SENATE FILE 2095

BY  BEHN

A BILL FOR

An Act creating the penalty of death for the commission of murder in the first degree, kidnapping, and sexual abuse against the same minor, providing a penalty, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 13B.4, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  6A.  The state public defender shall perform all of the following duties with respect to the appointment of counsel for indigent persons in cases in which a sentence of death may be or is to be imposed:
   a.  Provide or contract with attorneys for appointment as lead counsel and cocounsel to provide legal services in cases where a person is charged with murder in the first degree, kidnapping, and sexual abuse under section 902.15, and the state has given notice of intent to seek the death penalty or in cases in which a sentence of death is to be imposed.
   b.  Conduct or sponsor specialized training programs for attorneys representing persons who may be executed.
    Sec. 2.  NEW SECTION.  602.10112  Qualifications of counsel in death penalty cases.
   The supreme court shall prescribe rules which establish minimum standards and procedures by which attorneys may become qualified to provide legal services as lead counsel in cases in which a sentence of death may be or is to be imposed.
    Sec. 3.  NEW SECTION.  812A.1  Procedure to determine sanity of condemned inmate.
   1.  At any time prior to execution of an inmate under section 902.1, if the director of the department of corrections or the counsel for a person who is under a sentence of execution has cause to believe that the inmate is suffering from such a diseased or deranged condition of the mind as to prevent the defendant from knowing the nature and quality of the act the defendant has been convicted of, or from understanding that trial on the offense has taken place and that execution proceedings are about to take place, or to otherwise cause the defendant to lack the capacity to understand the sentence which has been imposed and to participate in any legal proceedings relating to the sentence, the director or counsel may file a request with the court that issued the warrant for execution for a determination of the inmate’s sanity. If the district court determines that there is not sufficient reason to believe that the inmate is insane, the court shall enter an order denying the request and shall state the grounds for denying the request. If the court believes that there is sufficient reason to believe that the inmate is insane, the court shall suspend the execution and conduct a hearing to determine the sanity of the inmate.
   2.  At the hearing, the court shall determine the issue of the inmate’s sanity. Prior to the hearing, the court shall appoint two licensed physicians or licensed psychologists, or one licensed physician and one licensed psychologist, who are qualified by training and practice, for purposes of conducting a psychiatric or psychological examination of the inmate. The physicians or psychologists shall examine the inmate and report any findings in writing to the court within ten days after the order of examination is issued. The inmate shall have the right to present evidence and cross-examine any witnesses at the hearing. Any statement made by the inmate during the course of any examination provided for in this section, whether or not the inmate consents to the examination, shall not be admitted into evidence against the inmate in any criminal proceeding for purposes other than a determination of the inmate’s sanity.
   3.  If, at the conclusion of a hearing held pursuant to this section, the court determines that the inmate is sane, the court shall enter an order setting a date for the inmate’s execution, which shall be carried into effect in the same manner as provided in the original sentence. A copy of the order shall be sent to the director of the department of corrections and the governor.
   4.  If, at the conclusion of a hearing held pursuant to this section, the court determines that the inmate is insane, the court shall suspend the execution until further order. At any time after issuance of the order, if the court has sufficient reason to believe that the inmate has become sane, the court shall again determine the sanity of the inmate as provided by this section. Proceedings pursuant to this section may continue to be held at such times as the court orders until it is either determined that the inmate is sane or incurably insane.
    Sec. 4.  NEW SECTION.  814.28  Review of death sentence.
   1.  In a case in which a sentence of death is imposed, the supreme court shall automatically review the judgment and sentence. The court’s review of the case shall be de novo. The case shall not be transferred to the court of appeals.
   2.  A review by the supreme court of a judgment and sentence imposing the punishment of death has priority over all other criminal and other actions pending before the supreme court.
   3.  The supreme court shall review the trial and judgment, and shall separately review the sentencing proceeding. Upon determining that errors did not occur at the trial requiring reversal or modification of the judgment, the supreme court shall proceed to determine if the sentence of death is lawfully imposed. In its review of the sentencing proceeding the supreme court shall determine all of the following:
   a.  Whether the sentence of death was imposed capriciously or under the influence of prejudice or other arbitrary factor.
   b.  Whether the special verdicts returned under section 901.11 are supported by the evidence.
   c.  Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
   4.  If the supreme court determines that the sentence of death was not lawfully imposed, the court shall set aside the sentence and shall remand the case to the trial court for a second sentencing proceeding to determine if the imposition of death is warranted.
