Senate File 357 - Introduced SENATE FILE 357 BY COMMITTEE ON JUDICIARY (SUCCESSOR TO SF 14) 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 3 the same victim who is a minor, providing penalties, and 4 including effective date and applicability provisions. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 6 TLSB 1306SV (1) 90 as/rh
S.F. 357 Section 1. Section 13B.4, Code 2023, 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 1306SV (1) 90 as/rh 1/ 17
S.F. 357 of the inmates sanity. If the court determines that there is 1 not sufficient reason to believe that the inmate is mentally 2 ill, the court shall enter an order denying the request and 3 shall state the grounds for denying the request. If the court 4 believes that there is sufficient reason to believe that the 5 inmate is mentally ill, the court shall suspend the execution 6 and conduct a hearing to determine the sanity of the inmate. 7 2. At the hearing, the court shall determine the issue of 8 the inmates 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 inmates sanity. 23 3. If, at the conclusion of a hearing held pursuant to this 24 section, the court determines that the inmate is in good mental 25 health, the court shall enter an order setting a date for the 26 inmates execution, which shall be carried into effect in the 27 same manner as provided in the original sentence. A copy of 28 the 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 mentally ill, 32 the court shall suspend the execution until further order. 33 At any time after issuance of the order, if the court has 34 sufficient reason to believe that the inmate is in good mental 35 -2- LSB 1306SV (1) 90 as/rh 2/ 17
S.F. 357 health, the court shall again determine the sanity of the 1 inmate as provided by this section. 2 Sec. 4. NEW SECTION . 814.30 Review of capital murder death 3 sentence. 4 1. In a case in which a sentence of death is imposed, the 5 supreme court shall automatically review the judgment and 6 sentence. The courts review of the case shall be de novo. The 7 case shall not be transferred to the court of appeals. 8 2. A review by the supreme court of a judgment and sentence 9 imposing the punishment of death has priority over all other 10 criminal and other actions pending before the supreme court. 11 3. The supreme court shall review the trial and judgment, 12 and shall separately review the sentencing proceeding. Upon 13 determining that errors did not occur at the trial requiring 14 reversal or modification of the judgment, the supreme court 15 shall proceed to determine if the sentence of death is lawfully 16 imposed. In its review of the sentencing proceeding, the 17 supreme court shall determine all of the following: 18 a. Whether the sentence of death was imposed capriciously or 19 under the influence of prejudice or any other arbitrary factor. 20 b. Whether the special verdicts returned under section 21 901E.1 are supported by the evidence. 22 c. Whether the sentence of death is excessive or 23 disproportionate to the penalty imposed in similar cases, 24 considering both the crime and the defendant. 25 4. If the supreme court determines that the sentence of 26 death was not lawfully imposed, the supreme court shall set 27 aside the sentence and shall remand the case to the trial 28 court for a second sentencing proceeding to determine if the 29 imposition of death is warranted. 30 5. If the supreme court affirms the judgment and sentence 31 of death, the clerk of the supreme court shall certify the 32 judgment of the supreme court under the seal of the supreme 33 court to the clerk of the trial court. 34 Sec. 5. Section 815.10, Code 2023, is amended by adding the 35 -3- LSB 1306SV (1) 90 as/rh 3/ 17
S.F. 357 following new subsection: 1 NEW SUBSECTION . 1A. If two attorneys have not already been 2 appointed pursuant to subsection 1, the court shall appoint, 3 for each indigent person who is charged with capital murder 4 under section 902.15, and in which a notice of intent to 5 seek the death penalty has been filed, two attorneys who are 6 qualified under section 602.10112 to represent the person in 7 the proceedings and in all state legal proceedings which take 8 place from the time the person is indicted or arraigned until 9 the person is sentenced on the charge. In addition, if at 10 any point in federal postconviction proceedings an indigent 11 person is not afforded court-appointed counsel, the state shall 12 provide counsel to the person to present any claims determined 13 meritorious by the federal court if the person is not otherwise 14 represented by legal counsel. Only private attorneys and 15 public defenders who are qualified to provide representation in 16 cases in which the death penalty may be imposed are eligible 17 for appointment or assignment to a case in which the death 18 penalty may be imposed. 