GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
H 3
HOUSE BILL 529*
Committee Substitute Favorable 5/31/05
Committee Substitute #2 Favorable 7/12/05
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Short Title: Study Death Penalty. |
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March 9, 2005
A BILL TO BE ENTITLED
AN ACT TO study the ADMINISTRATION OF THE death penalty and to permit executions during the study absent a stay.
Whereas, factors that may affect the fair and impartial administration of the death penalty include the following:
(1) The adequacy of counsel for those on death row in all stages of capital cases and a risk of executing the innocent due to problems with counsel appointed prior to the enactment of current guidelines and qualifications.
(2) The potential effect of the locale of a crime on the probability that a prosecutor decides to try a homicide as a capital case.
(3) Proportionality in the use of the death penalty, including the relationship between death sentences and individual culpability for the crimes.
(4) Possible prosecutorial misconduct.
(5) Possible discrimination in death penalty sentencing based on either the victim's race or the defendant's race as well as possible discrimination with regard to other aspects of capital case processing; and
Whereas, the Final Report to the 2001 General Assembly by the Legislative Research Commission's Study on Capital Punishment – Mentally Retarded and Race Basis included a recommendation that there be a suspension of executions while matters relating to the imposition of the death penalty are further studied; Now, therefore,
The General Assembly of North Carolina enacts:
SECTION 1.(a) There is created a Study Commission on Capital Punishment. The Commission shall consist of 15 members appointed as follows:
(1) Five Senators appointed by the President Pro Tempore of the Senate.
(2) Five Representatives appointed by the Speaker of the House of Representatives.
(3) Five members of the public appointed by the Governor.
In the course of its study, the Commission shall consult with representatives of victims, law enforcement, or other interested parties.
SECTION 1.(b) The Commission shall consider and report on:
(1) The adequacy of counsel in all stages of capital cases and the sufficiency of guidelines for the appointment and performance of such counsel appointed prior to the enactment of current guidelines and qualifications.
(2) The process for judicial review of the merits of constitutional claims in State postconviction and federal habeas corpus proceedings.
(3) Any disproportionate racial impact from any aspect of capital case processing.
(4) Whether there is discrimination in capital sentencing on the basis of the victim's or the defendant's race.
(5) Prosecutorial misconduct as a factor in the imposition of the death penalty.
(6) The presence of innocent persons on death row.
(7) Whether the felony murder rule should be applied in capital cases.
(8) Any other appropriate or relevant subject.
SECTION 1.(c) The Speaker of the House of Representatives shall appoint a cochair, and the President Pro Tempore of the Senate shall appoint a cochair for the Commission. The Commission may meet at any time upon the joint call of the cochairs. Vacancies on the Commission shall be filled by the same appointing authority as made the initial appointment.
The Commission, while in the discharge of its official duties, may exercise all powers provided for under G.S. 120‑19 and G.S. 120‑19.1 through G.S. 120‑19.4. The Commission may contract for professional, clerical, or consultant services as provided by G.S. 120‑32.02.
Subject to the approval of the Legislative Services Commission, the Commission may meet in the Legislative Building or the Legislative Office Building. The Legislative Services Commission, through the Legislative Services Officer, shall assign professional staff to assist the Commission in its work. The House of Representatives' and the Senate's Supervisors of Clerks shall assign clerical support staff to the Commission, and the expenses relating to the clerical employees shall be borne by the Commission. Members of the Commission shall receive subsistence and travel expenses at the rates set forth in G.S. 120‑3.1, 138‑5, or 138‑6, as appropriate.
SECTION 1.(d) The Commission shall submit an interim report to the 2007 Regular Session of the General Assembly on the Commission's findings and recommendations, which may include any statutory changes necessary to implement the recommendations. The Commission shall make a final report to the 2008 Regular Session of the 2007 General Assembly and shall terminate upon the earlier of the filing of its final report or the convening of the 2008 Regular Session of the 2007 General Assembly.
SECTION 1.(e) Of the funds appropriated to the General Assembly, the Legislative Services Commission shall allocate funds for the expenses of the Commission established by this section.
SECTION 2. The Secretary of Correction shall continue to set dates for executions pursuant to G.S. 15‑194 during the period of the study authorized by Section 1 of this act. However, upon motion of a capital defendant, for whom an execution date has been set, filed in the county where the sentence of death was imposed, a superior court judge shall consider whether the execution should be stayed. The execution shall be stayed until the legislature has concluded its study if the superior court judge certifies and finds one or more of the following:
(1) That there is credible evidence of factual innocence of the capital offense although the defendant has not prevailed in the courts on this issue;
(2) That the capital case in question was tried before the effective date of legislation providing for open file discovery at trial, and that there is credible evidence that prosecutorial misconduct may have contributed to the verdict or sentence of death, although the defendant has not prevailed in the courts on this issue;
(3) That the capital case in question was tried before the effective date of legislation providing that capital defendant's trial counsel be appointed under rules and standards set by the Office of Indigent Defense Services, and that there is credible evidence that errors by defense counsel at any stage may have contributed to the verdict or sentence of death, or failure of the defendant to receive relief through the courts subsequent to the trial, although the defendant has not prevailed in the courts on this issue;
(4) That there is credible evidence of disproportionate racial impact in the operation of capital case processing and that the defendant is a member of a racial group for which the disproportionate impact is shown, or there is credible evidence of an improper role of the race of the defendant or the race of the victim(s) in the prosecution, conviction, or death verdict although the defendant has not prevailed in the courts on this issue;
(5) That there is credible evidence that the death penalty in this case is disproportionate when compared to other cases where the defendants have received a life sentence or the death penalty, although the defendant has not prevailed in the courts on this issue;
(6) That the capital case in question was tried before the effective date of legislation giving the prosecutor discretion to try or plead the case as a noncapital first degree murder, and there is credible evidence that the defendant might not have received the death penalty if the legislation had been in effect at the time of the defendant's trial; or
(7) That the capital case in question was tried before the effective date of legislation providing for a life sentence without parole for first degree murder, and there is credible evidence that the defendant might not have received the death penalty if the legislation had been in effect at the time of the defendant's trial.
SECTION 3. Notwithstanding Section 2 above, nothing in this act shall prevent the prosecution of capital cases at trial or appeal, nor the imposition of a sentence of death during the period of the study.
SECTION 4. This act is effective when it becomes law.