BILL REQ. #:  S-0917.2 

Read first time 01/31/2007.   Referred to Committee on Judiciary.

     AN ACT Relating to death penalty eligibility for persons who are mentally retarded or have a severe mental disorder; amending RCW 10.95.030, 10.95.060, 10.95.070, and 10.95.080; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 10.95.030 and 1993 c 479 s 1 are each amended to read as follows:
     (1) Except as provided in subsection (2) of this section, any person convicted of the crime of aggravated first degree murder shall be sentenced to life imprisonment without possibility of release or parole. A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer and the indeterminate sentence review board or its successor may not parole such prisoner nor reduce the period of confinement in any manner whatsoever including but not limited to any sort of good-time calculation. The department of social and health services or its successor or any executive official may not permit such prisoner to participate in any sort of release or furlough program.
     (2) If, pursuant to a special sentencing proceeding held under RCW 10.95.050, the trier of fact finds that there are not sufficient mitigating circumstances to merit leniency, the sentence shall be death, except as provided in subsection (3) of this section.
     (3) In no case((, however,)) shall a person be sentenced to death if, at the time the crime was committed, the person was mentally retarded ((at the time the crime was committed, under the definition of mental retardation set forth)) as defined in (a) of this subsection, or had a severe mental disorder as defined in (f) of this subsection. A diagnosis of mental retardation or severe mental disorder shall be documented by a licensed ((psychiatrist or licensed psychologist)) mental health professional designated by the court, who is an expert in the diagnosis and evaluation of mental retardation or severe mental disorders. A defendant may bring a pretrial motion for disqualification from death penalty eligibility as a result of mental retardation or severe mental disorder. The defense must establish mental retardation or severe mental disorder by a preponderance of the evidence and the court must make a finding as to the existence of mental retardation or severe mental disorder. If the court denies the motion, the question of whether the defendant was mentally retarded or had a severe mental disorder at the time the crime was committed may be presented to the jury during the special sentencing proceeding. A jury verdict that either factor has been proved will result in disqualifying the defendant from the death penalty.
     (a) "Mentally retarded" means the individual has: (i) Significantly subaverage general intellectual functioning; (ii) existing concurrently with deficits in adaptive behavior; and (iii) both significantly subaverage general intellectual functioning and deficits in adaptive behavior were manifested during the developmental period.
     (b) "General intellectual functioning" means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for the purpose of assessing intellectual functioning.
     (c) "Significantly subaverage general intellectual functioning" means intelligence quotient seventy or below.
     (d) "Adaptive behavior" means the effectiveness or degree with which individuals meet the standards of personal independence and social responsibility expected for his or her age.
     (e) "Developmental period" means the period of time between conception and the eighteenth birthday.
     (f) "Severe mental disorder" means a severe mental illness or defect that significantly impairs a person's capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law. A mental illness or defect manifested primarily by repeated criminal conduct or attributable solely to the effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a severe mental disorder for purposes of this section.

Sec. 2   RCW 10.95.060 and 1981 c 138 s 6 are each amended to read as follows:
     (1) At the commencement of the special sentencing proceeding, the trial court shall instruct the jury as to the nature and purpose of the proceeding and as to the consequences of its decision, as provided in RCW 10.95.030.
     (2) At the special sentencing proceeding both the prosecution and defense shall be allowed to make an opening statement. The prosecution shall first present evidence and then the defense may present evidence. Rebuttal evidence may be presented by each side. Upon conclusion of the evidence, the court shall instruct the jury and then the prosecution and defense shall be permitted to present argument. The prosecution shall open and conclude the argument.
     (3) The court shall admit any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence, including hearsay evidence and evidence of the defendant's previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity. The defendant shall be accorded a fair opportunity to rebut or offer any hearsay evidence.
     In addition to evidence of whether or not there are sufficient mitigating circumstances to merit leniency, and evidence relating to whether the defendant was mentally retarded or had a severe mental disorder, if the jury sitting in the special sentencing proceeding has not heard evidence of the aggravated first degree murder of which the defendant stands convicted, both the defense and prosecution may introduce evidence concerning the facts and circumstances of the murder.
     (4)(a) Upon conclusion of the evidence and argument at the special sentencing proceeding, the jury shall retire to deliberate upon the following question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?"
     (b) If the defendant has filed a motion seeking disqualification from death penalty eligibility based on either mental retardation, severe mental disorder, or both, the jury will also deliberate on the following question: "Has the defendant proved by a preponderance of the evidence that, at the time of the crime, the defendant was mentally retarded or suffered from a severe mental disorder?"
     (c) In order to return an affirmative answer to the questions posed by this subsection, the jury must so find unanimously.

Sec. 3   RCW 10.95.070 and 1993 c 479 s 2 are each amended to read as follows:
     In deciding the question posed by RCW 10.95.060(4)(a), the jury, or the court if a jury is waived, may consider any relevant factors, including but not limited to the following:
     (1) Whether the defendant has or does not have a significant history, either as a juvenile or an adult, of prior criminal activity;
     (2) Whether the murder was committed while the defendant was under the influence of extreme mental disturbance;
     (3) Whether the victim consented to the act of murder;
     (4) Whether the defendant was an accomplice to a murder committed by another person where the defendant's participation in the murder was relatively minor;
     (5) Whether the defendant acted under duress or domination of another person;
     (6) Whether, at the time of the murder, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was ((substantially)) impaired as a result of mental disease or defect((. However, a person found to be mentally retarded under RCW 10.95.030(2) may in no case be sentenced to death));
     (7) Whether, at the time of the murder, the defendant had significant intellectual impairments, but which do not constitute mental retardation;
     (8) Whether the age of the defendant at the time of the crime calls for leniency; and
     (((8))) (9) Whether there is a likelihood that the defendant will pose a danger to others in the future.

Sec. 4   RCW 10.95.080 and 1981 c 138 s 8 are each amended to read as follows:
     (1) If a jury answers affirmatively the question posed by RCW 10.95.060(4)(a) and negatively the question posed by RCW 10.95.060(4)(b), or when a jury is waived as allowed by RCW 10.95.050(2) and the trial court answers affirmatively the question posed by RCW 10.95.060(4)(a) and negatively the question posed by RCW 10.95.060(4)(b), the defendant shall be sentenced to death. The trial court may not suspend or defer the execution or imposition of the sentence.
     (2) If the jury does not return an affirmative answer to the question posed in RCW 10.95.060(4)(a), or if the jury does return an affirmative answer to the question posed in RCW 10.95.060(4)(b), the defendant shall be sentenced to life imprisonment as provided in RCW 10.95.030(1).