House File 50
HOUSE FILE
BY ALONS
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act applying the death penalty or life imprisonment for the
2 offense of first degree murder, by establishing circumstances
3 under which the death penalty will be applied, by providing a
4 minimum age for imposition of a death sentence, by providing
5 for review of death sentences, by providing for execution by
6 lethal injection, by amending the rules of criminal procedure,
7 and by providing an effective date and for the Act's
8 applicability.
9 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
10 TLSB 1026YH 80
11 jm/pj/5
PAG LIN
1 1 Section 1. Section 13B.4, Code 2003, is amended by adding
1 2 the following new subsection:
1 3 NEW SUBSECTION. 6A. The state public defender shall
1 4 perform all of the following duties with respect to the
1 5 appointment of counsel for indigent persons in cases in which
1 6 a sentence of death may be or is to be imposed:
1 7 a. Provide or contract with attorneys for appointment as
1 8 lead counsel and co=counsel to provide legal services in cases
1 9 where a person is charged with murder in the first degree and
1 10 the state has given notice of intent to seek the death penalty
1 11 or in cases in which a sentence of death is to be imposed.
1 12 b. Conduct or sponsor specialized training programs for
1 13 attorneys representing persons who may be executed.
1 14 Sec. 2. Section 216A.133, Code 2003, is amended by adding
1 15 the following new subsection:
1 16 NEW SUBSECTION. 8. Review the effects of the
1 17 reinstatement of the death penalty on arrest, prosecution,
1 18 conviction, and incarceration rates; law enforcement duties
1 19 and ability to obtain evidence necessary for arrests; court
1 20 dockets and workload; prison space; recidivism rates of
1 21 persons charged with crimes of violence against persons; and
1 22 other aspects of the criminal justice system. Based on the
1 23 review and other factors deemed relevant, the council shall
1 24 make findings and develop recommendations resulting from those
1 25 findings. Commencing January 1, 2005, the council shall
1 26 report its findings and any related recommendations annually
1 27 to the governor and to the general assembly.
1 28 Sec. 3. NEW SECTION. 602.10111A QUALIFICATIONS OF
1 29 COUNSEL IN DEATH PENALTY CASES.
1 30 The supreme court shall prescribe rules which establish
1 31 minimum standards and procedures by which attorneys may become
1 32 qualified to provide legal services as lead counsel in cases
1 33 in which a sentence of death may be or is to be imposed.
1 34 Sec. 4. NEW SECTION. 812A.1 PROCEDURE TO DETERMINE
1 35 SANITY OF CONDEMNED INMATE.
2 1 1. At any time prior to execution of an inmate under
2 2 section 902.1, if the director of the department of
2 3 corrections or the counsel for a person who is under a
2 4 sentence of execution has cause to believe that the inmate is
2 5 suffering from such a diseased or deranged condition of the
2 6 mind as to prevent the defendant from knowing the nature and
2 7 quality of the act the defendant has been convicted of, or
2 8 from understanding that trial on the offense has taken place
2 9 and that execution proceedings are about to take place, or to
2 10 otherwise cause the defendant to lack the capacity to
2 11 understand the sentence which has been imposed and to
2 12 participate in any legal proceedings relating to the sentence,
2 13 the director or counsel may file a request with the court that
2 14 issued the warrant for execution for a determination of the
2 15 inmate's sanity. If the district court determines that there
2 16 is not sufficient reason to believe that the inmate is insane,
2 17 the court shall enter an order denying the request and shall
2 18 state the grounds for denying the request. If the court
2 19 believes that there is sufficient reason to believe that the
2 20 inmate is insane, the court shall suspend the execution and
2 21 conduct a hearing to determine the sanity of the inmate.
2 22 2. At the hearing, the court shall determine the issue of
2 23 the inmate's sanity. Prior to the hearing, the court shall
2 24 appoint two licensed physicians or licensed psychologists, or
2 25 one licensed physician and one licensed psychologist, who are
2 26 qualified by training and practice, for purposes of conducting
2 27 a psychiatric or psychological examination of the inmate. The
2 28 physicians or psychologists shall examine the inmate and
2 29 report any findings in writing to the court within ten days
2 30 after the order of examination is issued. The inmate shall
2 31 have the right to present evidence and cross=examine any
2 32 witnesses at the hearing. Any statement made by the inmate
2 33 during the course of any examination provided for in this
2 34 section, whether or not the inmate consents to the
2 35 examination, shall not be admitted into evidence against the
3 1 inmate in any criminal proceeding for purposes other than a
3 2 determination of the inmate's sanity.
3 3 3. If, at the conclusion of a hearing held pursuant to
3 4 this section, the court determines that the inmate is sane,
3 5 the court shall enter an order setting a date for the inmate's
3 6 execution, which shall be carried into effect in the same
3 7 manner as provided in the original sentence. A copy of the
3 8 order shall be sent to the director of the department of
3 9 corrections and the governor.
3 10 4. If, at the conclusion of a hearing held pursuant to
3 11 this section, the court determines that the inmate is insane,
3 12 the court shall suspend the execution until further order. At
3 13 any time after issuance of the order, if the court has
3 14 sufficient reason to believe that the inmate has become sane,
3 15 the court shall again determine the sanity of the inmate as
3 16 provided by this section. Proceedings pursuant to this
3 17 section may continue to be held at such times as the court
3 18 orders until it is either determined that the inmate is sane
3 19 or incurably insane.
3 20 Sec. 5. NEW SECTION. 814.28 REVIEW OF DEATH SENTENCE.
3 21 1. In a case in which a sentence of death is imposed, the
3 22 supreme court shall automatically review the judgment and
3 23 sentence. The court's review of the case shall be de novo.
3 24 The case shall not be transferred to the court of appeals.
3 25 2. A review by the supreme court of a judgment and
3 26 sentence imposing the punishment of death has priority over
3 27 all other criminal and other actions pending before the
3 28 supreme court.
3 29 3. The supreme court shall review the trial and judgment,
3 30 and shall separately review the sentencing proceeding. Upon
3 31 determining that errors did not occur at the trial requiring
3 32 reversal or modification of the judgment, the supreme court
3 33 shall proceed to determine if the sentence of death is
3 34 lawfully imposed. In its review of the sentencing proceeding
3 35 the supreme court shall determine all of the following:
4 1 a. Whether the sentence of death was imposed capriciously
4 2 or under the influence of prejudice or other arbitrary factor.
