Senate File 338
SENATE FILE
BY BEHN, LAMBERTI, REHBERG, BRUNKHORST,
HOUSER, HOSCH, McKIBBEN, SIEVERS,
GASKILL, PUTNEY, McKINLEY, SEYMOUR,
SCHUERER, ANGELO, and KETTERING
Passed Senate, Date Passed House, 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 2659SS 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 cocounsel 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 of murder in the first degree
13 24 in violation of section 707.2, subsection 6.
13 25 For purposes of this section, "mentally retarded" means
13 26 significant subaverage general intellectual functioning
13 27 accompanied by significant deficits or impairments in adaptive
13 28 functioning manifested in the developmental period, but no
13 29 later than the age of eighteen years, and accompanied by
13 30 deficits in adaptive behavior.
13 31 For purposes of this section, "mentally ill" means the
13 32 condition of a person who is suffering from a chronic and
13 33 persistent serious mental disease or disorder and who, by
13 34 reason of that condition, lacks sufficient judgment to make
13 35 responsible decisions regarding treatment and is reasonably
14 1 likely to injure the person's self or others who may come into
14 2 contact with the person if the person is allowed to remain at
14 3 liberty without treatment.
14 4 Sec. 10. NEW SECTION. 902.15 DATA COLLECTION FOR DEATH
14 5 PENALTY.
14 6 1. The supreme court shall collect data on all murder
14 7 charges in which the death penalty is or was not waived, which
14 8 are filed and processed in the courts in this state. This
14 9 data may be used by the supreme court to determine whether
14 10 death sentences imposed are excessive or disproportionate, or
14 11 under the influence of prejudice as a result of racial
14 12 discrimination under section 814.28. The court shall make
14 13 this data available to litigants in death penalty cases.
14 14 2. Data collected by public officials concerning factors
14 15 relevant to the imposition of the death sentence shall be made
14 16 publicly available.
14 17 Sec. 11. NEW SECTION. 903C.1 EXECUTIONS == REFUSAL TO
14 18 PERFORM.
14 19 An employee of the state who may lawfully perform, assist,
14 20 or participate in the execution of a person pursuant to
14 21 section 902.1, and rules adopted by the department of
14 22 corrections, shall not be required to perform, assist, or
14 23 participate in the execution. State employees who refuse to
14 24 perform, assist, or participate in the execution of a person
14 25 shall not be discriminated against in any way, including, but
14 26 not limited to, employment, promotion, advancement, transfer,
14 27 licensing, education, training, or the granting of any
14 28 privileges or appointments because of the refusal to perform,
14 29 assist, or participate in the execution.
14 30 Sec. 12. Section 904.105, Code 2003, is amended by adding
14 31 the following new subsection:
14 32 NEW SUBSECTION. 9A. Adopt rules pursuant to chapter 17A
14 33 pertaining to executions of persons convicted of murder in the
14 34 first degree. Rules adopted shall include, but are not
14 35 limited to, rules permitting the witnessing of executions by
15 1 members of the public. Invitations to witness an execution
15 2 shall at least be extended to the following representatives of
15 3 the news media:
15 4 a. A representative from a wire service serving Iowa.
15 5 b. A representative from a broadcasting network serving
15 6 Iowa.
15 7 c. A representative from a television station located in
15 8 Iowa.
15 9 d. A representative from a radio station located in Iowa.
15 10 e. A representative from a daily newspaper published in
15 11 Iowa.
15 12 f. A representative from a weekly newspaper published in
15 13 Iowa.
15 14 g. A representative from the news media from the community
15 15 in which the condemned person resided, if that community is
15 16 located in Iowa.
15 17 Sec. 13. Rules of criminal procedure, Iowa court rules,
15 18 are amended by adding sections 14 through 17 of this Act.
15 19 Sec. 14. NEW RULE. 2. MURDER IN THE FIRST DEGREE ==
15 20 PROCEDURE.
