SB155 By Senator Sanders RFD Judiciary Rd 1 09-FEB-16

SYNOPSIS: Under existing law, the U.S. Supreme Court has ruled that a capital murder defendant who is an individual with an intellectual disability is not subject to the death sentence.

This bill would establish standards and procedures in death penalty cases for the trial court to determine whether a defendant is an individual with an intellectual disability.

A BILL TO BE ENTITLED AN ACT

To add Section 13A-5-60 to the Code of Alabama 1975, to establish procedures in death penalty cases to determine whether a defendant is an individual with an intellectual disability.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 13A-5-60 is added to the Code of Alabama 1975, to read as follows:

§13A-5-60.

(a) As used in this section, "an individual with an intellectual disability" means both of the following:

(1) An individual with a significantly subaverage general intellectual functioning manifested by age 18.

(2) An individual with significant limitations in adaptive functioning manifested by age 18. Significant limitations in adaptive functioning means significant limitations in two or more of the following adaptive skill areas: Communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure skills, and work skills.

(b) The defendant has the burden of proving by clear and convincing evidence significantly subaverage general intellectual functioning, significant limitations in adaptive functioning, and that both of these elements were manifested before the age of 18. An intelligence quotient of below 70 on an individually administered, scientifically recognized standardized intelligence quotient test supports an inference, but is not determinative, of significantly subaverage general intellectual functioning. An intelligence quotient of 70 or above on an individually administered, scientifically recognized standardized intelligence quotient test supports an inference, but is not determinative, that the defendant is not an individual with an intellectual disability. A finding of significantly subaverage general intellectual functioning is not sufficient, without evidence of significant limitations in adaptive functioning and without evidence of manifestation before the age of 18, to establish that the defendant is an individual with an intellectual disability.

(c) The trial court shall make the determination of whether the defendant is an individual with an intellectual disability and, therefore, not subject to the death penalty. The trial court shall articulate findings supporting its determination.

(1) Upon motion of the defendant no later than 90 days before trial, supported by appropriate affidavits and any other appropriate documentary evidence, the trial court may order a pretrial hearing to determine whether the defendant is an individual with an intellectual disability.

(2) If the trial court determines that an evidentiary hearing is necessary, the defendant, if indigent, shall be appointed a licensed psychologist or licensed psychiatrist to offer evidence. This subsection shall not preclude the trial court from appointing such an expert before determining whether an evidentiary hearing is necessary.

(3) The state shall be given the opportunity to have the defendant examined by a licensed psychologist or licensed psychiatrist of its own choosing and to present that evidence at the evidentiary hearing. This subsection does not preclude the state from offering such evidence in rebuttal to the defendant's request for an evidentiary hearing. If the state's psychologist or psychiatrist is unable to obtain the information necessary to arrive at an opinion because of the defendant's lack of cooperation, then the trial court may prohibit the defendant's expert from offering any evidence.

(d) The prior determination of a state or federal agency, administrative agency or body, or court that a defendant is an individual with an intellectual disability supports an inference that the defendant is an individual with an intellectual disability. That determination, however, does not require the trial court to find the defendant to be an individual with an intellectual disability.

(e) If the trial court determines the defendant to be an individual with an intellectual disability, the trial court shall notify the state that it may not seek the death penalty against the defendant.

(f) The pretrial determination of the trial court shall not preclude the defendant from raising any legal defense under Chapter 3 of this title during trial.

(g) The pretrial determination of the trial court shall not preclude the defendant from presenting evidence of diminished intellectual capacity as a mitigating circumstance.

(h) The determination by the trial court that the defendant is not an individual with an intellectual disability shall not be reviewable by interlocutory appeal.

Section 2. This section shall not be retroactively applied to defendants who have been convicted of capital murder and sentenced to death.

Section 3. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 4. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Crimes and Offenses

Criminal Law and Procedure

Sentencing

Capital Punishment

Death Penalty

Mental Retardation

Court, Circuit

Code Added