HOUSE BILL 77

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

John Block and Harlan Vincent and Stefani Lord

 

 

 

 

 

AN ACT

RELATING TO CAPITAL FELONY SENTENCING; REINSTATING THE DEATH PENALTY; PROVIDING SENTENCING PROCEDURES; PROVIDING MITIGATING CIRCUMSTANCES; REQUIRING AUTOMATIC REVIEW OF CONVICTION AND SENTENCE BY THE SUPREME COURT; PROVIDING PROCEDURES FOR EXECUTION; PROHIBITING EXECUTION OF CERTAIN PERSONS; REQUIRING EXECUTION BY LETHAL INJECTION; MAKING APPROPRIATIONS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 31-18-14 NMSA 1978 (being Laws 1979, Chapter 150, Section 1, as amended) is amended to read:

     "31-18-14. SENTENCING AUTHORITY--CAPITAL FELONIES.--

          A. When a defendant has been convicted of a capital felony, the defendant shall be punished by life imprisonment; life imprisonment without the possibility of release or parole; or death. The punishment shall be imposed after a sentencing hearing separate from the trial or guilty plea proceeding. If the defendant has not reached the age of eighteen years at the time of the commission of the capital felony for which the defendant was convicted, the defendant may be sentenced to life imprisonment or life imprisonment without the possibility of release or parole but shall not be punished by death.

          B. In the event that the sentence of death in a capital felony case is held to be unconstitutional or otherwise invalidated by the supreme court or the United States supreme court, the person previously sentenced to death for a capital felony shall be sentenced to [life imprisonment or] life imprisonment without the possibility of release or parole."

     SECTION 2. Section 31-18-23 NMSA 1978 (being Laws 1994, Chapter 24, Section 2, as amended) is amended to read:

     "31-18-23. THREE VIOLENT FELONY CONVICTIONS--MANDATORY LIFE IMPRISONMENT--EXCEPTION.--

          A. When a defendant is convicted of a third violent felony, and each violent felony conviction is part of a separate transaction or occurrence, and at least the third violent felony conviction is in New Mexico, the defendant shall, in addition to the sentence imposed for the third violent felony conviction when that sentence does not result in death, be punished by a sentence of life imprisonment. The life imprisonment sentence shall be subject to parole pursuant to the provisions of Section 31-21-10 NMSA 1978.

          B. The sentence of life imprisonment shall be imposed after a sentencing hearing, separate from the trial or guilty plea proceeding resulting in the third violent felony conviction, pursuant to the provisions of Section 31-18-24 NMSA 1978. 

          C. For the purpose of this section, a violent felony conviction incurred by a defendant before the defendant reaches the age of eighteen shall not count as a violent felony conviction.

          D. When a defendant has a felony conviction from another state, the felony conviction shall be considered a violent felony for the purposes of the Criminal Sentencing Act if that crime would be considered a violent felony in New Mexico.

          E. As used in the Criminal Sentencing Act:

                (1) "great bodily harm" means an injury to the person that creates a high probability of death or that causes serious disfigurement or that results in permanent loss or impairment of the function of any member or organ of the body; and

                (2) "violent felony" means:

                     (a) murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978;

                     (b) shooting at or from a motor vehicle resulting in great bodily harm, as provided in Subsection B of Section 30-3-8 NMSA 1978;

                     (c) kidnapping resulting in [great bodily harm] physical injury or a sexual offense inflicted upon the victim by the victim's captor, as provided in Subsection B of Section 30-4-1 NMSA 1978;

                     (d) criminal sexual penetration, as provided in Subsection C or D or Paragraph (5) or (6) of Subsection E of Section 30-9-11 NMSA 1978; and

                     (e) robbery while armed with a deadly weapon resulting in great bodily harm as provided in Section 30-16-2 NMSA 1978 [and Subsection A of Section 30-1-12 NMSA 1978]."

     SECTION 3. Section 31-20A-2 NMSA 1978 (being Laws 1979, Chapter 150, Section 3, as amended) is amended to read:

     "31-20A-2. CAPITAL FELONY--DETERMINATION OF SENTENCE.--

          A. If a jury finds, beyond a reasonable doubt, that one or more aggravating circumstances exist, as enumerated in Subsection A of Section 31-20A-5 NMSA 1978, the defendant shall be sentenced to life imprisonment without possibility of release or parole. If the jury does not [make the finding] find that one or more of the aggravating circumstances enumerated in that subsection exist, the defendant shall be sentenced to life imprisonment.

          B. If a jury finds, beyond a reasonable doubt, that one or more aggravating circumstances exist, as enumerated in Subsection B of Section 31-20A-5 NMSA 1978, the jury shall determine whether the defendant shall be sentenced to death or life imprisonment without the possibility of release or parole. The determination pursuant to this subsection shall be guided by the following considerations:

                (1) whether aggravating circumstances exist as enumerated in Subsection B of Section 31-20A-5 NMSA 1978;

                (2) whether mitigating circumstances exist as enumerated in Section 8 of this 2024 act; and

                (3) whether other mitigating circumstances exist.

          C. With respect to a defendant who was younger than eighteen years at the time of commission of the capital felony for which the defendant was convicted, if a jury finds that an aggravating circumstance as enumerated in Subsection A or B of Section 31-20A-5 NMSA 1978 exists, the sentencing court or jury shall consider the defendant's age at the time of commission of the capital felony as a mitigating factor and shall determine whether to sentence the defendant to life imprisonment or life imprisonment without the possibility of release or parole."

