00 HOUSE BILL NO. 481
01 "An Act authorizing capital punishment, classifying murder in the first degree as
02 a capital felony, and allowing the imposition of the death penalty when certain
03 of those murders are committed against children; establishing sentencing procedures
04 for capital felonies; and amending Rules 32, 32.1, and 32.3, Alaska Rules of
05 Criminal Procedure, and Rules 204, 209, 210, and 212, Alaska Rules of Appellate
07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
08 * Section 1. AS 05.15.140(b) is amended to read:
09 (b) In an application for a permit, a municipality or qualified organization shall
10 disclose the name and address of each person responsible for the operation of the
11 activity and whether any person named
12 (1) has been convicted of a violation of a law of this state that is, or
13 a law or ordinance of another state that would be if committed in this state, a capital
14 or [AN] unclassified felony described in AS 11, a Class A felony, extortion, or a
01 violation of a law or ordinance of this state or another jurisdiction that is a crime
02 involving theft or dishonesty or a violation of gambling laws; or
03 (2) has a prohibited financial interest, as defined in regulations adopted
04 by the department, in the operation of the activity.
05 * Sec. 2. AS 11.31.100(d) is amended to read:
06 (d) An attempt is
07 (1) an unclassified felony if the crime attempted is murder in the first
09 (2) a class A felony if the crime attempted is an unclassified felony
10 [OTHER THAN MURDER IN THE FIRST DEGREE];
11 (3) a class B felony if the crime attempted is a class A felony;
12 (4) a class C felony if the crime attempted is a class B felony;
13 (5) a class A misdemeanor if the crime attempted is a class C felony;
14 (6) a class B misdemeanor if the crime attempted is a class A or class
15 B misdemeanor.
16 * Sec. 3. AS 11.31.110(c) is amended to read:
17 (c) Solicitation is a
18 (1) class A felony if the crime solicited is a capital or [AN]
19 unclassified felony;
20 (2) class B felony if the crime solicited is a class A felony;
21 (3) class C felony if the crime solicited is a class B felony;
22 (4) class A misdemeanor if the crime solicited is a class C felony;
23 (5) class B misdemeanor if the crime solicited is a class A or class B
25 * Sec. 4. AS 11.31.120(h) is amended to read:
26 (h) Conspiracy is
27 (1) an unclassified felony if the object of the conspiracy is murder in
28 the first degree;
29 (2) a class A felony if the object of the conspiracy is a crime
30 punishable as an unclassified felony [OTHER THAN MURDER IN THE FIRST
01 (3) a class B felony if the object of the conspiracy is a crime
02 punishable as a class A felony;
03 (4) a class C felony if the object of the conspiracy is a crime
04 punishable as a class B felony.
05 * Sec. 5. AS 11.31.120(i) is amended to read:
06 (i) In this section,
07 (1) "overt act in furtherance of the conspiracy" means an act of such
08 character that it manifests a purpose on the part of the actor that the object of the
09 conspiracy be completed;
10 (2) "serious felony offense" means an offense
11 (A) against the person under AS 11.41, punishable as a capital,
12 an unclassified, or class A felony; or
13 (B) involving controlled substances under AS 11.71, punishable
14 as an unclassified, class A, or class B felony.
15 * Sec. 6. AS 11.41.100(b) is amended to read:
16 (b) Murder in the first degree is a capital [AN UNCLASSIFIED] felony and
17 is punishable as provided in AS 12.55.125(a) [AS 12.55].
