14103371D Be it enacted by the General Assembly of Virginia: 1. That §§18.2-10, 19.2-264.3:1.1, 19.2-264.3:1.2, and 19.2-264.3:3 of the Code of Virginia are amended and reenacted as follows: §18.2-10. Punishment for conviction of felony; penalty. The authorized punishments for conviction of a felony are: (a) For Class 1 felonies, death, if the person so convicted was 18 years of age or older at the time of the offense and is not determined to be mentally disabled, mentally impaired, or mentally retarded pursuant to §19.2-264.3:1.1, or imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. If the person was under 18 years of age at the time of the offense or is determined to be mentally disabled, mentally impaired, or mentally retarded pursuant to §19.2-264.3:1.1, the punishment shall be imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. (b) For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000. (c) For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000. (d) For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000. (e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both. (f) For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both. (g) Except as specifically authorized in subdivision (e) or (f), or in Class 1 felonies for which a sentence of death is imposed, the court shall impose either a sentence of imprisonment together with a fine, or imprisonment only. However, if the defendant is not a natural person, the court shall impose only a fine. For any felony offense committed (i) on or after January 1, 1995, the court may, and (ii) on or after July 1, 2000, shall, except in cases in which the court orders a suspended term of confinement of at least six months, impose an additional term of not less than six months nor more than three years, which shall be suspended conditioned upon successful completion of a period of post-release supervision pursuant to §19.2-295.2 and compliance with such other terms as the sentencing court may require. However, such additional term may only be imposed when the sentence includes an active term of incarceration in a correctional facility. For a felony offense prohibiting proximity to children as described in subsection A of §18.2-370.2, the sentencing court is authorized to impose the punishment set forth in that section in addition to any other penalty provided by law. §19.2-264.3:1.1. Capital cases; determination of mental disability, mental impairment, or mental retardation. A. As used in this section and §19.2-264.3:1.2 "Mentally disabled" means a disability, originating at any age, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, including consideration of the test's standard of error measure and similar acknowledged phenomenon, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. "Mentally impaired" means a substantial disorder of a person's cognitive, volitional, or emotional processes characterized concurrently by a demonstrable and significant impairment in the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law but which does not otherwise render him unrestorably incompetent to stand trial pursuant to §19.2-169.1. The term "mentally impaired" does not include a disorder that is manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other intoxicants. "Mentally retarded" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, including consideration of the test's standard of error measure and similar acknowledged phenomenon, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. B. Assessments of mental disability or mental retardation under this section and §19.2-264.3:1.2 shall conform to the following requirements: 1. Assessment of intellectual functioning shall include administration of at least one standardized measure generally accepted by the field of psychological testing and appropriate for administration to the particular defendant being assessed, taking into account cultural, linguistic, sensory, motor, behavioral and other individual factors. Testing of intellectual functioning shall be carried out in conformity with accepted professional practice, and whenever indicated, the assessment shall include information from multiple sources. The Commissioner of Behavioral Health and Developmental Services shall maintain an exclusive list of standardized measures of intellectual functioning generally accepted by the field of psychological testing. 2. Assessment of adaptive behavior shall be based on multiple sources of information, including clinical interview, psychological testing and educational, correctional and vocational records. The assessment shall include at least one standardized measure generally accepted by the field of psychological testing for assessing adaptive behavior and appropriate for administration to the particular defendant being assessed, unless not feasible. In reaching a clinical judgment regarding whether the defendant exhibits significant limitations in adaptive behavior, the examiner shall give performance on standardized measures whatever weight is clinically appropriate in light of the defendant's history and characteristics and the context of the assessment. 3. C. In any case in which the offense may be punishable by death
The defendant shall bear the burden of proving that he is mentally disabled, mentally impaired, or mentally retarded by a preponderance of the evidence.
§19.2-264.3:1.2. Expert assistance when issue of defendant's mental disability, mental impairment, or mental retardation relevant to capital case. A. Upon (i) motion of the attorney for a defendant charged
with or convicted of capital murder and (ii) a finding by the court that the
defendant is financially unable to pay for expert assistance, the court shall
appoint one or more qualified mental health experts to assess whether or not
the defendant is mentally disabled,
mentally impaired, or mentally retarded and to assist the
defense in the preparation and presentation of information concerning the
defendant's mental disability,
mental impairment, or mental retardation. The mental health
expert appointed pursuant to this section shall be (a) a psychiatrist, a
clinical psychologist, or
an individual with a doctorate degree in clinical psychology B. Evaluations performed pursuant to subsection A may be combined with evaluations performed pursuant to §19.2-169.1, 19.2-169.5, or 19.2-264.3:1. C. The expert appointed pursuant to subsection A shall submit to the attorney for the defendant a report assessing whether the defendant is mentally disabled, mentally impaired, or mentally retarded. The report shall include the expert's opinion as to whether the defendant is mentally disabled, mentally impaired, or mentally retarded. D. The report described in subsection C shall be sent solely to the attorney for the defendant and shall be protected by the attorney-client privilege. However, the Commonwealth shall be given a copy of the report, the results of any other evaluation of the defendant's mental disability, mental impairment, or mental retardation and copies of psychiatric, psychological, medical, or other records obtained during the course of the evaluation, after the attorney for the defendant gives notice of an intent to present evidence of mental disability, mental impairment, or mental retardation pursuant to subsection E. E. In any case in which a defendant charged with capital
murder intends F. 1. If the attorney for the defendant gives notice pursuant
to subsection E and the Commonwealth thereafter seeks an evaluation concerning
the existence or absence of the defendant's
mental disability, mental impairment, or mental
retardation, the court shall appoint one or more qualified experts to perform
such an evaluation. The court shall order the defendant to submit to such an
evaluation 2. If the court finds, after hearing evidence presented by the
parties §19.2-264.3:3. Limitations on use of statements or disclosure by defendant during evaluations. No statement or disclosure by the defendant made during a
competency evaluation performed pursuant to §19.2-169.1, an evaluation
performed pursuant to §19.2-169.5 to determine sanity at the time of the
offense, treatment provided pursuant to §19.2-169.2 or 2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to §30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to §30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice. |