Senate Study Bill 1004 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN) 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 1645XC (3) 89 as/rh

S.F. _____ Section 1. Section 13B.4, Code 2021, 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 the execution of an inmate 23 under section 902.1A, if the director of the department of 24 corrections or the counsel for a person who is under a sentence 25 of execution has cause to believe that the inmate is suffering 26 from a mental illness as to prevent the defendant from knowing 27 the nature and quality of the act the defendant has been 28 convicted of, or from understanding that trial on the offense 29 has taken place and that execution proceedings are about to 30 take place, or to otherwise cause the defendant to lack the 31 capacity to understand the sentence which has been imposed 32 and to participate in any legal proceedings relating to the 33 sentence, the director or counsel may file a request with the 34 court that issued the warrant for execution for a determination 35 -1- LSB 1645XC (3) 89 as/rh 1/ 17

S.F. _____ of the inmate’s sanity. If the court determines that there is 1 not sufficient reason to believe that the inmate is insane, the 2 court shall enter an order denying the request and shall state 3 the grounds for denying the request. If the court believes 4 that there is sufficient reason to believe that the inmate is 5 insane, the court shall suspend the execution and conduct a 6 hearing to determine the sanity of the inmate. 7 2. At the hearing, the court shall determine the issue of 8 the inmate’s sanity. Prior to the hearing, the court shall 9 appoint two licensed physicians or licensed psychologists, or 10 one licensed physician and one licensed psychologist, who are 11 qualified by training and practice, for purposes of conducting 12 a psychiatric or psychological examination of the inmate. The 13 physicians or psychologists shall examine the inmate and report 14 any findings in writing to the court within ten days after 15 the order of examination is issued. The inmate shall have 16 the right to present evidence and cross-examine any witnesses 17 at the hearing. Any statement made by the inmate during the 18 course of any examination provided for in this section, whether 19 or not the inmate consents to the examination, shall not be 20 admitted into evidence against the inmate in any criminal 21 proceeding for purposes other than a determination of the 22 inmate’s sanity. 23 3. If, at the conclusion of a hearing held pursuant to 24 this section, the court determines that the inmate is sane, 25 the court shall enter an order setting a date for the inmate’s 26 execution, which shall be carried into effect in the same 27 manner as provided in the original sentence. A copy of the 28 order shall be sent to the director of the department of 29 corrections and the governor. 30 4. If, at the conclusion of a hearing held pursuant to this 31 section, the court determines that the inmate is insane, the 32 court shall suspend the execution until further order. At any 33 time after issuance of the order, if the court has sufficient 34 reason to believe that the inmate has become sane, the court 35 -2- LSB 1645XC (3) 89 as/rh 2/ 17

S.F. _____ shall again determine the sanity of the inmate as provided 1 by this section. Proceedings pursuant to this section may 2 continue to be held at such times as the court orders until 3 it is either determined that the inmate is sane or incurably 4 insane. 5 Sec. 4. NEW SECTION . 814.30 Review of capital murder death 6 sentence. 7 1. In a case in which a sentence of death is imposed, the 8 supreme court shall automatically review the judgment and 9 sentence. The court’s review of the case shall be de novo. The 10 case shall not be transferred to the court of appeals. 11 2. A review by the supreme court of a judgment and sentence 12 imposing the punishment of death has priority over all other 13 criminal and other actions pending before the supreme court. 14 3. The supreme court shall review the trial and judgment, 15 and shall separately review the sentencing proceeding. Upon 16 determining that errors did not occur at the trial requiring 17 reversal or modification of the judgment, the supreme court 18 shall proceed to determine if the sentence of death is lawfully 19 imposed. In its review of the sentencing proceeding, the 20 supreme court shall determine all of the following: 21 a. Whether the sentence of death was imposed capriciously or 22 under the influence of prejudice or any other arbitrary factor. 23 b. Whether the special verdicts returned under section 24 901E.1 are supported by the evidence. 25 c. Whether the sentence of death is excessive or 26 disproportionate to the penalty imposed in similar cases, 27 considering both the crime and the defendant. 28 4. If the supreme court determines that the sentence of 29 death was not lawfully imposed, the supreme court shall set 30 aside the sentence and shall remand the case to the trial 31 court for a second sentencing proceeding to determine if the 32 imposition of death is warranted. 33 5. If the supreme court affirms the judgment and sentence 34 of death, the clerk of the supreme court shall certify the 35 -3- LSB 1645XC (3) 89 as/rh 3/ 17

