Bill Text: DE SB40 | 2015-2016 | 148th General Assembly | Draft
Bill Title: An Act To Amend Title 11 Of The Delaware Code Relating To The Death Penalty.
Spectrum: Moderate Partisan Bill (Democrat 20-4)
Status: (Engrossed - Dead) 2016-01-28 - Defeated by House of Representatives. Votes: Defeated 16 YES 23 NO 0 NOT VOTING 2 ABSENT 0 VACANT [SB40 Detail]
Download: Delaware-2015-SB40-Draft.html
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SPONSOR: |
Sen. Peterson & Sen. Simpson & Rep. Lynn & Rep. Keeley |
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Sens. Bushweller, Cloutier, Henry, McDowell, Sokola, Townsend; Reps. Barbieri, Baumbach, Bolden, Brady, Heffernan, J. Johnson, Kowalko, Matthews, Miro, Potter, Ramone, B. Short, M. Smith, K. Williams |
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DELAWARE STATE SENATE 148th GENERAL ASSEMBLY |
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SENATE BILL NO. 40 |
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AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO THE DEATH PENALTY. |
Section 1. Amend § 4209, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§4209. Punishment,
procedure for determining punishment, review of punishment and method of
punishment for first-degree murder.
(a) Punishment
for first-degree murder. -- Any person who is convicted of first-degree
murder after the effective date of this Act shall be punished by
death or by imprisonment for the remainder of the person's natural life
without benefit of probation or parole or any other reduction, said penalty
to be determined in accordance with this section.
(b) Separate
hearing on issue of punishment for first-degree murder. --
(1) Upon a
conviction of guilt of a defendant of first-degree murder, the Superior Court
shall conduct a separate hearing to determine whether the defendant should be
sentenced to death or to life imprisonment without benefit of probation or
parole as authorized by subsection (a) of this section. If the defendant was
convicted of first-degree murder by a jury, this hearing shall be conducted by
the trial judge before that jury as soon as practicable after the return of the
verdict of guilty. Alternate jurors shall not be excused from the case prior to
submission of the issue of guilt to the trial jury and may, but need not be,
separately sequestered until a verdict on guilt is entered. If the verdict of
the trial jury is guilty of first-degree murder said alternates shall sit as
alternate jurors on the issue of punishment. If, for any reason satisfactory to
the Court, any member of the trial jury is excused from participation in the
hearing on punishment, the trial judge shall replace such juror or jurors with
alternate juror or jurors. If a jury of 12 jurors cannot participate in the
hearing a separate and new jury, plus alternates, shall be selected for the
hearing in accordance with the applicable rules of the Superior Court and laws
of Delaware, unless the defendant or defendants and the State stipulate to the
use of a lesser number of jurors.
(2) If the
defendant was convicted of first-degree murder by the Court, after a trial and
waiver of a jury trial or after a plea of guilty or nolo contendere, the
hearing shall be conducted by the trial judge before a jury, plus alternates,
empaneled for that purpose and selected in accordance with the applicable rules
of the Superior Court and laws of Delaware, unless said jury is waived by the
State and the defendant in which case the hearing shall be conducted, if
possible, by and before the trial judge who entered the finding of guilty or
accepted the plea of guilty or nolo contendere.
(c) Procedure
at punishment hearing. --
(1) The sole
determination for the jury or judge at the hearing provided for by this section
shall be the penalty to be imposed upon the defendant for the conviction of
first-degree murder. At the hearing, evidence may be presented as to any matter
that the Court deems relevant and admissible to the penalty to be imposed. The
evidence shall include matters relating to any mitigating circumstance and to
any aggravating circumstance, including, but not limited to, those aggravating
circumstances enumerated in subsection (e) of this section. Notice in writing
of any aggravating circumstances and any mitigating circumstances shall be
given to the other side by the party seeking to introduce evidence of such
circumstances prior to the punishment hearing, and after the verdict on guilt,
unless in the discretion of the Court such advance notice is dispensed with as
impracticable. The record of any prior criminal convictions and pleas of guilty
or pleas of nolo contendere of the defendant or the absence of any such prior
criminal convictions and pleas shall also be admissible in evidence.