4 3 b. Whether the special verdicts returned under section
4 4 901.11 are supported by the evidence.
4 5 c. Whether the sentence of death is excessive or
4 6 disproportionate to the penalty imposed in similar cases,
4 7 considering both the crime and the defendant.
4 8 4. If the supreme court determines that the sentence of
4 9 death was not lawfully imposed, the court shall set aside the
4 10 sentence and shall remand the case to the trial court for
4 11 imposition of a sentence of life imprisonment.
4 12 5. If the supreme court affirms the judgment and sentence
4 13 of death, the clerk of the supreme court shall certify the
4 14 judgment of the supreme court under the seal of the court to
4 15 the clerk of the trial court.
4 16 Sec. 6. Section 815.10, Code 2003, is amended by adding
4 17 the following new subsection:
4 18 NEW SUBSECTION. 1A. If two attorneys have not already
4 19 been appointed pursuant to section 13B.4 or 13B.9, the court
4 20 shall appoint, for each indigent person who is charged with
4 21 murder in the first degree and in which a notice of intent to
4 22 seek the death penalty has been filed, two attorneys who are
4 23 qualified under section 602.10111A to represent the person in
4 24 the murder proceedings and in all state legal proceedings
4 25 which take place from the time the person is indicted or
4 26 arraigned until the person is sentenced on the charge. In
4 27 addition, if at any point in federal postconviction
4 28 proceedings an indigent person is not afforded court=appointed
4 29 counsel, the state shall provide counsel to the person to
4 30 present any claims determined meritorious by the federal court
4 31 if the person is not otherwise represented by legal counsel.
4 32 Only private attorneys and public defenders who are qualified
4 33 to provide representation in cases in which the death penalty
4 34 may be imposed are eligible for appointment or assignment to a
4 35 case in which the death penalty may be imposed.
5 1 Sec. 7. NEW SECTION. 901.11 MURDER PROCEEDINGS ==
5 2 REQUEST FOR DEATH PENALTY == PENALTY PROCEEDINGS.
5 3 1. If a notice of intent to seek the death penalty has
5 4 been filed, objections to the imposition of the death penalty
5 5 based upon allegations that a defendant was mentally retarded
5 6 or mentally ill at the time of the commission of the offense
5 7 shall be raised within the time provided for the filing of
5 8 pretrial motions under rule of criminal procedure 2.11, Iowa
5 9 court rules. The court may, for good cause shown, allow late
5 10 filing of the motion. Hearing on the motion shall be held
5 11 prior to trial and the burden of proof shall be on the
5 12 defendant to prove mental retardation or mental illness by a
5 13 preponderance of the evidence. However, a rebuttable
5 14 presumption of mental retardation arises if a defendant has an
5 15 intelligence quotient of seventy or below. If the court finds
5 16 that the defendant is mentally retarded, the defendant, if
5 17 convicted of murder in the first degree, shall not be
5 18 sentenced to death but shall be sentenced to life imprisonment
5 19 in the manner provided in section 902.1, subsection 1. A
5 20 finding by the court that the evidence presented by the
5 21 defendant at the hearing does not preclude the imposition of
5 22 the death penalty under this section and section 902.14 shall
5 23 not preclude the introduction of evidence of mental
5 24 retardation or mental illness during the penalty proceeding.
5 25 If the court finds that evidence of mental retardation or
5 26 mental illness does not preclude imposition of the death
5 27 penalty, evidence of mental retardation or mental illness may
5 28 be reviewed by the jury in the penalty proceeding and the jury
5 29 shall not be informed of the finding in the initial proceeding
5 30 at any time during the penalty proceeding.
5 31 2. If at the trial on a charge of murder in the first
5 32 degree, the state intends to request that the death penalty be
5 33 imposed under section 902.1, subsection 2, the prosecutor
5 34 shall file a notice of intent to seek the death penalty,
5 35 listing the factors enumerated under section 902.14 that the
6 1 state intends to establish in support of imposition of the
6 2 death penalty, at the time of and as part of the information
6 3 or indictment filed in the case.
6 4 3. If a notice of intent to seek the death penalty has
6 5 been filed, the trial shall be conducted in bifurcated
6 6 proceedings before the same trier of fact. During the initial
6 7 proceeding, the jury, or the court, if the defendant waives
6 8 the right to a jury trial, shall decide only whether the
6 9 defendant is guilty or not guilty of murder in the first
6 10 degree.
6 11 a. If, in the initial proceeding, the court or jury finds
6 12 the defendant guilty of, or the defendant pleads guilty to, an
6 13 offense other than murder in the first degree, the court shall
6 14 sentence the defendant in accordance with the sentencing
6 15 procedures set forth in rule of criminal procedure 2.23, Iowa
6 16 court rules, and chapters 901 through 909, which are
6 17 applicable to the offense.
6 18 b. If the court or jury finds the defendant guilty of, or
6 19 the defendant pleads guilty to, murder in the first degree,
6 20 but the prosecuting attorney waives the death penalty, the
6 21 court shall sentence the defendant to life imprisonment in
6 22 accordance with the sentencing procedures set forth in rule of
6 23 criminal procedure 2.23, Iowa court rules, and chapters 901
6 24 through 909, which are applicable to convictions of murder in
6 25 the first degree.
6 26 c. If the court or jury finds the defendant guilty of
6 27 murder in the first degree, or a defendant enters a plea of
6 28 guilty in the initial proceeding, and the prosecuting attorney
6 29 does not waive imposition of the death penalty, a penalty
6 30 proceeding shall be held in the manner provided in subsections
6 31 4 through 12.