   5.  If the supreme court affirms the judgment and sentence of death, the clerk of the supreme court shall certify the judgment of the supreme court under the seal of the court to the clerk of the trial court.
    Sec. 5.  Section 815.10, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  1A.  If two attorneys have not already been appointed pursuant to section 13B.4 or 13B.9, the court shall appoint, for each indigent person who is charged with murder, kidnapping, and sexual abuse under section 902.15, and in which a notice of intent to seek the death penalty has been filed, two attorneys who are qualified under section 602.10112 to represent the person in the proceedings and in all state legal proceedings which take place from the time the person is indicted or arraigned until the person is sentenced on the charge. In addition, if at any point in federal postconviction proceedings an indigent person is not afforded court-appointed counsel, the state shall provide counsel to the person to present any claims determined meritorious by the federal court if the person is not otherwise represented by legal counsel. Only private attorneys and public defenders who are qualified to provide representation in cases in which the death penalty may be imposed are eligible for appointment or assignment to a case in which the death penalty may be imposed.
    Sec. 6.  NEW SECTION.  901.11  Murder proceedings —— request for death penalty —— penalty proceedings.
   1.  If a notice of intent to seek the death penalty has been filed, objections to the imposition of the death penalty based upon allegations that a defendant was mentally retarded or mentally ill at the time of the commission of the offense shall be raised within the time provided for the filing of pretrial motions under rule of criminal procedure 2.11, Iowa court rules. The court may, for good cause shown, allow late filing of the motion. Hearing on the motion shall be held prior to trial and the burden of proof shall be on the defendant to prove mental retardation or mental illness by a preponderance of the evidence. However, a rebuttable presumption of mental retardation arises if a defendant has an intelligence quotient of seventy or below. If the court finds that the defendant is mentally retarded, the defendant, if convicted of murder, kidnapping, and sexual abuse under section 902.15, shall not be sentenced to death but shall be sentenced to life imprisonment in the manner provided in section 902.1, subsection 1. A finding by the court that the evidence presented by the defendant at the hearing does not preclude the imposition of the death penalty under this section and section 902.15 shall not preclude the introduction of evidence of mental retardation or mental illness during the penalty proceeding. If the court finds that evidence of mental retardation or mental illness does not preclude imposition of the death penalty, evidence of mental retardation or mental illness may be reviewed by the jury in the penalty proceeding and the jury shall not be informed of the finding in the initial proceeding at any time during the penalty proceeding.
   2.  If at the trial on a charge of murder, kidnapping, and sexual abuse under section 902.15, the state intends to request that the death penalty be imposed under section 902.1, subsection 3, the prosecutor shall file a notice of intent to seek the death penalty, at the time of and as part of the information or indictment filed in the case.
   3.  If a notice of intent to seek the death penalty has been filed, the trial shall be conducted in bifurcated proceedings before the same trier of fact. During the initial proceeding, the jury, or the court, if the defendant waives the right to a jury trial, shall decide only whether the defendant is guilty or not guilty of murder, kidnapping, and sexual abuse under section 902.15.
   a.  If, in the initial proceeding, the court or jury finds the defendant guilty of, or the defendant pleads guilty to, an offense other than murder, kidnapping, and sexual abuse under section 902.15, the court shall sentence the defendant in accordance with the sentencing procedures set forth in rule of criminal procedure 2.23, Iowa court rules, and chapters 901 through 909, which are applicable to the offense.
   b.  If the court or jury finds the defendant guilty of, or the defendant pleads guilty to, murder, kidnapping, and sexual abuse under section 902.15, but the prosecuting attorney waives the death penalty, the court shall sentence the defendant to life imprisonment in accordance with the sentencing procedures set forth in rule of criminal procedure 2.23, Iowa court rules, and chapters 901 through 909, which are otherwise applicable to convictions of murder in the first degree, kidnapping, and sexual abuse.
   c.  If the court or jury finds the defendant guilty of murder, kidnapping, and sexual abuse under section 902.15, or a defendant enters a plea of guilty in the initial proceeding, and the prosecuting attorney does not waive imposition of the death penalty, a penalty proceeding shall be held in the manner provided in subsections 4 through 12.