15 21 2.___(1) If a notice of intent to seek the death penalty
15 22 has been filed, objections to the imposition of the death
15 23 penalty based upon allegations that a defendant was mentally
15 24 retarded at the time of the commission of the offense shall be
15 25 raised within the time provided for the filing of pretrial
15 26 motions under R.Cr.P. 2.11, Iowa court rules. The court may,
15 27 for good cause shown, allow late filing of the motion.
15 28 Hearing on the motion shall be held prior to trial and the
15 29 burden of proof shall be on the defendant to prove mental
15 30 retardation by a preponderance of the evidence. However, a
15 31 rebuttable presumption of mental retardation arises if a
15 32 defendant has an intelligence quotient of seventy or below. A
15 33 finding of the court that the evidence presented by the
15 34 defendant at the hearing does not preclude the imposition of
15 35 the death penalty under this rule and Iowa Code section 902.14
16 1 shall not preclude the introduction of evidence of mental
16 2 retardation during the penalty proceeding. If the court finds
16 3 that the evidence presented by the defendant does not preclude
16 4 the imposition of the death penalty, evidence of mental
16 5 retardation may be reviewed by the jury during the penalty
16 6 proceeding and the jury shall not be informed of the finding
16 7 in the initial proceeding at any time during the penalty
16 8 proceeding.
16 9 2.___(2) Upon a finding or plea that a defendant is guilty
16 10 of murder in the first degree in an initial proceeding, if a
16 11 notice of intent to seek the death penalty has been filed and
16 12 has not been waived, the court shall conduct a separate
16 13 penalty proceeding to determine whether the defendant shall be
16 14 sentenced to death or to life imprisonment. The penalty
16 15 proceeding shall be conducted in the trial court before the
16 16 trial jury, or the court, if there is no jury, no sooner than
16 17 twenty=four hours after the return of the verdict or plea in
16 18 the initial proceeding. In the penalty proceeding, additional
16 19 evidence may be presented as to any factor enumerated in Iowa
16 20 Code section 902.14 or any aggravating or mitigating
16 21 circumstance which may exist. Evidence presented which is
16 22 relevant to the existence of a factor enumerated in Iowa Code
16 23 section 902.14 shall be subject to the rules of evidence.
16 24 Presentation of evidence which is relevant to the existence of
16 25 an aggravating or mitigating circumstance shall not be bound
16 26 by the rules of evidence. This subsection does not authorize
16 27 the introduction of any evidence secured in violation of the
16 28 Constitution of the United States or of the Constitution of
16 29 the State of Iowa. The state and the defendant or the
16 30 defendant's counsel shall be permitted to cross=examine
16 31 witnesses and to present arguments for or against a sentence
16 32 of death.
16 33 2.___(3) On conclusion of the presentation of the evidence
16 34 in the penalty proceeding, the state and the defendant or the
16 35 defendant's counsel shall be permitted to make closing
17 1 arguments, including any rebuttal arguments, in the same
17 2 manner as in the initial proceeding and the court shall submit
17 3 each of the following issues to the jury:
17 4 a. Whether one or more of the factors enumerated in Iowa
17 5 Code section 902.14 have been established beyond a reasonable
17 6 doubt.
17 7 b. If one or more aggravating circumstances have been
17 8 established, whether one or more of those circumstances
17 9 outweigh any one or more mitigating circumstances.
17 10 c. Whether the defendant shall be sentenced to death.
17 11 If the case is not tried to a jury, the court shall
17 12 determine the issues.
17 13 2.___(4) The state must prove the issue in rule 2.
17 14 ___(3)(a) beyond a reasonable doubt, and the jury, or the
17 15 court if there is no jury, shall return a special verdict of
17 16 "yes" or "no" on each issue.
17 17 2.___(5) If the case is tried to a jury, the court shall
17 18 charge the jury that:
17 19 a. It shall answer any issue "yes" if it agrees
17 20 unanimously.