18 * Sec. 7. AS 12.30.020(a) is amended to read:
19 (a) A person charged with an offense shall, at that person's first appearance
20 before a judicial officer, be ordered released pending trial on the person's personal
21 recognizance or upon the execution of an unsecured appearance bond in an amount
22 specified by the judicial officer unless the offense is a capital felony, an unclassified
23 felony, or a class A felony or unless the officer determines that the release of the
24 person will not reasonably assure the appearance of the person as required, or will
25 pose a danger to other persons and the community. If the offense with which a person
26 is charged is a felony, on motion of the prosecuting attorney, the judicial officer may
27 allow the prosecuting attorney up to 48 hours to demonstrate that release of the person
28 on the person's personal recognizance or upon the execution of an unsecured
29 appearance bond will not reasonably assure the appearance of the person, or will pose
30 a danger to other persons and the community.
31 * Sec. 8. AS 12.30.040(b) is amended to read:
01 (b) Notwithstanding the provisions of (a) of this section, a person may not be
02 released on bail either before sentencing or pending appeal if the person has been
03 convicted of an offense that is
04 (1) a capital felony, an unclassified felony, or a class A felony; or
05 (2) a class B or class C felony if the person has been previously
06 convicted of an offense in this state that is an unclassified felony, a class A felony, or
07 a violation of AS 11.41.260, 11.41.420 - 11.41.425, or 11.41.436 - 11.41.438 or of an
08 offense in another jurisdiction with elements substantially similar to an offense of this
09 state described in this paragraph.
10 * Sec. 9. AS 12.47.110(b) is amended to read:
11 (b) On or before the expiration of the initial 90-day period of commitment the
12 court shall conduct a hearing to determine whether or not the defendant remains
13 incompetent. If the court finds by a preponderance of the evidence that the defendant
14 remains incompetent, the court may recommit the defendant for a second period of 90
15 days. The court shall determine at the expiration of the second 90-day period whether
16 the defendant has become competent. If at the expiration of the second 90-day period
17 the court determines that the defendant continues to be incompetent to stand trial, the
18 charges against the defendant shall be dismissed without prejudice and continued
19 commitment of the defendant shall be governed by the provisions relating to civil
20 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a
21 crime involving force against a person and the court finds that the defendant presents
22 a substantial danger of physical injury to other persons and that there is a substantial
23 probability that the defendant will regain competency within a reasonable period of
24 time, in which case the court may extend the period of commitment for an additional
25 six months. If the defendant remains incompetent at the expiration of the additional
26 six-month period, the charges shall be dismissed without prejudice and either civil
27 commitment proceedings shall be instituted or the court shall order the release of the
28 defendant. If the defendant remains incompetent for five years after the charges have
29 been dismissed under this subsection, the defendant may not be charged again for an
30 offense arising out of the facts alleged in the original charges, except if the original
31 charge is a class A felony, [OR] unclassified felony, or capital felony.
01 * Sec. 10. AS 12.55.025(i) is amended to read:
02 (i) Except as provided by AS 12.55.125(a)(3), 12.55.125(k), 12.55.145(d),
03 12.55.155(f), and 12.55.165, or in determining if a sentence of death should be
04 imposed under AS 12.58, the preponderance of the evidence standard of proof applies
05 to sentencing proceedings.
06 * Sec. 11. AS 12.55.125(a) is amended to read:
07 (a) A defendant convicted of murder in the first degree shall be sentenced to
08 a definite term of imprisonment of at least 20 years but not more than 99 years, or
09 shall be sentenced to death. A defendant convicted of murder in the first degree, but
10 not sentenced to death, shall be sentenced to a mandatory term of imprisonment of
11 99 years when
12 (1) the defendant is convicted of the murder of a uniformed or
13 otherwise clearly identified peace officer, fire fighter, or correctional officer who was
14 engaged in the performance of official duties at the time of the murder;
15 (2) the defendant has been previously convicted of
16 (A) murder in the first degree under AS 11.41.100 or former
17 AS 11.15.010 or 11.15.020;
18 (B) murder in the second degree under AS 11.41.110 or former
19 AS 11.15.030; or
20 (C) homicide under the laws of another jurisdiction when the
21 offense of which the defendant was convicted contains elements similar to first
22 degree murder under AS 11.41.100 or second degree murder under
23 AS 11.41.110; or
24 (3) the court finds by clear and convincing evidence that the defendant
25 subjected the murder victim to substantial physical torture.