   4.  No sooner than twenty-four hours after a verdict of guilty or a plea of guilty to the charge of murder, kidnapping, and sexual abuse under section 902.15 is returned in the initial proceeding, a penalty proceeding shall be held to determine whether the defendant shall be sentenced to death or to life imprisonment. The proceeding shall be conducted in the trial court before the trial jury, or the court if the defendant has waived the right to a jury trial or has waived the right for the proceeding to be before the trial jury. Both the state and the defendant shall have the right to present opening statements at the commencement of the penalty proceedings. In the proceeding, evidence relevant to the existence of any aggravating or mitigating circumstances may be presented as follows:
   a.  The state or the defendant may present evidence relevant to the conviction of the criminal offenses enumerated in section 902.15 and any aggravating circumstances other than juvenile delinquency adjudications for offenses which carry penalties equivalent to the penalties imposed for simple or serious misdemeanors. The state may introduce evidence of the actual harm caused by the commission of the murder, kidnapping, and sexual abuse under section 902.15, including but not limited to evidence relating to the life of the victim and the impact of the loss of the victim to the victim’s family and society.
   b.  The defendant may present evidence that the defendant was mentally retarded at the time of the commission of the offense. The burden of proof shall be on the defendant to prove mental retardation by a preponderance of the evidence. However, a rebuttable presumption of mental retardation arises if a defendant has an intelligence quotient of seventy or below.
   c.  The state or the defendant may present evidence relevant to any mitigating circumstances which may exist. Mitigating circumstances may include the following circumstances:
   (1)  The defendant was under the influence of an extreme mental or emotional disturbance insufficient to constitute a defense.
   (2)  The age of the defendant at the time of the murder.
   (3)  The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct and to conform that conduct to the requirements of law was significantly impaired as a result of a mental disease or defect or mental retardation, but not to a degree sufficient to constitute a defense.
   (4)  The defendant has no significant history of prior adult criminal activity.
   (5)  The defendant acted under extreme duress or under the substantial domination of another person.
   (6)  The defendant did not directly commit the murder, kidnapping, and sexual abuse and the defendant did not intend to kill or anticipate that lethal force would be used.
   (7)  Any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.
   d.  The state and the defendant or the defendant’s counsel shall be permitted to present and cross-examine witnesses and present arguments for or against a sentence of death. Evidence regarding aggravating and mitigating circumstances shall not be governed by the rules governing admissibility of evidence, except that introduction of evidence secured in violation of the Constitution of the United States or of the Constitution of the State of Iowa shall not be permitted.
   5.  At the conclusion of presentation of evidence in the penalty proceeding, the state and the defendant or the defendant’s counsel shall be permitted to make closing arguments, including any rebuttal arguments, in the same manner as in the initial proceeding and the following issues shall be determined by the jury or the court, if there is no jury:
   a.  Whether the aggravating circumstance or circumstances have been established beyond a reasonable doubt and outweigh any one or more mitigating circumstances.
   b.  Whether the defendant shall be sentenced to death.
   6.  A recommendation for a sentence of death shall not be permitted if the recommendation is based on the race, color, religious beliefs, national origin, or sex of the defendant or of any victim. After submission of the issues, but prior to the return of a finding in the penalty proceeding, if the matter is tried before a jury, the court shall instruct the jury that in considering whether a sentence of death is justified, it shall not consider race, color, religious beliefs, national origin, or sex of the defendant or of any victim. The court shall further instruct the jury that it shall not return a sentence of death unless it concludes that such a sentence would be recommended no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be.
   7.  After submission of the issues, but prior to the commencement of the jury deliberations in the penalty proceeding, the court shall instruct the jury that if the defendant is not sentenced to death, the court is required by law to impose a sentence of imprisonment until death without parole. The court shall further instruct the jury that the sentence of imprisonment until death without parole is required by law if the jury fails to reach a unanimous verdict recommending a sentence of death.
   8.  Concurrently with the return of the findings on the issues submitted under subsection 5, the jury, or the court if there is no jury, shall return special verdicts as follows:
   a.  Which aggravating circumstances were established beyond a reasonable doubt and were considered in reaching the verdict.
   b.  Which mitigating circumstances were established and were considered in reaching the verdict returned on the issue specified in subsection 5, paragraph “a”.
