Senate File 296 - Introduced SENATE FILE 296 BY BEHN , GARRETT , GREENE , CHAPMAN , GUTH , COSTELLO , EDLER , SHIPLEY , ZAUN , KAPUCIAN , SCHULTZ , SEGEBART , COURNOYER , JOHNSON , ZUMBACH , SWEENEY , ROZENBOOM , CARLIN , WHITING , and FEENSTRA A BILL FOR An Act creating a capital murder offense by establishing the 1 penalty of death for murder in the first degree offenses 2 involving kidnapping and sexual abuse offenses against the 3 same victim who is a minor, and including effective date and 4 applicability provisions. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 6 TLSB 1839XS (5) 88 as/rh

S.F. 296 Section 1. Section 13B.4, Code 2019, is amended by adding 1 the following new subsection: 2 NEW SUBSECTION . 6A. The state public defender shall perform 3 all of the following duties with respect to the appointment of 4 counsel for indigent persons in cases in which a sentence of 5 death may be or is to be imposed: 6 a. Provide or contract with attorneys for appointment as 7 lead counsel and co-counsel to provide legal services in cases 8 where a person is charged with capital murder under section 9 902.15, and the state has given notice of intent to seek the 10 death penalty or in cases in which a sentence of death is to be 11 imposed. 12 b. Conduct or sponsor specialized training programs for 13 attorneys representing persons who may be executed. 14 Sec. 2. NEW SECTION . 602.10112 Qualifications of counsel 15 in capital murder cases. 16 The supreme court shall prescribe rules which establish 17 minimum standards and procedures by which attorneys may become 18 qualified to provide legal services as lead counsel in cases in 19 which a sentence of death may be or is to be imposed. 20 Sec. 3. NEW SECTION . 812A.1 Procedure to determine sanity 21 of condemned inmate. 22 1. At any time prior to execution of an inmate under section 23 902.1A, if the director of the department of corrections or 24 the counsel for a person who is under a sentence of execution 25 has cause to believe that the inmate is suffering from such 26 a diseased or deranged condition of the mind as to prevent 27 the defendant from knowing the nature and quality of the act 28 the defendant has been convicted of, or from understanding 29 that trial on the offense has taken place and that execution 30 proceedings are about to take place, or to otherwise cause the 31 defendant to lack the capacity to understand the sentence which 32 has been imposed and to participate in any legal proceedings 33 relating to the sentence, the director or counsel may file a 34 request with the court that issued the warrant for execution 35 -1- LSB 1839XS (5) 88 as/rh 1/ 17

S.F. 296 for a determination of the inmate’s sanity. If the court 1 determines that there is not sufficient reason to believe 2 that the inmate is insane, the court shall enter an order 3 denying the request and shall state the grounds for denying the 4 request. If the court believes that there is sufficient reason 5 to believe that the inmate is insane, the court shall suspend 6 the execution and conduct a hearing to determine the sanity of 7 the inmate. 8 2. At the hearing, the court shall determine the issue of 9 the inmate’s sanity. Prior to the hearing, the court shall 10 appoint two licensed physicians or licensed psychologists, or 11 one licensed physician and one licensed psychologist, who are 12 qualified by training and practice, for purposes of conducting 13 a psychiatric or psychological examination of the inmate. The 14 physicians or psychologists shall examine the inmate and report 15 any findings in writing to the court within ten days after 16 the order of examination is issued. The inmate shall have 17 the right to present evidence and cross-examine any witnesses 18 at the hearing. Any statement made by the inmate during the 19 course of any examination provided for in this section, whether 20 or not the inmate consents to the examination, shall not be 21 admitted into evidence against the inmate in any criminal 22 proceeding for purposes other than a determination of the 23 inmate’s sanity. 24 3. If, at the conclusion of a hearing held pursuant to 25 this section, the court determines that the inmate is sane, 26 the court shall enter an order setting a date for the inmate’s 27 execution, which shall be carried into effect in the same 28 manner as provided in the original sentence. A copy of the 29 order shall be sent to the director of the department of 30 corrections and the governor. 31 4. If, at the conclusion of a hearing held pursuant to this 32 section, the court determines that the inmate is insane, the 33 court shall suspend the execution until further order. At any 34 time after issuance of the order, if the court has sufficient 35 -2- LSB 1839XS (5) 88 as/rh 2/ 17

