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HOUSE DOCKET, NO. 3532 FILED ON: 1/20/2023
HOUSE . . . . . . . . . . . . . . . No. 1464
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
David F. DeCoste
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act relative to capital punishment for the murder of law enforcement officers.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:David F. DeCoste5th Plymouth1/18/2023Michael J. Soter8th Worcester1/30/2023Shaunna O'Connell1/19/2023Alyson M. Sullivan-Almeida7th Plymouth2/9/2023 1 of 7
HOUSE DOCKET, NO. 3532 FILED ON: 1/20/2023
HOUSE . . . . . . . . . . . . . . . No. 1464
By Representative DeCoste of Norwell, a petition (accompanied by bill, House, No. 1464) of
David F. DeCoste and others relative to capital punishment for the murder of law enforcement
officers. The Judiciary.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3773 OF 2019-2020.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
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An Act relative to capital punishment for the murder of law enforcement officers.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 265 of the General Laws, as appearing in the 2016 Official
2Edition, is hereby amended by inserting after section 1 the following section:-
3 Section 1A. (a) Whoever, having reached 18 years of age or older, murders a law
4enforcement officer, as defined in this section, either knowing that the victim was a law
5enforcement officer engaged in the performance of his or her duties or in retaliation for
6performance of his or her duties, or both, and: (i) intentionally kills the victim; (ii) intentionally
7inflicts serious bodily injury that resulted in the death of the victim; (iii) intentionally participates
8in an act, contemplating that the life of a person would be taken or intending that lethal force
9would be used in connection with a person, other than one of the participants in the offense, and
10the victim dies as a direct result of the act; or (iv) intentionally and specifically engages in an act 2 of 7
11of violence, knowing that the act creates a grave risk of death to a person, other than one of the
12participants in the offense, such that participation in the act constitutes a reckless disregard for
13human life and the victim dies as a direct result of the act, is guilty of capital murder and shall be
14punished by death or imprisonment in the state prison for life and shall not be eligible for parole
15pursuant to section 133A of chapter 127 following a presentence hearing conducted under
16chapter 279.
17 (b) For purposes of this section, “law enforcement officer” shall mean a correction officer
18or a person exercising the authority of a police officer, sheriff, or deputy sheriff.
19 SECTION 2. Chapter 279 of the General Laws, as so appearing, is hereby amended by
20striking out section 68 and inserting in place thereof the following section:-
21 Section 68. (a) Upon a verdict or plea of guilty to the offense of capital murder set forth
22in section 1A of chapter 265, a presentence hearing shall be conducted. If the case was tried
23before a jury, the hearing shall be conducted before such jury.
24 (b) The presentence hearing may be conducted before the court alone if the defendant and
25the commonwealth stipulate to a court hearing. In that event the court shall consider the
26aggravating and mitigating circumstances and decide the sentence in the same manner as is
27provided in this section for the jury.
28 (c) During the presentence hearing, the only issue shall be the determination of the
29punishment to be imposed. During such hearing the jury shall hear all additional relevant
30evidence presented by either the commonwealth or defendant in mitigation of punishment
31regardless of its admissibility under the law governing the admission of evidence at criminal
32trials. During such hearing, the jury shall also hear such evidence in aggravation of punishment 3 of 7
33as is relevant to the aggravating circumstances as defined in subsection (a) of section 69;
34provided, however, that only such evidence in aggravation of punishment as the commonwealth
35has made known to the defendant prior to his trial or that is introduced as rebuttal to the
36defendant’s evidence shall be admissible. The jury shall also hear arguments by the defendant or
37his or her counsel or both and by the commonwealth regarding the punishment to be imposed.
38The commonwealth and the defendant or his or her counsel shall be allowed to make opening
39statements and closing arguments at the presentence hearing. The order of those statements and
40arguments and the order of presentation of evidence shall be the same as at trial.
41 (d) Upon the conclusion of evidence and arguments at the presentence hearing, the court
42shall instruct the jury orally and shall provide to the jury in writing the aggravating and
43mitigating circumstances as determined by the court to be warranted by the evidence. The judge
44shall also instruct the jury to consider any other relevant mitigating circumstance or mitigating
45circumstances. The burden of establishing the existence of any aggravating factor is on the
46commonwealth, and is not satisfied unless the existence of such a factor is established beyond a
47reasonable doubt. The burden of establishing the existence of any mitigating factor is on the
48defendant, and is not satisfied unless the existence of such a factor is established by a
49preponderance of the evidence.
50 (e) The jury shall return special findings identifying the aggravating and mitigating
51circumstances found to exist. An aggravating circumstance may be found only if the jury is
52unanimous. A finding with respect to a mitigating circumstance may be made by 1 or more
53members of the jury, and any member of the jury who finds the existence of a mitigating
54circumstance may consider such circumstance established for purposes of this section regardless
55of the number of jurors who concur that the circumstance has been established. The jury’s 4 of 7
56findings shall indicate how many jurors found each mitigating circumstance to have been
57established.
