File No. 519

Senate, April 26, 2005

The Committee on Judiciary reported through SEN. MCDONALD of the 27th Dist., Chairperson of the Committee on the part of the Senate, that the substitute bill ought to pass.

AN ACT CONCERNING THE DEATH PENALTY.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 53a-46a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.

(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant's character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (i) of this section exists or that any factor set forth in subsection (h) of this section exists. Such hearing shall be conducted (1) before the jury which determined the defendant's guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant's guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.

(c) In such hearing the court shall disclose to the defendant or [his] the defendant's counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (i) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the aggravating factors set forth in subsection (i) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.

(d) In determining whether a mitigating factor exists concerning the defendant's character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant's character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of [his] the defendant's culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.

(e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any factor set forth in subsection (h) of this section, the existence of any aggravating factor or factors set forth in subsection (i) of this section and whether any aggravating factor or factors outweigh any mitigating factor or factors found to exist pursuant to subsection (d) of this section.

(f) If the jury or, if there is no jury, the court finds that (1) none of the factors set forth in subsection (h) of this section exist, (2) one or more of the aggravating factors set forth in subsection (i) of this section exist, and (3) (A) no mitigating factor exists, or (B) one or more mitigating factors exist but are outweighed by one or more aggravating factors set forth in subsection (i) of this section, the court shall sentence the defendant to death.

(g) If the jury or, if there is no jury, the court finds that (1) any of the factors set forth in subsection (h) of this section exist, or (2) none of the aggravating factors set forth in subsection (i) of this section exists, or (3) one or more of the aggravating factors set forth in subsection (i) of this section exist and one or more mitigating factors exist, but the one or more aggravating factors set forth in subsection (i) of this section do not outweigh the one or more mitigating factors, the court shall impose a sentence of life imprisonment without the possibility of release.

(h) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e) of this section, that at the time of the offense (1) the defendant was under the age of eighteen years, or (2) the defendant was a person with mental retardation, as defined in section 1-1g, or (3) the defendant's mental capacity was significantly impaired or the defendant's ability to conform the defendant's conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution, or (4) the defendant was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but the defendant's participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution, or (5) the defendant could not reasonably have foreseen that the defendant's conduct in the course of commission of the offense of which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.

(i) The aggravating factors to be considered shall be limited to the following: (1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and the defendant had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; or (7) the defendant committed the offense with an assault weapon, as defined in section 53-202a; or (8) the defendant committed the offense set forth in subdivision (1) of section 53a-54b to avoid arrest for a criminal act or prevent detection of a criminal act or to hamper or prevent the victim from carrying out any act within the scope of the victim's official duties or to retaliate against the victim for the performance of the victim's official duties.

(j) If the hearing is conducted before a jury and the jury is unable to unanimously return a special verdict as provided in subsection (e) of this section within a reasonable period of time, the court shall discharge the jury and impose a sentence of life imprisonment without the possibility of release.

(k) At the conclusion of the presentation of evidence and prior to closing arguments, the court shall allow the defendant a reasonable opportunity to make a personal statement in his or her behalf to the jury or, if there is no jury, to the court without being sworn or subject to cross-examination.

Sec. 2. Section 53a-46d of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

[A] If a defendant is convicted of or pleads guilty to a capital felony, a victim impact statement prepared with the assistance of a victim advocate [to] shall be placed in the court files. [in accordance with subdivision (2) of subsection (a) of section 54-220 may be read in court prior to imposition of sentence upon a defendant found guilty of a crime punishable by death] At the conclusion of the presentation of evidence and prior to closing arguments at a hearing conducted pursuant to section 53a-46a, as amended by this act, the court shall allow a representative of each deceased victim a reasonable opportunity to make a victim impact statement to the jury or, if there is no jury, to the court. Such representative shall be an individual who is a "crime victim", as defined in section 1-1k.