   9.  If the jury, or the court if there is no jury, returns a unanimous affirmative finding on each of the issues submitted under subsection 5, paragraphs “a” and “b”, the court shall enter a judgment of conviction and shall sentence the defendant to death as provided in section 902.1, subsection 3.
   10.  However, if evidence that the defendant was not a major participant in the commission of the murder, kidnapping, and sexual abuse under section 902.15, and that the defendant’s conduct did not manifest a reckless indifference to human life is presented to the jury, or the court if there is no jury, the jury or the court shall also return a special verdict on the issue. If the jury unanimously determines, or the court, if there is no jury, finds that a preponderance of evidence exists that shows that the defendant was not a major participant in the commission of the murder, kidnapping, and sexual abuse under section 902.15, and that the defendant’s conduct did not manifest a reckless indifference to human life, the court shall enter a judgment of conviction and shall sentence the defendant to life imprisonment as provided in section 902.1, subsection 1, even if the jury or the court returns unanimous affirmative findings on each of the issues submitted under subsection 5.
   11.  If the jury, or the court if there is no jury, returns a negative finding on any of the issues submitted under subsection 5, paragraphs “a” or “b”, the court shall enter a judgment of conviction and shall sentence the defendant to life imprisonment as provided in section 902.1, subsection 1.
   12.  After a verdict has been rendered it shall be recorded on the jury verdict form and shall be read and recorded in open court. The jurors shall be collectively asked by the court whether the verdict returned is their true and correct verdict. Even though no juror makes any declaration to the contrary, the jury shall, if either party so requests, be polled and each juror shall be separately asked whether the verdict rendered by the jury foreperson is the juror’s true and correct verdict. If, upon either the collective or the separate inquiry, any juror denies that the verdict is the juror’s verdict, the court shall refuse to accept the verdict. The court may direct inquiry or permit inquiry by counsel to ascertain whether any juror has been subjected to coercion or has become confused during the jury deliberation process. The court may, as appropriate, direct the jury to resume deliberation in the case. If no disagreement on the verdict is expressed by any of the jurors, the court shall discharge the jury.
   13.  This section shall not apply to a defendant who was under the age of eighteen at the time the offense was committed.
    Sec. 7.  Section 902.1, subsection 1, Code Supplement 2011, is amended to read as follows:
   1.  Upon
 
Except as otherwise provided in subsection 2 or 3, upon a plea of guilty, a verdict of guilty, or a special verdict upon which a judgment of conviction of a class “A” felony may be rendered, the court shall enter a judgment of conviction and shall commit the defendant into the custody of the director of the Iowa department of corrections for the rest of the defendant’s life. Nothing in the Iowa corrections code pertaining to deferred judgment, deferred sentence, suspended sentence, or reconsideration of sentence applies to a
 
sentence of life imprisonment for a class “A” felony, and a person convicted of a class “A” felony
 
and sentenced to life imprisonment shall not be released on parole unless the governor commutes the sentence to a term of years.
    Sec. 8.  Section 902.1, Code Supplement 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  3.  Notwithstanding subsection 1, upon return of a plea or verdict of guilty to the offense of murder in the first degree, kidnapping, and sexual abuse under section 902.15, and a return of a verdict in favor of a sentence of death in a penalty proceeding conducted as provided in section 901.11, the court shall enter a judgment of conviction and shall commit the defendant into the custody of the director of the Iowa department of corrections. The sentence shall be carried out by the administration of a lethal injection pursuant to rules adopted by the board of corrections. If a defendant, for whom a warrant of execution is issued, is pregnant, the execution shall not take place until after the defendant is no longer pregnant. If a defendant, for whom a warrant of execution is issued, is suffering from such a diseased or deranged condition of the mind as to prevent the defendant from knowing the nature and quality of the act the defendant has been convicted of, or from understanding that trial on the offense has taken place and that execution proceedings are about to take place, or otherwise causes the defendant to lack the capacity to understand the sentence which has been imposed and to participate in any legal proceedings relating to the sentence, the execution shall not take place until after the defendant’s capacity is restored. If the director of the department of corrections or the defendant’s counsel files a request with the court which issued the warrant of execution, alleging that the defendant suffers from such a diseased or deranged condition, a hearing on the matter shall be held in the manner provided in section 812A.1. If a defendant was under the age of eighteen at the time the offense was committed, the defendant shall be sentenced as provided in subsection 1. For the purposes of this section, “lethal injection” means a continuous intravenous injection of a lethal substance sufficient to cause death.