S.F. 296 reason to believe that the inmate has become sane, the court 1 shall again determine the sanity of the inmate as provided 2 by this section. Proceedings pursuant to this section may 3 continue to be held at such times as the court orders until 4 it is either determined that the inmate is sane or incurably 5 insane. 6 Sec. 4. NEW SECTION . 814.28 Review of capital murder death 7 sentence. 8 1. In a case in which a sentence of death is imposed, the 9 supreme court shall automatically review the judgment and 10 sentence. The court’s review of the case shall be de novo. The 11 case shall not be transferred to the court of appeals. 12 2. A review by the supreme court of a judgment and sentence 13 imposing the punishment of death has priority over all other 14 criminal and other actions pending before the supreme court. 15 3. The supreme court shall review the trial and judgment, 16 and shall separately review the sentencing proceeding. Upon 17 determining that errors did not occur at the trial requiring 18 reversal or modification of the judgment, the supreme court 19 shall proceed to determine if the sentence of death is lawfully 20 imposed. In its review of the sentencing proceeding, the 21 supreme court shall determine all of the following: 22 a. Whether the sentence of death was imposed capriciously or 23 under the influence of prejudice or other arbitrary factor. 24 b. Whether the special verdicts returned under section 25 901E.1 are supported by the evidence. 26 c. Whether the sentence of death is excessive or 27 disproportionate to the penalty imposed in similar cases, 28 considering both the crime and the defendant. 29 4. If the supreme court determines that the sentence of 30 death was not lawfully imposed, the supreme court shall set 31 aside the sentence and shall remand the case to the trial 32 court for a second sentencing proceeding to determine if the 33 imposition of death is warranted. 34 5. If the supreme court affirms the judgment and sentence 35 -3- LSB 1839XS (5) 88 as/rh 3/ 17

S.F. 296 of death, the clerk of the supreme court shall certify the 1 judgment of the supreme court under the seal of the supreme 2 court to the clerk of the trial court. 3 Sec. 5. Section 815.10, Code 2019, is amended by adding the 4 following new subsection: 5 NEW SUBSECTION . 1A. If two attorneys have not already been 6 appointed pursuant to section 13B.4 or 13B.9, the court shall 7 appoint, for each indigent person who is charged with capital 8 murder under section 902.15, and in which a notice of intent 9 to seek the death penalty has been filed, two attorneys who 10 are qualified under section 602.10112 to represent the person 11 in the proceedings and in all state legal proceedings which 12 take place from the time the person is indicted or arraigned 13 until the person is sentenced on the charge. In addition, if 14 at any point in federal postconviction proceedings an indigent 15 person is not afforded court-appointed counsel, the state shall 16 provide counsel to the person to present any claims determined 17 meritorious by the federal court if the person is not otherwise 18 represented by legal counsel. Only private attorneys and 19 public defenders who are qualified to provide representation in 20 cases in which the death penalty may be imposed are eligible 21 for appointment or assignment to a case in which the death 22 penalty may be imposed. 23 Sec. 6. NEW SECTION . 901E.1 Capital murder proceedings —— 24 request for death penalty —— penalty proceedings. 25 1. As used in this section: 26 a. “Intellectually disabled” means the same as defined in 27 section 902.15. 28 b. “Mentally ill” or “mental illness” means the same as 29 defined in section 902.15. 30 2. If a notice of intent to seek the death penalty has 31 been filed, objections to the imposition of the death penalty 32 based upon allegations that a defendant was intellectually 33 disabled or mentally ill at the time of the commission of 34 the offense shall be raised within the time provided for the 35 -4- LSB 1839XS (5) 88 as/rh 4/ 17