6 32 4. No sooner than twenty=four hours after a verdict of
6 33 guilty or a plea of guilty to the charge of murder in the
6 34 first degree is returned in the initial proceeding, a penalty
6 35 proceeding shall be held to determine whether the defendant
7 1 shall be sentenced to death or to life imprisonment. The
7 2 proceeding shall be conducted in the trial court before the
7 3 trial jury, or the court if the defendant has waived the right
7 4 to a jury trial or has waived the right for the proceeding to
7 5 be before the trial jury. Both the state and the defendant
7 6 shall have the right to present opening statements at the
7 7 commencement of the penalty proceedings. In the proceeding,
7 8 evidence relevant to the existence of any aggravating or
7 9 mitigating circumstances may be presented as follows:
7 10 a. The state or the defendant may present evidence
7 11 relevant to any of the factors enumerated in section 902.14
7 12 and any aggravating circumstances other than juvenile
7 13 delinquency adjudications for offenses which carry penalties
7 14 equivalent to the penalties imposed for simple or serious
7 15 misdemeanors. The state may introduce evidence of the actual
7 16 harm caused by the commission of the murder including, but not
7 17 limited to, evidence relating to the life of the victim and
7 18 the impact of the loss of the victim to the victim's family
7 19 and society. The state shall be required to prove the
7 20 existence of one or more of the factors enumerated in section
7 21 902.14 beyond a reasonable doubt.
7 22 b. The defendant may present evidence that the defendant
7 23 was mentally retarded at the time of the commission of the
7 24 offense. The burden of proof shall be on the defendant to
7 25 prove mental retardation by a preponderance of the evidence.
7 26 However, a rebuttable presumption of mental retardation arises
7 27 if a defendant has an intelligence quotient of seventy or
7 28 below.
7 29 c. The state or the defendant may present evidence
7 30 relevant to any mitigating circumstances which may exist.
7 31 Mitigating circumstances may include the following
7 32 circumstances:
7 33 (1) The defendant was under the influence of an extreme
7 34 mental or emotional disturbance insufficient to constitute a
7 35 defense.
8 1 (2) The victim solicited, participated in, or consented to
8 2 the conduct which resulted in the victim's death.
8 3 (3) The age of the defendant at the time of the murder.
8 4 (4) The defendant's capacity to appreciate the
8 5 wrongfulness of the defendant's conduct and to conform that
8 6 conduct to the requirements of law was significantly impaired
8 7 as a result of a mental disease or defect or mental
8 8 retardation, but not to a degree sufficient to constitute a
8 9 defense.
8 10 (5) The defendant has no significant history of prior
8 11 adult criminal activity.
8 12 (6) The defendant acted under extreme duress or under the
8 13 substantial domination of another person.
8 14 (7) The defendant did not directly commit the murder and
8 15 the defendant did not intend to kill or anticipate that lethal
8 16 force would be used.
8 17 (8) Any other factor which is relevant to the defendant's
8 18 character or record or to the circumstances of the offense.
8 19 (9) The defendant rendered substantial assistance to the
8 20 state in the prosecution of another person for the crime of
8 21 murder.
8 22 (10) The evidence which establishes that the defendant
8 23 committed murder in the first degree does not include direct
8 24 evidence from at least two different sources.
8 25 d. The state and the defendant or the defendant's counsel
8 26 shall be permitted to present and cross=examine witnesses and
8 27 present arguments for or against a sentence of death. The
8 28 admission of evidence in support of the existence of a factor
8 29 enumerated in section 902.14 shall be governed by the rules
8 30 governing admissibility of evidence at a criminal trial.
8 31 Evidence regarding aggravating and mitigating circumstances
8 32 shall not be governed by the rules governing admissibility of
8 33 evidence, except that introduction of evidence secured in
8 34 violation of the Constitution of the United States or of the
8 35 Constitution of the State of Iowa shall not be permitted.
9 1 5. At the conclusion of presentation of evidence in the
9 2 penalty proceeding, the state and the defendant or the
9 3 defendant's counsel shall be permitted to make closing
9 4 arguments, including any rebuttal arguments, in the same
9 5 manner as in the initial proceeding and the following issues
9 6 shall be determined by the jury or the court, if there is no
9 7 jury:
9 8 a. Whether one or more of the factors enumerated in
9 9 section 902.14 have been established beyond a reasonable
9 10 doubt.
9 11 b. If one or more aggravating circumstances are
9 12 established, whether the aggravating circumstance or
9 13 circumstances outweigh any one or more mitigating
9 14 circumstances.
9 15 c. Whether the defendant shall be sentenced to death.
9 16 6. A recommendation for a sentence of death shall not be
9 17 permitted if the recommendation is based on the race, color,
9 18 religious beliefs, national origin, or sex of the defendant or
9 19 any victim. After submission of the issues, but prior to the
9 20 return of a finding in the penalty proceeding, if the matter
9 21 is tried before a jury, the court shall instruct the jury that
9 22 in considering whether a sentence of death is justified, it
9 23 shall not consider race, color, religious beliefs, national
9 24 origin, or sex of the defendant or of any victim. The court
9 25 shall further instruct the jury that it shall not return a
9 26 sentence of death unless it concludes that such a sentence
9 27 would be recommended no matter what the race, color, religious
9 28 beliefs, national origin, or sex of the defendant or any
9 29 victim may be.
9 30 7. After submission of the issues, but prior to the
9 31 commencement of the jury deliberations in the penalty
9 32 proceeding, the court shall instruct the jury that if the
9 33 defendant is not sentenced to death, the court is required by
9 34 law to impose a sentence of imprisonment until death without
9 35 parole. The court shall further instruct the jury that the
10 1 sentence of imprisonment until death without parole is
10 2 required by law if the jury fails to reach a unanimous verdict
10 3 recommending a sentence of death.
10 4 8. Concurrently with the return of the findings on the
10 5 issues submitted under subsection 5, the jury, or the court if
10 6 there is no jury, shall return special verdicts as follows:
10 7 a. Which factors, as enumerated in section 902.14, have
10 8 been unanimously found to have been established beyond a
10 9 reasonable doubt.
10 10 b. Which aggravating circumstances were established and
10 11 were considered in reaching the verdict returned on the issue
10 12 specified in subsection 5, paragraph "b".
10 13 c. Which mitigating circumstances were established and
10 14 were considered in reaching the verdict returned on the issue
10 15 specified in subsection 5, paragraph "b".
10 16 9. If the jury, or the court if there is no jury, returns
10 17 a unanimous affirmative finding on each of the issues
10 18 submitted under subsection 5, paragraphs "a", "b", and "c",
10 19 the court shall enter a judgment of conviction and shall
10 20 sentence the defendant to death as provided in section 902.1,
10 21 subsection 2.
