HOUSE BILL NO. 2153 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE MURPHY.
5824H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 546.680, 546.690, 546.700, 546.710, 546.720, 546.730, 546.740, 546.750, 546.800, 546.810, 546.820, 557.021, 565.004, 565.005, 565.006, 565.020, 565.030, 565.032, 565.035, and 565.040, RSMo, and to enact in lieu thereof five new sections relating to repealing the death penalty, with a penalty provision.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 546.680, 546.690, 546.700, 546.710, 546.720, 546.730, 546.740, 2 546.750, 546.800, 546.810, 546.820, 557.021, 565.004, 565.005, 565.006, 565.020, 565.030, 3 565.032, 565.035, and 565.040, RSMo, are repealed and five new sections enacted in lieu 4 thereof, to be known as sections 557.021, 565.004, 565.006, 565.020, and 565.040, to read as 5 follows: 557.021. 1. Any offense defined outside this code [which] that is declared to be a 2 misdemeanor without specification of the penalty therefor is a class A misdemeanor. 3 2. Any offense defined outside this code [which] that is declared to be a felony 4 without specification of the penalty therefor is a class E felony. 5 3. For the purpose of applying the extended term provisions of section 558.016 and 6 the minimum prison term provisions of section 558.019 and for determining the penalty for 7 attempts, offenses defined outside of this code shall be classified as follows: 8 (1) If the offense is a felony: 9 (a) It is a class A felony if the authorized penalty includes [death,] life imprisonment; 10 imprisonment for life without eligibility for probation, parole, or release except by act of 11 the governor; or imprisonment for a term of twenty years or more;
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 2153 2
12 (b) It is a class B felony if the maximum term of imprisonment authorized exceeds 13 ten years but is less than twenty years; 14 (c) It is a class C felony if the maximum term of imprisonment authorized is ten 15 years; 16 (d) It is a class D felony if the maximum term of imprisonment exceeds four years but 17 is less than ten years; 18 (e) It is a class E felony if the maximum term of imprisonment is four years or less; 19 (2) If the offense is a misdemeanor: 20 (a) It is a class A misdemeanor if the authorized imprisonment exceeds six months in 21 jail; 22 (b) It is a class B misdemeanor if the authorized imprisonment exceeds thirty days but 23 is not more than six months; 24 (c) It is a class C misdemeanor if the authorized imprisonment is thirty days or less; 25 (d) It is a class D misdemeanor if it includes a mental state as an element of the 26 offense and there is no authorized imprisonment; 27 (e) It is an infraction if there is no authorized imprisonment. 565.004. 1. Each homicide offense [which] that is lawfully joined in the same 2 indictment or information together with any homicide offense or offense other than a 3 homicide shall be charged together with such offense in separate counts. A count charging 4 any offense of homicide may only be charged and tried together with one or more counts of 5 any other homicide or offense other than a homicide as provided in subsection 2 of section 6 545.140. Except as provided in subsections 2[,] and 3[, and 4] of this section, no murder in 7 the first degree offense may be tried together with any offense other than murder in the first 8 degree. In the event of a joinder of homicide offenses, all offenses charged which are 9 supported by the evidence in the case, together with all proper lesser offenses under section 10 565.029, shall, when requested by one of the parties or the court, be submitted to the jury or, 11 in a jury-waived trial, considered by the judge. 12 2. A count charging any offense of homicide of a particular individual may be joined 13 in an indictment or information and tried with one or more counts charging alternatively any 14 other homicide or offense other than a homicide committed against that individual. The state 15 shall not be required to make an election as to the alternative count on which it will proceed. 16 This subsection in no way limits the right to try in the conjunctive, where they are properly 17 joined under subsection 1 of this section, either separate offenses other than murder in the 18 first degree or separate offenses of murder in the first degree committed against different 19 individuals. 20 3. When a defendant has been charged and proven before trial to be a prior offender 21 pursuant to chapter 558 so that the judge shall assess punishment and not a jury for an offense HB 2153 3