    Sec. 9.  NEW SECTION.  902.15  First degree murder, kidnapping, and sexual abuse.
   A person who commits murder in the first degree, kidnapping, and sexual abuse with respect to the same victim, who is not mentally retarded or mentally ill, and who is age eighteen or older at the time the offense is committed, shall be eligible for a sentence of death under section 902.1, subsection 3, if the victim was a minor.
   For purposes of this section, “mentally retarded” means significant subaverage general intellectual functioning accompanied by significant deficits or impairments in adaptive functioning manifested in the developmental period, but no later than the age of eighteen years, and accompanied by deficits in adaptive behavior.
   For purposes of this section, “mentally ill” means the condition of a person who is suffering from a chronic and persistent serious mental disease or disorder and who, by reason of that condition, lacks sufficient judgment to make responsible decisions regarding treatment and is reasonably likely to injure the person’s self or others who may come into contact with the person if the person is allowed to remain at liberty without treatment.
    Sec. 10.  NEW SECTION.  902.16  Data collection for death penalty.
   1.  The supreme court shall collect data on all murder, kidnapping, and sexual abuse charges in which the death penalty is or was not waived, which are filed and processed in the courts in this state. This data may be used by the supreme court to determine whether death sentences imposed are excessive or disproportionate, or under the influence of prejudice as a result of racial discrimination under section 814.28. The court shall make this data available to litigants in death penalty cases.
   2.  Data collected by public officials concerning factors relevant to the imposition of the death sentence shall be made publicly available.
    Sec. 11.  NEW SECTION.  903C.1  Executions —— refusal to perform.
   An employee of the state who may lawfully perform, assist, or participate in the execution of a person pursuant to section 902.1, and rules adopted by the department of corrections, shall not be required to perform, assist, or participate in the execution. State employees who refuse to perform, assist, or participate in the execution of a person shall not be discriminated against in any way, including but not limited to employment, promotion, advancement, transfer, licensing, education, training, or the granting of any privileges or appointments because of the refusal to perform, assist, or participate in the execution.
    Sec. 12.  Section 904.105, Code 2009, is amended by adding the following new subsection:
   NEW SUBSECTION.  9A.  Adopt rules pursuant to chapter 17A pertaining to executions of persons convicted of murder, kidnapping, and sexual abuse under section 902.15. Rules adopted shall include, but are not limited to, rules permitting the witnessing of executions by members of the public and the victim’s family. Invitations to witness an execution shall at least be extended to the following representatives of the news media:
   a.  A representative from a wire service serving Iowa.
   b.  A representative from a broadcasting network serving Iowa.
   c.  A representative from a television station located in Iowa.
   d.  A representative from a radio station located in Iowa.
   e.  A representative from a daily newspaper published in Iowa.
   f.  A representative from a weekly newspaper published in Iowa.
   g.  A representative from the news media from the community in which the condemned person resided, if that community is located in Iowa.
    Sec. 13.
   Rules of criminal procedure, Iowa court rules, are amended by adding the following four sections of this Act.
    Sec. 14.
   2.___ DEATH PENALTY — PROCEDURE.
   2.___(1) If a notice of intent to seek the death penalty has been filed, objections to the imposition of the death penalty based upon allegations that a defendant was mentally retarded at the time of the commission of the offense shall be raised within the time provided for the filing of pretrial motions under R.Cr.P. 2.11, Iowa court rules. The court may, for good cause shown, allow late filing of the motion. Hearing on the motion shall be held prior to trial and the burden of proof shall be on the defendant to prove mental retardation by a preponderance of the evidence. However, a rebuttable presumption of mental retardation arises if a defendant has an intelligence quotient of seventy or below. A finding of the court that the evidence presented by the defendant at the hearing does not preclude the imposition of the death penalty under this rule and Iowa Code section 902.15 shall not preclude the introduction of evidence of mental retardation during the penalty proceeding. If the court finds that the evidence presented by the defendant does not preclude the imposition of the death penalty, evidence of mental retardation may be reviewed by the jury during the penalty proceeding and the jury shall not be informed of the finding in the initial proceeding at any time during the penalty proceeding.