10 22 10. However, if evidence that the defendant was not a
10 23 major participant in the commission of the murder and that the
10 24 defendant's conduct did not manifest a reckless indifference
10 25 to human life is presented to the jury, or the court, if there
10 26 is no jury, the jury or the court shall also return a special
10 27 verdict on the issue. If the jury unanimously determines, or
10 28 the court, if there is no jury, finds that a preponderance of
10 29 evidence exists that shows that the defendant was not a major
10 30 participant in the commission of the murder and that the
10 31 defendant's conduct did not manifest a reckless indifference
10 32 to human life, the court shall enter a judgment of conviction
10 33 and shall sentence the defendant to life imprisonment as
10 34 provided in section 902.1, subsection 1, even if the jury or
10 35 the court returns unanimous affirmative findings on each of
11 1 the issues submitted under subsection 5.
11 2 11. If the jury, or the court, if there is no jury,
11 3 returns a negative finding on any of the issues submitted
11 4 under subsection 5, paragraphs "a", "b", and "c", the court
11 5 shall enter a judgment of conviction and shall sentence the
11 6 defendant to life imprisonment as provided in section 902.1,
11 7 subsection 1.
11 8 12. After a verdict has been rendered it shall be recorded
11 9 on the jury verdict form and shall be read and recorded in
11 10 open court. The jurors shall be collectively asked by the
11 11 court whether the verdict returned is their true and correct
11 12 verdict. Even though no juror makes any declaration to the
11 13 contrary, the jury shall, if either party so requests, be
11 14 polled and each juror shall be separately asked whether the
11 15 verdict rendered by the jury foreperson is the juror's true
11 16 and correct verdict. If, upon either the collective or the
11 17 separate inquiry, any juror denies that the verdict is the
11 18 juror's verdict, the court shall refuse to accept the verdict.
11 19 The court may direct inquiry or permit inquiry by counsel to
11 20 ascertain whether any juror has been subjected to coercion or
11 21 has become confused during the jury deliberation process. The
11 22 court may, as appropriate, direct the jury to resume
11 23 deliberation in the case. If no disagreement on the verdict
11 24 is expressed by any of the jurors, the court shall discharge
11 25 the jury.
11 26 13. This section shall not apply to a defendant who was
11 27 under the age of eighteen at the time the offense was
11 28 committed.
11 29 Sec. 8. Section 902.1, Code 2003, is amended to read as
11 30 follows:
11 31 902.1 CLASS "A" FELONY.
11 32 1. Upon Except as otherwise provided in subsection 2, upon
11 33 a plea of guilty, a verdict of guilty, or a special verdict
11 34 upon which a judgment of conviction of a class "A" felony may
11 35 be rendered, the court shall enter a judgment of conviction
12 1 and shall commit the defendant into the custody of the
12 2 director of the Iowa department of corrections for the rest of
12 3 the defendant's life. Nothing in the Iowa corrections code
12 4 pertaining to deferred judgment, deferred sentence, suspended
12 5 sentence, or reconsideration of sentence applies to a sentence
12 6 of life imprisonment for a class "A" felony, and a person
12 7 convicted of a class "A" felony and sentenced to life
12 8 imprisonment shall not be released on parole unless the
12 9 governor commutes the sentence to a term of years.
12 10 2. Upon return of a plea or verdict of guilty to the
12 11 offense of murder in the first degree under section 707.2 and
12 12 a return of a verdict in favor of a sentence of death in a
12 13 penalty proceeding conducted as provided in section 901.11,
12 14 the court shall enter a judgment of conviction and shall
12 15 commit the defendant into the custody of the director of the
12 16 Iowa department of corrections. The sentence shall be carried
12 17 out by the administration of a lethal injection pursuant to
12 18 rules adopted by the board of corrections. If a defendant,
12 19 for whom a warrant of execution is issued, is pregnant, the
12 20 execution shall not take place until after the defendant is no
12 21 longer pregnant. If a defendant, for whom a warrant of
12 22 execution is issued, is suffering from such a diseased or
12 23 deranged condition of the mind as to prevent the defendant
12 24 from knowing the nature and quality of the act the defendant
12 25 has been convicted of, or from understanding that trial on the
12 26 offense has taken place and that execution proceedings are
12 27 about to take place, or otherwise causes the defendant to lack
12 28 the capacity to understand the sentence which has been imposed
12 29 and to participate in any legal proceedings relating to the
12 30 sentence, the execution shall not take place until after the
12 31 defendant's capacity is restored. If the director of the
12 32 department of corrections or the defendant's counsel files a
12 33 request with the court which issued the warrant of execution,
12 34 alleging that the defendant suffers from such a diseased or
12 35 deranged condition, a hearing on the matter shall be held in
13 1 the manner provided in section 812A.1. If a defendant was
13 2 under the age of eighteen at the time the offense was
13 3 committed, the defendant shall be sentenced as provided in
13 4 subsection 1. For the purposes of this section, "lethal
13 5 injection" means a continuous intravenous injection of a
13 6 lethal substance sufficient to cause death.
13 7 Sec. 9. NEW SECTION. 902.14 FIRST DEGREE MURDER ==
13 8 ADDITIONAL FACTORS.
13 9 A person who commits murder in the first degree, who is not
13 10 mentally retarded or mentally ill, and who is age eighteen or
13 11 older at the time the offense is committed, shall be eligible
13 12 for a sentence of death under section 902.1, subsection 2, if
13 13 one or more of the following factors is established:
13 14 1. The person has been previously convicted of a class "A"
13 15 felony in this state or a criminal offense in any other state
13 16 which would constitute a class "A" felony under section 707.2,
13 17 709.2, or 710.2 if committed in this state. For purposes of
13 18 this section, a conviction which occurs prior to the filing of
13 19 an indictment or information for murder in the first degree
13 20 shall be considered to be a previous conviction. An
13 21 adjudication of delinquency does not constitute a conviction
13 22 for purposes of this subsection.
13 23 2. The person is convicted, during the course of the same
13 24 trial in which the defendant is convicted of murder in the
13 25 first degree, of committing another class "A" felony under
13 26 section 707.2, 709.2, or 710.2.
