[As Amended by House Committee of the Whole]
         

          Session of 1997
                   
HOUSE BILL No. 2463
         
By Representatives Mays, Aurand, Ballou, Beggs, Boston, Campbell,
                Compton, Cox, Dahl, Donovan, Dreher, Edmonds, Empson, Flower,
                Freeborn, Hayzlett, Horst, Howell, Huff, Humerickhouse, Hutchins,
                Jennison, Phill Kline, Landwehr, Lane, Lloyd, Mason, McCreary, Mol-
                lenkamp, Morrison, Myers, Neufeld, O'Neal, Packer, Palmer, Powell,
                Powers, Ray, Schwartz, Shallenburger, Shore, Shultz, Stone, Tanner,
                Toplikar, Vickrey, Vining, Wagle, Weber and Wilson
               
2-14
          16             AN ACT concerning crimes and[,] punishment [and criminal proce-
17             dure]; relating to capital murder; [execution of death sentences;]
18             [mitigating circumstances;] amending K.S.A. 21-3439[, 21-4626,
19             22-4001, 22-4003, 22-4006, 22-4009, 22-4011, 22-4012, 22-4013
20             and 22-4014] and repealing the existing section [sections].
21            
22       Be it enacted by the Legislature of the State of Kansas:
23        [New Section 1. (a) If, under K.S.A. 21-4624 and amendments
24       thereto, the county or district attorney has filed a notice of intent
25       to request a separate sentencing proceeding to determine whether
26       the defendant should be sentenced to death, at a hearing, the court
27       shall determine whether imprisonment for life, pursuant to K.S.A.
28       21-4638 and amendments thereto, is sufficient to defend and pro-
29       tect the people's safety from the defendant. If the court so deter-
30       mines, the defendant, if convicted of the crime of capital murder,
31       shall be sentenced pursuant to K.S.A. 21-4638 and amendments
32       thereto, and no sentence of death shall be imposed.
33           [(b) This section shall be part of and supplemental to the Kan-
34       sas criminal code.]
35           Section 1. [2.] K.S.A. 21-3439 is hereby amended to read as follows:
36       21-3439. (a) Capital murder is the:
37           (1) Intentional and premeditated killing of any person in the com-
38       mission of kidnapping, as defined in K.S.A. 21-3420 and amendments
39       thereto, or aggravated kidnapping, as defined in K.S.A. 21-3421 and
40       amendments thereto, when the kidnapping or aggravated kidnapping was
41       committed with the intent to hold such person for ransom;
42           (2) intentional and premeditated killing of any person pursuant to a
43       contract or agreement to kill such person or being a party to the contract

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  1       or agreement pursuant to which such person is killed;
  2           (3) intentional and premeditated killing of any person by an inmate
  3       or prisoner confined in a state correctional institution, community cor-
  4       rectional institution or jail or while in the custody of an officer or em-
  5       ployee of a state correctional institution, community correctional insti-
  6       tution or jail;
  7           (4) intentional and premeditated killing of the victim of one of the
  8       following crimes in the commission of, or subsequent to, such crime:
  9       Rape, as defined in K.S.A. 21-3502 and amendments thereto, criminal
10       sodomy, as defined in subsections (a)(2) or (a)(3) of K.S.A. 21-3505 and
11       amendments thereto or aggravated criminal sodomy, as defined in K.S.A.
12       21-3506 and amendments thereto, or any attempt thereof, as defined in
13       K.S.A. 21-3301 and amendments thereto;
14           (5) intentional and premeditated killing of a law enforcement officer,
15       as defined in K.S.A. 21-3110 and amendments thereto;
16           (6) intentional and premeditated killing of more than one person as
17       a part of the same act or transaction or in two or more acts or transactions
18       connected together or constituting parts of a common scheme or course
19       of conduct; or
20           (7) intentional and premeditated killing of a child under the age of
21       14 in the commission of kidnapping, as defined in K.S.A. 21-3420 and
22       amendments thereto, or aggravated kidnapping, as defined in K.S.A.
23       21-3421 and amendments thereto, when the kidnapping or aggravated
24       kidnapping was committed with intent to commit a sex offense upon or
25       with the child or with intent that the child commit or submit to a sex
26       offense.
27           (b) For purposes of this section, ``sex offense'' means rape, as defined
28       in K.S.A. 21-3502 and amendments thereto, aggravated indecent liberties
29       with a child, as defined in K.S.A. 21-3504 and amendments thereto, ag-
30       gravated criminal sodomy, as defined in K.S.A. 21-3506 and amendments
31       thereto, prostitution, as defined in K.S.A. 21-3512 and amendments
32       thereto, promoting prostitution, as defined in K.S.A. 21-3513 and amend-
33       ments thereto or sexual exploitation of a child, as defined in K.S.A. 21-
34       3516 and amendments thereto.
35           (c) (b) Capital murder is an off-grid person felony.
36           (d) (c) This section shall be part of and supplemental to the Kansas
37       criminal code.
38        [Sec. 3. K.S.A. 22-4001 is hereby amended to read as follows:
39       22-4001. (a) Subject to the provisions of this act, the mode of car-
40       rying out a sentence of death in this state shall be by intravenous
41       injection of a substance or substances in a quantity sufficient to
42       cause death in a swift and humane manner.
43           [(b) The secretary of corrections shall supervise the carrying