   2.___(2) Upon a finding or plea that a defendant is guilty of murder, kidnapping, and sexual abuse under Iowa Code section 902.15, in an initial proceeding, if a notice of intent to seek the death penalty has been filed and has not been waived, the court shall conduct a separate penalty proceeding to determine whether the defendant shall be sentenced to death or to life imprisonment. The penalty proceeding shall be conducted in the trial court before the trial jury, or the court, if there is no jury, no sooner than twenty-four hours after the return of the verdict or plea in the initial proceeding. In the penalty proceeding, additional evidence may be presented as to the conviction for murder, kidnapping, and sexual abuse under section 902.15, or any aggravating or mitigating circumstance which may exist. Presentation of evidence which is relevant to the existence of an aggravating or mitigating circumstance shall not be bound by the rules of evidence. This subsection does not authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the Constitution of the State of Iowa. The state and the defendant or the defendant’s counsel shall be permitted to cross-examine witnesses and to present arguments for or against a sentence of death.
   2.___(3) On conclusion of the presentation of the evidence in the penalty proceeding, the state and the defendant or the defendant’s counsel shall be permitted to make closing arguments, including any rebuttal arguments, in the same manner as in the initial proceeding and the court shall submit each of the following issues to the jury:
   a.  Whether one or more aggravating circumstances outweigh any one or more mitigating circumstances.
   b.  Whether the defendant shall be sentenced to death.
   If the case is not tried to a jury, the court shall determine the issues.
   2.___(4) The state must prove the issue in rule 2.___(3)(a) beyond a reasonable doubt, and the jury, or the court if there is no jury, shall return a special verdict of “yes” or “no” on each issue.
   2.___(5) If the case is tried to a jury, the court shall charge the jury that:
   a.  It shall answer any issue “yes” if it agrees unanimously.
   b.  It shall answer any issue “no” if the jurors unanimously agree that the answer is “no” or if the jurors do not unanimously agree that the answer is “yes”.
   2.___(6) Concurrently with the return of the special verdicts under rule 2.___(3), the jury, or the court if there is no jury, shall also return special verdicts as follows:
   a.  Which aggravating circumstances were established beyond a reasonable doubt and were considered in reaching the verdict returned on the issue specified in rule 2.___(3)(a).
   b.  Which mitigating circumstances were established and were considered in reaching the verdict returned on the issue specified in rule 2.___(3)(a).
   2.___(7) If the jury, or the court if there is no jury, returns an affirmative finding on all applicable issues, the court shall sentence the defendant to death. If the jury or the court returns a negative finding on any applicable issue, the court shall sentence the defendant to the custody of the director of the department of corrections for confinement for the rest of the defendant’s life.
   2.___(8) After a verdict has been rendered it shall be recorded on the jury verdict form and shall be read and recorded in open court. The jurors shall be collectively asked by the court whether the verdict returned is their true and correct verdict. Even though no juror makes any declaration to the contrary, the jury shall, if either party so requests, be polled and each juror shall be separately asked whether the verdict rendered by the jury foreperson is the juror’s true and correct verdict. If, upon either the collective or the separate inquiry, any juror denies that the verdict is the juror’s verdict, the court shall refuse to accept the verdict. The court may direct inquiry or permit inquiry by counsel to ascertain whether any juror has been subjected to coercion or has become confused during the jury deliberation process. The court may, as appropriate, direct the jury to resume deliberation in the case. If no disagreement on the verdict is expressed by any of the jurors, the court shall discharge the jury.
   2.___(9) Provisions relating to deferred judgment, deferred sentence, suspended sentence, reconsideration of sentence, probation, parole, or work release contained in Iowa Code chapters 901 through 909 do not apply to a conviction of murder, kidnapping, and sexual abuse under Iowa Code section 902.15 if the defendant is sentenced to death.
    Sec. 15.
   2.___ AUTOMATIC REVIEW — STAY OF EXECUTION OF JUDGMENT.
   2.___(1) A judgment of conviction and sentence of death shall be reviewed automatically in the manner provided in Iowa Code section 814.28, and the Iowa supreme court has exclusive jurisdiction of the review.
   2.___(2) Upon entry of judgment and sentence of death, the trial court shall prepare a complete record and transcript of the action in the manner provided in the rules of criminal procedure and shall docket the record and transcript with the clerk of the supreme court.