S.F. _____ judgment of the supreme court under the seal of the supreme 1 court to the clerk of the trial court. 2 Sec. 5. Section 815.10, Code 2021, is amended by adding the 3 following new subsection: 4 NEW SUBSECTION . 1A. If two attorneys have not already been 5 appointed pursuant to subsection 1, the court shall appoint, 6 for each indigent person who is charged with capital murder 7 under section 902.15, and in which a notice of intent to 8 seek the death penalty has been filed, two attorneys who are 9 qualified under section 602.10112 to represent the person in 10 the proceedings and in all state legal proceedings which take 11 place from the time the person is indicted or arraigned until 12 the person is sentenced on the charge. In addition, if at 13 any point in federal postconviction proceedings an indigent 14 person is not afforded court-appointed counsel, the state shall 15 provide counsel to the person to present any claims determined 16 meritorious by the federal court if the person is not otherwise 17 represented by legal counsel. Only private attorneys and 18 public defenders who are qualified to provide representation in 19 cases in which the death penalty may be imposed are eligible 20 for appointment or assignment to a case in which the death 21 penalty may be imposed. 22 Sec. 6. NEW SECTION . 901E.1 Capital murder proceedings —— 23 request for death penalty —— penalty proceedings. 24 1. As used in this section: 25 a. “Intellectually disabled” means the same as defined in 26 section 902.15. 27 b. “Mentally ill” or “mental illness” means the same as 28 defined in section 902.15. 29 2. If a notice of intent to seek the death penalty has 30 been filed, objections to the imposition of the death penalty 31 based upon allegations that a defendant was intellectually 32 disabled or mentally ill at the time of the commission of 33 the offense shall be raised within the time provided for the 34 filing of pretrial motions under rule of criminal procedure 35 -4- LSB 1645XC (3) 89 as/rh 4/ 17

S.F. _____ 2.11, Iowa court rules. The court may, for good cause shown, 1 allow late filing of the motion. Hearing on the motion shall 2 be held prior to trial and the burden of proof shall be on the 3 defendant to prove intellectual disability or mental illness 4 by a preponderance of the evidence. If the court finds that 5 the defendant is intellectually disabled, the defendant, if 6 convicted of capital murder under section 902.15, shall not be 7 sentenced to death but shall be sentenced to life imprisonment 8 in the manner provided in section 902.1. A finding by the 9 court that the evidence presented by the defendant at the 10 hearing does not preclude the imposition of the death penalty 11 under this section and section 902.15 shall not preclude the 12 introduction of evidence of intellectual disability or mental 13 illness during the penalty proceeding. If the court finds 14 that evidence of intellectual disability or mental illness 15 does not preclude imposition of the death penalty, evidence of 16 intellectual disability or mental illness may be reviewed by 17 the jury in the penalty proceeding and the jury shall not be 18 informed of the finding in the initial proceeding at any time 19 during the penalty proceeding. 20 3. If at the trial on a charge of capital murder under 21 section 902.15, the state intends to request that the death 22 penalty be imposed under section 902.1A, the prosecutor shall 23 file a notice of intent to seek the death penalty, at the time 24 of and as part of the information or indictment filed in the 25 case. 26 4. If a notice of intent to seek the death penalty has been 27 filed, the trial shall be conducted in bifurcated proceedings 28 before the same trier of fact. During the initial proceeding, 29 the jury, or the court if the defendant waives the right to a 30 jury trial, shall decide only whether the defendant is guilty 31 or not guilty of capital murder under section 902.15. 32 a. If, in the initial proceeding, the court or jury finds 33 the defendant guilty of, or the defendant pleads guilty to, 34 an offense other than capital murder under section 902.15, 35 -5- LSB 1645XC (3) 89 as/rh 5/ 17