26 * Sec. 12. AS 12.55.125(f) is amended to read:
27 (f) If a defendant is sentenced under (a) or (b) of this section,
28 (1) imprisonment for the prescribed minimum term may not be
29 suspended under AS 12.55.080;
30 (2) imposition of sentence may not be suspended under AS 12.55.085;
31 (3) imprisonment for the prescribed minimum term may not be
01 otherwise reduced;
02 (4) a sentence of death may not be suspended under AS 12.55.080.
03 * Sec. 13. AS 12.55.145(a) is amended to read:
04 (a) For purposes of considering prior convictions in imposing sentence under
05 AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i)
06 (1) a prior conviction may not be considered if a period of 10 or more
07 years has elapsed between the date of the defendant's unconditional discharge on the
08 immediately preceding offense and commission of the present offense unless the prior
09 conviction was for a capital, [AN] unclassified, or class A felony;
10 (2) a conviction in this or another jurisdiction of an offense having
11 elements similar to those of a felony defined as such under Alaska law at the time the
12 offense was committed is considered a prior felony conviction;
13 (3) two or more convictions arising out of a single, continuous criminal
14 episode during which there was no substantial change in the nature of the criminal
15 objective are considered a single conviction unless the defendant was sentenced to
16 consecutive sentences for the crimes; offenses committed while attempting to escape
17 or avoid detection or apprehension after the commission of another offense are not part
18 of the same criminal episode or objective.
19 * Sec. 14. AS 12.55.155(f) is amended to read:
20 (f) Under this section, if [IF] the state seeks to establish a factor in
21 aggravation at sentencing or if the defendant seeks to establish a factor in mitigation
22 at sentencing, written notice must be served on the opposing party and filed with the
23 court not later than 10 days before the date set for imposition of sentence. Under this
24 section, factors [FACTORS] in aggravation and factors in mitigation must be
25 established by clear and convincing evidence before the court sitting without a jury.
26 All findings must be set out with specificity.
27 * Sec. 15. AS 12 is amended by adding a new chapter to read:
28 CHAPTER 58. CAPITAL PUNISHMENT.
29 ARTICLE 1. IMPOSITION OF SENTENCE.
30 Sec. 12.58.010. SENTENCING PROCEDURE FOR A CAPITAL FELONY.
31 (a) If, after a trial by jury, a defendant is convicted of a capital felony, the court shall
01 conduct a separate sentencing proceeding before the trial jury as soon as practicable.
02 If a jury trial has been waived or if the defendant has pled guilty, the sentencing
03 proceeding shall be held before a jury impaneled for the purpose.
04 (b) During the sentencing proceeding, evidence may be presented as to any
05 aggravating or mitigating factor that the court considers to have probative value,
06 regardless of the admissibility of the evidence under the rules of evidence. The
07 defendant shall have an opportunity to rebut hearsay evidence that is admitted. The
08 state and the defendant or the defendant's counsel shall be permitted to present oral
09 statements. This subsection does not authorize the introduction of evidence in
10 violation of the Constitution of the State of Alaska or the Constitution of the United
12 (c) After hearing the evidence, the jury shall deliberate and recommend a
13 sentence to the court. The recommended sentence must include written findings of
14 whether the jury unanimously finds
15 (1) beyond a reasonable doubt that an aggravating factor or factors exist
16 to justify the death sentence;
17 (2) by a preponderance of the evidence that the aggravating factor or
18 factors outweigh any mitigating factors found to exist by a preponderance of the
19 evidence; and
20 (3) that the defendant should be sentenced to death.
21 Sec. 12.58.020. SENTENCE IMPOSITION FOR CAPITAL FELONY. (a)
22 After considering the evidence and the recommended sentence, the court shall enter
23 a sentence of death or a term of imprisonment in accordance with AS 12.55.125(a).