   2.___(3) The execution of judgment of the trial court is stayed as a matter of law from the time of its entry until the judgment of the supreme court is certified to and entered by the trial court. Upon entry of a judgment of the supreme court which affirms the conviction and sentence, the stay of execution of judgment terminates as a matter of law.
   2.___(4) All court costs required due to the automatic preparation of the record and transcript, docketing with the supreme court, and stay of execution of judgment shall be assessed to the state.
    Sec. 16.
   2.___ ISSUANCE OF WARRANT.
   2.___(1) Upon entry by the trial court of the judgment of the supreme court affirming a judgment and sentence of death, a district judge shall within five days of the entry issue a warrant under the seal of the court for the execution of the sentence of death. The warrant shall specifically set forth the offense and the fact of conviction, shall state the judgment and sentence of the court, shall state that the judgment and sentence were affirmed by the supreme court and the date of entry of judgment of the supreme court in the trial court, and shall, subject to the requirements of Iowa Code section 902.1, subsection 3, specify a range of five days for execution of the defendant which shall be not less than fifty nor more than sixty days after the date of entry in the trial court of the judgment of the supreme court affirming the judgment and sentence of death. The warrant shall be directed to the director of the department of corrections commanding the director to cause the warrant to be executed within the dates specified. The trial court shall deliver the warrant to the sheriff of the county in which judgment of conviction was entered and the sheriff shall deliver the warrant to the director of the department of corrections. The director of the department of corrections shall acknowledge receipt of the warrant and the defendant, and the sheriff shall return the acknowledgment to the office of the clerk of the trial court from which the warrant was issued.
   2.___(2) Immediately after issuance of a warrant ordering a sentence of death, the clerk of the trial court issuing the warrant shall transmit by certified mail to the governor a copy of the indictment, the plea, the verdict and special findings, the affirmation of judgment and sentence by the supreme court, and the complete transcript of the trial court.
   2.___(3) Notwithstanding rule 2.___(1), if a defendant, for whom a warrant of execution is issued, is pregnant, the execution shall not take place until after the defendant is no longer pregnant. Notwithstanding rule 2.___(1), if a defendant, for whom a warrant of execution is issued, is suffering from such a diseased or deranged condition of the mind as to prevent the defendant from knowing the nature and quality of the act the defendant has been convicted of, or from understanding that trial on the offense has taken place and that execution proceedings are about to take place, or to otherwise cause the defendant to lack the capacity to understand the sentence which has been imposed and to participate in any legal proceedings relating to the sentence, the execution shall not take place until after the defendant is no longer suffering from the condition.
    Sec. 17.
   2.___ EVIDENCE AT PENALTY PROCEEDING WHERE DEATH SENTENCE REQUESTED.
   2.___(1) At a reasonable time before the commencement of initial proceedings in a murder, kidnapping, and sexual abuse trial in which a sentence of death has been requested, each party shall file and serve upon the other party the following:
   a.  A list of all aggravating or mitigating circumstances which the party intends to prove during the sentencing proceedings.
   b.  The names of all persons whom the party intends to call as witnesses during the sentencing proceedings.
   c.  Notwithstanding rule 2.14, copies, or for inspection purposes, the location, of all documents, including books, papers, writings, drawings, graphs, charts, photographs, telephone records, and other data compilations from which information can be obtained, or other objects which the party intends to offer into evidence during the sentencing proceedings. If copies are not supplied to opposing counsel, the party shall make the items available for inspection and copying without order of the court.
   2.___(2) In proceedings to determine whether the sentence shall be death or life imprisonment, evidence may be presented as to any matter which the trial court deems relevant to the sentence, including but not limited to the nature, circumstances, and manner of completion of the murder, kidnapping, and sexual abuse, and the defendant’s character, background, history, and mental and physical condition. The trial court shall admit any relevant admissible evidence respecting any aggravating or mitigating circumstances, if the party has included the circumstance on a list provided pursuant to this rule, or good cause is shown for the failure to do so.
    Sec. 18.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection 3, shall not apply to this Act.
    Sec. 19.  EFFECTIVE DATE —— SEVERABILITY.
   1.  This Act takes effect January 1, 2013, and applies to offenses committed on or after that date.
   2.  If any provision of this Act or the application thereof to any person is invalid, the invalidity shall not affect the provisions or application of this Act which can be given effect without the invalid provisions or application and to this end, the provisions of this Act are severable.