19 Sec. 6. NEW SECTION . 901E.1 Capital murder proceedings 20 request for death penalty penalty proceedings. 21 1. As used in this section: 22 a. Intellectually disabled means the same as defined in 23 section 902.15. 24 b. Mentally ill or mental illness means the same as 25 defined in section 902.15. 26 2. If a notice of intent to seek the death penalty has been 27 filed, objections to the imposition of the death penalty based 28 upon allegations that a defendant was intellectually disabled 29 or mentally ill at the time of the commission of the offense 30 shall be raised within the time provided for the filing of 31 pretrial motions under rule of criminal procedure 2.11. The 32 court may, for good cause shown, allow late filing of the 33 motion. Hearing on the motion shall be held prior to trial 34 and the burden of proof shall be on the defendant to prove 35 -4- LSB 1306SV (1) 90 as/rh 4/ 17
S.F. 357 intellectual disability or mental illness by a preponderance 1 of the evidence. If the court finds that the defendant is 2 intellectually disabled, the defendant, if convicted of capital 3 murder under section 902.15, shall not be sentenced to death 4 but shall be sentenced to life imprisonment in the manner 5 provided in section 902.1. A finding by the court that the 6 evidence presented by the defendant at the hearing does not 7 preclude the imposition of the death penalty under this section 8 and section 902.15 shall not preclude the introduction of 9 evidence of intellectual disability or mental illness during 10 the penalty proceeding. If the court finds that evidence of 11 intellectual disability or mental illness does not preclude 12 imposition of the death penalty, evidence of intellectual 13 disability or mental illness may be reviewed by the jury in 14 the penalty proceeding and the jury shall not be informed of 15 the finding in the initial proceeding at any time during the 16 penalty proceeding. 17 3. If at the trial on a charge of capital murder under 18 section 902.15, the state intends to request that the death 19 penalty be imposed under section 902.1A, the prosecutor shall 20 file a notice of intent to seek the death penalty, at the time 21 of and as part of the information or indictment filed in the 22 case. 23 4. If a notice of intent to seek the death penalty has been 24 filed, the trial shall be conducted in bifurcated proceedings 25 before the same trier of fact. During the initial proceeding, 26 the jury, or the court if the defendant waives the right to a 27 jury trial, shall decide only whether the defendant is guilty 28 or not guilty of capital murder under section 902.15. 29 a. If, in the initial proceeding, the court or jury finds 30 the defendant guilty of, or the defendant pleads guilty to, 31 an offense other than capital murder under section 902.15, 32 the court shall sentence the defendant in accordance with the 33 sentencing procedures set forth in rule of criminal procedure 34 2.23, Iowa court rules, and chapters 901 through 909, which are 35 -5- LSB 1306SV (1) 90 as/rh 5/ 17
S.F. 357 applicable to the offense. 1 b. If the court or jury finds the defendant guilty of, or 2 the defendant pleads guilty to, capital murder under section 3 902.15, but the prosecuting attorney waives the death penalty, 4 the court shall sentence the defendant to life imprisonment in 5 accordance with the sentencing procedures set forth in rule of 6 criminal procedure 2.23, and chapters 901 through 909, which 7 are otherwise applicable to convictions of murder in the first 8 degree. 9 c. If the court or jury finds the defendant guilty of 10 capital murder under section 902.15, or a defendant enters a 11 plea of guilty in the initial proceeding, and the prosecuting 12 attorney does not waive imposition of the death penalty, a 13 penalty proceeding shall be held in the manner provided in 14 subsections 5 through 13. 