NEVADA
DEATH PENALTY NEWS
MAY 12: NEVADA BILL BANS EXECUTIONS OF RETARDED CRIMINALS
The Nevada Senate has sent Gov. Kenny Guinn a bill that would ban the
execution of mentally retarded criminals.
AB15, approved without debate Friday, brings the state into line with a
U.S. Supreme Court decision that mentally retarded people can't be
sentenced to death. Under the bill, the defense in a potential capital
case would have to file a pretrial motion to have a district court judge
declare the accused mentally retarded. 2 more measures changing capital
punishment laws are up for final passage in the Assembly on Tuesday.
If AB13 and AB16 are passed, they go to the Senate. AB13 would have
juries, rather than a panel of 3 judges, decide if a person who has
pleaded guilty to 1st-degree murder should be sentenced to death or life
in prison. If a jury is unable to reach a decision in a death penalty
case, the presiding judge would sentence the accused to life in prison
without possibility of parole.
AB16 would allow a person sentenced to death to request a DNA test.
The bill gives a judge the right to stay any execution until the analysis
of the genetic marker evidence is analyzed. In some cases in other states,
DNA evidence has exonerated people on death row. Another bill dealing with
capital cases already has gone to Guinn.
AB17 would raise the rate paid to court-appointed defense attorneys in
death penalty cases to $125 an hour.
The current rate is $75 an hour. The maximum fee allowed would be changed
to$20,000, up from the current$12,000.
Court-appointed attorneys in other criminal cases would be paid $100 an
hour, up from $75. The bill also requires that courts appoint a team of
lawyers, not just one, to represent defendants in death penalty cases.
(source: Associated Press)
ASSEMBLY PANEL OKs CHANGES IN DEATH PENALTY PROCEDURES
CARSON CITY -- A Nevada Assembly panel voted Wednesday to eliminate three-judge sentencing panels in capital trials and to remove a judge's ability to impanel a new jury when the first one can't decide whether to impose a death sentence.
AB13, which moved on a 9-5 Judiciary Committee vote to the full Assembly, mandates that when there is a hung jury in a capital trial during the sentencing phase, the presiding judge will impose a no-parole life sentence.
As originally drafted by an interim study panel, in cases with a hung jury a judge could have imposed the no-parole life sentence or impaneled a new jury for sentencing.
But Judiciary Committee members decided that even if one juror in a capital case won't impose death, that's enough reason to spare the convicted person's life.
The measure stems from a U.S. Supreme Court ruling that three-judge panels are unconstitutional, and the bill eliminates sentencing by such a panel when a person pleads guilty to first-degree murder and the state seeks the death penalty. Judges instead would have to impanel a jury for sentencing when people plead guilty.
As passed, the bill also changes the order of arguments during a sentencing hearing so that defense attorneys get to make the final argument before the jury considers the sentence.
Under current law, prosecutors get to argue first and last during the sentencing phase, which Pescetta said gives the state a clear advantage during sentencing.
Source: Associated Press
NEVADA PANEL VOTES TO BAN EXECUTING RETARDED CRIMINALS
A bill barring executions of mentally retarded Nevada criminals
won approval Tuesday in the Assembly Judiciary Committee. AB15,
now moving to the full Assembly, would bring Nevada into line
with a U.S. Supreme Court ruling last year against executions of
mentally retarded people convicted of capital crimes.
After a lengthy discussion regarding the process used by experts
to determine someone's mental state, the committee decided on a
combative approach. Under the bill, defense attorneys claiming
their client is mentally retarded would have to make that client
available to an expert chosen by the prosecution. Both sides
would then make their arguments to
the trial judge.
Lawyers for the state and defense could cross-examine one
another's witnesses. The hearing on mental retardation would
parallel trial proceedings.
In selecting the approach, the committee rejected a proposal
requiring that the court appoint a panel of experts to determine
the accused's mental state. Proponents of the approved method
said it's more in line with the ideals and practices of courts
and trials.