S.F. 296 filing of pretrial motions under rule of criminal procedure 1 2.11, Iowa court rules. The court may, for good cause shown, 2 allow late filing of the motion. Hearing on the motion shall 3 be held prior to trial and the burden of proof shall be on the 4 defendant to prove intellectual disability or mental illness 5 by a preponderance of the evidence. If the court finds that 6 the defendant is intellectually disabled, the defendant, if 7 convicted of capital murder under section 902.15, shall not be 8 sentenced to death but shall be sentenced to life imprisonment 9 in the manner provided in section 902.1. A finding by the 10 court that the evidence presented by the defendant at the 11 hearing does not preclude the imposition of the death penalty 12 under this section and section 902.15 shall not preclude the 13 introduction of evidence of intellectual disability or mental 14 illness during the penalty proceeding. If the court finds 15 that evidence of intellectual disability or mental illness 16 does not preclude imposition of the death penalty, evidence of 17 intellectual disability or mental illness may be reviewed by 18 the jury in the penalty proceeding and the jury shall not be 19 informed of the finding in the initial proceeding at any time 20 during the penalty proceeding. 21 3. If at the trial on a charge of capital murder under 22 section 902.15, the state intends to request that the death 23 penalty be imposed under section 902.1A, the prosecutor shall 24 file a notice of intent to seek the death penalty, at the time 25 of and as part of the information or indictment filed in the 26 case. 27 4. If a notice of intent to seek the death penalty has been 28 filed, the trial shall be conducted in bifurcated proceedings 29 before the same trier of fact. During the initial proceeding, 30 the jury, or the court if the defendant waives the right to a 31 jury trial, shall decide only whether the defendant is guilty 32 or not guilty of capital murder under section 902.15. 33 a. If, in the initial proceeding, the court or jury finds 34 the defendant guilty of, or the defendant pleads guilty to, 35 -5- LSB 1839XS (5) 88 as/rh 5/ 17

S.F. 296 an offense other than capital murder under section 902.15, 1 the court shall sentence the defendant in accordance with the 2 sentencing procedures set forth in rule of criminal procedure 3 2.23, Iowa court rules, and chapters 901 through 909, which are 4 applicable to the offense. 5 b. If the court or jury finds the defendant guilty of, or 6 the defendant pleads guilty to, capital murder under section 7 902.15, but the prosecuting attorney waives the death penalty, 8 the court shall sentence the defendant to life imprisonment in 9 accordance with the sentencing procedures set forth in rule of 10 criminal procedure 2.23, Iowa court rules, and chapters 901 11 through 909, which are otherwise applicable to convictions of 12 murder in the first degree. 13 c. If the court or jury finds the defendant guilty of 14 capital murder under section 902.15, or a defendant enters a 15 plea of guilty in the initial proceeding, and the prosecuting 16 attorney does not waive imposition of the death penalty, a 17 penalty proceeding shall be held in the manner provided in 18 subsections 5 through 13. 19 5. No sooner than twenty-four hours after a verdict of 20 guilty or a plea of guilty to capital murder under section 21 902.15 is returned in the initial proceeding, a penalty 22 proceeding shall be held to determine whether the defendant 23 shall be sentenced to death or to life imprisonment. The 24 proceeding shall be conducted in the trial court before the 25 trial jury, or before the court if the defendant has waived 26 the right to a jury trial or has waived the right for the 27 proceeding to be before the trial jury. Both the state and the 28 defendant shall have the right to present opening statements 29 at the commencement of the proceeding. In the proceeding, 30 evidence relevant to the existence of any aggravating or 31 mitigating circumstances may be presented as follows: 32 a. The state or the defendant may present evidence relevant 33 to the conviction of capital murder under section 902.15 and 34 any aggravating circumstances other than juvenile delinquency 35 -6- LSB 1839XS (5) 88 as/rh 6/ 17

S.F. 296 adjudications for offenses which carry penalties equivalent to 1 the penalties imposed for simple or serious misdemeanors. The 2 state may introduce evidence of the actual harm caused by the 3 commission of the capital murder offense under section 902.15, 4 including but not limited to evidence relating to the life of 5 the victim and the impact of the loss of the victim to the 6 victim’s family and society. 7 b. The defendant may present evidence that the defendant 8 was intellectually disabled or mentally ill at the time of the 9 commission of the offense. The burden of proof shall be on the 10 defendant to prove intellectual disability or mental illness by 11 a preponderance of the evidence. 12 c. The state or the defendant may present evidence relevant 13 to any mitigating circumstances which may exist. Mitigating 14 circumstances may include the following circumstances: 15 (1) The defendant was under the influence of an extreme 16 mental or emotional disturbance insufficient to constitute a 17 defense. 18 (2) The age of the defendant at the time of the offense. 19 (3) The defendant’s capacity to appreciate the wrongfulness 20 of the defendant’s conduct and to conform that conduct to the 21 requirements of law was significantly impaired as a result of a 22 mental disease or defect or intellectual disability, but not to 23 a degree sufficient to constitute a defense. 24 (4) The defendant has no significant history of prior adult 25 criminal activity. 26 (5) The defendant acted under extreme duress or under the 27 substantial domination of another person. 28 (6) The defendant did not directly commit the capital murder 29 offense and the defendant did not intend to kill or anticipate 30 that lethal force would be used. 31 (7) Any other factor which is relevant to the defendant’s 32 character or record or to the circumstances of the offense. 33 d. The state and the defendant or the defendant’s counsel 34 shall be permitted to present and cross-examine witnesses and 35 -7- LSB 1839XS (5) 88 as/rh 7/ 17