13 27 3. The victim was a witness to a crime and the murder is
13 28 for the purpose of preventing the victim from testifying in
13 29 any criminal proceeding and the murder was not committed
13 30 during the commission of the crime that the victim witnessed,
13 31 or the victim was a witness to a crime and the murder is in
13 32 retaliation for the victim's testimony in any criminal
13 33 proceeding.
13 34 4. The victim was a prosecutor or former prosecutor, as
13 35 defined in section 801.4, or was a prosecutor or former
14 1 prosecutor for any federal prosecutor's office, and the murder
14 2 is in retaliation for or to prevent the victim from carrying
14 3 out the victim's official duties.
14 4 5. The victim was a judicial officer as defined under
14 5 section 602.1101, or a former judicial officer of any court of
14 6 record in this state or any other state and the murder is in
14 7 retaliation for or to prevent the victim from carrying out the
14 8 victim's official duties.
14 9 6. The victim was an employee of an institution or
14 10 facility under the control of the department of corrections or
14 11 a judicial district department of correctional services or of
14 12 a city or county jail who was performing the victim's official
14 13 duties.
14 14 7. The victim was a peace officer, as defined under
14 15 section 801.4, or a former peace officer and the murder is in
14 16 retaliation for or to prevent the victim from carrying out the
14 17 victim's official duties.
14 18 8. The victim was under the age of twelve years and the
14 19 death results from exceptionally brutal or heinous behavior
14 20 indicative of wanton cruelty.
14 21 9. The murder was especially heinous, atrocious, cruel, or
14 22 manifesting exceptional depravity. For purposes of this
14 23 subsection, the phrase "especially heinous, atrocious, cruel,
14 24 or manifesting exceptional depravity" means a conscienceless
14 25 or pitiless crime which is unnecessarily torturous to the
14 26 victim.
14 27 For purposes of this section, "mentally retarded" means
14 28 significant subaverage general intellectual functioning
14 29 accompanied by significant deficits or impairments in adaptive
14 30 functioning manifested in the developmental period, but no
14 31 later than the age of eighteen years, and accompanied by
14 32 deficits in adaptive behavior.
14 33 For purposes of this section, "mentally ill" means the
14 34 condition of a person who is suffering from a chronic and
14 35 persistent serious mental disease or disorder and who, by
15 1 reason of that condition, lacks sufficient judgment to make
15 2 responsible decisions regarding treatment and is reasonably
15 3 likely to injure the person's self or others who may come into
15 4 contact with the person if the person is allowed to remain at
15 5 liberty without treatment.
15 6 Sec. 10. NEW SECTION. 902.15 DATA COLLECTION FOR DEATH
15 7 PENALTY.
15 8 1. The supreme court shall collect data on all murder
15 9 charges in which the death penalty is or was not waived, which
15 10 are filed and processed in the courts in this state. This
15 11 data may be used by the supreme court to determine whether
15 12 death sentences imposed are excessive or disproportionate, or
15 13 under the influence of prejudice as a result of racial
15 14 discrimination under section 814.28. The court shall make
15 15 this data available to litigants in death penalty cases.
15 16 2. Data collected by public officials concerning factors
15 17 relevant to the imposition of the death sentence shall be made
15 18 publicly available.
15 19 Sec. 11. NEW SECTION. 903C.1 EXECUTIONS == REFUSAL TO
15 20 PERFORM.
15 21 An employee of the state who may lawfully perform, assist,
15 22 or participate in the execution of a person pursuant to
15 23 section 902.1, and rules adopted by the department of
15 24 corrections, shall not be required to perform, assist, or
15 25 participate in the execution. State employees who refuse to
15 26 perform, assist, or participate in the execution of a person
15 27 shall not be discriminated against in any way, including, but
15 28 not limited to, employment, promotion, advancement, transfer,
15 29 licensing, education, training, or the granting of any
15 30 privileges or appointments because of the refusal to perform,
15 31 assist, or participate in the execution.
15 32 Sec. 12. Section 904.105, Code 2003, is amended by adding
15 33 the following new subsection:
15 34 NEW SUBSECTION. 9A. Adopt rules pursuant to chapter 17A
15 35 pertaining to executions of persons convicted of murder in the
16 1 first degree. Rules adopted shall include, but are not
16 2 limited to, rules permitting the witnessing of executions by
16 3 members of the public. Invitations to witness an execution
16 4 shall at least be extended to the following representatives of
16 5 the news media:
16 6 a. A representative from a wire service serving Iowa.
16 7 b. A representative from a broadcasting network serving
16 8 Iowa.
16 9 c. A representative from a television station located in
16 10 Iowa.
16 11 d. A representative from a radio station located in Iowa.
16 12 e. A representative from a daily newspaper published in
16 13 Iowa.
16 14 f. A representative from a weekly newspaper published in
16 15 Iowa.
16 16 g. A representative from the news media from the community
16 17 in which the condemned person resided, if that community is
16 18 located in Iowa.
16 19 Sec. 13. Rules of criminal procedure, Iowa court rules,
16 20 are amended by adding sections 14 through 17 of this Act.
16 21 Sec. 14. NEW RULE. 2. MURDER IN THE FIRST DEGREE ==
16 22 PROCEDURE.
16 23 2.___(1) If a notice of intent to seek the death penalty
16 24 has been filed, objections to the imposition of the death
16 25 penalty based upon allegations that a defendant was mentally
16 26 retarded at the time of the commission of the offense shall be
16 27 raised within the time provided for the filing of pretrial
16 28 motions under R.Cr.P. 2.11, Iowa court rules. The court may,
16 29 for good cause shown, allow late filing of the motion.
16 30 Hearing on the motion shall be held prior to trial and the
16 31 burden of proof shall be on the defendant to prove mental
16 32 retardation by a preponderance of the evidence. However, a
16 33 rebuttable presumption of mental retardation arises if a
16 34 defendant has an intelligence quotient of seventy or below. A
16 35 finding of the court that the evidence presented by the
17 1 defendant at the hearing does not preclude the imposition of
17 2 the death penalty under this rule and Iowa Code section 902.14
17 3 shall not preclude the introduction of evidence of mental
17 4 retardation during the penalty proceeding. If the court finds
17 5 that the evidence presented by the defendant does not preclude
17 6 the imposition of the death penalty, evidence of mental
17 7 retardation may be reviewed by the jury during the penalty
17 8 proceeding and the jury shall not be informed of the finding
17 9 in the initial proceeding at any time during the penalty
17 10 proceeding.