     SECTION 4. Section 31-20A-5 NMSA 1978 (being Laws 1979, Chapter 150, Section 6, as amended) is amended to read:

     "31-20A-5. AGGRAVATING CIRCUMSTANCES.--

          A. The aggravating circumstances to be considered by the sentencing court or jury pursuant to the provisions of Subsection A of Section 31-20A-2 NMSA 1978 are limited to the following:

          [A. the victim was a peace officer who was acting in the lawful discharge of an official duty when he was murdered;

                B.] (1) the murder was committed with intent to kill in the commission of or attempt to commit [kidnaping] kidnapping, criminal sexual contact of a minor or criminal sexual penetration;

                [C.] (2) the murder was committed with the intent to kill by the defendant while attempting to escape from a penal institution of New Mexico;

                [D.] (3) while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered a person who was at the time incarcerated in or lawfully on the premises of a penal institution in New Mexico; [As used in this subsection, "penal institution" includes facilities under the jurisdiction of the corrections and criminal rehabilitation department and county and municipal jails;

          E. while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered an employee of the corrections and criminal rehabilitation department;

                F.] (4) the capital felony was committed for hire; and

                [G.] (5) the capital felony was murder of a witness to a crime or any person likely to become a witness to a crime, for the purpose of preventing report of the crime or testimony in any criminal proceeding or for retaliation for the victim having testified in any criminal proceeding.

          B. The aggravating circumstances to be considered by the sentencing court or jury pursuant to the provisions of Subsection B of Section 31-20A-2 NMSA 1978 are limited to the following:

                (1) the victim was a peace officer who was acting in the lawful discharge of an official duty when the peace officer was murdered;

                (2) the victim was a child under the age of eighteen years;

                (3) while incarcerated in a penal institution in New Mexico, the defendant, with the intent to kill, murdered an employee or a contractor of the penal institution; and

                (4) the defendant attempted to harm or kill a peace officer who was acting in the lawful discharge of an official duty.

          C. For the purpose of this section, "penal institution" includes facilities under the jurisdiction of the corrections department and county and municipal jails."

     SECTION 5. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] CAPITAL FELONY--SENTENCING PROCEDURE.--

          A. At the conclusion of all capital felony cases heard by a jury, and after proper charge from the court and argument of counsel, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In nonjury capital felony cases, the judge shall first consider a finding of guilty or not guilty without any consideration of punishment.

          B. Upon a verdict by the jury or judge that the defendant is guilty of a capital felony, or upon a plea of guilty to a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to life imprisonment, life imprisonment without the possibility of release or parole, or, if applicable, death. In a jury trial, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge before either the original trial jury or a jury impaneled for the purpose of sentencing. In a nonjury trial, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge or jury. In the case of a plea of guilty to a capital felony, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge or by a jury upon demand of a party.

          C. In the sentencing proceeding, all evidence admitted at the trial shall be considered and additional evidence may be presented as to the circumstances of the crime and as to any aggravating or mitigating circumstances pursuant to Section 31-20A-5 NMSA 1978 and Section 8 of this 2024 act.           D. In a jury sentencing proceeding, the judge shall give appropriate instructions and allow arguments, and the jury shall retire to determine the punishment to be imposed. In a nonjury sentencing proceeding, or upon a plea of guilty where no jury has been demanded, the judge shall allow argument and determine the punishment to be imposed."

     SECTION 6. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] CAPITAL FELONY CASE HEARD BY JURY-- SENTENCING HEARING--EXPLANATION BY COURT TO JURY.--At the beginning of a sentencing hearing for a capital felony case, subsequent to a verdict by the jury that the defendant is guilty of a capital felony, the court shall explain to the jury that a sentence of life imprisonment means that the defendant shall serve thirty years of the sentence before the defendant becomes eligible for a parole hearing, as provided in Section 31-21-10 NMSA 1978."

     SECTION 7. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] COURT SENTENCING.--In a jury sentencing proceeding in which the jury unanimously finds beyond a reasonable doubt and specifies at least one of the aggravating circumstances enumerated in Subsection B of Section 31-20A-5 NMSA 1978 and unanimously specifies the sentence of death pursuant to Subsection B of Section 31-20A-2 NMSA 1978, the court shall sentence the defendant to death. Where a sentence of death is not unanimously specified or the jury does not make the required finding or is unable to reach a unanimous verdict, the court shall sentence the defendant to life imprisonment without the possibility of release or parole in accordance with Section 31-20A-2 NMSA 1978. In a nonjury sentencing proceeding and in cases involving a plea of guilty, where no jury has been demanded, the judge shall determine and impose the sentence; provided that the judge shall not impose the sentence of death except upon a finding beyond a reasonable doubt and specification of at least one of the aggravating circumstances enumerated in Subsection B of Section 31-20A-5 NMSA 1978."

     SECTION 8. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] MITIGATING CIRCUMSTANCES.--The mitigating circumstances to be considered by the sentencing court or the jury pursuant to the provisions of Subsection B of Section 31-20A-2 NMSA 1978 shall include but not be limited to the following:

          A. the defendant has no significan