15 5. No sooner than twenty-four hours after a verdict of 16 guilty or a plea of guilty to capital murder under section 17 902.15 is returned in the initial proceeding, a penalty 18 proceeding shall be held to determine whether the defendant 19 shall be sentenced to death or to life imprisonment. The 20 proceeding shall be conducted in the trial court before the 21 trial jury, or before the court if the defendant has waived 22 the right to a jury trial or has waived the right for the 23 proceeding to be before the trial jury. Both the state and the 24 defendant shall have the right to present opening statements 25 at the commencement of the proceeding. In the proceeding, 26 evidence relevant to the existence of any aggravating or 27 mitigating circumstances may be presented as follows: 28 a. The state or the defendant may present evidence relevant 29 to the conviction of capital murder under section 902.15 and 30 any aggravating circumstances other than juvenile delinquency 31 adjudications for offenses which carry penalties equivalent to 32 the penalties imposed for simple or serious misdemeanors. The 33 state may introduce evidence of the actual harm caused by the 34 commission of the capital murder offense under section 902.15, 35 -6- LSB 1306SV (1) 90 as/rh 6/ 17
S.F. 357 including but not limited to evidence relating to the life of 1 the victim and the impact of the loss of the victim to the 2 victims family and society. 3 b. The defendant may present evidence that the defendant 4 was intellectually disabled or mentally ill at the time of the 5 commission of the offense. The burden of proof shall be on the 6 defendant to prove intellectual disability or mental illness by 7 a preponderance of the evidence. 8 c. The state or the defendant may present evidence relevant 9 to any mitigating circumstances which may exist. Mitigating 10 circumstances may include the following circumstances: 11 (1) The defendant was under the influence of a mental 12 illness insufficient to constitute a defense. 13 (2) The age of the defendant at the time of the offense. 14 (3) The defendants capacity to appreciate the wrongfulness 15 of the defendants conduct and to conform that conduct to the 16 requirements of law was significantly impaired as a result of a 17 mental illness or intellectual disability, but not to a degree 18 sufficient to constitute a defense. 19 (4) The defendant has no significant history of prior adult 20 criminal activity. 21 (5) The defendant acted under extreme duress or under the 22 substantial domination of another person. 23 (6) The defendant did not directly commit the capital murder 24 offense and the defendant did not intend to kill or anticipate 25 that lethal force would be used. 26 (7) Any other factor which is relevant to the defendants 27 character or record or to the circumstances of the offense. 28 d. The state and the defendant or the defendants counsel 29 shall be permitted to present and cross-examine witnesses and 30 present arguments for or against a sentence of death. Evidence 31 regarding aggravating and mitigating circumstances shall not 32 be governed by the rules governing admissibility of evidence, 33 except that introduction of evidence secured in violation of 34 the Constitution of the United States or of the Constitution of 35 -7- LSB 1306SV (1) 90 as/rh 7/ 17
S.F. 357 the State of Iowa shall not be permitted. 1 6. At the conclusion of presentation of evidence in 2 the penalty proceeding, the state and the defendant or the 3 defendants counsel shall be permitted to make closing 4 arguments, including any rebuttal arguments, in the same manner 5 as in the initial proceeding, and the following issues shall be 6 determined by the jury or by the court if there is no jury: 7 a. Whether the aggravating circumstance or circumstances 8 have been established beyond a reasonable doubt and outweigh 9 any one or more mitigating circumstances. 10 b. Whether the defendant shall be sentenced to death. 