22 other than murder in the first degree, that offense may be tried and submitted to the trier 23 together with any murder in the first degree charge with which it is lawfully joined. In such 24 case the judge will assess punishment on any offense joined with a murder in the first degree 25 charge according to law and, when the trier is a jury, it shall be instructed upon punishment on 26 the charge of murder in the first degree [in accordance with section 565.030. 27 4. When the state waives the death penalty for a murder first degree offense, that 28 offense may be tried and submitted to the trier together with any other charge with which it is 29 lawfully joined]. 565.006. 1. At any time before the commencement of the trial of a homicide offense, 2 the defendant may, with the assent of the court, waive a trial by jury and agree to submit all 3 issues in the case to the court, whose finding shall have the force and effect of a verdict of a 4 jury. Such a waiver must include a waiver of a trial by jury of all issues and offenses charged 5 in the case, including the punishment to be assessed and imposed if the defendant is found 6 guilty. 7 2. No defendant who pleads guilty to a homicide offense or who is found guilty of a 8 homicide offense after trial to the court without a jury shall be permitted a trial by jury on the 9 issue of the punishment to be imposed, except by agreement of the state. 10 3. [If a defendant is found guilty of murder in the first degree after a jury trial in 11 which the state has not waived the death penalty, the defendant may not waive a jury trial of 12 the issue of the punishment to be imposed, except by agreement with the state and the court. 13 4.] Any waiver of a jury trial and agreement permitted by this section shall be entered 14 in the court record. 565.020. 1. A person commits the offense of murder in the first degree if he or she 2 knowingly causes the death of another person after deliberation upon the matter. 3 2. The offense of murder in the first degree is a class A felony, and, if a person is 4 eighteen years of age or older at the time of the offense, the punishment shall be [either death 5 or] imprisonment for life without eligibility for probation [or], parole, or release except by act 6 of the governor. If a person has not reached his or her eighteenth birthday at the time of the 7 commission of the offense, the punishment shall be as provided under section 565.033. 565.040. 1. [In the event that the death penalty provided in this chapter is held to be 2 unconstitutional,] Any person convicted of murder in the first degree shall be sentenced by 3 the court to life imprisonment without eligibility for probation, parole, or release except by 4 act of the governor[, with the exception that when a specific aggravating circumstance found 5 in a case is held to be unconstitutional or invalid for another reason, the supreme court of 6 Missouri is further authorized to remand the case for resentencing or retrial of the punishment 7 pursuant to subsection 5 of section 565.035]. HB 2153 4
8 2. In [the event that] any case in which a death sentence has previously been 9 imposed pursuant to this chapter [is held to be unconstitutional, the trial court which 10 previously sentenced the defendant to death shall cause the defendant to be brought before the 11 court and shall sentence the defendant to life imprisonment without eligibility for probation, 12 parole, or release except by act of the governor, with the exception that when a specific 13 aggravating circumstance found in a case is held to be inapplicable, unconstitutional or 14 invalid for another reason, the supreme court of Missouri is further authorized to remand the 15 case for retrial of the punishment pursuant to subsection 5 of section 565.035] but has not 16 been executed, such sentence shall not be modified unless otherwise provided by law. [546.680. When judgment of death is rendered by any court of 2 competent jurisdiction, a warrant signed by the judge and attested by the clerk 3 under the seal of the court must be drawn and delivered to the sheriff. It must 4 state the conviction and judgment and appoint a day on which the judgment 5 must be executed, which must not be less than thirty nor more than sixty days 6 from the date of judgment, and must direct the sheriff to deliver the defendant, 7 at a time specified in said order, not more than ten days from the date of 8 judgment, to the chief administrative officer of a correctional facility of the 9 department of corrections, for execution.]
[546.690. The judge of a court at which a conviction is had must, 2 immediately after the conviction, transmit to the governor of the state, by mail 3 or otherwise, a statement of the conviction and judgment.]
[546.700. Whenever, for any reason, any convict sentenced to the 2 punishment of death shall not have been executed pursuant to such sentence, 3 and the cause shall stand in full force, the supreme court, or the court of the 4 county in which the conviction was had, on the application of the prosecuting 5 attorney, shall issue a writ of habeas corpus to bring such convict before the 6 court; or if he be at large, a warrant for his apprehension may be issued by 7 such court, or any judge thereof.]
[546.710. Upon such convicted offender being brought before the 2 court, they shall proceed to inquire into the facts, and if no legal reasons exist 3 against the execution of sentence, such court shall issue a warrant to the 4 director of the department of corrections, for the execution of the prisoner at 5 the time therein specified, which execution shall be obeyed by the director 6 accordingly.]