58 (f) The jury shall further determine whether the aggravating circumstances outweigh the
59mitigating circumstances. Based upon this consideration, the jury by unanimous vote shall return
60a verdict whether the defendant should be sentenced to death or to life imprisonment without the
61possibility of parole. The process of weighing the aggravating circumstances and mitigating
62circumstances to determine the sentence shall not be a mere tallying of circumstances for the
63purpose of numerical comparison. Instead, it shall be a process by which the aggravating
64circumstances and mitigating circumstances relevant to sentence are considered for the purpose
65of determining whether the sentence, in view of all the relevant circumstances in an individual
66case, shall be life imprisonment without parole, or death.
67 (g) If the jury reaches a unanimous verdict as to sentence, the court shall set a sentence in
68accordance with section 70. If the jury is unable to reach a unanimous verdict, the court shall
69sentence the defendant to imprisonment in the state prison for life, and the defendant shall not be
70eligible for parole pursuant to section 133A of chapter 127.
71 (h) The declaration of a mistrial during the course of the presentence hearing or any error
72in the presentence hearing determined on final appeal or otherwise shall not affect the validity of
73the conviction.
74 SECTION 3. Said chapter 279, as so appearing, is hereby amended by striking out
75section 69 and inserting in place thereof the following section:-
76 Section 69. (a) In all cases in which the death penalty may be authorized, the sentencer
77shall consider the following aggravating circumstances: 5 of 7
78 (1) the murder was committed on a victim who was killed while serving in the
79performance of his or her official duties as a law enforcement officer as defined in subsection (b)
80of section 1A of chapter 265.
81 (2) the murder was committed by a defendant who was at the time incarcerated in a jail,
82house of correction, prison, state prison or a correctional or penal institution or a facility used for
83the housing or treatment or housing and treatment of prisoners or following escape from any of
84those facilities;
85 (3) the murder was committed by a defendant who had previously been convicted of any
86crime of violence;
87 (4) the murder was committed by the defendant pursuant to a contract, agreement or
88understanding by which the defendant was to receive money or anything of value in return for
89committing the murder;
90 (5) the murder was committed by the defendant for the purpose of avoiding, interfering
91with, or preventing a lawful arrest of the defendant or another, or the murder was committed by
92the defendant for the purpose of effectuating an escape or attempting to effectuate an escape of
93the defendant or another from custody in a place of lawful confinement;
94 (6) the murder involved torture to the victim or the intentional infliction of extreme pain
95prior to death demonstrating a total disregard to the suffering of the victim;
96 (7) the murder was committed as part of a course of conduct involving the killing of or
97causing serious bodily injury to or the attempted killing of or the attempted causing of serious
98bodily injury to more than 1 person by the defendant; 6 of 7
99 (8) the murder was committed by means of a destructive device, bomb, or explosive
100planted, hidden, mailed, delivered, or concealed in any place, area, dwelling, building, or
101structure by the defendant or the murder was committed by means such that the defendant knew
102or reasonably should have known that his or her act or acts would create a grave risk of death or
103serious bodily injury to more than 1 person;
104 (9) the murder was committed by the defendant and occurred during the commission or
105attempted commission or flight after committing or flight after attempting to commit aggravated
106rape, rape, rape of a child, indecent assault and battery on a child under14 years of age, assault
107with intent to rape, assault on a child under 16 years of age with intent to rape, kidnapping for
108ransom, kidnapping, armed robbery, unarmed robbery, breaking and entering with intent to
109commit a felony, armed assault in a dwelling, arson, confining or putting in fear or otherwise
110harming another for the purpose of stealing from depositories, or the murder occurred while the
111defendant was in possession of a sawed-off shotgun or a machine gun; and
112 (10) any other circumstances of the crime, previous offenses by the defendant, or the
113impact of the crime on the victim or the victim’s family that the commonwealth proffers and for
114which the requirements of paragraph (c) of section 68 are met.
115 (b) In all cases in which the death penalty may be authorized, the sentencer shall consider
116the following mitigating circumstances:
117 (1) the defendant has no significant history of prior criminal convictions;
118 (2) the victim was a participant in the defendant's conduct or had consented to it; 7 of 7
119 (3) the murder was committed while the defendant was under extreme duress or under the
120domination or control of another;
121 (4) the offense was committed while the capacity of the defendant to appreciate the
122criminality of his conduct or to conform his conduct to the requirements of the law was impaired
123as a result of a mental disease or defect, organic brain damage, emotional illness brought on by
124stress or prescribed medication, intoxication, or legal or illegal drug use by the defendant which
125was insufficient to establish a defense to the murder but which substantially affected his or her
126judgment;
127 (5) the defendant was over the age of 75 at the time of the murder, or any other relevant
128consideration regarding the age of the defendant at the time of the murder;
129 (6) the defendant was battered or otherwise physically, sexually, or mentally abused by
130the victim in connection with or immediately prior to the murder for which the defendant was
131convicted;
132 (7) the defendant was experiencing post-traumatic stress syndrome caused by military
133service during a declared or undeclared war; and
134 (8) other factors in the defendant’s background, record, or character or any other
135circumstance of the offense that mitigate against imposition of the death sentence.