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  1       out of each sentence of death and shall determine the procedures
  2       therefor, which shall be consistent with this act and the other laws
  3       of the state. The secretary of corrections shall designate one or
  4       more executioners and other persons necessary to assist in carry-
  5       ing out the sentence of death as provided in this section. The iden-
  6       tity of executioners and other persons designated to assist in carrying out
  7       the sentence of death shall be confidential.
  8           [(c) In order to provide the secretary of corrections with assist-
  9       ance in selecting the type of substance or substances to be admin-
10       istered in carrying out a sentence of death by intravenous injection
11       in a swift and humane manner, the secretary shall appoint a panel
12       of three persons to advise the secretary, one of whom shall be a
13       pharmacologist, one of whom shall be a toxicologist and one of
14       whom shall be an anesthesiologist. The panel shall also advise the
15       secretary of corrections concerning matters related to K.S.A. 22-
16       4015 and amendments thereto. The panel shall meet upon the call of
17       the secretary and, for the performance of their official duties,
18       panel members shall be paid compensation, subsistence allow-
19       ances, mileage and other expenses as provided in K.S.A. 75-3223
20       and amendments thereto.
21           [(d) The secretary of corrections may designate in writing a
22       warden of one of the correctional institutions under the secretary's
23       supervision to perform the duties imposed upon the secretary by
24       this section and by K.S.A. 22-4002, 22-4003, 22-4013 and 22-4014,
25       and amendments thereto.
26           [Sec. 4. K.S.A. 22-4003 is hereby amended to read as follows:
27       22-4003. Besides the secretary of corrections or the warden des-
28       ignated by the secretary, the executioner and persons designated
29       pursuant to K.S.A. 22-4001 and amendments thereto to assist in
30       the execution, the following persons, and no others, may be pres-
31       ent at the execution: The member of the clergy attending the pris-
32       oner, not more than three persons designated by the prisoner and
33       not more than six persons designated by the secretary of correc-
34       tions. The identity of persons present at the execution, other than the
35       secretary or the warden designated by the secretary, shall be confidential.
36       A witness may elect to reveal such witness's identity.
37           [Sec. 5. K.S.A. 22-4006 is hereby amended to read as follows:
38       22-4006. (a) At any time prior to execution, a convict under sen-
39       tence of death, such convict's counsel or the warden of the cor-
40       rectional institution or sheriff having custody of such convict may
41       request a determination of the convict's sanity by a district judge
42       of the judicial district in which such convict was tried and sen-
43       tenced. If the district judge determines that there is not sufficient

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  1       reason to believe that the convict is insane, the judge shall so find
  2       and refuse to suspend the execution of such convict. If the district
  3       judge determines that there is sufficient reason to believe that the
  4       convict is insane, the judge shall suspend the execution and con-
  5       duct a hearing to determine the sanity of the convict.
  6           [(b) At the hearing, the district judge shall determine the issue
  7       of the convict's sanity. The judge shall order a psychiatric or psy-
  8       chological examination of the convict. For that purpose, the court
  9       shall appoint two licensed physicians or licensed psychologists, or
10       one of each, qualified by training and practice to make such ex-
11       amination, to examine the convict and report their findings in writ-
12       ing to the judge within 10 days after the order of examination is
13       issued. The convict shall have the right to present evidence and
14       cross-examine any witnesses at the hearing. No statement made by
15       the convict in the course of any examination provided for by this
16       section, whether or not the convict consents to the examination,
17       shall be admitted in evidence against the convict in any criminal
18       proceeding.
19           [(c) If, at the conclusion of a hearing pursuant to this section,
20       the judge determines that the convict is sane, the judge shall enter
21       an order setting a date for the convict's execution, which shall be carried
22       into effect in the same manner as provided in the original sentence me-
23       morializing the determination. A copy of the order shall be sent by
24       mail to delivered to the clerk of the supreme court and the secretary of
25       corrections. Upon receipt of the order, the supreme court shall forthwith
26       issue to the secretary of corrections a warrant under seal of the supreme
27       court, commanding the secretary or a warden designated pursuant to
28       K.S.A. 22-4001 and amendments thereto to proceed to carry out the sen-
29       tence of execution during the week designated by the supreme court. A
30       copy of the warrant shall be delivered to the secretary of corrections and
31       the clerk of the district court.
32           [(d) If, at the conclusion of a hearing pursuant to this section,
33       the judge determines that the convict is insane, the judge shall
34       suspend the execution until further order. The judge shall enter an
35       order memorializing the determination. A copy of the order shall be de-
36       livered to the clerk of the supreme court and the secretary of corrections.
37       Upon receipt of the order, the supreme court shall forthwith issue to the
38       secretary of corrections a warrant under seal of the supreme court sus-
39       pending the sentence. A copy of the warrant shall be delivered to the
40       secretary of corrections and the clerk of the district court. Any time
41       thereafter when the judge has sufficient reason to believe that the
42       convict has become sane, the judge shall again determine the san-
43       ity of the convict as provided by this section. Proceedings pursuant

