| |
|
| |
| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
| |
| SENATE BILL |
|
| |
| |
| INTRODUCED BY M. WHITE, EARLL, KITCHEN, ERICKSON, GORDNER, D. WHITE, ROBBINS, FONTANA, ORIE, TARTAGLIONE, LEACH, COSTA, YUDICHAK, WILLIAMS, WOZNIAK AND FARNESE, FEBRUARY 4, 2011 |
| |
| |
| REFERRED TO JUDICIARY, FEBRUARY 4, 2011 |
| |
| |
| |
| AN ACT |
| |
1 | Amending Title 42 (Judiciary and Judicial Procedure) of the |
2 | Pennsylvania Consolidated Statutes, in post-trial matters, |
3 | prohibiting the imposition of the death sentence in cases of |
4 | mental retardation. |
5 | The General Assembly of the Commonwealth of Pennsylvania |
6 | hereby enacts as follows: |
7 | Section 1. Sections 9543(a)(2) and 9545(b)(1) of Title 42 of |
8 | the Pennsylvania Consolidated Statutes are amended to read: |
9 | § 9543. Eligibility for relief. |
10 | (a) General rule.--To be eligible for relief under this |
11 | subchapter, the petitioner must plead and prove by a |
12 | preponderance of the evidence all of the following: |
13 | * * * |
14 | (2) That the conviction or sentence resulted from one or |
15 | more of the following: |
16 | (i) A violation of the Constitution of this |
17 | Commonwealth or the Constitution or laws of the United |
18 | States which, in the circumstances of the particular |
|
1 | case, so undermined the truth-determining process that no |
2 | reliable adjudication of guilt or innocence could have |
3 | taken place. |
4 | (ii) Ineffective assistance of counsel which, in the |
5 | circumstances of the particular case, so undermined the |
6 | truth-determining process that no reliable adjudication |
7 | of guilt or innocence could have taken place. |
8 | (iii) A plea of guilty unlawfully induced where the |
9 | circumstances make it likely that the inducement caused |
10 | the petitioner to plead guilty and the petitioner is |
11 | innocent. |
12 | (iv) The improper obstruction by government |
13 | officials of the petitioner's right of appeal where a |
14 | meritorious appealable issue existed and was properly |
15 | preserved in the trial court. |
16 | (vi) The unavailability at the time of trial of |
17 | exculpatory evidence that has subsequently become |
18 | available and would have changed the outcome of the trial |
19 | if it had been introduced. |
20 | (vii) The imposition of a sentence greater than the |
21 | lawful maximum. |
22 | (viii) A proceeding in a tribunal without |
23 | jurisdiction. |
24 | (ix) The existence of mental retardation as defined |
25 | in section 9711(q) (relating to sentencing procedure for |
26 | murder of the first degree). |
27 | * * * |
28 | § 9545. Jurisdiction and proceedings. |
29 | * * * |
30 | (b) Time for filing petition.-- |
|
1 | (1) Any petition under this subchapter, including a |
2 | second or subsequent petition, shall be filed within one year |
3 | of the date the judgment becomes final, unless the petition |
4 | alleges and the petitioner proves that: |
5 | (i) the failure to raise the claim previously was |
6 | the result of interference by government officials with |
7 | the presentation of the claim in violation of the |
8 | Constitution or laws of this Commonwealth or the |
9 | Constitution or laws of the United States; |
10 | (ii) the facts upon which the claim is predicated |
11 | were unknown to the petitioner and could not have been |
12 | ascertained by the exercise of due diligence; [or] |
13 | (iii) the right asserted is a constitutional right |
14 | that was recognized by the Supreme Court of the United |
15 | States or the Supreme Court of Pennsylvania after the |
16 | time period provided in this section and has been held by |
17 | that court to apply retroactively[.]; or |
18 | (iv) the petitioner claims he is a person with |
19 | mental retardation as defined in section 9711(q) |
20 | (relating to sentencing procedure for murder of the first |
21 | degree), and the time for raising that claim has expired |
22 | as of the effective date of this subparagraph. Any |
23 | petition invoking this exception must be filed within 365 |
24 | days of the effective date of this subparagraph or of the |
25 | conclusion of any appeal pending on the effective date of |
26 | this subparagraph from the judgment of sentence or from |
27 | the denial of a previous petition under this chapter. |
28 | * * * |
