PRINTER'S NO. 1779
No. 1370 Session of 2007
INTRODUCED BY MANDERINO, BELFANTI, BISHOP, BUXTON, CALTAGIRONE, CARROLL, CREIGHTON, CURRY, DALEY, FABRIZIO, FAIRCHILD, FRANKEL, FREEMAN, GEORGE, GIBBONS, JAMES, JOSEPHS, KENNEY, KIRKLAND, KORTZ, LEACH, LEVDANSKY, LONGIETTI, MAHONEY, MANN, MARKOSEK, McGEEHAN, McILHATTAN, MUNDY, M. O'BRIEN, PAYTON, RAPP, ROAE, ROSS, K. SMITH, STURLA, SCAVELLO, SHIMKUS, SURRA, SWANGER, TANGRETTI, VITALI, WAGNER, WALKO, WATERS, YOUNGBLOOD, McILVAINE SMITH AND SIPTROTH, JUNE 5, 2007
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 5, 2007
AN ACT 1 Amending Title 42 (Judiciary and Judicial Procedure) of the 2 Pennsylvania Consolidated Statutes, prohibiting the 3 imposition of the death sentence in cases of mental 4 retardation. 5 The General Assembly of the Commonwealth of Pennsylvania 6 hereby enacts as follows: 7 Section 1. Section 9543(a)(2) of Title 42 of the 8 Pennsylvania Consolidated Statutes is amended by adding a 9 subparagraph to read: 10 § 9543. Eligibility for relief. 11 (a) General rule.--To be eligible for relief under this 12 subchapter, the petitioner must plead and prove by a 13 preponderance of the evidence all of the following: 14 * * * 15 (2) That the conviction or sentence resulted from one or 16 more of the following:
1 * * * 2 (ix) The existence of mental retardation as defined 3 in section 9711(q) (relating to sentencing procedure for 4 murder of the first degree). 5 * * * 6 Section 2. Section 9545(b)(1) of Title 42 is amended to 7 read: 8 § 9545. Jurisdiction and proceedings. 9 * * * 10 (b) Time for filing petition.-- 11 (1) Any petition under this subchapter, including a 12 second or subsequent petition, shall be filed within one year 13 of the date the judgment becomes final, unless the petition 14 alleges and the petitioner proves that: 15 (i) the failure to raise the claim previously was 16 the result of interference by government officials with 17 the presentation of the claim in violation of the 18 Constitution or laws of this Commonwealth or the 19 Constitution or laws of the United States; 20 (ii) the facts upon which the claim is predicated 21 were unknown to the petitioner and could not have been 22 ascertained by the exercise of due diligence; [or] 23 (iii) the right asserted is a constitutional right 24 that was recognized by the Supreme Court of the United 25 States or the Supreme Court of Pennsylvania after the 26 time period provided in this section and has been held by 27 that court to apply retroactively[.]; or 28 (iv) the petitioner claims he is a person with 29 mental retardation as defined in section 9711(q) 30 (relating to sentencing procedure for murder of the first 20070H1370B1779 - 2 -
1 degree) and the time for raising that claim has expired 2 as of the effective date of this subparagraph. Any 3 petition invoking this exception must be filed within 365 4 days of the effective date of this subparagraph or of the 5 conclusion of any appeal pending on the effective date of 6 this subparagraph from the judgment of sentence or from 7 the denial of a previous petition under this chapter. 8 * * * 9 Section 3. Sections 9546 and 9711 of Title 42 are amended by 10 adding subsections to read: 11 § 9546. Relief and order. 12 * * * 13 (a.1) Mental retardation.--Upon a finding that evidence has 14 been presented that is sufficient to establish, by a 15 preponderance of the evidence, that the petitioner is a person 16 with mental retardation as defined in section 9711(q) (relating 17 to sentencing procedure for murder of the first degree), the 18 court shall direct that the sentence of death be vacated and 19 that the defendant be sentenced to life imprisonment. 20 * * * 21 § 9711. Sentencing procedure for murder of the first degree. 22 * * * 23 (e.1) Mental retardation.-- 24 (1) No person with mental retardation shall be eligible 25 for the death penalty. 26 (2) The following apply: 27 (i) At least 90 days before the commencement of 28 trial or later upon just cause shown to the court, 29 counsel for the defendant may, upon written motion 30 alleging reasonable cause to believe that the defendant 20070H1370B1779 - 3 -
1 is a person with mental retardation, apply for an order 2 directing that a hearing to determine if the defendant is 3 not eligible for the death penalty because the defendant 4 is a person with mental retardation be conducted prior to 5 trial. The written motion must set forth in particular 6 the reasons and grounds to support the reasonable cause 7 to believe that the defendant is a person with mental 8 retardation. 9 (ii) Upon receipt of a motion for a determination 10 that the defendant is not eligible for the death penalty 11 because the defendant is a person with mental 12 retardation, the trial court shall conduct a hearing for 13 the presentation of evidence regarding the defendant's 14 mental retardation. Both the Commonwealth and the 15 defendant shall have the opportunity to present evidence, 16 including expert testimony. The court shall order an 17 expert psychiatric or psychological examination of the 18 defendant to be performed by a licensed psychiatrist or 19 licensed psychologist who is an expert in the diagnosis 20 and evaluation of mental retardation. The defendant must 21 prove that the defendant is a person with mental 22 retardation by a preponderance of the evidence. 23 (iii) Prior to the time set for the hearing on the 24 pretrial motion, the Commonwealth shall have the same 25 rights of discovery as exist under the Pennsylvania Rules 26 of Criminal Procedure, including the production of 27 reports from experts and production of any information 28 that will further a full, fair and expeditious resolution 29 of the determination of whether the defendant is a person 30 with mental retardation. 20070H1370B1779 - 4 -