(2) At the
hearing the Court shall permit argument by the State, the defendant and/or the
defendant's counsel, on the punishment to be imposed. Such argument shall
consist of opening statements by each, unless waived, opening summation by the
State, rebuttal summation by the defendant and/or the defendant's counsel and
closing summation by the State.
(3)a. Upon the
conclusion of the evidence and arguments the judge shall give the jury
appropriate instructions and the jury shall retire to deliberate and report to
the Court an answer to the following questions:
1. Whether the
evidence shows beyond a reasonable doubt the existence of at least 1
aggravating circumstance as enumerated in subsection (e) of this section; and
2. Whether, by
a preponderance of the evidence, after weighing all relevant evidence in
aggravation or mitigation which bear upon the particular circumstances or
details of the commission of the offense and the character and propensities of
the offender, the aggravating circumstances found to exist outweigh the
mitigating circumstances found to exist.
b.1. The jury
shall report to the Court its finding on the question of the existence of
statutory aggravating circumstances as enumerated in subsection (e) of this
section. In order to find the existence of a statutory aggravating circumstance
as enumerated in subsection (e) of this section beyond a reasonable doubt, the
jury must be unanimous as to the existence of that statutory aggravating
circumstance. As to any statutory aggravating circumstances enumerated in
subsection (e) of this section which were alleged but for which the jury is not
unanimous, the jury shall report the number of the affirmative and negative
votes on each such circumstance.
2. The jury
shall report to the Court by the number of the affirmative and negative votes
its recommendation on the question as to whether, by a preponderance of the
evidence, after weighing all relevant evidence in aggravation or mitigation
which bear upon the particular circumstances or details of the commission of
the offense and the character and propensities of the offender, the aggravating
circumstances found to exist outweigh the mitigating circumstances found to
exist.
(4) In the
instructions to the jury the Court shall include instructions for it to weigh
and consider any mitigating circumstances or aggravating circumstances and any
of the statutory aggravating circumstances set forth in subsection (e) of this
section which may be raised by the evidence. The jury shall be instructed to
weigh any mitigating factors against the aggravating factors.
(d)
Determination of sentence. --
(1) If a jury
is impaneled, the Court shall discharge that jury after it has reported its
findings and recommendation to the Court. A sentence of death shall not be
imposed unless the jury, if a jury is impaneled, first finds unanimously and
beyond a reasonable doubt the existence of at least 1 statutory aggravating
circumstance as enumerated in subsection (e) of this section. If a jury is not
impaneled, a sentence of death shall not be imposed unless the Court finds
beyond a reasonable doubt the existence of at least 1 statutory aggravating
circumstance as enumerated in subsection (e) of this section. If a jury has
been impaneled and if the existence of at least 1 statutory aggravating
circumstance as enumerated in subsection (e) of this section has been found
beyond a reasonable doubt by the jury, the Court, after considering the
findings and recommendation of the jury and without hearing or reviewing any
additional evidence, shall impose a sentence of death if the Court finds by a
preponderance of the evidence, after weighing all relevant evidence in
aggravation or mitigation which bears upon the particular circumstances or
details of the commission of the offense and the character and propensities of
the offender, that the aggravating circumstances found by the Court to exist
outweigh the mitigating circumstances found by the Court to exist. The jury's
recommendation concerning whether the aggravating circumstances found to exist
outweigh the mitigating circumstances found to exist shall be given such
consideration as deemed appropriate by the Court in light of the particular
circumstances or details of the commission of the offense and the character and
propensities of the offender as found to exist by the Court. The jury's
recommendation shall not be binding upon the Court. If a jury has not been
impaneled and if the existence of at least 1 statutory aggravating circumstance
as enumerated in subsection (e) of this section has been found beyond a
reasonable doubt by the Court, it shall impose a sentence of death if the Court
finds by a preponderance of the evidence, after weighing all relevant evidence
in aggravation or mitigation which bears upon the particular circumstances or
details of the commission of the offense and the character and propensities of
the offender, that the aggravating circumstances found by the Court to exist
outweigh the mitigating circumstances found by the Court to exist.
