PRIOR PRINTER'S NO. 27 PRINTER'S NO. 921
No. 26 Session of 2003
INTRODUCED BY HELFRICK, KUKOVICH, KITCHEN, HUGHES, FUMO,
M. WHITE, COSTA, ERICKSON, SCHWARTZ, O'PAKE, LAVALLE,
A. WILLIAMS, FERLO, C. WILLIAMS AND MELLOW, JANUARY 22, 2003
SENATOR GREENLEAF, JUDICIARY, AS AMENDED, JUNE 3, 2003
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 9545(b)(1) of Title 42 of the <--
8 Pennsylvania Consolidated Statutes is amended to read:
9 SECTION 1. SECTIONS 9543(A)(2) AND 9545(B)(1) OF TITLE 42 OF <--
10 THE PENNSYLVANIA CONSOLIDATED STATUTES ARE AMENDED TO READ:
11 § 9543. ELIGIBILITY FOR RELIEF.
12 (A) GENERAL RULE.--TO BE ELIGIBLE FOR RELIEF UNDER THIS
13 SUBCHAPTER, THE PETITIONER MUST PLEAD AND PROVE BY A
14 PREPONDERANCE OF THE EVIDENCE ALL OF THE FOLLOWING:
15 * * *
16 (2) THAT THE CONVICTION OR SENTENCE RESULTED FROM ONE OR
17 MORE OF THE FOLLOWING:
18 (I) A VIOLATION OF THE CONSTITUTION OF THIS
1 COMMONWEALTH OR THE CONSTITUTION OR LAWS OF THE UNITED
2 STATES WHICH, IN THE CIRCUMSTANCES OF THE PARTICULAR
3 CASE, SO UNDERMINED THE TRUTH-DETERMINING PROCESS THAT NO
4 RELIABLE ADJUDICATION OF GUILT OR INNOCENCE COULD HAVE
5 TAKEN PLACE.
6 (II) INEFFECTIVE ASSISTANCE OF COUNSEL WHICH, IN THE
7 CIRCUMSTANCES OF THE PARTICULAR CASE, SO UNDERMINED THE
8 TRUTH-DETERMINING PROCESS THAT NO RELIABLE ADJUDICATION
9 OF GUILT OR INNOCENCE COULD HAVE TAKEN PLACE.
10 (III) A PLEA OF GUILTY UNLAWFULLY INDUCED WHERE THE
11 CIRCUMSTANCES MAKE IT LIKELY THAT THE INDUCEMENT CAUSED
12 THE PETITIONER TO PLEAD GUILTY AND THE PETITIONER IS
13 INNOCENT.
14 (IV) THE IMPROPER OBSTRUCTION BY GOVERNMENT
15 OFFICIALS OF THE PETITIONER'S RIGHT OF APPEAL WHERE A
16 MERITORIOUS APPEALABLE ISSUE EXISTED AND WAS PROPERLY
17 PRESERVED IN THE TRIAL COURT.
18 (VI) THE UNAVAILABILITY AT THE TIME OF TRIAL OF
19 EXCULPATORY EVIDENCE THAT HAS SUBSEQUENTLY BECOME
20 AVAILABLE AND WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL
21 IF IT HAD BEEN INTRODUCED.
22 (VII) THE IMPOSITION OF A SENTENCE GREATER THAN THE
23 LAWFUL MAXIMUM.
24 (VIII) A PROCEEDING IN A TRIBUNAL WITHOUT
25 JURISDICTION.
26 (IX) THE PETITIONER CLAIMS HE IS A PERSON WITH
27 MENTAL RETARDATION AS DEFINED IN SECTION 9711(P)
28 (RELATING TO SENTENCING PROCEDURE FOR MURDER OF THE FIRST
29 DEGREE).
30 * * *
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1 § 9545. Jurisdiction and proceedings.