29 | Section 2. Sections 9546 and 9711 of Title 42 are amended by |
30 | adding subsections to read: |
|
1 | § 9546. Relief and order. |
2 | * * * |
3 | (a.1) Mental retardation.--Upon a finding that evidence has |
4 | been presented that is sufficient to establish, by a |
5 | preponderance of the evidence, that the petitioner is a person |
6 | with mental retardation as defined in section 9711(q) (relating |
7 | to sentencing procedure for murder of the first degree), the |
8 | court shall direct that the sentence of death be vacated and |
9 | that the defendant be sentenced to life imprisonment. |
10 | * * * |
11 | § 9711. Sentencing procedure for murder of the first degree. |
12 | * * * |
13 | (e.1) Mental retardation.-- |
14 | (1) No person with mental retardation shall be eligible |
15 | for the death penalty. |
16 | (2) (i) Counsel for the defendant may file a written |
17 | motion alleging reasonable cause to believe that the |
18 | defendant is a person with mental retardation and |
19 | requesting an order directing that a hearing be conducted |
20 | prior to trial to determine if the defendant is not |
21 | eligible for the death penalty. |
22 | (ii) The motion shall be filed at least 90 days |
23 | before the commencement of the trial or later upon just |
24 | cause shown to the court. |
25 | (iii) The motion shall set forth in particular the |
26 | reasons and grounds to support the reasonable cause to |
27 | believe that the defendant is a person with mental |
28 | retardation. |
29 | (iv) Upon receipt of the motion that the defendant |
30 | is not eligible for the death penalty, the trial court |
|
1 | shall conduct a hearing for the presentation of evidence |
2 | regarding the defendant's mental retardation. Both the |
3 | Commonwealth and the defendant shall have the opportunity |
4 | to present evidence, including expert testimony. The |
5 | court shall order an expert psychiatric or psychological |
6 | examination of the defendant to be performed by a |
7 | licensed psychiatrist or licensed psychologist who is an |
8 | expert in the diagnosis and evaluation of mental |
9 | retardation. |
10 | (v) Prior to the time set for the hearing on the |
11 | pretrial motion, the Commonwealth shall have the same |
12 | rights of discovery as exist under the Pennsylvania Rules |
13 | of Criminal Procedure, including, but not limited to, the |
14 | production of reports from experts and production of any |
15 | information that will further a full, fair and |
16 | expeditious resolution of the determination of whether |
17 | the defendant is a person with mental retardation. |
18 | (vi) The court shall find that the defendant is not |
19 | eligible for the death penalty if it finds that the |
20 | defendant is a person with mental retardation. If the |
21 | court finds that the defendant is eligible for the death |
22 | penalty, the trial may proceed as a capital case. If the |
23 | court finds that the defendant is a person with mental |
24 | retardation, the trial shall proceed as a noncapital |
25 | trial. |
26 | (vii) If the court enters an order under |
27 | subparagraph (vi) finding that the defendant is a person |
28 | with mental retardation, the Commonwealth may appeal as |
29 | of right from the order under Pa.R.A.P. 311 (a)(9) |
30 | (relating to interlocutory appeals as of right). The |
|
1 | taking of an appeal by the Commonwealth under this |
2 | subsection stays the effectiveness of the court's order |
3 | and any order fixing a date for trial for purposes of |
4 | Pa.R.Crim.P. 600 (relating to prompt trial) and speedy |
5 | trial rights under the Constitution of the United States |
6 | and the Constitution of Pennsylvania. |
7 | (viii) The pretrial determination of the court shall |
8 | not preclude the defendant from raising any legal defense |
9 | or factual evidence including, but not limited to, the |
10 | existence of mental retardation during the trial or the |
11 | sentencing phase of a capital trial under this section. |
12 | (ix) The jury shall not be informed of the prior |
13 | proceedings or the court's findings concerning the |
14 | defendant's motion with respect to the issue of mental |
15 | retardation. |
16 | (3) If a defendant has already been sentenced to death |
17 | as of the effective date of this subsection and postsentence |
18 | motions are still pending or a direct appeal is still |