(2) Otherwise,
the Court shall impose a sentence of imprisonment for the remainder of the
defendant's natural life without benefit of probation or parole or any other
reduction.
a. Not later
than 90 days before trial the defendant may file a motion with the Court
alleging that the defendant had a serious intellectual developmental disorder
at the time the crime was committed. Upon the filing of the motion, the Court
shall order an evaluation of the defendant for the purpose of providing
evidence of the following:
1.
Whether the defendant has a significantly subaverage level of intellectual
functioning;
2.
Whether the defendant's adaptive behavior is substantially impaired; and
3. Whether the
conditions described in paragraphs (d)(1) and (d)(2) of this section existed
before the defendant became 18 years of age.
b. During the
hearing authorized by subsections (b) and (c) of this section, the defendant
and the State may present relevant and admissible evidence on the issue of the
defendant's alleged serious intellectual developmental disorder, or in rebuttal
thereof. The defendant shall have the burden of proof to demonstrate by clear
and convincing evidence that the defendant had a serious intellectual
developmental disorder at the time of the offense. Evidence presented during
the hearing shall be considered by the jury in making its recommendation to the
Court pursuant to paragraph (c)(3) of this section as to whether the aggravating
circumstances found to exist outweigh the mitigating circumstances found to
exist. The jury shall not make any recommendation to the Court on the question
of whether the defendant had a serious intellectual developmental disorder at
the time the crime was committed.
c. If the
defendant files a motion pursuant to this paragraph claiming he or she had a
serious intellectual developmental disorder at the time the crime was
committed, the Court, in determining the sentence to be imposed, shall make
specific findings as to the existence of a serious intellectual developmental
disorder at the time the crime was committed. If the Court finds that the
defendant has established by clear and convincing evidence that the defendant
had a serious intellectual developmental disorder at the time the crime was
committed, notwithstanding any other provision of this section to the contrary,
the Court shall impose a sentence of imprisonment for the remainder of the
defendant's natural life without benefit of probation or parole or any other
reduction. If the Court determines that the defendant has failed to establish
by clear and convincing evidence that the defendant had a serious intellectual
developmental disorder at the time the crime was committed, the Court shall proceed
to determine the sentence to be imposed pursuant to the provisions of this
subsection. Evidence on the question of the defendant's alleged serious
intellectual developmental disorder presented during the hearing shall be
considered by the Court in its determination pursuant to this section as to
whether the aggravating circumstances found to exist outweigh the mitigating
circumstances found to exist.
d. When used in
this paragraph:
1.
"Adaptive behavior" means the effectiveness or degree to which the
individual meets the standards of personal independence expected of the
individual's age group, sociocultural background and community setting, as
evidenced by significant limitations in not less than 2 of the following
adaptive skill areas: communication, self-care, home living, social skills, use
of community resources, self-direction, functional academic skills, work,
leisure, health or safety;
2.
"Serious intellectual developmental disorder" means that an
individual has significantly subaverage intellectual functioning that exists
concurrently with substantial deficits in adaptive behavior and both the
significantly subaverage intellectual functioning and the deficits in adaptive
behavior were manifested before the individual became 18 years of age; and
3.
"Significantly subaverage intellectual functioning" means an
intelligent quotient of 70 or below obtained by assessment with 1 or more of
the standardized, individually administered general intelligence tests
developed for the purpose of assessing intellectual functioning.
(4) After the
Court determines the sentence to be imposed, it shall set forth in writing the
findings upon which its sentence is based. If a jury is impaneled, and if the
Court's decision as to whether the aggravating circumstances found to exist
outweigh the mitigating circumstances found to exist differs from the jury's
recommended finding, the Court shall also state with specificity the reasons
for its decision not to accept the jury's recommendation.