11 7. A recommendation for a sentence of death shall not be 12 permitted if the recommendation is based on the race, color, 13 religious beliefs, national origin, or sex of the defendant 14 or of any victim, or based on any other protected class under 15 chapter 216. After submission of the issues, but prior to the 16 return of a finding in the penalty proceeding, if the matter 17 is tried before a jury, the court shall instruct the jury 18 that in considering whether a sentence of death is justified, 19 the jury shall not consider race, color, religious beliefs, 20 national origin, or sex of the defendant or of any victim, or 21 consider any other protected class under chapter 216. The 22 court shall further instruct the jury that the jury shall not 23 return a sentence of death unless the jury concludes that such 24 a sentence would be recommended no matter what the race, color, 25 religious beliefs, national origin, sex, or other protected 26 class of the defendant or of any victim may be. 27 8. After submission of the issues, but prior to the 28 commencement of the jury deliberations in the penalty 29 proceeding, the court shall instruct the jury that if the 30 defendant is not sentenced to death, the court is required by 31 law to impose a sentence of imprisonment until death without 32 parole. The court shall further instruct the jury that 33 the sentence of imprisonment until death without parole is 34 required by law if the jury fails to reach a unanimous verdict 35 -8- LSB 1306SV (1) 90 as/rh 8/ 17
S.F. 357 recommending a sentence of death. 1 9. Concurrently with the return of the findings on the 2 issues submitted under subsection 6, the jury, or the court if 3 there is no jury, shall return special verdicts as follows: 4 a. Which aggravating circumstances were established beyond a 5 reasonable doubt and were considered in reaching the verdict. 6 b. Which mitigating circumstances were established and 7 were considered in reaching the verdict returned on the issue 8 specified in subsection 6, paragraph a . 9 10. If the jury, or the court if there is no jury, 10 returns a unanimous affirmative finding on each of the issues 11 submitted under subsection 6, the court shall enter a judgment 12 of conviction and shall sentence the defendant to death as 13 provided in section 902.1A. 14 11. However, if evidence that the defendant was not a 15 major participant in the commission of the capital murder 16 under section 902.15, and that the defendants conduct did not 17 manifest a reckless indifference to human life is presented 18 to the jury, or to the court if there is no jury, the jury or 19 the court shall also return a special verdict on the issue. 20 If the jury unanimously determines, or the court if there is 21 no jury, determines that a preponderance of evidence exists 22 that shows that the defendant was not a major participant in 23 the commission of the capital murder under section 902.15, 24 and that the defendants conduct did not manifest a reckless 25 indifference to human life, the court shall enter a judgment 26 of conviction and shall sentence the defendant to life 27 imprisonment as provided in section 902.1, even if the jury or 28 the court returns unanimous affirmative findings on each of the 29 issues submitted under subsection 6. 30 12. If the jury, or the court if there is no jury, returns 31 a negative finding on any of the issues submitted under 32 subsection 6, the court shall enter a judgment of conviction 33 and shall sentence the defendant to life imprisonment as 34 provided in section 902.1. 35 -9- LSB 1306SV (1) 90 as/rh 9/ 17
S.F. 357 13. After a verdict has been rendered, it shall be recorded 1 on the jury verdict form and shall be read and recorded in open 2 court. The jurors shall be collectively asked by the court 3 whether the verdict returned is their true and correct verdict. 4 Even though no juror makes any declaration to the contrary, the 5 jury shall, if either party so requests, be polled and each 6 juror shall be separately asked whether the verdict rendered by 7 the jury foreperson is the jurors true and correct verdict. 8 If, upon either the collective or the separate inquiry, any 9 juror denies that the verdict is the jurors verdict, the court 10 shall refuse to accept the verdict. The court may direct 11 inquiry or permit inquiry by counsel to ascertain whether any 12 juror has been subjected to coercion or has become confused 13 during the jury deliberation process. The court may, as 14 appropriate, direct the jury to resume deliberation in the 15 case. If no disagreement on the verdict is expressed by any of 16 the jurors, the court shall discharge the jury. 17 Sec. 7. Section 902.1, subsection 1, Code 2023, is amended 18 to read as follows: 19 1. Upon Except as provided in section 902.1A, a plea of 20 guilty, a verdict of guilty, or a special verdict upon which a 21 judgment of conviction of a class A felony may be rendered, 22 the court shall enter a judgment of conviction and shall commit 23 the defendant into the custody of the director of the Iowa 24 department of corrections for the rest of the defendants 25 life. Nothing in the Iowa corrections code pertaining to 26 deferred judgment, deferred sentence, suspended sentence, or 27 reconsideration of sentence applies to a class A felony, and 28 a person convicted of a class A felony shall not be released 29 on parole unless the governor commutes the sentence to a term 30 of years. 