S.F. _____ the court shall sentence the defendant in accordance with the 1 sentencing procedures set forth in rule of criminal procedure 2 2.23, Iowa court rules, and chapters 901 through 909, which are 3 applicable to the offense. 4 b. If the court or jury finds the defendant guilty of, or 5 the defendant pleads guilty to, capital murder under section 6 902.15, but the prosecuting attorney waives the death penalty, 7 the court shall sentence the defendant to life imprisonment in 8 accordance with the sentencing procedures set forth in rule of 9 criminal procedure 2.23, Iowa court rules, and chapters 901 10 through 909, which are otherwise applicable to convictions of 11 murder in the first degree. 12 c. If the court or jury finds the defendant guilty of 13 capital murder under section 902.15, or a defendant enters a 14 plea of guilty in the initial proceeding, and the prosecuting 15 attorney does not waive imposition of the death penalty, a 16 penalty proceeding shall be held in the manner provided in 17 subsections 5 through 13. 18 5. No sooner than twenty-four hours after a verdict of 19 guilty or a plea of guilty to capital murder under section 20 902.15 is returned in the initial proceeding, a penalty 21 proceeding shall be held to determine whether the defendant 22 shall be sentenced to death or to life imprisonment. The 23 proceeding shall be conducted in the trial court before the 24 trial jury, or before the court if the defendant has waived 25 the right to a jury trial or has waived the right for the 26 proceeding to be before the trial jury. Both the state and the 27 defendant shall have the right to present opening statements 28 at the commencement of the proceeding. In the proceeding, 29 evidence relevant to the existence of any aggravating or 30 mitigating circumstances may be presented as follows: 31 a. The state or the defendant may present evidence relevant 32 to the conviction of capital murder under section 902.15 and 33 any aggravating circumstances other than juvenile delinquency 34 adjudications for offenses which carry penalties equivalent to 35 -6- LSB 1645XC (3) 89 as/rh 6/ 17

S.F. _____ the penalties imposed for simple or serious misdemeanors. The 1 state may introduce evidence of the actual harm caused by the 2 commission of the capital murder offense under section 902.15, 3 including but not limited to evidence relating to the life of 4 the victim and the impact of the loss of the victim to the 5 victim’s family and society. 6 b. The defendant may present evidence that the defendant 7 was intellectually disabled or mentally ill at the time of the 8 commission of the offense. The burden of proof shall be on the 9 defendant to prove intellectual disability or mental illness by 10 a preponderance of the evidence. 11 c. The state or the defendant may present evidence relevant 12 to any mitigating circumstances which may exist. Mitigating 13 circumstances may include the following circumstances: 14 (1) The defendant was under the influence of a mental 15 illness insufficient to constitute a defense. 16 (2) The age of the defendant at the time of the offense. 17 (3) The defendant’s capacity to appreciate the wrongfulness 18 of the defendant’s conduct and to conform that conduct to the 19 requirements of law was significantly impaired as a result of a 20 mental illness or intellectual disability, but not to a degree 21 sufficient to constitute a defense. 22 (4) The defendant has no significant history of prior adult 23 criminal activity. 24 (5) The defendant acted under extreme duress or under the 25 substantial domination of another person. 26 (6) The defendant did not directly commit the capital murder 27 offense and the defendant did not intend to kill or anticipate 28 that lethal force would be used. 29 (7) Any other factor which is relevant to the defendant’s 30 character or record or to the circumstances of the offense. 31 d. The state and the defendant or the defendant’s counsel 32 shall be permitted to present and cross-examine witnesses and 33 present arguments for or against a sentence of death. Evidence 34 regarding aggravating and mitigating circumstances shall not 35 -7- LSB 1645XC (3) 89 as/rh 7/ 17