19 | pending, under rule of court, a defendant may file a motion |
20 | raising a claim that he is ineligible for a death sentence |
21 | because he is a person with mental retardation. The trial |
22 | court that imposed the sentence on the defendant shall |
23 | conduct an evidentiary hearing on the motion and determine |
24 | whether the defendant is a person with mental retardation as |
25 | defined in subsection (q). |
26 | * * * |
27 | (p) Burden of proof.-- |
28 | (1) A defendant who raises a claim of mental retardation |
29 | must prove the elements of subsection (q) by a preponderance |
30 | of the evidence. |
|
1 | (2) A defendant who raises a claim of mental retardation |
2 | waives confidentiality and privileges. The following apply: |
3 | (i) The defendant's medical, corrections, military |
4 | and scholastic records may be reviewed by the parties. |
5 | (ii) The defendant's previous physicians, teachers |
6 | and mental health providers may be contacted by the |
7 | parties and current mental health examiners to learn of |
8 | the defendant's background relative to the claim of |
9 | mental retardation. |
10 | (q) Definition.--As used in this section, the term "person |
11 | with mental retardation" means a person who has a mental |
12 | disability characterized by significant limitations in |
13 | intellectual functioning and in adaptive behavior as expressed |
14 | in conceptual, social and practical adaptive skills, which the |
15 | defendant must prove by establishing all of the following |
16 | elements by a preponderance of the evidence: |
17 | (1) That his full-scale intelligence quotient is two |
18 | standard deviations below the mean, as determined by a |
19 | standardized test generally accepted in the profession and |
20 | individually administered by a licensed psychologist. |
21 | (2) That he has significant limitations, as determined |
22 | by a standardized test generally accepted in the profession |
23 | and individually administered by a licensed psychologist, in |
24 | adaptive behavior as manifested by performance that is at |
25 | least two standard deviations below the mean of: |
26 | (i) conceptual, social or practical adaptive |
27 | behavior; or |
28 | (ii) an overall score on a standardized measure of |
29 | conceptual, social and practical skills. |
30 | (3) That his mental disability was present before the |
|
1 | age of 18 as demonstrated by contemporaneous written records. |
2 | However, contemporaneous written records shall not be |
3 | required where the defendant establishes that such written |
4 | records are lost or missing or that the defendant was |
5 | deprived of schooling or other social services contacts in |
6 | which such contemporaneous records would be created. |
7 | Section 3. (a) The amendment or addition of 42 Pa.C.S. §§ |
8 | 9543(a)(2), 9545(b)(1), 9546 (a.1) and 9711(e.1), (p) and (q) |
9 | shall apply to persons who are sentenced on or after the |
10 | effective date of this section. |
11 | (b) If a defendant who has already been sentenced to death |
12 | as of the effective date of this section wishes to raise the |
13 | issue of mental retardation and postsentence motions are still |
14 | pending, the defendant may, under court rule, amend the |
15 | postsentence motions to raise the claim that imposition of the |
16 | death penalty would have been barred under 42 Pa.C.S. § |
17 | 9711(e.1) if it had been in effect at the time of the sentencing |
18 | hearing. The trial court that imposed the sentence on the |
19 | defendant shall conduct an evidentiary hearing on the motion. |
20 | Upon a finding that evidence has been presented sufficient to |
21 | establish that the defendant is a person with mental retardation |
22 | as provided under 42 Pa.C.S. § 9711(e.1), the court shall vacate |
23 | the sentence of death and shall sentence the defendant to life |
24 | imprisonment. |
25 | (c) If a defendant who has already been sentenced to death |
26 | as of the effective date of this section wishes to raise the |
27 | issue of mental retardation and direct appeal is still pending, |
28 | the defendant may, pursuant to court rule, after disposition of |
29 | the appeal, raise the issue in a petition under 42 Pa.C.S. § |
30 | 9545(b) after the disposition of the appeal. |
|
1 | Section 4. This act shall take effect immediately. |
|