24 The court may not impose the death sentence unless the jury (1) finds beyond a
25 reasonable doubt at least one aggravating factor, (2) finds by a preponderance of the
26 evidence that that factor or those factors are not outweighed by any mitigating factors
27 found to exist by a preponderance of the evidence, and (3) recommends that the
28 defendant be sentenced to death. If the jury findings include an aggravating factor or
29 factors that are not outweighed by one or more of the mitigating factors and if the jury
30 recommends a sentence of death, the court shall sentence the defendant to death. If
31 a sentence of death is not recommended by the jury, the court shall sentence the
01 defendant to a term of imprisonment under AS 12.55.125(a).
02 (b) When the court enters a sentence of death, it shall state in writing the
03 jury's findings of
04 (1) aggravating factors that exist to justify the sentence; and
05 (2) mitigating factors considered but found insufficient to outweigh the
06 aggravating factors.
07 (c) A judgment of conviction for which a sentence of death is imposed is
08 subject to automatic review under AS 12.58.100.
09 Sec. 12.58.030. AGGRAVATING FACTORS. In determining whether to
10 impose a sentence of death, the following aggravating factors may be considered: the
11 defendant's conduct caused the death of a child under 18 years of age, the defendant,
12 at the time of the offense, was at least two years older than the child, and the
14 (1) was kidnaping, assaulting, or sexually assaulting, or was attempting
15 to kidnap, assault, or sexually assault, the child; or
16 (2) had kidnaped, assaulted, or sexually assaulted the child.
17 Sec. 12.58.040. MITIGATING FACTORS. In determining whether to impose
18 the death sentence, all mitigating factors shall be considered, including, but not limited
19 to, the following:
20 (1) the defendant committed the offense under a degree of duress,
21 coercion, threat, or compulsion that was insufficient to constitute a defense but that
22 significantly affected the defendant's conduct;
23 (2) the conduct of a youthful defendant was substantially influenced by
24 a person more mature than the defendant;
25 (3) the defendant acted with serious provocation from the victim;
26 (4) the defendant assisted authorities to detect or apprehend other
27 persons who committed the offense with the defendant.
28 ARTICLE 2. SENTENCE REVIEW.
29 Sec. 12.58.100. REVIEW OF JUDGMENT OF CONVICTION OF A
30 CAPITAL FELONY. (a) A judgment of conviction of a capital felony for which a
31 sentence of death is imposed shall automatically be reviewed by the supreme court
01 within 60 days after imposition of the sentence. This time limit may be extended by
02 the supreme court for good cause.
03 (b) A review under this section has priority over all other cases and the case
04 shall be heard in accordance with rules adopted by the supreme court. On review, the
05 court shall determine whether
06 (1) the sentence was imposed under the influence of passion, prejudice,
07 or other arbitrary factor;
08 (2) the evidence supports the finding of an aggravating factor under
09 AS 12.58.030 and whether the jury has properly considered mitigating factors under
10 AS 12.58.040;
11 (3) the sentence is excessive or disproportionate to the penalty imposed
12 in similar cases, considering both the crime and the defendant; and
13 (4) any other issue that the defendant may raise as a point on appeal.
14 (c) In its consideration of an automatic appeal under (a) and (b) of this section,
15 the supreme court
16 (1) may not require the defendant to file a notice of appeal unless the
17 defendant raises an issue as a point on appeal under (b)(4) of this section;
18 (2) may not require the defendant to pay a fee;
19 (3) shall designate the entire record of the proceedings before the
20 sentencing court as the record on appeal;
21 (4) shall prepare the transcript of the proceedings for the record on
22 appeal at public expense; and
23 (5) may not require the defendant to submit and file a brief unless the
24 defendant raises an issue as a point on appeal under (b)(4) of this section.