S.F. _____ be governed by the rules governing admissibility of evidence, 1 except that introduction of evidence secured in violation of 2 the Constitution of the United States or of the Constitution of 3 the State of Iowa shall not be permitted. 4 6. At the conclusion of presentation of evidence in 5 the penalty proceeding, the state and the defendant or the 6 defendant’s counsel shall be permitted to make closing 7 arguments, including any rebuttal arguments, in the same manner 8 as in the initial proceeding, and the following issues shall be 9 determined by the jury or by the court if there is no jury: 10 a. Whether the aggravating circumstance or circumstances 11 have been established beyond a reasonable doubt and outweigh 12 any one or more mitigating circumstances. 13 b. Whether the defendant shall be sentenced to death. 14 7. A recommendation for a sentence of death shall not be 15 permitted if the recommendation is based on the race, color, 16 religious beliefs, national origin, or sex of the defendant 17 or of any victim, or based on any other protected class under 18 chapter 216. After submission of the issues, but prior to the 19 return of a finding in the penalty proceeding, if the matter 20 is tried before a jury, the court shall instruct the jury 21 that in considering whether a sentence of death is justified, 22 the jury shall not consider race, color, religious beliefs, 23 national origin, or sex of the defendant or of any victim, or 24 consider any other protected class under chapter 216. The 25 court shall further instruct the jury that the jury shall not 26 return a sentence of death unless the jury concludes that such 27 a sentence would be recommended no matter what the race, color, 28 religious beliefs, national origin, sex, or other protected 29 class of the defendant or of any victim may be. 30 8. After submission of the issues, but prior to the 31 commencement of the jury deliberations in the penalty 32 proceeding, the court shall instruct the jury that if the 33 defendant is not sentenced to death, the court is required by 34 law to impose a sentence of imprisonment until death without 35 -8- LSB 1645XC (3) 89 as/rh 8/ 17

S.F. _____ parole. The court shall further instruct the jury that 1 the sentence of imprisonment until death without parole is 2 required by law if the jury fails to reach a unanimous verdict 3 recommending a sentence of death. 4 9. Concurrently with the return of the findings on the 5 issues submitted under subsection 6, the jury, or the court if 6 there is no jury, shall return special verdicts as follows: 7 a. Which aggravating circumstances were established beyond a 8 reasonable doubt and were considered in reaching the verdict. 9 b. Which mitigating circumstances were established and 10 were considered in reaching the verdict returned on the issue 11 specified in subsection 6, paragraph “a” . 12 10. If the jury, or the court if there is no jury, 13 returns a unanimous affirmative finding on each of the issues 14 submitted under subsection 6, the court shall enter a judgment 15 of conviction and shall sentence the defendant to death as 16 provided in section 902.1A. 17 11. However, if evidence that the defendant was not a 18 major participant in the commission of the capital murder 19 under section 902.15, and that the defendant’s conduct did not 20 manifest a reckless indifference to human life is presented 21 to the jury, or to the court if there is no jury, the jury or 22 the court shall also return a special verdict on the issue. 23 If the jury unanimously determines, or the court if there is 24 no jury, determines that a preponderance of evidence exists 25 that shows that the defendant was not a major participant in 26 the commission of the capital murder under section 902.15, 27 and that the defendant’s conduct did not manifest a reckless 28 indifference to human life, the court shall enter a judgment 29 of conviction and shall sentence the defendant to life 30 imprisonment as provided in section 902.1, even if the jury or 31 the court returns unanimous affirmative findings on each of the 32 issues submitted under subsection 6. 33 12. If the jury, or the court if there is no jury, returns 34 a negative finding on any of the issues submitted under 35 -9- LSB 1645XC (3) 89 as/rh 9/ 17