17 11 2.___(2) Upon a finding or plea that a defendant is guilty
17 12 of murder in the first degree in an initial proceeding, if a
17 13 notice of intent to seek the death penalty has been filed and
17 14 has not been waived, the court shall conduct a separate
17 15 penalty proceeding to determine whether the defendant shall be
17 16 sentenced to death or to life imprisonment. The penalty
17 17 proceeding shall be conducted in the trial court before the
17 18 trial jury, or the court, if there is no jury, no sooner than
17 19 twenty=four hours after the return of the verdict or plea in
17 20 the initial proceeding. In the penalty proceeding, additional
17 21 evidence may be presented as to any factor enumerated in Iowa
17 22 Code section 902.14 or any aggravating or mitigating
17 23 circumstance which may exist. Evidence presented which is
17 24 relevant to the existence of a factor enumerated in Iowa Code
17 25 section 902.14 shall be subject to the rules of evidence.
17 26 Presentation of evidence which is relevant to the existence of
17 27 an aggravating or mitigating circumstance shall not be bound
17 28 by the rules of evidence. This subsection does not authorize
17 29 the introduction of any evidence secured in violation of the
17 30 Constitution of the United States or of the Constitution of
17 31 the State of Iowa. The state and the defendant or the
17 32 defendant's counsel shall be permitted to cross=examine
17 33 witnesses and to present arguments for or against a sentence
17 34 of death.
17 35 2.___(3) On conclusion of the presentation of the evidence
18 1 in the penalty proceeding, the state and the defendant or the
18 2 defendant's counsel shall be permitted to make closing
18 3 arguments, including any rebuttal arguments, in the same
18 4 manner as in the initial proceeding and the court shall submit
18 5 each of the following issues to the jury:
18 6 a. Whether one or more of the factors enumerated in Iowa
18 7 Code section 902.14 have been established beyond a reasonable
18 8 doubt.
18 9 b. If one or more aggravating circumstances have been
18 10 established, whether one or more of those circumstances
18 11 outweigh any one or more mitigating circumstances.
18 12 c. Whether the defendant shall be sentenced to death.
18 13 If the case is not tried to a jury, the court shall
18 14 determine the issues.
18 15 2.___(4) The state must prove the issue in rule 2.
18 16 ___(3)(a) beyond a reasonable doubt, and the jury, or the
18 17 court if there is no jury, shall return a special verdict of
18 18 "yes" or "no" on each issue.
18 19 2.___(5) If the case is tried to a jury, the court shall
18 20 charge the jury that:
18 21 a. It shall answer any issue "yes" if it agrees
18 22 unanimously.
18 23 b. It shall answer any issue "no" if the jurors
18 24 unanimously agree that the answer is "no" or if the jurors do
18 25 not unanimously agree that the answer is "yes".
18 26 2.___(6) Concurrently with the return of the special
18 27 verdicts under rule 2.___(4), the jury, or the court if there
18 28 is no jury, shall also return special verdicts as follows:
18 29 a. Which of the factor, or factors, enumerated in Iowa
18 30 Code section 902.14, has been unanimously found to have been
18 31 established beyond a reasonable doubt.
18 32 b. Which aggravating circumstances were established and
18 33 were considered in reaching the verdict returned on the issue
18 34 specified in rule 2.___(3)(b).
18 35 c. Which mitigating circumstances were established and
19 1 were considered in reaching the verdict returned on the issue
19 2 specified in rule 2.___(3)(b).
19 3 2.___(7) If the jury, or the court, if there is no jury,
19 4 returns an affirmative finding on all applicable issues, the
19 5 court shall sentence the defendant to death. If the jury or
19 6 the court returns a negative finding on any applicable issue,
19 7 the court shall sentence the defendant to the custody of the
19 8 director of the department of corrections for confinement for
19 9 the rest of the defendant's life.
19 10 2.___(8) However, if evidence that the defendant was not a
19 11 major participant in the commission of the murder and that the
19 12 defendant's conduct did not manifest a reckless indifference
19 13 to human life is presented to the jury, or the court, if there
19 14 is no jury, the jury or the court shall also return a special
19 15 verdict on the issue. If the jury unanimously determines, or
19 16 the court, if there is no jury, finds that a preponderance of
19 17 evidence exists that shows that the defendant was not a major
19 18 participant in the commission of the murder and that the
19 19 defendant's conduct did not manifest a reckless indifference
19 20 to human life, the court shall enter a judgment of conviction
19 21 and shall sentence the defendant to life imprisonment as
19 22 provided in Iowa Code section 902.1, subsection 1, even if the
19 23 jury or the court returns unanimous affirmative findings on
19 24 each of the issues submitted under rule 2.___(3).
19 25 2.___(9) After a verdict has been rendered it shall be
19 26 recorded on the jury verdict form and shall be read and
19 27 recorded in open court. The jurors shall be collectively
19 28 asked by the court whether the verdict returned is their true
19 29 and correct verdict. Even though no juror makes any
19 30 declaration to the contrary, the jury shall, if either party
19 31 so requests, be polled and each juror shall be separately
19 32 asked whether the verdict rendered by the jury foreperson is
19 33 the juror's true and correct verdict. If, upon either the
19 34 collective or the separate inquiry, any juror denies that the
19 35 verdict is the juror's verdict, the court shall refuse to
20 1 accept the verdict. The court may direct inquiry or permit
20 2 inquiry by counsel to ascertain whether any juror has been
20 3 subjected to coercion or has become confused during the jury
20 4 deliberation process. The court may, as appropriate, direct
20 5 the jury to resume deliberation in the case. If no
20 6 disagreement on the verdict is expressed by any of the jurors,
20 7 the court shall discharge the jury.
20 8 2.___(10) Provisions relating to deferred judgment,
20 9 deferred sentence, suspended sentence, reconsideration of
20 10 sentence, probation, parole, or work release contained in Iowa
20 11 Code chapters 901 through 909 do not apply to a conviction of
20 12 murder in the first degree if the defendant is sentenced to
20 13 death.
20 14 Sec. 15. NEW RULE. 2.___ AUTOMATIC REVIEW == STAY OF
20 15 EXECUTION OF JUDGMENT.