17 21 b. It shall answer any issue "no" if the jurors
17 22 unanimously agree that the answer is "no" or if the jurors do
17 23 not unanimously agree that the answer is "yes".
17 24 2.___(6) Concurrently with the return of the special
17 25 verdicts under rule 2.___(4), the jury, or the court if there
17 26 is no jury, shall also return special verdicts as follows:
17 27 a. Which of the factor, or factors, enumerated in Iowa
17 28 Code section 902.14, has been unanimously found to have been
17 29 established beyond a reasonable doubt.
17 30 b. Which aggravating circumstances were established and
17 31 were considered in reaching the verdict returned on the issue
17 32 specified in rule 2.___(3)(b).
17 33 c. Which mitigating circumstances were established and
17 34 were considered in reaching the verdict returned on the issue
17 35 specified in rule 2.___(3)(b).
18 1 2.___(7) If the jury, or the court, if there is no jury,
18 2 returns an affirmative finding on all applicable issues, the
18 3 court shall sentence the defendant to death. If the jury or
18 4 the court returns a negative finding on any applicable issue,
18 5 the court shall sentence the defendant to the custody of the
18 6 director of the department of corrections for confinement for
18 7 the rest of the defendant's life.
18 8 2.___(8) However, if evidence that the defendant was not a
18 9 major participant in the commission of the murder and that the
18 10 defendant's conduct did not manifest a reckless indifference
18 11 to human life is presented to the jury, or the court, if there
18 12 is no jury, the jury or the court shall also return a special
18 13 verdict on the issue. If the jury unanimously determines, or
18 14 the court, if there is no jury, finds that a preponderance of
18 15 evidence exists that shows that the defendant was not a major
18 16 participant in the commission of the murder and that the
18 17 defendant's conduct did not manifest a reckless indifference
18 18 to human life, the court shall enter a judgment of conviction
18 19 and shall sentence the defendant to life imprisonment as
18 20 provided in Iowa Code section 902.1, subsection 1, even if the
18 21 jury or the court returns unanimous affirmative findings on
18 22 each of the issues submitted under rule 2.___(3).
18 23 2.___(9) After a verdict has been rendered it shall be
18 24 recorded on the jury verdict form and shall be read and
18 25 recorded in open court. The jurors shall be collectively
18 26 asked by the court whether the verdict returned is their true
18 27 and correct verdict. Even though no juror makes any
18 28 declaration to the contrary, the jury shall, if either party
18 29 so requests, be polled and each juror shall be separately
18 30 asked whether the verdict rendered by the jury foreperson is
18 31 the juror's true and correct verdict. If, upon either the
18 32 collective or the separate inquiry, any juror denies that the
18 33 verdict is the juror's verdict, the court shall refuse to
18 34 accept the verdict. The court may direct inquiry or permit
18 35 inquiry by counsel to ascertain whether any juror has been
19 1 subjected to coercion or has become confused during the jury
19 2 deliberation process. The court may, as appropriate, direct
19 3 the jury to resume deliberation in the case. If no
19 4 disagreement on the verdict is expressed by any of the jurors,
19 5 the court shall discharge the jury.
19 6 2.___(10) Provisions relating to deferred judgment,
19 7 deferred sentence, suspended sentence, reconsideration of
19 8 sentence, probation, parole, or work release contained in Iowa
19 9 Code chapters 901 through 909 do not apply to a conviction of
19 10 murder in the first degree if the defendant is sentenced to
19 11 death.
19 12 Sec. 15. NEW RULE. 2.___ AUTOMATIC REVIEW == STAY OF
19 13 EXECUTION OF JUDGMENT.
19 14 2.___(1) A judgment of conviction and sentence of death
19 15 shall be reviewed automatically in the manner provided in Iowa
19 16 Code section 814.28, and the Iowa supreme court has exclusive
19 17 jurisdiction of the review.