S.F. _____ subsection 6, the court shall enter a judgment of conviction 1 and shall sentence the defendant to life imprisonment as 2 provided in section 902.1. 3 13. After a verdict has been rendered, it shall be recorded 4 on the jury verdict form and shall be read and recorded in open 5 court. The jurors shall be collectively asked by the court 6 whether the verdict returned is their true and correct verdict. 7 Even though no juror makes any declaration to the contrary, the 8 jury shall, if either party so requests, be polled and each 9 juror shall be separately asked whether the verdict rendered by 10 the jury foreperson is the juror’s true and correct verdict. 11 If, upon either the collective or the separate inquiry, any 12 juror denies that the verdict is the juror’s verdict, the court 13 shall refuse to accept the verdict. The court may direct 14 inquiry or permit inquiry by counsel to ascertain whether any 15 juror has been subjected to coercion or has become confused 16 during the jury deliberation process. The court may, as 17 appropriate, direct the jury to resume deliberation in the 18 case. If no disagreement on the verdict is expressed by any of 19 the jurors, the court shall discharge the jury. 20 Sec. 7. Section 902.1, subsection 1, Code 2021, is amended 21 to read as follows: 22 1. Upon Except as provided in section 902.1A, a plea of 23 guilty, a verdict of guilty, or a special verdict upon which a 24 judgment of conviction of a class “A” felony may be rendered, 25 the court shall enter a judgment of conviction and shall commit 26 the defendant into the custody of the director of the Iowa 27 department of corrections for the rest of the defendant’s 28 life. Nothing in the Iowa corrections code pertaining to 29 deferred judgment, deferred sentence, suspended sentence, or 30 reconsideration of sentence applies to a class “A” felony, and 31 a person convicted of a class “A” felony shall not be released 32 on parole unless the governor commutes the sentence to a term 33 of years. 34 Sec. 8. NEW SECTION . 902.1A Capital murder —— death 35 -10- LSB 1645XC (3) 89 as/rh 10/ 17

S.F. _____ penalty. 1 1. For the purposes of this section, “lethal injection” 2 means a continuous intravenous injection of a lethal substance 3 sufficient to cause death. 4 2. Notwithstanding section 902.1, upon return of a plea 5 or verdict of guilty to capital murder under section 902.15, 6 and a return of a verdict in favor of a sentence of death in 7 a penalty proceeding conducted as provided in section 901E.1, 8 the court shall enter a judgment of conviction and shall commit 9 the defendant into the custody of the director of the Iowa 10 department of corrections. The sentence shall be carried out 11 by the administration of a lethal injection pursuant to rules 12 adopted by the board of corrections. If a defendant, for whom 13 a warrant of execution is issued, is pregnant, the execution 14 shall not take place until after the defendant is no longer 15 pregnant. If a defendant, for whom a warrant of execution 16 is issued, is suffering from a mental illness as to prevent 17 the defendant from knowing the nature and quality of the act 18 the defendant has been convicted of, or from understanding 19 that trial on the offense has taken place and that execution 20 proceedings are about to take place, or to otherwise cause the 21 defendant to lack the capacity to understand the sentence which 22 has been imposed and to participate in any legal proceedings 23 relating to the sentence, the execution shall not take place 24 until after the defendant’s capacity is restored. If the 25 director of the department of corrections or the defendant’s 26 counsel files a request with the court which issued the warrant 27 of execution alleging that the defendant suffers from a mental 28 illness, a hearing on the matter shall be held in the manner 29 provided in section 812A.1. 30 Sec. 9. NEW SECTION . 902.15 Capital murder. 31 1. As used in this section: 32 a. “Capital murder” means any murder that makes a person 33 eligible for the death penalty. 34 b. “Eligible for the death penalty” means when a person 35 -11- LSB 1645XC (3) 89 as/rh 11/ 17

S.F. _____ is convicted of the multiple offenses of murder in the first 1 degree in violation of section 707.2, kidnapping in violation 2 of section 710.2, 710.3, or 710.4, and sexual abuse in 3 violation of section 709.2, 709.3, or 709.4 with respect to the 4 same victim, and the victim is a minor. 5 c. “Intellectually disabled” means significant subaverage 6 general intellectual functioning accompanied by significant 7 deficits or impairments in adaptive functioning manifested in 8 the developmental period, but no later than the age of eighteen 9 years, and accompanied by deficits in adaptive behavior. 10 d. “Mentally ill” or “mental illness” means the condition 11 of a person who is suffering from a chronic and persistent 12 serious mental disease or disorder and who, by reason of that 13 condition, lacks sufficient judgment to make responsible 14 decisions regarding treatment and is reasonably likely to 15 injure the person’s self or others who may come into contact 16 with the person if the person is allowed to remain at liberty 17 without treatment. 18 e. “Minor” means a person under eighteen years of age. 19 2. A person who commits capital murder, who is eligible 20 for the death penalty, who is not intellectually disabled or 21 mentally ill, and who is age eighteen or older at the time of 22 the capital murder, shall be subject to a sentence of death 23 under section 902.1A. 24 Sec. 10. NEW SECTION . 902.16 Data collection for capital 25 murder —— death penalty. 26 1. The supreme court shall collect data on all capital 27 murder charges in which the death penalty is or was not waived 28 which are filed and processed in the courts in this state. 29 This data may be used by the supreme court to determine whether 30 death sentences imposed are excessive or disproportionate, or 31 under the influence of prejudice under section 814.28. The 32 court shall make this data available to litigants in death 33 penalty cases. 34 2. Data collected by public officials concerning factors 35 -12- LSB 1645XC (3) 89 as/rh 12/ 17