2 * * *
3 (b) Time for filing petition.--
4 (1) Any petition under this subchapter, including a
5 second or subsequent petition, shall be filed within one year
6 of the date the judgment becomes final, unless the petition
7 alleges and the petitioner proves that:
8 (i) the failure to raise the claim previously was
9 the result of interference by government officials with
10 the presentation of the claim in violation of the
11 Constitution or laws of this Commonwealth or the
12 Constitution or laws of the United States;
13 (ii) the facts upon which the claim is predicated
14 were unknown to the petitioner and could not have been
15 ascertained by the exercise of due diligence; [or]
16 (iii) the right asserted is a constitutional right
17 that was recognized by the Supreme Court of the United
18 States or the Supreme Court of Pennsylvania after the
19 time period provided in this section and has been held by
20 that court to apply retroactively[.]; or
21 (iv) the petitioner claims he is a person with
22 mental retardation as defined in section 9711(p)
23 (relating to sentencing procedure for murder of the first
24 degree) and the time for raising that claim has expired
25 as of the effective date of this subparagraph. Any
26 petition invoking this exception must be filed within 365
27 days of the effective date of this subparagraph OR OF THE <--
28 CONCLUSION OF ANY APPEAL PENDING ON THE EFFECTIVE DATE OF
29 THIS SUBPARAGRAPH FROM THE JUDGMENT OF SENTENCE OR FROM
30 THE DENIAL OF A PREVIOUS PETITION UNDER THIS CHAPTER.
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1 * * *
2 Section 2. Sections 9546 and 9711 of Title 42 are amended by
3 adding subsections to read:
4 § 9546. Relief and order.
5 * * *
6 (a.1) Mental retardation.--Upon a finding that evidence has
7 been presented that is sufficient to establish, by a
8 preponderance of the evidence, that the petitioner is a person
9 with mental retardation as defined in section 9711(p) (relating
10 to sentencing procedure for murder of the first degree), the
11 court shall direct that the sentence of death be vacated and
12 that the defendant be sentenced to life imprisonment.
13 * * *
14 § 9711. Sentencing procedure for murder of the first degree.
15 * * *
16 (e.1) Mental retardation.--
17 (1) No person with mental retardation shall be eligible
18 for the death penalty.
19 (2) (i) If counsel in a capital case has a good faith <--
20 belief that the defendant is a person with mental
21 retardation, counsel shall file a motion, supported by an
22 appropriate offer of proof, with the court requesting a
23 finding that the defendant is not eligible for the death
24 penalty because he is a person with mental retardation.
25 (2) (I) AT LEAST 30 DAYS BEFORE THE COMMENCEMENT OF <--
26 TRIAL OR LATER UPON JUST CAUSE SHOWN TO THE COURT,
27 COUNSEL FOR THE DEFENDANT MAY, UPON WRITTEN MOTION
28 ALLEGING REASONABLE CAUSE TO BELIEVE THAT THE DEFENDANT
29 IS A PERSON WITH MENTAL RETARDATION, APPLY FOR AN ORDER
30 DIRECTING THAT A HEARING TO DETERMINE IF THE DEFENDANT IS
20030S0026B0921 - 4 -
1 NOT ELIGIBLE FOR THE DEATH PENALTY BECAUSE HE IS A PERSON
2 WITH MENTAL RETARDATION BE CONDUCTED PRIOR TO TRIAL. THE
3 WRITTEN MOTION SHALL SET FORTH IN PARTICULAR THE REASONS
4 AND GROUNDS TO SUPPORT THE REASONABLE CAUSE TO BELIEVE
5 THAT THE DEFENDANT IS A PERSON WITH MENTAL RETARDATION.
6 (ii) Upon receipt of a motion for a determination
7 that the defendant is not eligible for the death penalty
8 because he is a person with mental retardation, the trial
9 court shall conduct a hearing for the presentation of
10 evidence regarding the defendant's mental retardation.