19 18 2.___(2) Upon entry of judgment and sentence of death, the
19 19 trial court shall prepare a complete record and transcript of
19 20 the action in the manner provided in the rules of criminal
19 21 procedure and shall docket the record and transcript with the
19 22 clerk of the supreme court.
19 23 2.___(3) The execution of judgment of the trial court is
19 24 stayed as a matter of law from the time of its entry until the
19 25 judgment of the supreme court is certified to and entered by
19 26 the trial court. Upon entry of a judgment of the supreme
19 27 court which affirms the conviction and sentence, the stay of
19 28 execution of judgment terminates as a matter of law.
19 29 2.___(4) All court costs required due to the automatic
19 30 preparation of the record and transcript, docketing with the
19 31 supreme court, and stay of execution of judgment shall be
19 32 assessed to the state.
19 33 Sec. 16. NEW RULE. 2.___ ISSUANCE OF WARRANT.
19 34 2.___(1) Upon entry by the trial court of the judgment of
19 35 the supreme court affirming a judgment and sentence of death,
20 1 a district judge shall within five days of the entry issue a
20 2 warrant under the seal of the court for the execution of the
20 3 sentence of death. The warrant shall specifically set forth
20 4 the offense and the fact of conviction, shall state the
20 5 judgment and sentence of the court, shall state that the
20 6 judgment and sentence were affirmed by the supreme court and
20 7 the date of entry of judgment of the supreme court in the
20 8 trial court, and shall, subject to the requirements of Iowa
20 9 Code section 902.1, subsection 2, specify the date fixed for
20 10 execution of the defendant which shall be not less than fifty
20 11 nor more than sixty days after the date of entry in the trial
20 12 court of the judgment of the supreme court affirming the
20 13 judgment and sentence of death. The warrant shall be directed
20 14 to the director of the department of corrections commanding
20 15 the director to cause the warrant to be executed on the date
20 16 specified. The trial court shall deliver the warrant to the
20 17 sheriff of the county in which judgment of conviction was
20 18 entered and the sheriff shall deliver the warrant to the
20 19 director of the department of corrections. The director of
20 20 the department of corrections shall acknowledge receipt of the
20 21 warrant and the defendant, and the sheriff shall return the
20 22 acknowledgment to the office of the clerk of the trial court
20 23 from which the warrant was issued.
20 24 2.___(2) Immediately after issuance of a warrant ordering
20 25 a sentence of death, the clerk of the trial court issuing the
20 26 warrant shall transmit by certified mail to the governor a
20 27 copy of the indictment, the plea, the verdict and special
20 28 findings, the affirmation of judgment and sentence by the
20 29 supreme court, and the complete transcript of the trial court.
20 30 2.___(3) Notwithstanding rule 2.___(1), if a defendant,
20 31 for whom a warrant of execution is issued, is pregnant, the
20 32 execution shall not take place until after the defendant is no
20 33 longer pregnant. Notwithstanding rule 2.___(1), if a
20 34 defendant, for whom a warrant of execution is issued, is
20 35 suffering from such a diseased or deranged condition of the
21 1 mind as to prevent the defendant from knowing the nature and
21 2 quality of the act the defendant has been convicted of, or
21 3 from understanding that trial on the offense has taken place
21 4 and that execution proceedings are about to take place, or to
21 5 otherwise cause the defendant to lack the capacity to
21 6 understand the sentence which has been imposed and to
21 7 participate in any legal proceedings relating to the sentence,
21 8 the execution shall not take place until after the defendant
21 9 is no longer suffering from the condition.
21 10 Sec. 17. NEW RULE. 2.___ EVIDENCE AT PENALTY PROCEEDING
21 11 WHERE DEATH SENTENCE REQUESTED.
21 12 2.___(1) At a reasonable time before the commencement of
21 13 initial proceedings in a first degree murder trial in which a
21 14 sentence of death has been requested, each party shall file
21 15 and serve upon the other party the following:
21 16 a. A list of all aggravating or mitigating circumstances
21 17 which the party intends to prove during the sentencing
21 18 proceedings.