31 Sec. 8. NEW SECTION . 902.1A Capital murder death 32 penalty. 33 1. For the purposes of this section, lethal injection 34 means a continuous intravenous injection of a lethal substance 35 -10- LSB 1306SV (1) 90 as/rh 10/ 17
S.F. 357 sufficient to cause death. 1 2. Notwithstanding section 902.1, upon return of a plea 2 or verdict of guilty to capital murder under section 902.15, 3 and a return of a verdict in favor of a sentence of death in 4 a penalty proceeding conducted as provided in section 901E.1, 5 the court shall enter a judgment of conviction and shall commit 6 the defendant into the custody of the director of the Iowa 7 department of corrections. The sentence shall be carried out 8 by the administration of a lethal injection pursuant to rules 9 adopted by the board of corrections. If a defendant, for whom 10 a warrant of execution is issued, is pregnant, the execution 11 shall not take place until after the defendant is no longer 12 pregnant. If a defendant, for whom a warrant of execution 13 is issued, is suffering from a mental illness as to prevent 14 the defendant from knowing the nature and quality of the act 15 the defendant has been convicted of, or from understanding 16 that trial on the offense has taken place and that execution 17 proceedings are about to take place, or to otherwise cause the 18 defendant to lack the capacity to understand the sentence which 19 has been imposed and to participate in any legal proceedings 20 relating to the sentence, the execution shall not take place 21 until after the defendants capacity is restored. If the 22 director of the department of corrections or the defendants 23 counsel files a request with the court which issued the warrant 24 of execution alleging that the defendant suffers from a mental 25 illness, a hearing on the matter shall be held in the manner 26 provided in section 812A.1. 27 Sec. 9. NEW SECTION . 902.15 Capital murder. 28 1. As used in this section: 29 a. Capital murder means any murder that makes a person 30 eligible for the death penalty. 31 b. Eligible for the death penalty means when a person 32 is convicted of the multiple offenses of murder in the first 33 degree in violation of section 707.2, kidnapping in violation 34 of section 710.2, 710.3, or 710.4, or sexual abuse in violation 35 -11- LSB 1306SV (1) 90 as/rh 11/ 17
S.F. 357 of section 709.2, 709.3, 709.4, or 709.4A with respect to the 1 same victim, and the victim is a minor. 2 c. Intellectually disabled means significant subaverage 3 general intellectual functioning accompanied by significant 4 deficits or impairments in adaptive functioning manifested in 5 the developmental period, but no later than the age of eighteen 6 years, and accompanied by deficits in adaptive behavior. 7 d. Mentally ill or mental illness means the condition 8 of a person who is suffering from a chronic and persistent 9 serious mental disease or disorder and who, by reason of that 10 condition, lacks sufficient judgment to make responsible 11 decisions regarding treatment and is reasonably likely to 12 injure the persons self or others who may come into contact 13 with the person if the person is allowed to remain at liberty 14 without treatment. 15 e. Minor means a person under eighteen years of age. 16 2. A person who commits capital murder, who is eligible 17 for the death penalty, who is not intellectually disabled or 18 mentally ill, and who is age eighteen or older at the time of 19 the capital murder, shall be subject to a sentence of death 20 under section 902.1A. 21 Sec. 10. NEW SECTION . 902.16 Data collection for capital 22 murder death penalty. 23 1. The supreme court shall collect data on all capital 24 murder charges in which the death penalty is or was not waived 25 which are filed and processed in the courts in this state. 26 This data may be used by the supreme court to determine whether 27 death sentences imposed are excessive or disproportionate, or 28 under the influence of prejudice under section 814.28. The 29 court shall make this data available to litigants in death 30 penalty cases. 31 2. Data collected by public officials concerning factors 32 relevant to the imposition of the death sentence shall be made 33 publicly available. 34 Sec. 11. NEW SECTION . 903C.1 Executions refusal to 35 -12- LSB 1306SV (1) 90 as/rh 12/ 17