The following fiscal impact statement and bill analysis are prepared for the benefit of members of the General Assembly, solely for the purpose of information, summarization, and explanation, and do not represent the intent of the General Assembly or either House thereof for any purpose:

OFA Fiscal Note

State Impact:

Note: GF=General Fund

Municipal Impact: None

Explanation

The bill alters the procedure in death penalty sentencing hearings by: (1) requiring the court to discharge the jury and sentence the defendant to life imprisonment if the jury cannot reach a unanimous verdict; (2) permitting the defendant to make a personal statement on his behalf; and (3) authorizing a representative of each deceased victim to make a victim impact statement rather than have the statement read in court, as under current law.

The net effect of these changes is uncertain. Should they result in a reduction in the number of individuals sentenced to death, a significant state savings for litigation, in addition to the avoidance of future costs associated with administration of the sentence, would be obtained. These savings would be offset by additional costs related to a more lengthy period of incarceration due to an inmate serving the term of life rather than being executed prior. The average cost of incarceration for an inmate at Northern Correctional Institution is $66,000 per year. The annual cost for inmates on death row is the same as the cost for inmates who are incarcerated for life at Northern Correctional Institution. Were the sentences of some of these individuals changed to life imprisonment, they would continue to remain at Northern until the Department of Correction was able to evaluate their security/risk level and determine where they would be placed within the state correctional system.



OLR Bill Analysis

sSB 895

AN ACT CONCERNING THE DEATH PENALTY

SUMMARY:

This bill makes three changes to death penalty sentencing hearings. In these hearings, the jury, or the court if there is no jury, weighs aggravating and mitigating factors to determine whether a person convicted of a capital felony is sentenced to death or life imprisonment without the possibility of release.

• The bill requires the court to discharge the jury and sentence the defendant to life imprisonment without the possibility of release if the jury cannot reach a unanimous verdict within a reasonable time. The Connecticut Supreme Court ruled that under current law the trial court has discretion to impanel a new jury to retry the penalty hearing.

• The bill requires the court to allow the defendant a reasonable opportunity to make a personal statement in his behalf to the jury, or court if there is no jury, without being sworn or subject to cross-examination. This must occur after the evidence is presented and before closing arguments in the penalty hearing. The Connecticut Supreme Court ruled that the defendant does not have this right to “allocution” in a death penalty sentencing hearing, although it is generally allowed in other criminal cases.

• Instead of authorizing the court to allow a victim impact statement to be read in court before imposing sentence on the defendant, the bill requires the court to allow a representative of each deceased victim to have a reasonable opportunity to make a victim impact statement to the jury or the court if there is no jury. This must occur after the evidence is presented and before closing arguments in the penalty hearing. The representative is an immediate family member of the homicide victim or a person legally designated by the victim to exercise this right. As under current law, a victim advocate must assist victims in preparing a victim impact statement for the court files.

EFFECTIVE DATE: Upon passage

BACKGROUND

Related Case—Deadlocked Juries

The Connecticut Supreme Court ruled that the death penalty sentencing statute does not mandate a specific outcome when the jury is not unanimous in its decision on whether to impose the death penalty. The court stated that the statute neither authorizes the death penalty nor requires imposition of a life sentence without release in these circumstances. The court stated that the trial court has discretion to declare a mistrial and can impanel a new jury to retry the penalty phase (State v. Daniels, 207 Conn. 374 (1988); State v. Peeler, 271 Conn. 338, 427 (2004)).

Related Case—Defendant Allocution

The Connecticut Supreme Court ruled that the defendant does not have the right to allocution in a death penalty sentencing hearing. The court found that the legislature set detailed procedures for capital sentencing hearings. The court stated that the principal goal of allocution is the dispensation of mercy and the statutory scheme, which permits cross-examination and rebuttal by the state, specifically contemplates mercy as one of the factors for the jury to consider in making its decision. The court concluded it would be inconsistent with this scheme to give the defendant the right to make a plea for mercy through an unsworn statement without cross-examination. The court found no federal or state constitutional right to allocution (State v. Colon, 272 Conn. 106 (2004)).

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute