Bill Text: OR SB369 | 2011 | Regular Session | Engrossed

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Bill Title: Relating to the death penalty; appropriating money; declaring an emergency.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB369 Detail]

Download: Oregon-2011-SB369-Engrossed.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 196

                           A-Engrossed

                         Senate Bill 369
                 Ordered by the Senate April 27
           Including Senate Amendments dated April 27

Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Senate Interim Committee on
  Judiciary)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.

  Creates Death Penalty Review Panel. Directs panel to review
cases in which sentence of death is imposed when conviction or
sentence is subject to litigation. Authorizes panel to convene
settlement conference and make settlement recommendation.
   { +  Prohibits court from imposing death penalty following
conviction of person for aggravated murder unless district
attorney files and serves notice of intent to seek death penalty
in accordance with specified timeline. + }
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to the death penalty; creating new provisions; amending
  ORS 163.150; appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) There is created the Death Penalty Review
Panel consisting of three members appointed by the Chief Justice
of the Supreme Court. Members appointed to the panel must be
retired judges who have experience with aggravated murder cases.
  (2) The panel shall review aggravated murder cases in which a
sentence of death is imposed for the purpose of determining
whether a settlement conference would be beneficial to the
parties. The panel shall review each case at the following times:
  (a) When a petition for habeas corpus is filed under ORS 34.310
to 34.730.
  (b) When a petition for post-conviction relief is filed under
ORS 138.510 to 138.680.
  (c) When a court conducts appellate review of a petition
described in paragraph (a) or (b) of this subsection.
  (d) When a case is remanded to the trial court.
  (3) The panel may convene a settlement conference between the
parties and may recommend to the state that the state offer the
defendant a sentence of life imprisonment without the possibility
of release or parole as described in ORS 163.105 (1)(b).

  (4) Official action by the panel requires the approval of a
majority of the members of the panel.
  (5) The Judicial Department shall provide staff support to the
panel.
  (6) All agencies of state government as defined in ORS 174.111
are directed to assist the panel in the performance of its duties
and, to the extent permitted by laws relating to confidentiality,
to furnish such information and advice as the members of the
panel consider necessary to perform their duties.
  (7) Service on the panel:
  (a) Constitutes service as a pro tem judge for purpose of ORS
238.535 (1)(c); or
  (b) Entitles a member of the panel to compensation in the
amount of $200 per day plus necessary travel expenses. + }
  SECTION 2.  { + There is appropriated to the Judicial
Department, for the biennium beginning July 1, 2011, out of the
General Fund, the amount of $___ for the purpose of carrying out
the provisions of section 1 of this 2011 Act. + }
  SECTION 3.  { + (1) The court may not sentence a defendant to
death under ORS 163.150 (1)(f) unless the district attorney files
and serves a notice of intent to seek a sentence of death in
accordance with this section. Except for good cause shown, the
notice must be filed with the court and served on counsel for the
defendant no later than 180 days after a defendant charged with
aggravated murder, as defined in ORS 163.095, is held to answer
following a preliminary hearing, is arraigned on an indictment or
waives indictment. In no event may the court allow a district
attorney to file and serve the notice less than 90 days before
trial.
  (2) A defendant may not enter a plea of guilty or no contest to
a charge of aggravated murder more than 90 days before trial
without the consent of the district attorney. + }
  SECTION 4. ORS 163.150 is amended to read:
  163.150. (1)(a) Upon a finding that the defendant is guilty of
aggravated murder, the court, except as otherwise provided in
subsection (3) of this section, shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to life imprisonment, as described in ORS 163.105
(1)(c), life imprisonment without the possibility of release or
parole, as described in ORS 163.105 (1)(b), or death. The
proceeding shall be conducted in the trial court before the trial
jury as soon as practicable. If a juror for any reason is unable
to perform the function of a juror, the juror shall be dismissed
from the sentencing proceeding. The court shall cause to be drawn
the name of one of the alternate jurors, who shall then become a
member of the jury for the sentencing proceeding notwithstanding
the fact that the alternate juror did not deliberate on the issue
of guilt. The substitution of an alternate juror shall be allowed
only if the jury has not begun to deliberate on the issue of the
sentence. If the defendant has pleaded guilty, the sentencing
proceeding shall be conducted before a jury impaneled for that
purpose. In the proceeding, evidence may be presented as to any
matter that the court deems relevant to sentence including, but
not limited to, victim impact evidence relating to the personal
characteristics of the victim or the impact of the crime on the
victim's family and any aggravating or mitigating evidence
relevant to the issue in paragraph (b)(D) of this subsection;
however, neither the state nor the defendant shall be allowed to
introduce repetitive evidence that has previously been offered
and received during the trial on the issue of guilt. The court
shall instruct the jury that all evidence previously offered and
received may be considered for purposes of the sentencing
hearing. This paragraph shall not be construed to authorize the
introduction of any evidence secured in violation of the
Constitution of the United States or of the State of Oregon. The
state and the defendant or the counsel of the defendant shall be
permitted to present arguments for or against a sentence of death
and for or against a sentence of life imprisonment with or
without the possibility of release or parole.
  (b) Upon the conclusion of the presentation of the evidence,
the court shall submit the following issues to the jury:
  (A) Whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the
reasonable expectation that death of the deceased or another
would result;
  (B) Whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society;
  (C) If raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased; and
  (D) Whether the defendant should receive a death sentence.
  (c)(A) The court shall instruct the jury to consider, in
determining the issues in paragraph (b) of this subsection, any
mitigating circumstances offered in evidence, including but not
limited to the defendant's age, the extent and severity of the
defendant's prior criminal conduct and the extent of the mental
and emotional pressure under which the defendant was acting at
the time the offense was committed.
  (B) The court shall instruct the jury to answer the question in
paragraph (b)(D) of this subsection 'no' if, after considering
any aggravating evidence and any mitigating evidence concerning
any aspect of the defendant's character or background, or any
circumstances of the offense and any victim impact evidence as
described in paragraph (a) of this subsection, one or more of the
jurors believe that the defendant should not receive a death
sentence.
  (d) The state must prove each issue submitted under paragraph
(b)(A) to (C) of this subsection beyond a reasonable doubt, and
the jury shall return a special verdict of 'yes' or 'no' on each
issue considered.
  (e) The court shall charge the jury that it may not answer any
issue 'yes,' under paragraph (b) of this subsection unless it
agrees unanimously.
  (f) If the jury returns an affirmative finding on each issue
considered under paragraph (b) of this subsection, the trial
judge shall sentence the defendant to death.
  (2)(a) Upon the conclusion of the presentation of the evidence,
the court shall also instruct the jury that if it reaches a
negative finding on any issue under subsection (1)(b) of this
section, the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole, as
described in ORS 163.105 (1)(b), unless 10 or more members of the
jury further find that there are sufficient mitigating
circumstances to warrant life imprisonment, in which case the
trial court shall sentence the defendant to life imprisonment as
described in ORS 163.105 (1)(c).
  (b) If the jury returns a negative finding on any issue under
subsection (1)(b) of this section and further finds that there
are sufficient mitigating circumstances to warrant life
imprisonment, the trial court shall sentence the defendant to
life imprisonment in the custody of the Department of Corrections
as provided in ORS 163.105 (1)(c).
  (3)(a) When the defendant is found guilty of aggravated murder,
and ORS 137.707 (2) applies { + , the state has failed to comply
with section 3 of this 2011 Act + } or the state advises the
court on the record that the state declines to present evidence
for purposes of sentencing the defendant to death, the court:
  (A) Shall not conduct a sentencing proceeding as described in
subsection (1) of this section, and a sentence of death shall not
be ordered.