S.F. 296 present arguments for or against a sentence of death. Evidence 1 regarding aggravating and mitigating circumstances shall not 2 be governed by the rules governing admissibility of evidence, 3 except that introduction of evidence secured in violation of 4 the Constitution of the United States or of the Constitution of 5 the State of Iowa shall not be permitted. 6 6. At the conclusion of presentation of evidence in 7 the penalty proceeding, the state and the defendant or the 8 defendant’s counsel shall be permitted to make closing 9 arguments, including any rebuttal arguments, in the same manner 10 as in the initial proceeding and the following issues shall be 11 determined by the jury or by the court if there is no jury: 12 a. Whether the aggravating circumstance or circumstances 13 have been established beyond a reasonable doubt and outweigh 14 any one or more mitigating circumstances. 15 b. Whether the defendant shall be sentenced to death. 16 7. A recommendation for a sentence of death shall not be 17 permitted if the recommendation is based on the race, color, 18 religious beliefs, national origin, or sex of the defendant 19 or of any victim, or based on any other protected class under 20 chapter 216. After submission of the issues, but prior to the 21 return of a finding in the penalty proceeding, if the matter 22 is tried before a jury, the court shall instruct the jury 23 that in considering whether a sentence of death is justified, 24 the jury shall not consider race, color, religious beliefs, 25 national origin, or sex of the defendant or of any victim, or 26 consider any other protected class under chapter 216. The 27 court shall further instruct the jury that the jury shall not 28 return a sentence of death unless the jury concludes that such 29 a sentence would be recommended no matter what the race, color, 30 religious beliefs, national origin, sex, or other protected 31 class of the defendant or of any victim may be. 32 8. After submission of the issues, but prior to the 33 commencement of the jury deliberations in the penalty 34 proceeding, the court shall instruct the jury that if the 35 -8- LSB 1839XS (5) 88 as/rh 8/ 17

S.F. 296 defendant is not sentenced to death, the court is required by 1 law to impose a sentence of imprisonment until death without 2 parole. The court shall further instruct the jury that 3 the sentence of imprisonment until death without parole is 4 required by law if the jury fails to reach a unanimous verdict 5 recommending a sentence of death. 6 9. Concurrently with the return of the findings on the 7 issues submitted under subsection 6, the jury, or the court if 8 there is no jury, shall return special verdicts as follows: 9 a. Which aggravating circumstances were established beyond a 10 reasonable doubt and were considered in reaching the verdict. 11 b. Which mitigating circumstances were established and 12 were considered in reaching the verdict returned on the issue 13 specified in subsection 6, paragraph “a” . 14 10. If the jury, or the court if there is no jury, 15 returns a unanimous affirmative finding on each of the issues 16 submitted under subsection 6, the court shall enter a judgment 17 of conviction and shall sentence the defendant to death as 18 provided in section 902.1A. 19 11. However, if evidence that the defendant was not a 20 major participant in the commission of the capital murder 21 under section 902.15, and that the defendant’s conduct did not 22 manifest a reckless indifference to human life is presented 23 to the jury, or to the court if there is no jury, the jury or 24 the court shall also return a special verdict on the issue. 25 If the jury unanimously determines, or the court if there is 26 no jury, determines that a preponderance of evidence exists 27 that shows that the defendant was not a major participant in 28 the commission of the capital murder under section 902.15, 29 and that the defendant’s conduct did not manifest a reckless 30 indifference to human life, the court shall enter a judgment 31 of conviction and shall sentence the defendant to life 32 imprisonment as provided in section 902.1, even if the jury or 33 the court returns unanimous affirmative findings on each of the 34 issues submitted under subsection 6. 35 -9- LSB 1839XS (5) 88 as/rh 9/ 17

