1234-S AMS LAW S4222.1

SHB 1234 - S COMM AMD

By Committee on Law & Justice

    Strike everything after the enacting clause and insert the following:

    "Sec. 1.  RCW 10.95.040 and 1981 c 138 s 4 are each amended to read as follows:

    (1) If a person is charged with aggravated first degree murder as defined by RCW 10.95.020, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency.

Prior to reaching a decision as to whether or not to file a written notice of a special sentencing procedure, the prosecuting attorney shall seek written advice from the attorney retained by or appointed to represent the accused as to whether or not evidence tending to show mitigating circumstances is available.  Necessary delay in making or responding to this request may be considered good cause for the court to extend the time for filing the notice.

For crimes committed on or after July 1, 1992, the prosecuting attorney shall request that the defense provide any evidence tending to show that the defendant is mentally retarded.  Prosecuting attorneys should decline to file the written notice required by subsection (1) of this section if the review of any evidence supplied by the defense or otherwise available establishes, to the prosecuting attorney's satisfaction, that the defendant is mentally retarded.  If the prosecuting attorney determines that the notice should be filed under subsection (1) of this section despite any evidence to the contrary of mental retardation, this evidence may be offered during the penalty phase for the jury's consideration as a mitigating factor under RCW 10.95.070(6).  This shall not create any right to assert a claim for relief in the event evidence tending to suggest the defendant's mental retardation is found to be insufficient by the jury.

    (2) The notice of special sentencing proceeding shall be filed and served on the defendant or the defendant's attorney within thirty days after the defendant's arraignment upon the charge of aggravated first degree murder unless the court, for good cause shown, extends or reopens the period for filing and service of the notice.  Except with the consent of the prosecuting attorney, during the period in which the prosecuting attorney may file the notice of special sentencing proceeding, the defendant may not tender a plea of guilty to the charge of aggravated first degree murder nor may the court accept a plea of guilty to the charge of aggravated first degree murder or any lesser included offense.

    (3) If a notice of special sentencing proceeding is not filed and served as provided in this section, the prosecuting attorney may not request the death penalty."

SHB 1234 - S COMM AMD

By Committee on Law & Justice

    On page 1, line 2 of the title, after "retarded;" strike the remainder of the title and insert "and amending RCW 10.95.040."