20 16 2.___(1) A judgment of conviction and sentence of death
20 17 shall be reviewed automatically in the manner provided in Iowa
20 18 Code section 814.28, and the Iowa supreme court has exclusive
20 19 jurisdiction of the review.
20 20 2.___(2) Upon entry of judgment and sentence of death, the
20 21 trial court shall prepare a complete record and transcript of
20 22 the action in the manner provided in the rules of criminal
20 23 procedure and shall docket the record and transcript with the
20 24 clerk of the supreme court.
20 25 2.___(3) The execution of judgment of the trial court is
20 26 stayed as a matter of law from the time of its entry until the
20 27 judgment of the supreme court is certified to and entered by
20 28 the trial court. Upon entry of a judgment of the supreme
20 29 court which affirms the conviction and sentence, the stay of
20 30 execution of judgment terminates as a matter of law.
20 31 2.___(4) All court costs required due to the automatic
20 32 preparation of the record and transcript, docketing with the
20 33 supreme court, and stay of execution of judgment shall be
20 34 assessed to the state.
20 35 Sec. 16. NEW RULE. 2.___ ISSUANCE OF WARRANT.
21 1 2.___(1) Upon entry by the trial court of the judgment of
21 2 the supreme court affirming a judgment and sentence of death,
21 3 a district judge shall within five days of the entry issue a
21 4 warrant under the seal of the court for the execution of the
21 5 sentence of death. The warrant shall specifically set forth
21 6 the offense and the fact of conviction, shall state the
21 7 judgment and sentence of the court, shall state that the
21 8 judgment and sentence were affirmed by the supreme court and
21 9 the date of entry of judgment of the supreme court in the
21 10 trial court, and shall, subject to the requirements of Iowa
21 11 Code section 902.1, subsection 2, specify the date fixed for
21 12 execution of the defendant which shall be not less than fifty
21 13 nor more than sixty days after the date of entry in the trial
21 14 court of the judgment of the supreme court affirming the
21 15 judgment and sentence of death. The warrant shall be directed
21 16 to the director of the department of corrections commanding
21 17 the director to cause the warrant to be executed on the date
21 18 specified. The trial court shall deliver the warrant to the
21 19 sheriff of the county in which judgment of conviction was
21 20 entered and the sheriff shall deliver the warrant to the
21 21 director of the department of corrections. The director of
21 22 the department of corrections shall acknowledge receipt of the
21 23 warrant and the defendant, and the sheriff shall return the
21 24 acknowledgment to the office of the clerk of the trial court
21 25 from which the warrant was issued.
21 26 2.___(2) Immediately after issuance of a warrant ordering
21 27 a sentence of death, the clerk of the trial court issuing the
21 28 warrant shall transmit by certified mail to the governor a
21 29 copy of the indictment, the plea, the verdict and special
21 30 findings, the affirmation of judgment and sentence by the
21 31 supreme court, and the complete transcript of the trial court.
21 32 2.___(3) Notwithstanding rule 2.___(1), if a defendant,
21 33 for whom a warrant of execution is issued, is pregnant, the
21 34 execution shall not take place until after the defendant is no
21 35 longer pregnant. Notwithstanding rule 2.___(1), if a
22 1 defendant, for whom a warrant of execution is issued, is
22 2 suffering from such a diseased or deranged condition of the
22 3 mind as to prevent the defendant from knowing the nature and
22 4 quality of the act the defendant has been convicted of, or
22 5 from understanding that trial on the offense has taken place
22 6 and that execution proceedings are about to take place, or to
22 7 otherwise cause the defendant to lack the capacity to
22 8 understand the sentence which has been imposed and to
22 9 participate in any legal proceedings relating to the sentence,
22 10 the execution shall not take place until after the defendant
22 11 is no longer suffering from the condition.
22 12 Sec. 17. NEW RULE. 2.___ EVIDENCE AT PENALTY PROCEEDING
22 13 WHERE DEATH SENTENCE REQUESTED.
22 14 2.___(1) At a reasonable time before the commencement of
22 15 initial proceedings in a first degree murder trial in which a
22 16 sentence of death has been requested, each party shall file
22 17 and serve upon the other party the following:
22 18 a. A list of all aggravating or mitigating circumstances
22 19 which the party intends to prove during the sentencing
22 20 proceedings.
22 21 b. The names of all persons whom the party intends to call
22 22 as witnesses during the sentencing proceedings.
22 23 c. Notwithstanding rule 2.14, copies, or for inspection
22 24 purposes, the location, of all documents, including books,
22 25 papers, writings, drawings, graphs, charts, photographs,
22 26 telephone records, and other data compilations from which
22 27 information can be obtained, or other objects which the party
22 28 intends to offer into evidence during the sentencing
22 29 proceedings. If copies are not supplied to opposing counsel,
22 30 the party shall make the items available for inspection and
22 31 copying without order of the court.
22 32 2.___(2) In proceedings to determine whether the sentence
22 33 shall be death or life imprisonment, evidence may be presented
22 34 as to any matter which the trial court deems relevant to the
22 35 sentence, including but not limited to the nature,
23 1 circumstances, and manner of completion of the murder, and the
23 2 defendant's character, background, history, and mental and
23 3 physical condition. The trial court shall admit any relevant
23 4 admissible evidence respecting any aggravating or mitigating
23 5 circumstances, if the party has included the circumstance on a
23 6 list provided pursuant to this rule, or good cause is shown
23 7 for the failure to do so.
23 8 Sec. 18. EFFECTIVE DATE == SEVERABILITY == SENTENCES
23 9 COMMUTED TO LIFE IMPRISONMENT IF ACT UNCONSTITUTIONAL.
23 10 1. This Act takes effect January 1, 2004, and applies to
23 11 offenses committed on or after that date.
23 12 2. If any provision of this Act or the application thereof
23 13 to any person is invalid, the invalidity shall not affect the
23 14 provisions or application of this Act which can be given
23 15 effect without the invalid provisions or application and to
23 16 this end, the provisions of this Act are severable.
23 17 3. If the imposition of a sentence of death under this Act
23 18 is found to be unconstitutional, the sentence of any person
23 19 who has been sentenced to death under this Act shall
23 20 automatically be commuted to a term of life imprisonment.