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  1       to this section may continue to be held at such times as the district
  2       judge orders until it is either determined that such convict is sane
  3       or incurably insane.
  4           [Sec. 6. K.S.A. 22-4009 is hereby amended to read as follows:
  5       22-4009. (a) If a convict under sentence of death appears to be
  6       pregnant or alleges to be pregnant, the person having custody of
  7       the convict shall notify the secretary of corrections. The secretary
  8       shall designate one or more licensed physicians to examine the
  9       convict to determine if the convict is pregnant. If the convict is not
10       pregnant, the execution shall be carried out as previously ordered. If the
11       convict is pregnant, the secretary of corrections shall notify the
12       administrative judge of the judicial district where the conviction was ren-
13       dered and the execution of the sentence of death shall be postponed. If
14       the convict is not pregnant, the execution shall be carried out as previously
15       ordered. clerk of the supreme court. Upon receipt of the notice, the su-
16       preme court shall forthwith issue to the secretary of corrections a warrant
17       under seal of the supreme court postponing the execution of the sentence
18       of death. A copy of the warrant shall be delivered to the secretary of
19       corrections and the clerk of the district court.
20           [(b) When the execution of a sentence of death is postponed
21       because of pregnancy, the judge secretary of corrections shall wait
22       until the child is born or the pregnancy is otherwise terminated
23       and then the judge secretary shall fix the date for the execution notify
24       the clerk of the supreme court of the birth of the child or termination of
25       the pregnancy. Upon receipt of the notice, the supreme court shall forth-
26       with issue to the secretary of corrections a warrant under seal of the
27       supreme court, commanding the secretary or a warden designated pur-
28       suant to K.S.A. 22-4001 and amendments thereto to proceed to carry out
29       the sentence of execution during the week designated by the supreme
30       court. A copy of the warrant shall be delivered to the secretary of correc-
31       tions and the clerk of the district court. At any time during the post-
32       ponement of the execution, the judge secretary may order an ex-
33       amination as provided in this section to determine whether the
34       convict remains pregnant. The costs of each medical examination
35       conducted pursuant to this section shall be paid by the county
36       where the case originated.
37           [Sec. 7. K.S.A. 22-4011 is hereby amended to read as follows:
38       22-4011. If any person who has been sentenced to death escapes
39       and is not retaken before the time fixed for execution, it shall be
40       lawful for any sheriff or other officer or person to rearrest and
41       return the person to the custody of the secretary of corrections.
42       Upon such return to custody, the secretary of corrections shall give
43       notice thereof to the governor clerk of the supreme court. Upon receipt