25 Sec. 12.58.110. ISSUANCE OF DEATH WARRANT. If the supreme court
26 upholds a judgment of conviction and sentence of death, the court shall issue a death
27 warrant that specifies a date of execution. The specified date of execution must be not
28 less than 30 days nor more than 60 days after the date of the warrant. The death
29 warrant shall be delivered to the commissioner of corrections.
30 ARTICLE 3. ADMINISTRATION OF THE DEATH PENALTY.
31 Sec. 12.58.200. ADMINISTRATION OF THE DEATH PENALTY. The
01 commissioner shall establish a procedure for the execution of a sentence of death
02 ordered by the state supreme court at the time and place legally appointed.
03 Sec. 12.58.210. EXECUTION UNDER SUPREME COURT DEATH
04 WARRANT. After receiving a supreme court warrant issued under AS 12.58.110, the
05 commissioner shall specify the time and place of execution.
06 Sec. 12.58.220. MANNER OF EXECUTION. (a) The punishment of death
07 shall be inflicted by continuous, intravenous administration of a lethal dose of sodium
08 thiopental until death is pronounced by a licensed physician.
09 (b) A death sentence shall be carried out within a state correctional facility.
10 Sec. 12.58.230. RETURN OF DEATH WARRANT. After the execution the
11 commissioner shall make a return upon the death warrant showing the time and place
12 in which the defendant was executed.
13 ARTICLE 4. STAY OF EXECUTION.
14 Sec. 12.58.300. INCOMPETENCY OR PREGNANCY OF PERSON
15 SENTENCED TO DEATH. If, after a sentence of death is imposed, the commissioner
16 has reason to believe that the defendant has become incompetent to proceed with the
17 execution or that the defendant is pregnant, the commissioner shall immediately give
18 written notice to the court in which the sentence of death was imposed, the prosecuting
19 attorney, and counsel for the defendant. The execution of sentence shall be stayed
20 pending further order of the court.
21 Sec. 12.58.310. EXAMINATION INTO COMPETENCY. (a) On receipt of
22 notice under AS 12.58.300 that the defendant is believed to be incompetent, the
23 sentencing court shall examine the mental condition of the defendant in the same
24 manner as provided for examining persons for competency to stand trial under
25 AS 12.47.070.
26 (b) If the sentencing court finds that the defendant is incompetent, the court
27 shall immediately certify that finding to the supreme court and the commissioner and
28 shall enter an order for commitment in the same manner as provided for commitment
29 under AS 12.47.110.
30 (c) If the sentencing court finds that the defendant is competent, the court shall
31 immediately certify the finding to the supreme court and the commissioner. The
01 supreme court shall issue and deliver another warrant to the commissioner under
02 AS 12.58.110, together with a copy of the certified finding. Unless the sentencing
03 court's finding is appealed in accordance with applicable court rule, the warrant shall
04 specify a date of execution that is not less than 30 days nor more than 60 days after
05 the date of the warrant.
06 Sec. 12.58.320. DISPOSITION PENDING PREGNANCY. (a) If the
07 defendant is pregnant, the sentencing court shall immediately certify that finding to the
08 supreme court and the commissioner. The supreme court shall issue an order staying
09 the execution of the sentence of death during the pregnancy.
10 (b) When the defendant is no longer pregnant, the sentencing court shall
11 immediately certify the finding to the supreme court and the commissioner. The
12 supreme court shall issue and deliver another warrant under AS 12.58.110, together
13 with a copy of the certified finding. Unless the sentencing court's finding is appealed
14 under applicable court rule, the warrant shall specify a date of execution not less than
15 30 days nor more than 60 days after the date of the warrant.
16 ARTICLE 5. GENERAL PROVISIONS.
17 Sec. 12.58.900. DEFINITIONS. In this chapter,
18 (1) "commissioner" means the commissioner of corrections;
19 (2) "department" means the Department of Corrections.