S.F. 357 perform. 1 An employee of the state who may lawfully perform, assist, or 2 participate in the execution of a person pursuant to section 3 902.1A, and rules adopted by the department of corrections, 4 shall not be required to perform, assist, or participate in 5 the execution. State employees who refuse to perform, assist, 6 or participate in the execution of a person shall not be 7 discriminated against in any way, including but not limited 8 to employment, promotion, advancement, transfer, licensing, 9 education, training, or the granting of any privileges or 10 appointments because of the refusal to perform, assist, or 11 participate in the execution. 12 Sec. 12. Section 904.105, Code 2023, is amended by adding 13 the following new subsection: 14 NEW SUBSECTION . 9A. Adopt rules pursuant to chapter 17A 15 pertaining to executions of persons convicted of capital murder 16 under section 902.15. Rules adopted shall include but are not 17 limited to rules permitting the witnessing of executions by 18 members of the public and the victims family. Invitations 19 to witness an execution shall at least be extended to the 20 following representatives of the news media: 21 a. A representative from a wire service serving Iowa. 22 b. A representative from a broadcasting network serving 23 Iowa. 24 c. A representative from a television station located in 25 Iowa. 26 d. A representative from a radio station located in Iowa. 27 e. A representative from a daily newspaper published in 28 Iowa. 29 f. A representative from a weekly newspaper published in 30 Iowa. 31 g. A representative from the news media from the community 32 in which the condemned person resided, if that community is 33 located in Iowa. 34 Sec. 13. IMPLEMENTATION OF ACT. Section 25B.2, subsection 35 -13- LSB 1306SV (1) 90 as/rh 13/ 17
S.F. 357 3, shall not apply to this Act. 1 Sec. 14. SEVERABILITY. If any provision of this Act or the 2 application thereof to any person is invalid, the invalidity 3 shall not affect the provisions or application of this Act 4 which can be given effect without the invalid provisions or 5 application and to this end, the provisions of this Act are 6 severable. 7 Sec. 15. EFFECTIVE DATE. This Act takes effect January 1, 8 2024. 9 Sec. 16. APPLICABILITY. This Act applies to offenses 10 committed on or after the effective date of this Act. 11 EXPLANATION 12 The inclusion of this explanation does not constitute agreement with 13 the explanations substance by the members of the general assembly. 14 This bill amends the Iowa criminal code to provide for 15 punishment by death for capital murder committed by a person 16 age 18 or older if the trial jury, or the judge if there 17 is no jury, makes specific findings and whether the jury 18 believes the defendant should be put to death in a separate 19 penalty proceeding held after the close of the initial trial 20 proceeding. 21 Under the bill, a death penalty sentence could be imposed 22 if the person is convicted of the multiple offenses of murder 23 in the first degree, kidnapping in the first, second, or third 24 degree, and sexual abuse in the first, second, or third degree 25 with respect to the same victim, and the victim is a minor. 26 The bill provides that in order to receive a sentence of 27 death, the defendant must be at least 18 years of age at the 28 time the murder in the first degree was committed, must not be 29 mentally ill or intellectually disabled, and must have been a 30 major participant in the commission of the crime or must have 31 shown a manifest indifference to human life. 32 If a person is indigent and is charged with capital murder, 33 payment of costs for two attorneys is authorized. The supreme 34 court is required to establish standards for the competency 35 -14- LSB 1306SV (1) 90 as/rh 14/ 17