11 Both the Commonwealth and the defendant shall have the
12 opportunity to present evidence, including expert
13 testimony. THE COURT MAY ORDER AN EXPERT PSYCHIATRIC OR <--
14 PSYCHOLOGICAL EXAMINATION OF THE DEFENDANT, TO BE
15 PERFORMED BY A LICENSED PSYCHIATRIST OR LICENSED
16 PSYCHOLOGIST WHO IS AN EXPERT IN THE DIAGNOSIS AND
17 EVALUATION OF MENTAL RETARDATION. The defendant shall
18 have the burden of proof to determine mental retardation. <--
19 PROVE HE IS A PERSON WITH MENTAL RETARDATION BY A <--
20 PREPONDERANCE OF THE EVIDENCE.
21 (III) PRIOR TO THE TIME SET FOR THE HEARING ON THE
22 PRETRIAL MOTION, THE COMMONWEALTH SHALL HAVE THE SAME
23 RIGHTS OF DISCOVERY AS EXIST UNDER THE PENNSYLVANIA RULES
24 OF CRIMINAL PROCEDURE, INCLUDING, BUT NOT LIMITED TO, THE
25 PRODUCTION OF REPORTS FROM EXPERTS AND PRODUCTION OF ANY
26 INFORMATION THAT WILL FURTHER A FULL, FAIR AND
27 EXPEDITIOUS RESOLUTION OF THE DETERMINATION OF WHETHER
28 THE DEFENDANT IS A PERSON WITH MENTAL RETARDATION.
29 (IV) AT THE HEARING ON THE PRETRIAL MOTION TO
30 DETERMINE WHETHER THE DEFENDANT IS A PERSON WITH MENTAL
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1 RETARDATION, THE DEFENDANT SHALL HAVE THE BURDEN OF
2 PROVING THAT HE IS A PERSON WITH MENTAL RETARDATION BY A
3 PREPONDERANCE OF THE EVIDENCE. THE COURT SHALL CONSIDER
4 THE EXISTENCE OR ABSENCE OF DOCUMENTATION, AND ANY
5 REASONS FOR THE ABSENCE OF DOCUMENTATION, OF THE
6 MANIFESTATION OF MENTAL RETARDATION BEFORE 18 YEARS OF
7 AGE.
8 (iii) (V) The court shall find that the defendant is <--
9 not eligible for the death penalty, if it finds, by a
10 preponderance of the evidence, that the defendant is a
11 person with mental retardation. If the court finds that
12 the defendant is a person with mental retardation, the
13 trial shall proceed as a noncapital trial.
14 (iv) (VI) If the court finds that the defendant is <--
15 eligible for the death penalty, the trial may proceed as
16 a capital case.
17 (v) (VII) The pretrial determination of the court <--
18 shall not preclude the defendant from raising any legal
19 defense during the trial.
20 (vi) (VIII) The jury shall not be informed of the <--
21 prior proceedings or the court's findings concerning the
22 defendant's motion with respect to the issue of mental
23 retardation.
24 (vii) If a capital trial results in a verdict of <--
25 guilty of murder of the first degree, the parties may
26 present evidence to the jury on the issue of mental
27 retardation.
28 (viii) If the defendant presents evidence and
29 arguments regarding mental retardation, the court shall
30 submit a special question to the jury as to whether the
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1 defendant is a person with mental retardation as defined
2 in this section. Once the issue of mental retardation is
3 raised, the Commonwealth has the burden of disproving it
4 beyond a reasonable doubt.
5 (ix) The special question shall be considered and
6 answered by the jury prior to the consideration of
7 aggravating and mitigating factors and the determination
8 of sentence. If the jury determines that the defendant is
9 a person with mental retardation, the court shall
10 sentence the defendant to life imprisonment.
11 (x) If the jury unanimously determines that the
12 defendant is not a person with mental retardation as
13 defined by this section, the jury may then consider any
14 evidence of mental retardation presented during the
15 sentencing hearing in determining aggravating and
16 mitigating factors and the defendant's sentence.
17 (3) (i) If a defendant has already been sentenced to <--
18 death as of the effective date of this subsection and
19 postsentence motions are still pending or a direct appeal is
20 still pending, PURSUANT TO RULE OF COURT a defendant may file <--
21 a motion raising a claim that he is ineligible for a death
22 sentence because he is a person with mental retardation and <--
23 the. THE trial court that imposed the sentence on the <--
24 defendant shall conduct an evidentiary hearing on the motion
25 and determine whether the defendant is a person with mental
26 retardation as defined in section 9711(p) (relating to <--
27 sentencing procedure for murder of the first degree)
28 SUBSECTION (P). <--
29 (ii) If a defendant has been convicted of murder of <--
30 the first degree and sentenced to death and is in custody
20030S0026B0921 - 7 -
1 awaiting execution of the sentence of death as of the
2 effective date of this subsection, a defendant may file a
3 petition under Subchapter B of Chapter 95 (relating to
4 post conviction relief), seeking appropriate relief from
5 the sentence of death on the grounds that he is a person
6 with mental retardation as defined in section 9711(p)
7 within 365 days of the effective date of this subsection.