20 * Sec. 16. AS 22.07.020(a) is amended to read:
21 (a) The court of appeals has appellate jurisdiction in actions and proceedings
22 commenced in the superior court involving:
23 (1) criminal prosecution, except prosecution for a capital felony for
24 which a death sentence is imposed;
25 (2) post-conviction relief;
26 (3) children's court matters under AS 47.10.010(a)(1), including waiver
27 of children's court jurisdiction over a minor under AS 47.10;
28 (4) extradition;
29 (5) habeas corpus;
30 (6) probation and parole; and
31 (7) bail.
01 * Sec. 17. AS 22.07.020(b) is amended to read:
02 (b) Except for appeals of a death sentence or as limited in AS 12.55.120, the
03 court of appeals has jurisdiction to hear appeals of unsuspended sentences of
04 imprisonment exceeding two years for a felony offense or 120 days for a misdemeanor
05 offense imposed by the superior court on the grounds that the sentence is excessive,
06 or a sentence of any length on the grounds that it is too lenient. The court of appeals,
07 in the exercise of this jurisdiction, may modify the sentence as provided by law and
08 the state constitution.
09 * Sec. 18. AS 47.10.010(e) is amended to read:
10 (e) When a minor who was at least 16 years of age at the time of the offense
11 is arraigned on a charge for an offense specified in this subsection, AS 47.10.020 -
12 47.10.090 and the Alaska Delinquency Rules do not apply to the offense for which the
13 minor is arraigned or to any additional offenses joinable to it under the applicable rules
14 of court governing criminal procedure. The minor shall be charged, prosecuted, and
15 sentenced in the superior court in the same manner as an adult unless the minor is
16 convicted of some offense other than an offense specified in this subsection, in which
17 event the minor may attempt to prove, by a preponderance of the evidence, that the
18 minor is amenable to treatment under this chapter. If the court finds that the minor is
19 amenable to treatment under this chapter, the minor shall be treated as though the
20 charges had been heard under AS 47.10.010 - 47.10.142, and the court shall order
21 disposition of the charges of which the minor is convicted under AS 47.10.080(b). The
22 provisions of this subsection apply when the minor is arraigned on a charge
23 (1) that is a capital felony, an unclassified felony, or a class A felony
24 and the felony is a crime against a person; or
25 (2) of arson in the first degree.
26 * Sec. 19. AS 47.10.060(f) is amended to read:
27 (f) For purposes of making a determination under (a) and (d) of this section,
28 (1) the standard of proof is by a preponderance of the evidence; and
29 (2) the burden of proof that a minor is not amenable to treatment under
30 AS 47.10.010 - 47.10.142 is on the state; however, if the petition filed under
31 AS 47.10.020 seeking to have the court declare a minor a delinquent is based on the
01 minor's alleged commission of an offense that is a capital felony, an unclassified
02 felony, or class A felony and that is a crime against a person, the minor
03 (A) is rebuttably presumed not to be amenable to treatment
04 under AS 47.10.010 - 47.10.142; and
05 (B) has the burden of proof of showing that the minor is
06 amenable to treatment under AS 47.10.010 - 47.10.142.
07 * Sec. 20. APPLICABILITY TO CRIMINAL RULES. AS 12.58, added by sec. 15 of this
08 Act, has the effect of modifying the sentencing provisions of Rules 32, 32.1, and 32.3, Alaska
09 Rules of Criminal Procedure, by establishing exclusive procedures for imposition of death
10 sentence by a trial court and by authorizing automatic appeal of those sentences to the Alaska
11 Supreme Court.
12 * Sec. 21. APPLICABILITY TO APPELLATE RULES. AS 12.58.100, added by sec. 15
13 of this Act, has the effect of amending Rules 204, 209, 210, and 212, Alaska Rules of
14 Appellate Procedure, by establishing procedures and limitations on procedures relating to the
15 filing and disposition of appeals of sentences in cases in which the death penalty is imposed.