S.F. _____ relevant to the imposition of the death sentence shall be made 1 publicly available. 2 Sec. 11. NEW SECTION . 903C.1 Executions —— refusal to 3 perform. 4 An employee of the state who may lawfully perform, assist, or 5 participate in the execution of a person pursuant to section 6 902.1A, and rules adopted by the department of corrections, 7 shall not be required to perform, assist, or participate in 8 the execution. State employees who refuse to perform, assist, 9 or participate in the execution of a person shall not be 10 discriminated against in any way, including but not limited 11 to employment, promotion, advancement, transfer, licensing, 12 education, training, or the granting of any privileges or 13 appointments because of the refusal to perform, assist, or 14 participate in the execution. 15 Sec. 12. Section 904.105, Code 2021, is amended by adding 16 the following new subsection: 17 NEW SUBSECTION . 9A. Adopt rules pursuant to chapter 17A 18 pertaining to executions of persons convicted of capital murder 19 under section 902.15. Rules adopted shall include but are not 20 limited to rules permitting the witnessing of executions by 21 members of the public and the victim’s family. Invitations 22 to witness an execution shall at least be extended to the 23 following representatives of the news media: 24 a. A representative from a wire service serving Iowa. 25 b. A representative from a broadcasting network serving 26 Iowa. 27 c. A representative from a television station located in 28 Iowa. 29 d. A representative from a radio station located in Iowa. 30 e. A representative from a daily newspaper published in 31 Iowa. 32 f. A representative from a weekly newspaper published in 33 Iowa. 34 g. A representative from the news media from the community 35 -13- LSB 1645XC (3) 89 as/rh 13/ 17

S.F. _____ in which the condemned person resided, if that community is 1 located in Iowa. 2 Sec. 13. IMPLEMENTATION OF ACT. Section 25B.2, subsection 3 3, shall not apply to this Act. 4 Sec. 14. SEVERABILITY. If any provision of this Act or the 5 application thereof to any person is invalid, the invalidity 6 shall not affect the provisions or application of this Act 7 which can be given effect without the invalid provisions or 8 application and to this end, the provisions of this Act are 9 severable. 10 Sec. 15. EFFECTIVE DATE. This Act takes effect January 1, 11 2022. 12 Sec. 16. APPLICABILITY. This Act applies to offenses 13 committed on or after the effective date of this Act. 14 EXPLANATION 15 The inclusion of this explanation does not constitute agreement with 16 the explanation’s substance by the members of the general assembly. 17 This bill amends the Iowa criminal code to provide for 18 punishment by death for capital murder committed by a person 19 age 18 or older if the trial jury, or the judge if there 20 is no jury, makes specific findings and whether the jury 21 believes the defendant should be put to death in a separate 22 penalty proceeding held after the close of the initial trial 23 proceeding. 24 Under the bill, a death penalty sentence could be imposed 25 if the person is convicted of the multiple offenses of murder 26 in the first degree, kidnapping in the first, second, or third 27 degree, and sexual abuse in the first, second, or third degree 28 with respect to the same victim, and the victim is a minor. 29 The bill provides that in order to receive a sentence of 30 death, the defendant must be at least 18 years of age at the 31 time the murder in the first degree was committed, must not be 32 mentally ill or intellectually disabled, and must have been a 33 major participant in the commission of the crime or must have 34 shown a manifest indifference to human life. 35 -14- LSB 1645XC (3) 89 as/rh 14/ 17