21 19 b. The names of all persons whom the party intends to call
21 20 as witnesses during the sentencing proceedings.
21 21 c. Notwithstanding rule 2.14, copies, or for inspection
21 22 purposes, the location, of all documents, including books,
21 23 papers, writings, drawings, graphs, charts, photographs,
21 24 telephone records, and other data compilations from which
21 25 information can be obtained, or other objects which the party
21 26 intends to offer into evidence during the sentencing
21 27 proceedings. If copies are not supplied to opposing counsel,
21 28 the party shall make the items available for inspection and
21 29 copying without order of the court.
21 30 2.___(2) In proceedings to determine whether the sentence
21 31 shall be death or life imprisonment, evidence may be presented
21 32 as to any matter which the trial court deems relevant to the
21 33 sentence, including but not limited to the nature,
21 34 circumstances, and manner of completion of the murder, and the
21 35 defendant's character, background, history, and mental and
22 1 physical condition. The trial court shall admit any relevant
22 2 admissible evidence respecting any aggravating or mitigating
22 3 circumstances, if the party has included the circumstance on a
22 4 list provided pursuant to this rule, or good cause is shown
22 5 for the failure to do so.
22 6 Sec. 18. EFFECTIVE DATE == SEVERABILITY == SENTENCES
22 7 COMMUTED TO LIFE IMPRISONMENT IF ACT UNCONSTITUTIONAL.
22 8 1. This Act takes effect January 1, 2004, and applies to
22 9 offenses committed on or after that date.
22 10 2. If any provision of this Act or the application thereof
22 11 to any person is invalid, the invalidity shall not affect the
22 12 provisions or application of this Act which can be given
22 13 effect without the invalid provisions or application and to
22 14 this end, the provisions of this Act are severable.
22 15 3. If the imposition of a sentence of death under this Act
22 16 is found to be unconstitutional, the sentence of any person
22 17 who has been sentenced to death under this Act shall
22 18 automatically be commuted to a term of life imprisonment.
22 19 EXPLANATION
22 20 This bill amends the Iowa criminal code to provide for
22 21 punishment by death for murder committed under specified
22 22 circumstances if the trial jury, or the judge if there is no
22 23 jury, makes specific affirmative findings respecting the act
22 24 of murder and whether the jury believes the defendant should
22 25 be put to death in a separate penalty proceeding held after
22 26 the close of the initial trial proceeding. Under the bill, a
22 27 death sentence could be imposed if the murder would constitute
22 28 murder in the first degree and the state pleads and proves the
22 29 existence of certain aggravating circumstances. Those
22 30 circumstances include the following: the murder was committed
22 31 by a person who has previously been convicted of a class "A"
22 32 felony; or the person was convicted of murder in the first
22 33 degree while participating in an act of terrorism.
22 34 If a person is indigent and is charged with capital murder,
22 35 payment of costs for two attorneys is authorized. The supreme
23 1 court is required to establish standards for the competency of
23 2 counsel in death penalty cases. The state public defender is
23 3 charged with establishing teams of qualified lead and co=
23 4 counsel for death penalty cases, as well as conducting or
23 5 sponsoring specialized training programs for attorneys
23 6 representing persons who may be executed.
23 7 If a murder case proceeds to trial and a notice of intent
23 8 to seek the death penalty has been filed, in addition to any
23 9 other defenses which may be presented to the charge, the
23 10 defendant may raise the issue of mental retardation during the
23 11 time of filing pretrial motions, and the defendant is entitled
23 12 to a rebuttable presumption of mental retardation if the
23 13 defendant establishes that the defendant has an intelligence
23 14 quotient of 70 or below.
