PRINTER'S NO. 27
No. 26 Session of 2003
INTRODUCED BY HELFRICK, KUKOVICH, KITCHEN, HUGHES, FUMO,
M. WHITE, COSTA, ERICKSON, SCHWARTZ, O'PAKE, LAVALLE,
A. WILLIAMS AND FERLO, JANUARY 22, 2003
REFERRED TO JUDICIARY, JANUARY 22, 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 § 9545. Jurisdiction and proceedings.
10 * * *
11 (b) Time for filing petition.--
12 (1) Any petition under this subchapter, including a
13 second or subsequent petition, shall be filed within one year
14 of the date the judgment becomes final, unless the petition
15 alleges and the petitioner proves that:
16 (i) the failure to raise the claim previously was
17 the result of interference by government officials with
18 the presentation of the claim in violation of the
1 Constitution or laws of this Commonwealth or the
2 Constitution or laws of the United States;
3 (ii) the facts upon which the claim is predicated
4 were unknown to the petitioner and could not have been
5 ascertained by the exercise of due diligence; [or]
6 (iii) the right asserted is a constitutional right
7 that was recognized by the Supreme Court of the United
8 States or the Supreme Court of Pennsylvania after the
9 time period provided in this section and has been held by
10 that court to apply retroactively[.]; or
11 (iv) the petitioner claims he is a person with
12 mental retardation as defined in section 9711(p)
13 (relating to sentencing procedure for murder of the first
14 degree) and the time for raising that claim has expired
15 as of the effective date of this subparagraph. Any
16 petition invoking this exception must be filed within 365
17 days of the effective date of this subparagraph.
18 * * *
19 Section 2. Sections 9546 and 9711 of Title 42 are amended by
20 adding subsections to read:
21 § 9546. Relief and order.
22 * * *
23 (a.1) Mental retardation.--Upon a finding that evidence has
24 been presented that is sufficient to establish, by a
25 preponderance of the evidence, that the petitioner is a person
26 with mental retardation as defined in section 9711(p) (relating
27 to sentencing procedure for murder of the first degree), the
28 court shall direct that the sentence of death be vacated and
29 that the defendant be sentenced to life imprisonment.
30 * * *
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1 § 9711. Sentencing procedure for murder of the first degree.
2 * * *
3 (e.1) Mental retardation.--
4 (1) No person with mental retardation shall be eligible
5 for the death penalty.
6 (2) (i) If counsel in a capital case has a good faith
7 belief that the defendant is a person with mental
8 retardation, counsel shall file a motion, supported by an
9 appropriate offer of proof, with the court requesting a
10 finding that the defendant is not eligible for the death
11 penalty because he is a person with mental retardation.
12 (ii) Upon receipt of a motion for a determination
13 that the defendant is not eligible for the death penalty
14 because he is a person with mental retardation, the trial
15 court shall conduct a hearing for the presentation of
16 evidence regarding the defendant's mental retardation.
17 Both the Commonwealth and the defendant shall have the
18 opportunity to present evidence, including expert
19 testimony. The defendant shall have the burden of proof
20 to determine mental retardation.
21 (iii) The court shall find that the defendant is not
22 eligible for the death penalty, if it finds, by a
23 preponderance of the evidence, that the defendant is a
24 person with mental retardation. If the court finds that
25 the defendant is a person with mental retardation, the
26 trial shall proceed as a noncapital trial.
27 (iv) If the court finds that the defendant is
28 eligible for the death penalty, the trial may proceed as
29 a capital case.
30 (v) The pretrial determination of the court shall
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1 not preclude the defendant from raising any legal defense
2 during the trial.
3 (vi) The jury shall not be informed of the prior
4 proceedings or the court's findings concerning the
5 defendant's motion with respect to the issue of mental
6 retardation.
7 (vii) If a capital trial results in a verdict of
8 guilty of murder of the first degree, the parties may
9 present evidence to the jury on the issue of mental
10 retardation.
11 (viii) If the defendant presents evidence and
12 arguments regarding mental retardation, the court shall
13 submit a special question to the jury as to whether the
14 defendant is a person with mental retardation as defined
15 in this section. Once the issue of mental retardation is
16 raised, the Commonwealth has the burden of disproving it
17 beyond a reasonable doubt.
18 (ix) The special question shall be considered and
19 answered by the jury prior to the consideration of
20 aggravating and mitigating factors and the determination
21 of sentence. If the jury determines that the defendant is
22 a person with mental retardation, the court shall
23 sentence the defendant to life imprisonment.
24 (x) If the jury unanimously determines that the
25 defendant is not a person with mental retardation as
26 defined by this section, the jury may then consider any
27 evidence of mental retardation presented during the
28 sentencing hearing in determining aggravating and
29 mitigating factors and the defendant's sentence.
30 (3) (i) If a defendant has already been sentenced to
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1 death as of the effective date of this subsection and
2 postsentence motions are still pending or a direct appeal
3 is still pending, a defendant may file a motion raising a
4 claim that he is ineligible for a death sentence because
5 he is a person with mental retardation and the trial
6 court that imposed the sentence on the defendant shall
7 conduct an evidentiary hearing on the motion and
8 determine whether the defendant is a person with mental
9 retardation as defined in section 9711(p) (relating to
10 sentencing procedure for murder of the first degree).
11 (ii) If a defendant has been convicted of murder of
12 the first degree and sentenced to death and is in custody
13 awaiting execution of the sentence of death as of the
14 effective date of this subsection, a defendant may file a
15 petition under Subchapter B of Chapter 95 (relating to
16 post conviction relief), seeking appropriate relief from
17 the sentence of death on the grounds that he is a person
18 with mental retardation as defined in section 9711(p)
19 within 365 days of the effective date of this subsection.
20 * * *
21 (p) Definition.--As used in this section, the term "a person
22 with mental retardation" means an individual who has
23 significantly subaverage intellectual functioning as evidenced
24 by an intelligence quotient of 70 or below on an individually
25 administered intelligence quotient test and significant
26 impairment in adaptive behavior, and that the mental retardation
27 is manifested before the individual attains 18 years of age.
28 Section 3. This act shall apply to persons who are sentenced
29 on or after the effective date of this act.
30 Section 4. This act shall take effect in 60 days.
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