HOUSE BILL REPORT

                  HB 2668

             As Reported By House Committee On:

                        Law & Justice

Title:  An act relating to capital punishment sentencing.

Brief Description:  Prescribing procedures for capital punishment sentencing.

Sponsors:  Representatives Hargrove, Sheahan, McMahan, Sterk, Delvin and Thompson.

Brief History:

  Committee Activity:

Law & Justice:  1/30/96, 2/2/96 [DP].

HOUSE COMMITTEE ON LAW & JUSTICE

Majority Report:  Do pass.  Signed by 10 members:  Representatives Sheahan, Chairman; Delvin, Vice Chairman; Costa, Assistant Ranking Minority Member; Campbell; Carrell; Chappell; Lambert; McMahan; Morris and Smith.

Minority Report:  Do not pass.  Signed by 7 members:  Representatives Hickel, Vice Chairman; Dellwo, Ranking Minority Member; Cody; Murray; Robertson; Sterk and Veloria.

Staff:  Bill Perry (786-7123).

Background:  Under the state's death penalty law, only certain persons convicted of aggravated first-degree murder may be sentenced to death.  First-degree murder is the killing of another under one of the following circumstances:

!with premeditated intent;

!with extreme indifference to human life while engaged in conduct creating a grave risk of death; or

!while committing or attempting to commit, or immediate flight from the commission or attempted commission of first- or second-degree robbery, rape, arson, or kidnapping, or first-degree burglary.

However, a conviction for first-degree murder alone is not enough to incur the death penalty.  If the prosecutor decides to seek the death penalty, a special sentencing proceeding is held following conviction to determine whether the death penalty will be imposed.  In order to impose the death penalty, it must be shown that the first-degree murder involved one or more "aggravating" circumstances and that there were not sufficient "mitigating" circumstances to merit leniency.  Leniency means life in prison without possibility of release. 

In order to seek the death penalty, the prosecutor must file notice of the intent to do so within 30 days of the arraignment of the defendant.  The notice must also be served on the defendant.  The 30-day period may be extended, or if already passed, reopened upon a showing of "good cause."  The state supreme court has construed the 30-day notice requirement in a couple of cases recently.  The court held that this requirement is not satisfied by "substantial compliance," and that good cause for an extension may not include anything other than an external impediment to the prosecutor meeting the requirement.  The court also held that the meaning of good cause and whether it is present are issues which the supreme court will review de novo.  Actual notice (by phone or in person) does not meet the requirement of "serving" notice, which must be done in writing, and inadvertence in meeting the 30-day requirement does not constitute good cause for an extension.  State v. Dearborne, 125 Wn.2d 173 (1994), and State v. Luvene, 127 Wn.2d 690 (1995).

Once a defendant has been convicted of aggravated first-degree murder and sentenced to death, the Supreme Court is required to review the sentence.  This review is in addition to any other appeal that may be available to the defendant.  The Court is to answer four questions:

!whether there was sufficient evidence to justify the jury's finding beyond a reasonable doubt that there were not sufficient mitigating circumstances to merit leniency;

!whether the sentence is "excessive" or "disproportionate" when compared to similar cases;

!whether the sentence is the result of passion or prejudice; and

!whether the defendant was mentally retarded.

With respect to the question of excessiveness or disproportionality, the state Supreme Court has held that the death penalty is not disproportionate in a given case if death sentences have generally been imposed in similar cases and its imposition is not wanton or freakish.  State v. Rupe, 108 Wn.2d 735 (1987).  The court has also remarked:

No question of statutory interpretation has received more careful consideration than what this [excessiveness and proportionality comparison] means and how to best give it effect.  We have acknowledged the statute often requires "the comparison of incomparables," and the task is, at times, a "struggle."  State v. Pirkle, 127 Wn.2d 628 (1995).

The U.S. Supreme Court has held that proportionality reviews in death penalty cases are not constitutionally required.  Pulley v. Harris, 79 L. Ed. 2d 29 (1984).

Summary of Bill:  The period following arraignment during which a prosecutor must serve the defendant with notice of intent to seek the death penalty is increased to 45 days.  Any method of service "reasonably likely to provide notice to the defendant or the defendant's attorney" is permissible.  Actual notice to the defendant or the defendant's attorney within the time limit satisfies this requirement, even if service in writing is not made within the time limit.

A statutory list of permissible reasons to exceed the 45-day notice requirement is provided.  The court may extend or reopen the period if

!there is good cause; or

!the prosecutor is actively pursuing an investigation and necessary information cannot be timely obtained for reasons beyond the control of the prosecutor; or

!there is newly discovered evidence which the prosecutor could not have discovered through due diligence; or

!the defendant requests an extension or reopening.

The requirement that the state Supreme Court review a sentence of death for excessiveness or disproportionality is removed.

Appropriation:  None.

Fiscal Note:  Not requested.

Effective Date:  Ninety days after adjournment of session in which bill is passed.

Testimony For:  The current notice requirements are confusing and afford an unreasonable opportunity for frustrating justice.  The proportionality review is not constitutionally required, is difficult to apply, and has been used to overturn sentences in the federal courts.  The remaining review provisions will give sufficient protection for defendants.

Testimony Against:  The proportionality review reduces the chance of an unfair or racially discriminatory application of the death penalty.  There is no need to change service of notice requirements.  The defendant can easily be brought to court and served in person on the record.  The bill is vague about what constitutes adequate service.

Testified:  Seth Fine, Snohomish County Prosecutor's Office (pro); Pam Loginsky, Kitsap County Prosecutor's Office (pro); Tom McBride, Washington Association of Prosecuting Attorneys (pro); and Michael Iaria and Neil Fox, Washington Defender Association and Washington Association of Criminal Defense Lawyers (con).