[546.720. 1. The manner of inflicting the punishment of death shall be 2 by the administration of lethal gas or by means of the administration of lethal 3 injection. And for such purpose the director of the department of corrections is 4 hereby authorized and directed to provide a suitable and efficient room or 5 place, enclosed from public view, within the walls of a correctional facility of 6 the department of corrections, and the necessary appliances for carrying into HB 2153 5
7 execution the death penalty by means of the administration of lethal gas or by 8 means of the administration of lethal injection. 9 2. The director of the department of corrections shall select an 10 execution team which shall consist of those persons who administer lethal gas 11 or lethal chemicals and those persons, such as medical personnel, who provide 12 direct support for the administration of lethal gas or lethal chemicals. The 13 identities of members of the execution team, as defined in the execution 14 protocol of the department of corrections, shall be kept confidential. 15 Notwithstanding any provision of law to the contrary, any portion of a 16 record that could identify a person as being a current or former member of an 17 execution team shall be privileged and shall not be subject to discovery, 18 subpoena, or other means of legal compulsion for disclosure to any person or 19 entity, the remainder of such record shall not be privileged or closed unless 20 protected from disclosure by law. The section of an execution protocol that 21 directly relates to the administration of lethal gas or lethal chemicals is an open 22 record, the remainder of any execution protocol of the department of 23 corrections is a closed record. 24 3. A person may not, without the approval of the director of the 25 department of corrections, knowingly disclose the identity of a current or 26 former member of an execution team or disclose a record knowing that it could 27 identify a person as being a current or former member of an execution team. 28 Any person whose identity is disclosed in violation of this section shall: 29 (1) Have a civil cause of action against a person who violates this 30 section; 31 (2) Be entitled to recover from any such person: 32 (a) Actual damages; and 33 (b) Punitive damages on a showing of a willful violation of this 34 section. 35 4. Notwithstanding any provision of law to the contrary, if a member 36 of the execution team is licensed by a board or department, the licensing board 37 or department shall not censure, reprimand, suspend, revoke, or take any other 38 disciplinary action against the person's license because of his or her 39 participation in a lawful execution. All members of the execution team are 40 entitled to coverage under the state legal expense fund established by section 41 105.711 for conduct of such execution team member arising out of and 42 performed in connection with his or her official duties on behalf of the state or 43 any agency of the state, provided that moneys in this fund shall not be 44 available for payment of claims under chapter 287.]
[546.730. A judgment of death must be executed within a correctional 2 center of the department of corrections; and such execution shall be under the 3 supervision and direction of the director of the department of corrections.]
[546.740. The chief administrative officer of the correctional center, or 2 his duly appointed representative shall be present at the execution and the 3 director of the department of corrections shall invite the presence of the 4 attorney general of the state, and at least eight reputable citizens, to be selected 5 by him; and he shall at the request of the defendant, permit such clergy or HB 2153 6
6 religious leaders, not exceeding two, as the defendant may name, and any 7 person, other than another incarcerated offender, relatives or friends, not to 8 exceed five, to be present at the execution, together with such peace officers as 9 he may think expedient, to witness the execution; but no person under twenty- 10 one years of age shall be allowed to witness the execution.]
[546.750. After the execution the chief administrative officer of the 2 correctional facility shall make a return upon the death warrant to the court by 3 which the judgment was rendered, showing the time, mode and manner in 4 which it was executed.]
[546.800. If, after any female convict shall be sentenced to the 2 punishment of death, the officer having charge of her person shall have reason 3 to suspect that she is pregnant, he shall in like manner summon a jury of six 4 persons, not less than three of whom shall be physicians, and shall give notice 5 thereof to the prosecuting attorney of the county where such criminal 6 proceedings originated, or to the circuit attorney of the city of St. Louis, if 7 such criminal proceedings originated in that city, who shall attend, and the 8 proceedings shall be had as provided.]
[546.810. The inquisition shall be signed by the jury and the officer in 2 charge of such convict, and if it appear that such female convict is pregnant 3 with child, her execution shall be suspended and the inquisition shall be 4 transmitted to the governor.]
[546.820. Whenever the governor shall be satisfied that the cause of 2 such suspension no longer exists, he shall issue his warrant, appointing a day 3 for the execution of such convict, pursuant to her sentence; or he may, at his 4 discretion, commute her punishment to imprisonment in the penitentiary for 5 life.]
[565.005. 1. At a reasonable time before the commencement of the 2 first stage of any trial of murder in the first degree at which the death penalty is 3 not waived, the state and defendant, upon request and without order of the 4 court, shall serve counsel of the opposing party with: 5 (1) A list of all aggravating or mitigating circumstances as provided in 6 subsection 1 of section 565.032, which the party intends to prove at the second 7 stage of the trial; 8 (2) The names of all persons whom the party intends to call as 9 witnesses at the second stage of the trial; 10 (3) Copies or locations and custodian of any books, papers, 11 documents, photographs or objects which the party intends to offer at the 12 second stage of the trial. If copies of such materials are not supplied to 13 opposing counsel, the party shall cause them to be made available for 14 inspection and copying without order of the court. 15 2. The disclosures required in subsection 1 of this section are 16 supplemental to those required by rules of the supreme court relating to a 17 continuing duty to disclose information, the use of matters disclosed, matters HB 2153 7
18 not subject to disclosure, protective orders, and sanctions for failure to comply 19 with an applicable discovery rule or order, all of which shall also apply to any 20 disclosure required by this section.]
[565.030. 1. Where murder in the first degree is charged but not 2 submitted or where the state waives the death penalty, the submission to the 3 trier and al