S.F. 357 of counsel in death penalty cases. The state public defender 1 is charged with establishing teams of qualified lead and 2 co-counsel for death penalty cases, as well as conducting 3 or sponsoring specialized training programs for attorneys 4 representing persons who may be executed. 5 If a capital murder case proceeds to trial and a notice of 6 intent to seek the death penalty has been filed, in addition to 7 any other defenses which may be presented to the charge, the 8 defendant may raise the issue of intellectual disability or 9 mental illness during the time of filing pretrial motions. 10 Once the evidence is submitted to the jury, the court 11 will instruct the jury, at the defendants request, that in 12 considering whether a sentence of death is justified, the 13 race, color, religious beliefs, national origin, sex, or other 14 protected classes under Code chapter 216 of the defendant or 15 of any victim is not to be considered. The supreme court 16 shall collect evidence relating to whether the death sentences 17 imposed are excessive, disproportionate, or imposed under the 18 influence of prejudice at trial which will be available to 19 litigants. 20 The sentence of death is imposed only when the trier of fact 21 (the jury or the court if the defendant has waived the right to 22 a jury trial) unanimously answers two questions affirmatively: 23 (1) whether aggravating circumstances established beyond a 24 reasonable doubt outweigh any mitigating circumstances that 25 may exist; and (2) whether the defendant should be sentenced 26 to death. Mitigating factors the trier of fact may consider 27 include the following: whether the defendant was under the 28 influence of a mental illness; the age of the defendant; 29 the defendants ability to appreciate the wrongfulness of 30 the conduct due to a mental illness but not to a degree to 31 constitute a defense; the defendant has no significant prior 32 criminal history; the defendant was under extreme duress; 33 the defendant did not directly commit the murder; and the 34 defendants character or record or the circumstances of the 35 -15- LSB 1306SV (1) 90 as/rh 15/ 17
S.F. 357 offense. The sentencing proceeding is conducted separately 1 from the finding of guilt or innocence by the same trier of 2 fact. 3 For the sentencing proceeding, the trier of fact (the jury 4 or the court if the defendant has waived the right to have 5 the jury hear the proceedings) is to weigh any aggravating 6 circumstances established beyond a reasonable doubt by the 7 state against any of the enumerated mitigating circumstances 8 which may be presented by the defendant. Evidence of certain 9 juvenile delinquency adjudications is not admissible in any 10 proceeding to determine the sentence. If the jury fails to 11 agree unanimously on the required affirmative findings, the 12 penalty imposed would be life imprisonment. 13 The death penalty sentence would be reviewed automatically 14 by the supreme court. The supreme court shall review the trial 15 and judgment separately from the sentencing proceeding. If the 16 supreme court finds error in the sentencing proceeding, the 17 supreme court may remand the case back to district court for a 18 new sentencing hearing. The bill requires the supreme court to 19 examine whether the sentence is excessive or disproportionate 20 to penalties in similar cases. If affirmed by the supreme 21 court, the penalty would be accomplished by lethal injection. 22 The bill requires the board of corrections to adopt rules 23 pertaining to executions, including rules pertaining to the 24 witnessing of executions. 25 A person who is sentenced to death, but who is pregnant when 26 the warrant of execution is issued, is not to be executed until 27 the person is no longer pregnant. A procedure is also provided 28 to stay execution of a condemned inmate who becomes mentally 29 ill after conviction but before execution. 30 An employee of the state shall not be required to perform or 31 assist in any execution and shall not be discriminated against 32 for refusing to participate. 33 The bill may include a state mandate as defined in Code 34 section 25B.3. The bill makes inapplicable Code section 25B.2, 35 -16- LSB 1306SV (1) 90 as/rh 16/ 17
S.F. 357 subsection 3, which would relieve a political subdivision from 1 complying with a state mandate if funding for the cost of 2 the state mandate is not provided or specified. Therefore, 3 political subdivisions are required to comply with any state 4 mandate included in the bill. 5 The bill contains severability provisions and takes effect 6 January 1, 2024, and applies only to offenses committed on or 7 after that date. 8 -17- LSB 1306SV (1) 90 as/rh 17/ 17