23 21 EXPLANATION
23 22 This bill amends the Iowa criminal code to provide for
23 23 punishment by death for murder committed under specified
23 24 circumstances if the trial jury, or the judge if there is no
23 25 jury, makes specific affirmative findings respecting the act
23 26 of murder and whether the jury believes the defendant should
23 27 be put to death in a separate penalty proceeding held after
23 28 the close of the initial trial proceeding. Under the bill, a
23 29 death sentence could be imposed if the murder would constitute
23 30 murder in the first degree and the state pleads and proves the
23 31 existence of certain aggravating circumstances. Those
23 32 circumstances include the following: the murder was committed
23 33 by a person who has previously been convicted of a class "A"
23 34 felony; the person is convicted of another class "A" felony in
23 35 the course of the same trial as the trial for first degree
24 1 murder (class "A" felonies for this purpose include murder in
24 2 the first degree, sexual abuse in the first degree, and
24 3 kidnapping in the first degree); the victim was a witness to a
24 4 crime other than the victim's own murder and the murder is for
24 5 the purpose of preventing the victim from testifying; the
24 6 murder was retaliatory and was committed against a prosecutor
24 7 or former prosecutor, a judicial officer or former judicial
24 8 officer, an employee or former employee of a corrections
24 9 institution, or a peace officer or former peace officer; the
24 10 victim was under age 12 and the death resulted from
24 11 exceptionally brutal or heinous behavior; or the murder was
24 12 especially heinous, atrocious, cruel, or manifesting
24 13 exceptional depravity.
24 14 If a person is indigent and is charged with capital murder,
24 15 payment of costs for two attorneys is authorized. The supreme
24 16 court is required to establish standards for the competency of
24 17 counsel in death penalty cases. The state public defender is
24 18 charged with establishing teams of qualified lead and co=
24 19 counsel for death penalty cases, as well as conducting or
24 20 sponsoring specialized training programs for attorneys
24 21 representing persons who may be executed.
24 22 If a murder case proceeds to trial and a notice of intent
24 23 to seek the death penalty has been filed, in addition to any
24 24 other defenses which may be presented to the charge, the
24 25 defendant may raise the issue of mental retardation during the
24 26 time of filing pretrial motions, and the defendant is entitled
24 27 to a rebuttable presumption of mental retardation if the
24 28 defendant establishes that the defendant has an intelligence
24 29 quotient of 70 or below.
24 30 Once the evidence is submitted to the jury, the court will
24 31 instruct the jury, at the defendant's request, that in
24 32 considering whether a sentence of death is justified, the
24 33 race, color, religious beliefs, national origin, or sex of the
24 34 defendant or of any victim is not to be considered. The
24 35 supreme court shall collect evidence relating to whether the
25 1 death sentences imposed are excessive, disproportionate, or
25 2 imposed under the influence of prejudice at trial which will
25 3 be available to litigants.
25 4 The sentence of death is imposed only when the trier of
25 5 fact (the jury or the court if the defendant has waived the
25 6 right to a jury trail) unanimously answers three questions
25 7 affirmatively: (1) whether aggravating circumstances have
25 8 been established beyond a reasonable doubt; (2) whether the
25 9 aggravating circumstances outweigh any mitigating
25 10 circumstances that may exist; and (3) whether the defendant
25 11 should be sentenced to death. Mitigating factors the trier of
25 12 fact may consider include the following: the defendant was
25 13 under the influence of an extreme mental or emotional
25 14 disturbance; the victim solicited or participated in the
25 15 conduct; the age of the defendant; the defendant's ability to
25 16 appreciate the wrongfulness of the conduct due to mental
25 17 disease but not to a degree to constitute a defense; the
25 18 defendant has no significant prior criminal history; the
25 19 defendant was under extreme duress; the defendant did not
25 20 directly commit the murder; the defendant's character; the
25 21 defendant gave substantial assistance to the prosecution in
25 22 the prosecution of another person for the crime of murder; and
25 23 the evidence which convicted the defendant does not include
25 24 direct evidence from two sources. The sentencing proceeding
25 25 is conducted separately from the finding of guilt or innocence
25 26 by the same trier of fact.
25 27 For the sentencing proceeding, the trier of fact (the jury
25 28 or the court if the defendant has waived the right to have the
25 29 jury hear the proceedings) is to weigh any aggravating
25 30 circumstances established beyond a reasonable doubt by the
25 31 state against any of the enumerated mitigating circumstances
25 32 which may be presented by the defendant. Evidence of juvenile
25 33 delinquency adjudications is not admissible in any proceeding
25 34 to determine the sentence. If the jury fails to agree
25 35 unanimously on the required affirmative findings or if the
26 1 supreme court determines that error was committed in the
26 2 sentencing proceeding, the penalty would be life imprisonment.
26 3 The death penalty sentence would be reviewed automatically
26 4 by the supreme court. The bill requires the supreme court to
26 5 examine whether the sentence is excessive or disproportionate
26 6 to penalties in similar cases. If affirmed by the supreme
26 7 court, the penalty would be accomplished by lethal injection.
26 8 The bill requires the board of corrections to adopt rules
26 9 pertaining to executions, including rules pertaining to the
26 10 witnessing of executions. The criminal and juvenile justice
26 11 planning advisory council is required to review the effects of
26 12 the reinstatement of the death penalty, make findings and
26 13 develop recommendations, and report the findings annually
26 14 commencing January 1, 2005.
26 15 The bill further provides that in order to receive a
26 16 sentence of death, the defendant must be at least 18 years of
26 17 age at the time the offense is committed, must not be mentally
26 18 ill or mentally retarded, and must have been a major
26 19 participant in the commission of the murder or must have shown
26 20 a manifest indifference to human life.
26 21 A person who is sentenced to death, but who is pregnant
26 22 when the warrant of execution is issued, is not to be executed
26 23 until the person is no longer pregnant. A procedure is also
26 24 provided to stay execution of a condemned inmate who becomes
26 25 insane after conviction but before execution.
26 26 An employee of the state shall not be required to perform
26 27 or assist in any execution and shall not be discriminated
26 28 against for refusing to participate.
26 29 The bill contains severability provisions and takes effect
26 30 January 1, 2004, and applies only to offenses committed on or
26 31 after that date.
26 32 LSB 1026YH 80
26 33 jm/pj/5