PA 09-107—HB 6578 (VETOED)

Judiciary Committee

AN ACT CONCERNING THE PENALTY FOR A CAPITAL FELONY

SUMMARY: This act (1) eliminates the death penalty as a sentencing option for crimes committed starting on the act's effective date, (2) renames the crime of capital felony as murder with special circumstances, and (3) makes the penalty for this new crime life imprisonment without the possibility of release. Under prior law, the penalty for a capital felony was either the death penalty or life imprisonment without the possibility of release.

EFFECTIVE DATE: Upon passage. The provisions on murder with special circumstances apply to crimes committed on and after that date.

MURDER WITH SPECIAL CIRCUMSTANCES

The act makes a number of technical and conforming changes to apply most of the same rules that apply to capital felonies to murder with special circumstances, such as:

1. preserving biological evidence and records of evidence and judicial proceedings,

2. authorizing the court to allow the reading of a victim impact statement in court before imposing the sentence on the defendant,

3. choosing a jury or three-judge panel,

4. challenging potential jurors,

5. requiring testimony of at least two witnesses or their equivalent for a conviction, and

6. prohibiting medical or compassionate parole release.

BAIL

Under the Connecticut Constitution, a person is eligible for bail unless he or she is charged with a capital offense “where the proof is evident or the presumption great. ” Thus, most people charged with capital felonies are ineligible for bail. Because murder with special circumstances is not a capital offense, people charged with this crime would be eligible for bail under the constitution. The act makes them ineligible for bail when detained under a bench warrant or awaiting arraignment or trial. As with capital felonies under prior law, people convicted of murder with special circumstances would be ineligible for post-conviction bail while awaiting sentencing or appealing their conviction.

BACKGROUND

Capital Felony

A person commits a capital felony if he or she:

1. murders, while the victim was acting within the scope of his or her duties, a police officer, Division of Criminal Justice inspector, state marshal exercising statutory authority, judicial marshal performing duties, constable performing law enforcement duties, special policeman, conservation or special conservation officer appointed by the environmental protection commissioner, firefighter, or Department of Correction (DOC) employee or service provider acting within the scope of employment in a correctional facility (the perpetrator must be an inmate);

2. murders for pay or hires someone to murder;

3. murders and was previously convicted of intentional murder or murder while a felony was committed;

4. murders while sentenced to life imprisonment;

5. murders a kidnapped person and is the kidnapper;

6. murders while committing 1st degree sexual assault;

7. murders two or more people at the same time or in the course of a single transaction; or

8. murders a person under age 16.

Sentencing Hearing

A person convicted of a capital felony must be sentenced to either the death penalty or life imprisonment without the possibility of release. The jury, or the court if the defendant chooses, weighs mitigating and aggravating factors in a separate sentencing hearing to decide whether to impose the death penalty. The jury or court cannot impose the death penalty and must sentence the person to life imprisonment without the possibility of release if mitigating factors outweigh, or are of equal weight to, the aggravating factors or if any of five automatic bars to the death penalty exist. Otherwise, the person must be sentenced to death.

Aggravating Factors

By law, the only aggravating factors that the jury or court can consider are that the defendant:

1. committed the offense while committing or attempting to commit a felony, or while fleeing from the commission of or attempt to commit a felony, and had previously been convicted of the same felony;

2. had been convicted of at least two state or federal offenses prior to the offense, each of which was committed on different occasions, involved serious bodily injury, and had a maximum penalty of at least one year imprisonment;

3. committed the offense knowingly creating a risk of death to another person in addition to the victim of the offense;

4. committed the offense in an especially heinous, cruel, or depraved manner;

5. procured someone else to commit the offense by paying or promising to pay anything of pecuniary value;

6. committed the offense in return for payment or the expectation of payment;

7. committed the offense with an assault weapon; or

8. murdered one of the following people, while the victim was acting within the scope of duty, in order to (a) avoid arrest for or prevent detection of a criminal act, (b) hamper or prevent the victim from carrying out an act within the scope of official duties, or (c) retaliate against the victim for performing official duties: a police officer, Division of Criminal Justice inspector, state marshal exercising statutory authority, judicial marshal performing duties, constable performing law enforcement duties, special policeman, conservation or special conservation officer appointed by the environmental protection commissioner, firefighter, or DOC employee or service provider acting within the scope of employment in a correctional facility (the perpetrator must be an inmate).

Mitigating Factors

The jury or court must determine if a particular factor concerning the defendant's character, background, or history or the nature and circumstances of the crime is established by the evidence and whether that factor is mitigating, considering all the facts and circumstances of the case. Mitigating factors are not defenses or excuses for the capital felony of which the defendant was convicted, but are factors that, in fairness and mercy, tend either to extenuate or reduce the defendant's blame for the offense or otherwise provide a reason for a sentence less than death.

Bars to the Death Penalty

By law, five factors automatically bar the death penalty. A defendant cannot receive the death penalty if the court or jury determines that he or she:

1. was under age 18 at the time of the crime;

2. was mentally retarded at the time of the crime;

3. had a mental capacity or ability to conform his or her conduct to the requirements of law that was significantly impaired at the time of the crime (but not so impaired as to constitute a defense);

4. was guilty of a capital felony only as an accessory and had relatively minor participation; and

5. could not reasonably have foreseen that the conduct, in the course of committing the crime he or she was convicted of, would cause someone's death.

OLR Tracking: CR: GC: JL: TS