conduct caused the death of two or more persons, 08 other than accomplices; 09 (3) the defendant's conduct created a risk of imminent physical injury 10 to three or more persons, other than accomplices; 11 (4) the defendant has a prior conviction for a felony that involved the 12 use of violence against a person or for murder under AS 11.41.100 - 11.41.110, former 13 AS 11.15.010 or 11.15.030, or the law of another jurisdiction with substantially similar 14 elements; 15 (5) the defendant knowingly directed the conduct constituting the 16 offense at the President of the United States or the governor of this state; 17 (6) the defendant knowingly directed the conduct constituting the 18 offense at an active or former law enforcement officer, prosecuting attorney, fire 19 fighter, judicial officer, or correctional officer during or because of the exercise of 20 official duties; 21 (7) the defendant committed the offense under an agreement that the 22 defendant either pay or be paid for the commission of the offense, or for other 23 pecuniary gain; 24 (8) the defendant was on release under AS 12.30.020 - 12.30.040 for 25 another felony charge or conviction having assault as a necessary element; 26 (9) the defendant was a member of an organized group of five or more 27 persons, and the offense was committed to further the criminal objectives of the group. 28 Sec. 12.58.040. MITIGATING FACTORS. In determining whether to impose 29 the death sentence, all mitigating factors shall be considered, including, but not limited 30 to, the following: 31 (1) the defendant committed the offense under a degree of duress,
01 coercion, threat, or compulsion that was insufficient to constitute a defense but that 02 significantly affected the defendant's conduct; 03 (2) the conduct of a youthful defendant was substantially influenced by 04 a person more mature than the defendant; 05 (3) the defendant acted with serious provocation from the victim; 06 (4) the defendant assisted authorities to detect or apprehend other 07 persons who committed the offense with the defendant. 08 ARTICLE 2. SENTENCE REVIEW. 09 Sec. 12.58.100. REVIEW OF JUDGMENT OF CONVICTION OF A 10 CAPITAL FELONY. (a) A judgment of conviction of a capital felony for which a 11 sentence of death is imposed shall automatically be reviewed by the supreme court 12 within 60 days after imposition of the sentence. This time limit may be extended by 13 the supreme court for good cause. 14 (b) A review under this section has priority over all other cases and the case 15 shall be heard in accordance with rules adopted by the supreme court. On review, the 16 court shall determine whether 17 (1) the sentence was imposed under the influence of passion, prejudice, 18 or other arbitrary factor; 19 (2) the evidence supports the finding of an aggravating factor under 20 AS 12.58.030 and whether the jury has properly considered mitigating factors under 21 AS 12.58.040; 22 (3) the sentence is excessive or disproportionate to the penalty imposed 23 in similar cases, considering both the crime and the defendant; and 24 (4) any other issue that the defendant may raise as a point on appeal. 25 (c) In its consideration of an automatic appeal under (a) and (b) of this section, 26 the supreme court 27 (1) may not require the defendant to file a notice of appeal unless the 28 defendant raises an issue as a point on appeal under (b)(4) of this section; 29 (2) may not require the defendant to pay a fee; 30 (3) shall designate the entire record of the proceedings before the 31 sentencing court as the record on appeal;
01 (4) shall prepare the transcript of the proceedings for the record on 02 appeal at public expense; and 03 (5) may not require the defendant to submit and file a brief unless the 04 defendant raises an issue as a point on appeal under (b)(4) of this section. 05 Sec. 12.58.110. ISSUANCE OF DEATH WARRANT. If the supreme court 06 upholds a judgment of conviction and sentence of death, the court shall issue a death 07 warrant that specifies a date of execution. The specified date of execution must be not 08 less than 30 days nor more than 60 days after the date of the warrant. The death 09 warrant shall be delivered to the commissioner of corrections. 10 ARTICLE 3. ADMINISTRATION OF THE DEATH PENALTY. 11 Sec. 12.58.200. ADMINISTRATION OF THE DEATH PENALTY. The 12 commissioner shall establish a procedure for the execution of a sentence of death 13 ordered by the state supreme court at the time and place legally appointed. 14 Sec. 12.58.210. EXECUTION UNDER SUPREME COURT DEATH 15 WARRANT. After receiving a supreme court warrant issued under AS 12.58.110, the 16 commissioner shall specify the time and place of execution. 17 Sec. 12.58.220. MANNER OF EXECUTION. (a) The punishment of death 18 shall be inflicted by continuous, intravenous administration of a lethal dose of sodium 19 thiopental until death is pronounced by a licensed physician. 20 (b) A death sentence shall be carried out within a state correctional facility. 21 Sec. 12.58.230. RETURN OF DEATH WARRANT. After the execution the 22 commissioner shall make a return upon the death warrant showing the time and place 23 in which the defendant was executed. 24 ARTICLE 4. STAY OF EXECUTION. 25 Sec. 12.58.300. INCOMPETENCY OR PREGNANCY OF PERSON 26 SENTENCED TO DEATH. If, after a sentence of death is imposed, the commissioner 27 has reason to believe that the defendant has become incompetent to proceed with the 28 execution or that the defendant is pregnant, the commissioner shall immediately give 29 written notice to the court in which the sentence of death was imposed, the prosecuting 30 attorney, and counsel for the defendant. The execution of sentence shall be stayed 31 pending further order of the court.
01 Sec. 12.58.310. EXAMINATION INTO COMPETENCY. (a) On receipt of 02 notice under AS 12.58.300 that the defendant is believed to be incompetent, the 03 sentencing court shall examine the mental condition of the defendant in the same 04 manner as provided for examining persons for competency to stand trial under 05 AS 12.47.070. 06 (b) If the sentencing court finds that the defendant is incompetent, the court 07 shall immediately certify that finding to the supreme court and the commissioner and 08 shall enter an order for commitment in the same manner as provided for commitment 09 under AS 12.47.110. 10 (c) If the sentencing court finds that the defendant is competent, the court shall 11 immediately certify the finding to the supreme court and the commissioner. The 12 supreme court shall issue and deliver another warrant to the commissioner under 13 AS 12.58.110, together with a copy of the certified finding. Unless the sentencing 14 court's finding is appealed in accordance with applicable court rule, the warrant shall 15 specify a date of execution that is not less than 30 days nor more than 60 days after 16 the date of the warrant. 17 Sec. 12.58.320. DISPOSITION PENDING PREGNANCY. (a) If the 18 defendant is pregnant, the sentencing court shall immediately certify that finding to the 19 supreme court and the commissioner. The supreme court shall issue an order staying 20 the execution of the sentence of death during the pregnancy. 21 (b) When the defendant is no longer pregnant, the sentencing court shall 22 immediately certify the finding to the supreme court and the commissioner. The 23 supreme court shall issue and deliver another warrant under AS 12.58.110, together 24 with a copy of the certified finding. Unless the sentencing court's finding is appealed 25 under applicable court rule, the warrant shall specify a date of execution not less than 26 30 days nor more than 60 days after the date of the warrant. 27 ARTICLE 5. GENERAL PROVISIONS. 28 Sec. 12.58.900. DEFINITIONS. In this chapter, 29 (1) "commissioner" means the commissioner of corrections; 30 (2) "department" means the Department of Corrections. 31 * Sec. 16. AS 22.07.020(a) is amended to read:
01 (a) The court of appeals has appellate jurisdiction in actions and proceedings 02 commenced in the superior court involving: 03 (1) criminal prosecution, except prosecution for a capital felony for 04 which a death sentence is imposed; 05 (2) post-conviction relief; 06 (3) children's court matters under AS 47.10.010(a)(1), including waiver 07 of children's court jurisdiction over a minor under AS 47.10; 08 (4) extradition; 09 (5) habeas corpus; 10 (6) probation and parole; and 11 (7) bail. 12 * Sec. 17. AS 22.07.020(b) is amended to read: 13 (b) Except for appeals of a death sentence, the [THE] court of appeals has 14 jurisdiction to hear appeals of sentences of imprisonment imposed by the superior court 15 on the grounds that the sentence is excessive or too lenient and, in the exercise of this 16 jurisdiction, may modify the sentence as provided by law and the state constitution. 17 * Sec. 18. AS 47.10.010(e) is amended to read: 18 (e) When a minor who was at least 16 years of age at the time of the offense 19 is arraigned on a charge for an offense specified in this subsection, AS 47.10.020 - 20 47.10.090 and the Alaska Delinquency Rules do not apply to the offense for which the 21 minor is arraigned or to any additional offenses joinable to it under the applicable rules 22 of court governing criminal procedure. The minor shall be charged, prosecuted, and 23 sentenced in the superior court in the same manner as an adult unless the minor is 24 convicted of some offense other than an offense specified in this subsection, in which 25 event the minor may attempt to prove, by a preponderance of the evidence, that the 26 minor is amenable to treatment under this chapter. If the court finds that the minor is 27 amenable to treatment under this chapter, the minor shall be treated as though the 28 charges had been heard under AS 47.10.010 - 47.10.142, and the court shall order 29 disposition of the charges of which the minor is convicted under AS 47.10.080(b). The 30 provisions of this subsection apply when the minor is arraigned on a charge 31 (1) that is a capital felony, an unclassified felony, or a class A felony
01 and the felony is a crime against a person; or 02 (2) of arson in the first degree. 03 * Sec. 19. AS 47.10.060(f) is amended to read: 04 (f) For purposes of making a determination under (a) and (d) of this section, 05 (1) the standard of proof is by a preponderance of the evidence; and 06 (2) the burden of proof that a minor is not amenable to treatment under 07 AS 47.10.010 - 47.10.142 is on the state; however, if the petition filed under 08 AS 47.10.020 seeking to have the court declare a minor a delinquent is based on the 09 minor's alleged commission of an offense that is a capital felony, an unclassified 10 felony, or class A felony and that is a crime against a person, the minor 11 (A) is rebuttably presumed not to be amenable to treatment 12 under AS 47.10.010 - 47.10.142; and 13 (B) has the burden of proof of showing that the minor is 14 amenable to treatment under AS 47.10.010 - 47.10.142. 15 * Sec. 20. The lieutenant governor shall place before the qualified voters of the state at the 16 November 1996 general election a question advisory to the legislature of whether capital 17 punishment should be an authorized sentence for murder in the first degree. The question 18 shall appear on the ballot in the following form: 19 Q U E S T I O N 20 Should capital punishment for murder in the first degree as now 21 authorized by law go into effect June 1, 1997? 22 Yes [ ] No [ ] 23 * Sec. 21. Section 20 of this Act takes effect immediately. 24 * Sec. 22. Except for sec. 20 of this Act, this Act takes effect June 1, 1997.