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  1       of such notice, the governor shall issue a warrant fixing and appointing
  2       a day for the execution, supreme court shall forthwith issue to the secre-
  3       tary of corrections a warrant under seal of the supreme court, command-
  4       ing the secretary or a warden designated pursuant to K.S.A. 22-4001 and
  5       amendments thereto to proceed to carry out the sentence of execution
  6       during the week designated by the supreme court which shall be carried
  7       into effect in the same manner as provided by statute for the ex-
  8       ecution of an original sentence of death. A copy of the warrant shall
  9       be delivered to the secretary of corrections and the clerk of the district
10       court.
11           [Sec. 8. K.S.A. 22-4012 is hereby amended to read as follows:
12       22-4012. Whenever any person has been sentenced to death, it
13       shall be the duty of the clerk of the court before which the con-
14       viction was rendered to issue a warrant an order, under the seal of
15       the court, which shall recite the conviction and sentence and be
16       directed to the secretary of corrections. The clerk shall deliver the
17       warrant order to the sheriff of the county in which the conviction
18       was rendered, and such sheriff shall promptly transport such con-
19       victed person to the state correctional institution designated by
20       the secretary of corrections and deliver such convict, together with
21       the warrant order, into the custody of the warden of the designated
22       institution, who shall receive and safely keep such convict until the
23       time of execution, or until otherwise ordered by the secretary or
24       other competent authority. The warden shall notify the secretary
25       of corrections of the receipt of the convict and warrant order.
26           [Sec. 9. K.S.A. 22-4013 is hereby amended to read as follows:
27       22-4013. (a) It shall be the duty of the secretary of corrections or
28       the warden designated by the secretary to proceed at the time fixed
29       in accordance with law to execute a sentence of death during the week
30       designated for the execution in the manner prescribed by this act. The
31       secretary of corrections may carry out the execution of the sentence of
32       death at any time during the week designated for the execution as pro-
33       vided by this section. For purposes of this act, the term ``week'' shall mean
34       the time period from 12:01 a.m. Sunday through and including 11:59 p.m.
35       the following Saturday. If the week designated in the warrant command-
36       ing the execution of a death sentence begins on a day of the week other
37       than a Sunday, or sets out a particular date for the execution, the secretary
38       of corrections shall notify the clerk of the supreme court. Upon receipt of
39       the order, the supreme court shall forthwith issue to the secretary of cor-
40       rections a warrant under seal of the supreme court, commanding the
41       secretary or a warden designated pursuant to K.S.A. 22-4001 and amend-
42       ments thereto to proceed to carry out the sentence of execution during the
43       week designated by the supreme court. A copy of the warrant shall be

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  1       delivered to the secretary of corrections and the clerk of the district court.
  2           [(b) The secretary of corrections shall carry out the execution com-
  3       manded by the warrant issued by the supreme court during the week
  4       designated by the supreme court on a date selected by the secretary. Pro-
  5       vided, however, the secretary shall give notice of the date selected by the
  6       secretary for the execution at least seven calendar days before the exe-
  7       cution to the clerk of the supreme court, the clerk of the district court in
  8       which the defendant was convicted, the defendant, the defendant's counsel
  9       and the attorney general. The secretary may carry out the execution at
10       any time during the date selected or as soon thereafter as the secretary
11       deems appropriate.
12           [Sec. 10. K.S.A. 22-4014 is hereby amended to read as follows:
13       22-4014. If the supreme court orders a suspension of the execution
14       of a sentence of death, the suspension shall continue until the pro-
15       ceedings are determined. If, after determining the same, the sen-
16       tence is affirmed, the supreme court shall order the execution of
17       the sentence of death and shall designate a day therefor week during
18       which the sentence of execution shall be carried out. It shall be the duty
19       of the clerk of the supreme court to issue to the secretary of cor-
20       rections a warrant under the seal of the court, commanding the
21       secretary or a warden designated pursuant to K.S.A. 22-4001 and
22       amendments thereto to proceed to carry the sentence into exe-
23       cution at the time appointed during the week designated by the court,
24       which time. The week during which the sentence of execution is to be
25       carried out shall be stated in the warrant. Upon receipt of the war-
26       rant it shall be the duty of the secretary of corrections to cause the
27       sentence to be executed as provided by this act at during the time
28       designated by the court.]
29        [Sec. 11. K.S.A. 21-4626 is hereby amended to read as follows:
30       21-4626. Mitigating circumstances shall include, but are not lim-
31       ited to, the following:
32           [(1) The defendant has no significant history of prior criminal
33       activity.
34           [(2) The crime was committed while the defendant was under
35       the influence of extreme mental or emotional disturbances.
36           [(3) The victim was a participant in or consented to the de-
37       fendant's conduct.
38           [(4) The defendant was an accomplice in the crime committed
39       by another person, and the defendant's participation was relatively
40       minor.
41           [(5) The defendant acted under extreme distress or under the
42       substantial domination of another person.
43           [(6) The capacity of the defendant to appreciate the criminality

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  1       of the defendant's conduct or to conform the defendant's conduct
  2       to the requirements of law was substantially impaired.
  3           [(7) The age of the defendant at the time of the crime.
  4           [(8) At the time of the crime, the defendant was suffering from
  5       post-traumatic stress syndrome caused by violence or abuse by the
  6       victim.
  7           [(9) A term of imprisonment is sufficient to defend and protect the
  8       people's safety from the defendant.]
  9           Sec. 2. [12.] K.S.A. 21-3439 is[, 21-4626, 22-4001, 22-4003, 22-
10       4006, 22-4009, 22-4011, 22-4012, 22-4013 and 22-4014 are] hereby
11       repealed.
12           Sec. 3. [13.] This act shall take effect and be in force from and after
13       its publication in the statute book.
14      
15