S.F. 296 12. If the jury, or the court if there is no jury, returns 1 a negative finding on any of the issues submitted under 2 subsection 6, the court shall enter a judgment of conviction 3 and shall sentence the defendant to life imprisonment as 4 provided in section 902.1. 5 13. After a verdict has been rendered it shall be recorded 6 on the jury verdict form and shall be read and recorded in open 7 court. The jurors shall be collectively asked by the court 8 whether the verdict returned is their true and correct verdict. 9 Even though no juror makes any declaration to the contrary, the 10 jury shall, if either party so requests, be polled and each 11 juror shall be separately asked whether the verdict rendered by 12 the jury foreperson is the juror’s true and correct verdict. 13 If, upon either the collective or the separate inquiry, any 14 juror denies that the verdict is the juror’s verdict, the court 15 shall refuse to accept the verdict. The court may direct 16 inquiry or permit inquiry by counsel to ascertain whether any 17 juror has been subjected to coercion or has become confused 18 during the jury deliberation process. The court may, as 19 appropriate, direct the jury to resume deliberation in the 20 case. If no disagreement on the verdict is expressed by any of 21 the jurors, the court shall discharge the jury. 22 Sec. 7. Section 902.1, subsection 1, Code 2019, is amended 23 to read as follows: 24 1. Upon Except as provided in section 902.1A, a plea of 25 guilty, a verdict of guilty, or a special verdict upon which a 26 judgment of conviction of a class “A” felony may be rendered, 27 the court shall enter a judgment of conviction and shall commit 28 the defendant into the custody of the director of the Iowa 29 department of corrections for the rest of the defendant’s 30 life. Nothing in the Iowa corrections code pertaining to 31 deferred judgment, deferred sentence, suspended sentence, or 32 reconsideration of sentence applies to a class “A” felony, and 33 a person convicted of a class “A” felony shall not be released 34 on parole unless the governor commutes the sentence to a term 35 -10- LSB 1839XS (5) 88 as/rh 10/ 17

S.F. 296 of years. 1 Sec. 8. NEW SECTION . 902.1A Capital murder —— death 2 penalty. 3 1. For the purposes of this section, “lethal injection” 4 means a continuous intravenous injection of a lethal substance 5 sufficient to cause death. 6 2. Notwithstanding section 902.1, upon return of a plea 7 or verdict of guilty to capital murder under section 902.15, 8 and a return of a verdict in favor of a sentence of death in 9 a penalty proceeding conducted as provided in section 901E.1, 10 the court shall enter a judgment of conviction and shall commit 11 the defendant into the custody of the director of the Iowa 12 department of corrections. The sentence shall be carried out 13 by the administration of a lethal injection pursuant to rules 14 adopted by the board of corrections. If a defendant, for whom 15 a warrant of execution is issued, is pregnant, the execution 16 shall not take place until after the defendant is no longer 17 pregnant. If a defendant, for whom a warrant of execution is 18 issued, is suffering from such a diseased or deranged condition 19 of the mind as to prevent the defendant from knowing the nature 20 and quality of the act the defendant has been convicted of, 21 or from understanding that trial on the offense has taken 22 place and that execution proceedings are about to take place, 23 or to otherwise cause the defendant to lack the capacity 24 to understand the sentence which has been imposed and to 25 participate in any legal proceedings relating to the sentence, 26 the execution shall not take place until after the defendant’s 27 capacity is restored. If the director of the department of 28 corrections or the defendant’s counsel files a request with the 29 court which issued the warrant of execution, alleging that the 30 defendant suffers from such a diseased or deranged condition, a 31 hearing on the matter shall be held in the manner provided in 32 section 812A.1. 33 Sec. 9. NEW SECTION . 902.15 Capital murder. 34 1. As used in this section: 35 -11- LSB 1839XS (5) 88 as/rh 11/ 17