8 * * *
9 (p) Definition.--As used in this section, the term "a person <--
10 with mental retardation" means an individual who has
11 significantly subaverage intellectual functioning as evidenced
12 by an intelligence quotient of 70 or below on an individually
13 administered intelligence quotient test and significant
14 impairment in adaptive behavior, and that the mental retardation
15 is manifested before the individual attains 18 years of age.
16 (P) DEFINITION.--AS USED IN THIS SECTION, THE TERM "A PERSON <--
17 WITH MENTAL RETARDATION" MEANS AN INDIVIDUAL WHO HAS
18 SIGNIFICANTLY SUBAVERAGE INTELLECTUAL FUNCTIONING EXISTING
19 CONCURRENTLY WITH SUBSTANTIAL RELATED DEFICITS IN ADAPTIVE
20 BEHAVIOR IN TWO OR MORE OF THE FOLLOWING ADAPTIVE SKILL AREAS:
21 COMMUNICATION, SELF-CARE, HOME LIVING, SOCIAL/INTERPERSONAL
22 SKILLS, USE OF COMMUNITY RESOURCES, SELF-DIRECTION, HEALTH AND
23 SAFETY, FUNCTIONAL ACADEMIC SKILLS, LEISURE AND WORK.
24 SIGNIFICANTLY SUBAVERAGE INTELLECTUAL FUNCTIONING MAY BE
25 DEMONSTRATED BY AN INTELLIGENCE QUOTIENT OF 70 OR BELOW ON AN
26 INDIVIDUALLY ADMINISTERED INTELLIGENCE QUOTIENT TEST OR TESTS
27 ACCOUNTING FOR ALL POSSIBLE MARGINS OF ERROR. THE MENTAL
28 RETARDATION MUST MANIFEST ITSELF DURING THE DEVELOPMENT PERIOD
29 BEFORE THE INDIVIDUAL ATTAINS 18 YEARS OF AGE.
30 SECTION 3. (A) THIS ACT SHALL APPLY TO PERSONS WHO ARE
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1 SENTENCED ON OR AFTER THE EFFECTIVE DATE OF THIS ACT.
2 (B) IF A DEFENDANT WHO HAS ALREADY BEEN SENTENCED TO DEATH
3 AS OF THE EFFECTIVE DATE OF THIS SECTION WISHES TO RAISE THE
4 ISSUE OF MENTAL RETARDATION, AND POSTSENTENCE MOTIONS ARE STILL
5 PENDING, THE DEFENDANT MAY, PURSUANT TO COURT RULE, AMEND THE
6 POSTSENTENCE MOTIONS TO RAISE THE CLAIM THAT IMPOSITION OF THE
7 DEATH PENALTY WOULD HAVE BEEN BARRED UNDER SECTION 9711(E.1) IF
8 IT HAD BEEN IN EFFECT AT THE TIME OF THE SENTENCING HEARING. THE
9 TRIAL COURT THAT IMPOSED THE SENTENCE ON THE DEFENDANT SHALL
10 CONDUCT AN EVIDENTIARY HEARING ON THE MOTION. UPON A FINDING
11 THAT EVIDENCE HAS BEEN PRESENTED SUFFICIENT TO ESTABLISH THAT
12 THE DEFENDANT IS A PERSON WITH MENTAL RETARDATION AS PROVIDED
13 UNDER SECTION 9711(E.1), THE COURT SHALL VACATE THE SENTENCE OF
14 DEATH AND SHALL SENTENCE THE DEFENDANT TO LIFE IMPRISONMENT.
15 (C) IF A DEFENDANT WHO HAS ALREADY BEEN SENTENCED TO DEATH
16 AS OF THE EFFECTIVE DATE OF THIS SECTION WISHES TO RAISE THE
17 ISSUE OF MENTAL RETARDATION AND DIRECT APPEAL IS STILL PENDING,
18 THE DEFENDANT MAY, PURSUANT TO COURT RULE, AFTER DISPOSITION OF
19 THE APPEAL, RAISE THE ISSUE IN A POST CONVICTION RELIEF ACT
20 PETITION PURSUANT TO SECTION 9545(B) AFTER THE DISPOSITION OF
21 THE APPEAL.
22 Section 3. This act shall apply to persons who are sentenced <--
23 on or after the effective date of this act.
24 Section 4. This act shall take effect in 60 days.
25 SECTION 4. THIS ACT SHALL TAKE EFFECT IMMEDIATELY. <--
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