  (B) Shall conduct a sentencing proceeding to determine whether
the defendant shall be sentenced to life imprisonment without the
possibility of release or parole as described in ORS 163.105
(1)(b) or life imprisonment as described in ORS 163.105 (1)(c).
If the defendant waives all rights to a jury sentencing
proceeding, the court shall conduct the sentencing proceeding as
the trier of fact. The procedure for the sentencing proceeding,
whether before a court or a jury, shall follow the procedure of
subsection (1)(a) of this section, as modified by this
subsection. In the proceeding, evidence may be presented as to
any matter that the court deems relevant to sentence, including,
but not limited to, victim impact evidence relating to the
personal characteristics of the victim or the impact of the crime
on the victim's family.
  (b) Following the presentation of evidence and argument under
paragraph (a) of this subsection, the court shall instruct the
jury that the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole as
described in ORS 163.105 (1)(b), unless after considering all of
the evidence submitted, 10 or more members of the jury find there
are sufficient mitigating circumstances to warrant life
imprisonment with the possibility of parole as described in ORS
163.105 (1)(c). If 10 or more members of the jury find there are
sufficient mitigating circumstances to warrant life imprisonment
with the possibility of parole, the trial court shall sentence
the defendant to life imprisonment as described in ORS 163.105
(1)(c).
  (c) Nothing in this subsection shall preclude the court from
sentencing the defendant to life imprisonment, as described in
ORS 163.105 (1)(c), or life imprisonment without the possibility
of release or parole, as described in ORS 163.105 (1)(b),
pursuant to a stipulation of sentence or stipulation of
sentencing facts agreed to and offered by both parties if the
defendant waives all rights to a jury sentencing proceeding.
  (4) If any part of subsection (2) of this section is held
invalid and as a result thereof a defendant who has been
sentenced to life imprisonment without possibility of release or
parole will instead be sentenced to life imprisonment in the
custody of the Department of Corrections as provided in ORS
163.105 (2), the defendant shall be confined for a minimum of 30
years without possibility of parole, release on work release or
any form of temporary leave or employment at a forest or work
camp. Subsection (2) of this section shall apply only to trials
commencing on or after July 19, 1989.
  (5) Notwithstanding subsection (1)(a) of this section, if the
trial court grants a mistrial during the sentencing proceeding,
the trial court, at the election of the state, shall either:
  (a) Sentence the defendant to imprisonment for life in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c); or
  (b) Impanel a new sentencing jury for the purpose of conducting
a new sentencing proceeding to determine if the defendant should
be sentenced to:
  (A) Death;
  (B) Imprisonment for life without the possibility of release or
parole as provided in ORS 163.105 (1)(b); or
  (C) Imprisonment for life in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c).
  SECTION 5.  { + Section 3 of this 2011 Act and the amendments
to ORS 163.150 by section 4 of this 2011 Act apply to
prosecutions alleging the commission of aggravated murder
committed on or after the effective date of this 2011 Act. + }
  SECTION 6.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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