23 15 Once the evidence is submitted to the jury, the court will
23 16 instruct the jury, at the defendant's request, that in
23 17 considering whether a sentence of death is justified, the
23 18 race, color, religious beliefs, national origin, or sex of the
23 19 defendant or of any victim is not to be considered. The
23 20 supreme court shall collect evidence relating to whether the
23 21 death sentences imposed are excessive, disproportionate, or
23 22 imposed under the influence of prejudice at trial which will
23 23 be available to litigants.
23 24 The sentence of death is imposed only when the trier of
23 25 fact (the jury or the court if the defendant has waived the
23 26 right to a jury trial) unanimously answers three questions
23 27 affirmatively: (1) whether aggravating circumstances have
23 28 been established beyond a reasonable doubt; (2) whether the
23 29 aggravating circumstances outweigh any mitigating
23 30 circumstances that may exist; and (3) whether the defendant
23 31 should be sentenced to death. Mitigating factors the trier of
23 32 fact may consider include the following: the defendant was
23 33 under the influence of an extreme mental or emotional
23 34 disturbance; the victim solicited or participated in the
23 35 conduct; the age of the defendant; the defendant's ability to
24 1 appreciate the wrongfulness of the conduct due to mental
24 2 disease but not to a degree to constitute a defense; the
24 3 defendant has no significant prior criminal history; the
24 4 defendant was under extreme duress; the defendant did not
24 5 directly commit the murder; the defendant's character; the
24 6 defendant gave substantial assistance to the prosecution in
24 7 the prosecution of another person for the crime of murder; and
24 8 the evidence which convicted the defendant does not include
24 9 direct evidence from two sources. The sentencing proceeding
24 10 is conducted separately from the finding of guilt or innocence
24 11 by the same trier of fact.
24 12 For the sentencing proceeding, the trier of fact (the jury
24 13 or the court if the defendant has waived the right to have the
24 14 jury hear the proceedings) is to weigh any aggravating
24 15 circumstances established beyond a reasonable doubt by the
24 16 state against any of the enumerated mitigating circumstances
24 17 which may be presented by the defendant. Evidence of juvenile
24 18 delinquency adjudications is not admissible in any proceeding
24 19 to determine the sentence. If the jury fails to agree
24 20 unanimously on the required affirmative findings or if the
24 21 supreme court determines that error was committed in the
24 22 sentencing proceeding, the penalty would be life imprisonment.
24 23 The death penalty sentence would be reviewed automatically
24 24 by the supreme court. The bill requires the supreme court to
24 25 examine whether the sentence is excessive or disproportionate
24 26 to penalties in similar cases. If affirmed by the supreme
24 27 court, the penalty would be accomplished by lethal injection.
24 28 The bill requires the board of corrections to adopt rules
24 29 pertaining to executions, including rules pertaining to the
24 30 witnessing of executions. The criminal and juvenile justice
24 31 planning advisory council is required to review the effects of
24 32 the reinstatement of the death penalty, make findings and
24 33 develop recommendations, and report the findings annually
24 34 commencing January 1, 2005.
24 35 The bill further provides that in order to receive a
25 1 sentence of death, the defendant must be at least 18 years of
25 2 age at the time the offense is committed, must not be mentally
25 3 ill or mentally retarded, and must have been a major
25 4 participant in the commission of the murder or must have shown
25 5 a manifest indifference to human life.
25 6 A person who is sentenced to death, but who is pregnant
25 7 when the warrant of execution is issued, is not to be executed
25 8 until the person is no longer pregnant. A procedure is also
25 9 provided to stay execution of a condemned inmate who becomes
25 10 insane after conviction but before execution.
25 11 An employee of the state shall not be required to perform
25 12 or assist in any execution and shall not be discriminated
25 13 against for refusing to participate.
25 14 The bill contains severability provisions and takes effect
25 15 January 1, 2004, and applies only to offenses committed on or
25 16 after that date.
25 17 LSB 2659SS 80
25 18 jm/pj/5.1