(e) Aggravating
circumstances. --
(1) In order
for a sentence of death to be imposed, the jury, unanimously, or the judge
where applicable, must find that the evidence established beyond a reasonable
doubt the existence of at least 1 of the following aggravating circumstances
which shall apply with equal force to accomplices convicted of such murder:
a. The murder
was committed by a person in, or who has escaped from, the custody of a
law-enforcement officer or place of confinement.
b. The murder
was committed for the purpose of avoiding or preventing an arrest or for the
purpose of effecting an escape from custody.
c. The murder
was committed against any law-enforcement officer, corrections employee,
firefighter, paramedic, emergency medical technician, fire marshal or fire
police officer while such victim was engaged in the performance of official
duties.
d. The murder
was committed against a judicial officer, a former judicial officer, Attorney
General, former Attorney General, Assistant or Deputy Attorney General or
former Assistant or Deputy Attorney General, State Detective or former State
Detective, Special Investigator or former Special Investigator, during, or
because of, the exercise of an official duty.
e. The murder
was committed against a person who was held or otherwise detained as a shield
or hostage.
f. The murder
was committed against a person who was held or detained by the defendant for
ransom or reward.
g. The murder
was committed against a person who was a witness to a crime and who was killed
for the purpose of preventing the witness's appearance or testimony in any
grand jury, criminal or civil proceeding involving such crime, or in
retaliation for the witness's appearance or testimony in any grand jury,
criminal or civil proceeding involving such crime.
h. The
defendant paid or was paid by another person or had agreed to pay or be paid by
another person or had conspired to pay or be paid by another person for the
killing of the victim.
i. The
defendant was previously convicted of another murder or manslaughter or of a
felony involving the use of, or threat of, force or violence upon another
person.
j. The murder
was committed while the defendant was engaged in the commission of, or attempt
to commit, or flight after committing or attempting to commit any degree of
rape, unlawful sexual intercourse, arson, kidnapping, robbery, sodomy,
burglary, or home invasion.
k. The
defendant's course of conduct resulted in the deaths of 2 or more persons where
the deaths are a probable consequence of the defendant's conduct.
l. The murder
was outrageously or wantonly vile, horrible or inhuman in that it involved
torture, depravity of mind, use of an explosive device or poison or the
defendant used such means on the victim prior to murdering the victim.
m. The
defendant caused or directed another to commit murder or committed murder as an
agent or employee of another person.
n. The
defendant was under a sentence of life imprisonment, whether for natural life
or otherwise, at the time of the commission of the murder.
o.
The murder was committed for pecuniary gain.
p.
The victim was pregnant.
q. The victim
was particularly vulnerable due to a severe intellectual, mental or physical
disability.
r.
The victim was 62 years of age or older.
s. The victim
was a child 14 years of age or younger, and the murder was committed by an
individual who is at least 4 years older than the victim.
t. At the time
of the killing, the victim was or had been a nongovernmental informant or had
otherwise provided any investigative, law enforcement or police agency with
information concerning criminal activity, and the killing was in retaliation
for the victim's activities as a nongovernmental informant or in providing
information concerning criminal activity to an investigative, law enforcement or
police agency.
u. The murder
was premeditated and the result of substantial planning. Such planning must be
as to the commission of the murder itself and not simply as to the commission
or attempted commission of any underlying felony.
v. The murder
was committed for the purpose of interfering with the victim's free exercise or
enjoyment of any right, privilege or immunity protected by the First Amendment
to the United States Constitution, or because the victim has exercised or
enjoyed said rights, or because of the victim's race, religion, color,
disability, national origin or ancestry.
(2) In any
case where the defendant has been convicted of murder in the first degree in
violation of any provision of §636(a)(2)-(6) of this title, that conviction
shall establish the existence of a statutory aggravating circumstance and the
jury, or judge where appropriate, shall be so instructed. This provision shall
not preclude the jury, or judge where applicable, from considering and finding
the statutory aggravating circumstances listed in this subsection and any other
aggravating circumstances established by the evidence.