S.F. 296 a. “Capital murder” means any murder that makes a person 1 eligible for the death penalty. 2 b. “Eligible for the death penalty” means when a person 3 is convicted of the multiple offenses of murder in the first 4 degree in violation of section 707.2, kidnapping in violation 5 of section 710.2, 710.3, or 710.4, and sexual abuse in 6 violation of section 709.2, 709.3, or 709.4 with respect to the 7 same victim, and the victim is a minor. 8 c. “Intellectually disabled” means significant subaverage 9 general intellectual functioning accompanied by significant 10 deficits or impairments in adaptive functioning manifested in 11 the developmental period, but no later than the age of eighteen 12 years, and accompanied by deficits in adaptive behavior. 13 d. “Mentally ill” means the condition of a person who 14 is suffering from a chronic and persistent serious mental 15 disease or disorder and who, by reason of that condition, lacks 16 sufficient judgment to make responsible decisions regarding 17 treatment and is reasonably likely to injure the person’s self 18 or others who may come into contact with the person if the 19 person is allowed to remain at liberty without treatment. 20 2. A person who commits capital murder, who is eligible 21 for the death penalty, who is not intellectually disabled or 22 mentally ill, and who is age eighteen or older at the time of 23 the capital murder, shall be subject to a sentence of death 24 under section 902.1A. 25 Sec. 10. NEW SECTION . 902.16 Data collection for capital 26 murder —— death penalty. 27 1. The supreme court shall collect data on all capital 28 murder charges in which the death penalty is or was not waived, 29 which are filed and processed in the courts in this state. 30 This data may be used by the supreme court to determine whether 31 death sentences imposed are excessive or disproportionate, or 32 under the influence of prejudice under section 814.28. The 33 court shall make this data available to litigants in death 34 penalty cases. 35 -12- LSB 1839XS (5) 88 as/rh 12/ 17

S.F. 296 2. Data collected by public officials concerning factors 1 relevant to the imposition of the death sentence shall be made 2 publicly available. 3 Sec. 11. NEW SECTION . 903C.1 Executions —— refusal to 4 perform. 5 An employee of the state who may lawfully perform, assist, or 6 participate in the execution of a person pursuant to section 7 902.1A, and rules adopted by the department of corrections, 8 shall not be required to perform, assist, or participate in 9 the execution. State employees who refuse to perform, assist, 10 or participate in the execution of a person shall not be 11 discriminated against in any way, including but not limited 12 to employment, promotion, advancement, transfer, licensing, 13 education, training, or the granting of any privileges or 14 appointments because of the refusal to perform, assist, or 15 participate in the execution. 16 Sec. 12. Section 904.105, Code 2019, is amended by adding 17 the following new subsection: 18 NEW SUBSECTION . 9A. Adopt rules pursuant to chapter 17A 19 pertaining to executions of persons convicted of capital murder 20 under section 902.15. Rules adopted shall include but are not 21 limited to rules permitting the witnessing of executions by 22 members of the public and the victim’s family. Invitations 23 to witness an execution shall at least be extended to the 24 following representatives of the news media: 25 a. A representative from a wire service serving Iowa. 26 b. A representative from a broadcasting network serving 27 Iowa. 28 c. A representative from a television station located in 29 Iowa. 30 d. A representative from a radio station located in Iowa. 31 e. A representative from a daily newspaper published in 32 Iowa. 33 f. A representative from a weekly newspaper published in 34 Iowa. 35 -13- LSB 1839XS (5) 88 as/rh 13/ 17

S.F. 296 g. A representative from the news media from the community 1 in which the condemned person resided, if that community is 2 located in Iowa. 3 Sec. 13. IMPLEMENTATION OF ACT. Section 25B.2, subsection 4 3, shall not apply to this Act. 5 Sec. 14. SEVERABILITY. If any provision of this Act or the 6 application thereof to any person is invalid, the invalidity 7 shall not affect the provisions or application of this Act 8 which can be given effect without the invalid provisions or 9 application and to this end, the provisions of this Act are 10 severable. 11 Sec. 15. EFFECTIVE DATE. This Act takes effect January 1, 12 2020. 13 Sec. 16. APPLICABILITY. This Act applies to offenses 14 committed on or after the effective date of this Act. 15 EXPLANATION 16 The inclusion of this explanation does not constitute agreement with 17 the explanation’s substance by the members of the general assembly. 18 This bill amends the Iowa criminal code to provide for 19 punishment by death for capital murder committed by a person 20 age 18 or older if the trial jury, or the judge if there 21 is no jury, makes specific findings and whether the jury 22 believes the defendant should be put to death in a separate 23 penalty proceeding held after the close of the initial trial 24 proceeding. 25 Under the bill, a death penalty sentence could be imposed 26 if the person is convicted of the multiple offenses of murder 27 in the first degree, kidnapping in the first, second, or third 28 degree, and sexual abuse in the first, second, or third degree 29 with respect to the same victim, and the victim is a minor. 30 The bill provides that in order to receive a sentence of 31 death, the defendant must be at least 18 years of age at the 32 time the murder in the first degree was committed, must not be 33 mentally ill or intellectually disabled, and must have been a 34 major participant in the commission of the crime or must have 35 -14- LSB 1839XS (5) 88 as/rh 14/ 17