EXPLANATION
   This bill amends the Iowa criminal code to provide for punishment by death for murder in the first degree, kidnapping, and sexual abuse committed with respect to the same victim who is a minor if the trial jury, or the judge if there is no jury, makes specific findings and whether the jury believes the defendant should be put to death in a separate penalty proceeding held after the close of the initial trial proceeding. Under the bill, a death sentence could be imposed if the murder would constitute murder in the first degree and the state pleads and proves the defendant also kidnapped and committed sexual abuse against the murder victim who was a minor.
   If a person is indigent and is charged with capital murder, payment of costs for two attorneys is authorized. The supreme court is required to establish standards for the competency of counsel in death penalty cases. The state public defender is charged with establishing teams of qualified lead and cocounsel for death penalty cases, as well as conducting or sponsoring specialized training programs for attorneys representing persons who may be executed.
   If such a case proceeds to trial and a notice of intent to seek the death penalty has been filed, in addition to any other defenses which may be presented to the charge, the defendant may raise the issue of mental retardation during the time of filing pretrial motions, and the defendant is entitled to a rebuttable presumption of mental retardation if the defendant establishes that the defendant has an intelligence quotient of 70 or below.
   Once the evidence is submitted to the jury, the court will instruct the jury, at the defendant’s request, that in considering whether a sentence of death is justified, the race, color, religious beliefs, national origin, or sex of the defendant or of any victim is not to be considered. The supreme court shall collect evidence relating to whether the death sentences imposed are excessive, disproportionate, or imposed under the influence of prejudice at trial which will be available to litigants.
   The sentence of death is imposed only when the trier of fact (the jury or the court if the defendant has waived the right to a jury trial) unanimously answers two questions affirmatively: (1) whether aggravating circumstances established beyond a reasonable doubt outweigh any mitigating circumstances that may exist; and (2) whether the defendant should be sentenced to death. Mitigating factors the trier of fact may consider include the following: the defendant was under the influence of an extreme mental or emotional disturbance; the age of the defendant; the defendant’s ability to appreciate the wrongfulness of the conduct due to mental disease but not to a degree to constitute a defense; the defendant has no significant prior criminal history; the defendant was under extreme duress; the defendant did not directly commit the murder, kidnapping, and sexual abuse; and the defendant’s character or record or the circumstances of the offense. The sentencing proceeding is conducted separately from the finding of guilt or innocence by the same trier of fact.
   For the sentencing proceeding, the trier of fact (the jury or the court if the defendant has waived the right to have the jury hear the proceedings) is to weigh any aggravating circumstances established beyond a reasonable doubt by the state against any of the enumerated mitigating circumstances which may be presented by the defendant. Evidence of certain juvenile delinquency adjudications is not admissible in any proceeding to determine the sentence. If the jury fails to agree unanimously on the required affirmative findings, the penalty would be life imprisonment.
   The death penalty sentence would be reviewed automatically by the supreme court. The supreme court shall review the trial and judgment separately from the sentencing proceeding. If the supreme court finds error in the sentencing proceeding, the supreme court may remand the case back to district court for a new sentencing hearing. The bill requires the supreme court to examine whether the sentence is excessive or disproportionate to penalties in similar cases. If affirmed by the supreme court, the penalty would be accomplished by lethal injection. The bill requires the board of corrections to adopt rules pertaining to executions, including rules pertaining to the witnessing of executions.
   The bill further provides that in order to receive a sentence of death, the defendant must be at least 18 years of age at the time the offense is committed, must not be mentally ill or mentally retarded, and must have been a major participant in the commission of the crime or must have shown a manifest indifference to human life.
   A person who is sentenced to death, but who is pregnant when the warrant of execution is issued, is not to be executed until the person is no longer pregnant. A procedure is also provided to stay execution of a condemned inmate who becomes insane after conviction but before execution.
   An employee of the state shall not be required to perform or assist in any execution and shall not be discriminated against for refusing to participate.
   The bill may include a state mandate as defined in Code section 25B.3. The bill makes inapplicable Code section 25B.2, subsection 3, which would relieve a political subdivision from complying with a state mandate if funding for the cost of the state mandate is not provided or specified. Therefore, political subdivisions are required to comply with any state mandate included in the bill.
   The bill contains severability provisions and takes effect January 1, 2013, and applies only to offenses committed on or after that date.