(f) Method and
imposition of sentence of death. -- The imposition of a sentence of death shall
be upon such terms and conditions as the trial court may impose in its
sentence, including the place, the number of witnesses which shall not exceed
10, and conditions of privacy, and shall occur between the hours of 12:01 a.m.
and 3:00 a.m. on the date set by the trial court. The trial court shall permit
one adult member of the immediate family of the victim, as defined in §4350(e)
of this title, or the victim's designee, to witness the execution of a sentence
of death pursuant to the rules of the court, if the family provides reasonable
notice of its desire to be so represented. Punishment of death shall, in all
cases, be inflicted by intravenous injection of a substance or substances in a
lethal quantity sufficient to cause death and until such person sentenced to
death is dead, and such execution procedure shall be determined and supervised
by the Commissioner of the Department of Correction. The administration of the
required lethal substance or substances required by this section shall not be
construed to be the practice of medicine and any pharmacist or pharmaceutical
supplier is authorized to dispense drugs to the Commissioner or the
Commissioner's designee, without prescription, for carrying out the provisions
of this section, notwithstanding any other provision of law. Such sentence may
not be carried out until final review thereof is had by the Delaware Supreme
Court as provided for in subsection (g) of this section. The Court or the
Governor may suspend the execution of the sentence until a later date to be
specified, solely to permit completion of the process of judicial review of the
conviction.
If the execution of the sentence
of death as provided above is held unconstitutional by a court of competent
jurisdiction, then punishment of death shall, in all cases, be inflicted by
hanging by the neck. The imposition of a sentence of death shall be upon such
terms and conditions as the trial court may impose in its sentence, including
the place, the number of witnesses and conditions of privacy. Such sentence may
not be carried out until final review thereof is had by the Delaware Supreme
Court as provided in subsection (g) of this section. The Court or the Governor
may suspend the execution of the sentence until a later date to be specified,
solely to permit completion of the process of judicial review of the
conviction.
(g) Automatic
review of death penalty by Delaware Supreme Court. --
(1) Whenever
the death penalty is imposed, and upon the judgment becoming final in the trial
court, the recommendation on and imposition of that penalty shall be reviewed
on the record by the Delaware Supreme Court. Absent an appeal having been taken
by the defendant upon the expiration of 30 days after the sentence of death has
been imposed, the Clerk of the Superior Court shall require a complete
transcript of the punishment hearing to be prepared promptly and within 10 days
after receipt of that transcript the clerk shall transmit the transcript,
together with a notice prepared by the clerk, to the Delaware Supreme Court.
The notice shall set forth the title and docket number of the case, the name of
the defendant, the name and address of any attorney and a narrative statement
of the judgment, the offense and the punishment prescribed. The Court shall, if
necessary, appoint counsel to respond to the State's positions in the review
proceedings.
(2) The
Supreme Court shall limit its review under this section to the recommendation
on and imposition of the penalty of death and shall determine:
a. Whether,
considering the totality of evidence in aggravation and mitigation which bears
upon the particular circumstances or details of the offense and the character
and propensities of the offender, the death penalty was either arbitrarily or
capriciously imposed or recommended, or disproportionate to the penalty
recommended or imposed in similar cases arising under this section.
b. Whether the
evidence supports the jury's or the judge's finding of a statutory aggravating
circumstance as enumerated in subsection (e) of this section and, where
applicable, §636(a)(2)-(6) of this title.
(3) The
Supreme Court shall permit the defendant and the State to submit briefs within
the time provided by the Court, and permit them to present oral argument to the
Court.
(4)
With regard to review of the sentence in accordance with this subsection, the
Court shall:
a.
Affirm the sentence of death.
b. Set aside
the sentence of death and remand for correction of any errors occurring during
the hearing and for imposition of the appropriate penalty. Such errors shall
not affect the determination of guilt and shall not preclude the reimposition
of death where appropriately determined after a new hearing on punishment.
c.
Set forth its findings as to the reasons for its actions.
(h) Ordinary
review not affected by section. -- Any error in the guilt phase of the trial
may be raised as provided by law and rules of court and shall be in addition to
the review of punishment provided by this section.
This act shall apply to all
defendants tried, retried, sentenced or re-sentenced after July 15, 2003.
SYNOPSIS
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This Act eliminates capital punishment, except for those convicted of first-degree murder before the effective date of this Act. The procedures for determining punishment, review of punishment, and method of punishment for first-degree murder related to capital punishment would still apply to those convicted of first-degree murder before the effective date of this Act. |
Author: Senator Peterson