S.F. _____ If a person is indigent and is charged with capital murder, 1 payment of costs for two attorneys is authorized. The supreme 2 court is required to establish standards for the competency 3 of counsel in death penalty cases. The state public defender 4 is charged with establishing teams of qualified lead and 5 co-counsel for death penalty cases, as well as conducting 6 or sponsoring specialized training programs for attorneys 7 representing persons who may be executed. 8 If a capital murder case proceeds to trial and a notice of 9 intent to seek the death penalty has been filed, in addition to 10 any other defenses which may be presented to the charge, the 11 defendant may raise the issue of intellectual disability or 12 mental illness during the time of filing pretrial motions. 13 Once the evidence is submitted to the jury, the court 14 will instruct the jury, at the defendant’s request, that in 15 considering whether a sentence of death is justified, the 16 race, color, religious beliefs, national origin, sex, or other 17 protected classes under Code chapter 216 of the defendant or 18 of any victim is not to be considered. The supreme court 19 shall collect evidence relating to whether the death sentences 20 imposed are excessive, disproportionate, or imposed under the 21 influence of prejudice at trial which will be available to 22 litigants. 23 The sentence of death is imposed only when the trier of fact 24 (the jury or the court if the defendant has waived the right to 25 a jury trial) unanimously answers two questions affirmatively: 26 (1) whether aggravating circumstances established beyond a 27 reasonable doubt outweigh any mitigating circumstances that 28 may exist; and (2) whether the defendant should be sentenced 29 to death. Mitigating factors the trier of fact may consider 30 include the following: whether the defendant was under the 31 influence of a mental illness; the age of the defendant; 32 the defendant’s ability to appreciate the wrongfulness of 33 the conduct due to a mental illness but not to a degree to 34 constitute a defense; the defendant has no significant prior 35 -15- LSB 1645XC (3) 89 as/rh 15/ 17

S.F. _____ criminal history; the defendant was under extreme duress; 1 the defendant did not directly commit the murder; and the 2 defendant’s character or record or the circumstances of the 3 offense. The sentencing proceeding is conducted separately 4 from the finding of guilt or innocence by the same trier of 5 fact. 6 For the sentencing proceeding, the trier of fact (the jury 7 or the court if the defendant has waived the right to have 8 the jury hear the proceedings) is to weigh any aggravating 9 circumstances established beyond a reasonable doubt by the 10 state against any of the enumerated mitigating circumstances 11 which may be presented by the defendant. Evidence of certain 12 juvenile delinquency adjudications is not admissible in any 13 proceeding to determine the sentence. If the jury fails to 14 agree unanimously on the required affirmative findings, the 15 penalty imposed would be life imprisonment. 16 The death penalty sentence would be reviewed automatically 17 by the supreme court. The supreme court shall review the trial 18 and judgment separately from the sentencing proceeding. If the 19 supreme court finds error in the sentencing proceeding, the 20 supreme court may remand the case back to district court for a 21 new sentencing hearing. The bill requires the supreme court to 22 examine whether the sentence is excessive or disproportionate 23 to penalties in similar cases. If affirmed by the supreme 24 court, the penalty would be accomplished by lethal injection. 25 The bill requires the board of corrections to adopt rules 26 pertaining to executions, including rules pertaining to the 27 witnessing of executions. 28 A person who is sentenced to death, but who is pregnant when 29 the warrant of execution is issued, is not to be executed until 30 the person is no longer pregnant. A procedure is also provided 31 to stay execution of a condemned inmate who becomes insane 32 after conviction but before execution. 33 An employee of the state shall not be required to perform or 34 assist in any execution and shall not be discriminated against 35 -16- LSB 1645XC (3) 89 as/rh 16/ 17

S.F. _____ for refusing to participate. 1 The bill may include a state mandate as defined in Code 2 section 25B.3. The bill makes inapplicable Code section 25B.2, 3 subsection 3, which would relieve a political subdivision from 4 complying with a state mandate if funding for the cost of 5 the state mandate is not provided or specified. Therefore, 6 political subdivisions are required to comply with any state 7 mandate included in the bill. 8 The bill contains severability provisions and takes effect 9 January 1, 2022, and applies only to offenses committed on or 10 after that date. 11 -17- LSB 1645XC (3) 89 as/rh 17/ 17