S.F. 296 shown a manifest indifference to human life. 1 If a person is indigent and is charged with capital murder, 2 payment of costs for two attorneys is authorized. The supreme 3 court is required to establish standards for the competency 4 of counsel in death penalty cases. The state public defender 5 is charged with establishing teams of qualified lead and 6 co-counsel for death penalty cases, as well as conducting 7 or sponsoring specialized training programs for attorneys 8 representing persons who may be executed. 9 If a capital murder case proceeds to trial and a notice of 10 intent to seek the death penalty has been filed, in addition to 11 any other defenses which may be presented to the charge, the 12 defendant may raise the issue of intellectual disability or 13 mental illness during the time of filing pretrial motions. 14 Once the evidence is submitted to the jury, the court 15 will instruct the jury, at the defendant’s request, that in 16 considering whether a sentence of death is justified, the 17 race, color, religious beliefs, national origin, sex, or other 18 protected classes under Code chapter 216 of the defendant or 19 of any victim is not to be considered. The supreme court 20 shall collect evidence relating to whether the death sentences 21 imposed are excessive, disproportionate, or imposed under the 22 influence of prejudice at trial which will be available to 23 litigants. 24 The sentence of death is imposed only when the trier of fact 25 (the jury or the court if the defendant has waived the right to 26 a jury trial) unanimously answers two questions affirmatively: 27 (1) whether aggravating circumstances established beyond 28 a reasonable doubt outweigh any mitigating circumstances 29 that may exist; and (2) whether the defendant should be 30 sentenced to death. Mitigating factors the trier of fact may 31 consider include the following: the defendant was under the 32 influence of an extreme mental or emotional disturbance; the 33 age of the defendant; the defendant’s ability to appreciate 34 the wrongfulness of the conduct due to mental disease but 35 -15- LSB 1839XS (5) 88 as/rh 15/ 17

S.F. 296 not to a degree to constitute a defense; the defendant has 1 no significant prior criminal history; the defendant was 2 under extreme duress; the defendant did not directly commit 3 the murder; and the defendant’s character or record or the 4 circumstances of the offense. The sentencing proceeding is 5 conducted separately from the finding of guilt or innocence by 6 the same trier of fact. 7 For the sentencing proceeding, the trier of fact (the jury 8 or the court if the defendant has waived the right to have 9 the jury hear the proceedings) is to weigh any aggravating 10 circumstances established beyond a reasonable doubt by the 11 state against any of the enumerated mitigating circumstances 12 which may be presented by the defendant. Evidence of certain 13 juvenile delinquency adjudications is not admissible in any 14 proceeding to determine the sentence. If the jury fails to 15 agree unanimously on the required affirmative findings, the 16 penalty imposed would be life imprisonment. 17 The death penalty sentence would be reviewed automatically 18 by the supreme court. The supreme court shall review the trial 19 and judgment separately from the sentencing proceeding. If the 20 supreme court finds error in the sentencing proceeding, the 21 supreme court may remand the case back to district court for a 22 new sentencing hearing. The bill requires the supreme court to 23 examine whether the sentence is excessive or disproportionate 24 to penalties in similar cases. If affirmed by the supreme 25 court, the penalty would be accomplished by lethal injection. 26 The bill requires the board of corrections to adopt rules 27 pertaining to executions, including rules pertaining to the 28 witnessing of executions. 29 A person who is sentenced to death, but who is pregnant when 30 the warrant of execution is issued, is not to be executed until 31 the person is no longer pregnant. A procedure is also provided 32 to stay execution of a condemned inmate who becomes insane 33 after conviction but before execution. 34 An employee of the state shall not be required to perform or 35 -16- LSB 1839XS (5) 88 as/rh 16/ 17

S.F. 296 assist in any execution and shall not be discriminated against 1 for refusing to participate. 2 The bill may include a state mandate as defined in Code 3 section 25B.3. The bill makes inapplicable Code section 25B.2, 4 subsection 3, which would relieve a political subdivision from 5 complying with a state mandate if funding for the cost of 6 the state mandate is not provided or specified. Therefore, 7 political subdivisions are required to comply with any state 8 mandate included in the bill. 9 The bill contains severability provisions and takes effect 10 January 1, 2020, and applies only to offenses committed on or 11 after that date. 12 -17- LSB 1839XS (5) 88 as/rh 17/ 17