1 (iv) At the hearing on the pretrial motion to 2 determine whether the defendant is a person with mental 3 retardation, the defendant has the burden of proving that 4 the defendant is a person with mental retardation by a 5 preponderance of the evidence. The court shall consider 6 the existence or absence of documentation and any reasons 7 for the existence or absence of documentation of the 8 manifestation of mental retardation before 18 years of 9 age. 10 (v) The court shall find that the defendant is not 11 eligible for the death penalty if it finds, by a 12 preponderance of the evidence, that the defendant is a 13 person with mental retardation. If the court finds that 14 the defendant is a person with mental retardation, the 15 trial shall proceed as a noncapital trial. 16 (vi) If the court enters an order under subparagraph 17 (v) finding that the defendant is a person with mental 18 retardation, the Commonwealth may appeal as of right from 19 the order under Pa.R.A.P. 311(a)(9) (relating to 20 interlocutory appeals as of right). The taking of an 21 appeal by the Commonwealth under this subparagraph stays 22 the effectiveness of the court's order and any order 23 fixing a date for trial for purposes of Pa.R.Crim.P. 600 24 (relating to prompt trial) and speedy trial rights under 25 the Constitution of the United States and the 26 Constitution of Pennsylvania. 27 (vii) If the court finds that the defendant is 28 eligible for the death penalty, the trial may proceed as 29 a capital case. 30 (viii) The pretrial determination of the court shall 20070H1370B1779 - 5 -
1 not preclude the defendant from raising any legal defense 2 or factual evidence, including the existence of mental 3 retardation, during the trial or the sentencing phase of 4 a capital trial under this section. 5 (ix) The jury shall not be informed of the prior 6 proceedings or the court's findings concerning the 7 defendant's motion with respect to the issue of mental 8 retardation. 9 (3) If a defendant has already been sentenced to death 10 as of the effective date of this subsection and postsentence 11 motions are still pending or a direct appeal is still 12 pending, pursuant to rule of court, a defendant may file a 13 motion raising a claim of ineligibility for a death sentence 14 because the defendant is a person with mental retardation. 15 The trial court that imposed the sentence on the defendant 16 shall conduct an evidentiary hearing on the motion and 17 determine whether the defendant is a person with mental 18 retardation. 19 * * * 20 (p) Burden of proof.-- 21 (1) A defendant who raises a defense of mental 22 retardation must prove the elements of the definition of 23 "person with mental retardation" in subsection (q) by a 24 preponderance of the evidence. 25 (2) A defendant who raises a claim of mental retardation 26 waives confidentiality and privileges. The following apply: 27 (i) The defendant's medical, corrections, military 28 and scholastic records may be reviewed by the parties. 29 (ii) The defendant's previous physicians, teachers 30 and mental health providers may be contacted by the 20070H1370B1779 - 6 -
1 parties and current mental health examiners to learn of 2 the defendant's background relative to the claim of 3 mental retardation. 4 (q) Definition.--As used in this section, the term "person 5 with mental retardation" means a person who has a mental 6 disability characterized by significant limitations in 7 intellectual functioning and in adaptive behavior as expressed 8 in conceptual, social and practical adaptive skills, to whom all 9 of the following apply: 10 (1) The person's full-scale intelligence quotient is two 11 standard deviations below the mean as determined by a 12 standardized test generally accepted in the profession and 13 individually administered by a licensed psychologist. 14 (2) The person has significant limitations, as 15 determined by a standardized test generally accepted in the 16 profession and individually administered by a licensed 17 psychologist, in adaptive behavior as manifested by 18 performance which is at least two standard deviations below 19 the mean of: 20 (i) conceptual, social or practical adaptive 21 behavior; or 22 (ii) an overall score on a standardized measure of 23 conceptual, social and practical skills. 24 (3) The person's mental disability was present before 18 25 years of age as demonstrated by contemporaneous written 26 records. However, contemporaneous written records shall not 27 be required where the defendant establishes that such written 28 records are lost or missing or that the defendant was 29 deprived of schooling or other social services contacts in 30 which such contemporaneous records would be created. 20070H1370B1779 - 7 -
1 Section 4. This act shall apply as follows: 2 (1) This act shall apply to persons who are sentenced on 3 or after the effective date of this section. 4 (2) If a defendant who has already been sentenced to 5 death as of the effective date of this section wishes to 6 raise the issue of mental retardation and postsentence 7 motions are still pending, the defendant may, pursuant to 8 court rule, amend the postsentence motions to raise the claim 9 that imposition of the death penalty would have been barred 10 under 42 Pa.C.S. § 9711(e.1) if it had been in effect at the 11 time of the sentencing hearing. The trial court that imposed 12 the sentence on the defendant shall conduct an evidentiary 13 hearing on the motion. Upon a finding that evidence has been 14 presented sufficient to establish that the defendant is a 15 person with mental retardation as provided under 42 Pa.C.S. § 16 9711(e.1), the court shall vacate the sentence of death and 17 shall sentence the defendant to life imprisonment. 18 (3) If a defendant who has already been sentenced to 19 death as of the effective date of this section wishes to 20 raise the issue of mental retardation and direct appeal is 21 still pending, the defendant may, pursuant to rule of court, 22 after disposition of the appeal, raise the issue in a Post 23 Conviction Relief Act petition under 42 Pa.C.S. § 9545(b) 24 after the disposition of the appeal. 25 Section 5. This act shall take effect immediately. C23L42RLE/20070H1370B1779 - 8 -