"We don't have a justice system where judges get to pick
witnesses," Assembly Majority Leader Barbara Buckley, D-Las
Vegas, said. Kristin Erickson, of the Nevada District Attorneys'
Association, said the proposal to let judges select the experts
would help ensure a more accurate diagnosis of the defendant.
"It's not an expert hunt," Erickson said.
Michael Pescetta, an assistant federal public defender who
specializes in death penalty cases, said the approved process
will probably affect only a few cases, and it's better than the
one the committee rejected.
The committee also adopted a definition of mental retardation
that's close to what's already found in Nevada statutes.
Current law defines retardation as "significantly subaverage
general intellectual functioning existing concurrently with
deficits in adaptive behavior and manifested during the
developmental period." The change removes a threshold age of
18 in favor of "during the developmental period." Also
removed from the bill was the presumption of retardation when a
defendant has an IQ of 70 or below. Lawmakers said an IQ of 70 is
the general threshold at which people are considered retarded,
but the
score itself isn't the only factor in a diagnosis.
Aside from intellectual capacity, doctors look at how well people
function in and understand their environment, and when their
adaptive behavior and intellectual shortcomings began.
Another change limits the required procedures for determining
mental retardation to cases in which the prosecution is seeking
the death penalty. The original bill included all 1st-degree
murder cases.
The Judiciary Committee also amended and approved AB17, which
increases standards for defense counsel for people charged with a
death-penalty eligible crime, and raises the pay rates for court-appointed
attorneys to
represent indigents.
The approved measure provides that court-appointed defense for
capital trials must include two attorneys, as well as any other
experts needed to aid in the defense. Attorneys would also get a
pay raise from the
counties from $75 per hour to $125 per hour for their service.
Both proposals came out of an interim legislative study on the
death penalty.
House set to OK ban on executing retarded -- Maximum sentence
under bill is life with no parole; hearings would determine who
qualifies
A bill that would ban executing the mentally retarded and use
hearings to determine who is and who isn't mentally retarded won
key approval in the House on Tuesday.
Since the U.S. Supreme Court ruled last summer that states may no
longer execute the mentally retarded, prosecutors, defense
attorneys, judges and legislators have been grappling with how
South Carolina should determine
who is and who isn't retarded.
Defense lawyers say at least 6 of the state's 71 death row
inmates are mentally retarded.
Under the House bill, defendants determined to be mentally
retarded before trial would face a maximum sentence of life in
prison without the possibility of parole rather than death, said
Rep. Jay Lucas, R-Darlington.
The bill provides no lesser sentences as an alternative, taking
away some of a trial judge's authority in sentencing mentally
retarded defendants, said Rep. Joe Neal, D-Richland. "The
judge shouldn't be told he has only one choice that he can make,"
Neal said. "I have a problem with the Legislature dictating
to the court and limiting its options. I think that's a mistake."
Other legislators thought life in prison was an appropriate
sentence for someone convicted of murder even if the defendant
were determined to be mentally retarded, Lucas said. "We're
not talking about someone who's insane, who doesn't know right
from wrong," he said.
The bill requires a life sentence for defendants who are
determined to be mentally retarded during a pretrial hearing and
subsequently convicted of murder. At the pretrial hearing, the
judge would hear expert testimony and consider evidence of mental
retardation. At least one expert must be a trained clinician with
expertise in mental retardation. If a defendant is ruled not
mentally retarded, the case would continue and the jury would not
be told of the earlier proceedings.
During sentencing, however, the defense could present evidence of
mental retardation to the jury, which could impose a 30-year
sentence if it cannot rule out mental retardation beyond a
reasonable doubt.
The bill requires a final approval, which is usually a
perfunctory vote, before moving to the Senate for debate.
(source for both: Associated Press)
For those who would have thought that such a bill is not important, since the US Supreme Court's ruling (Atkins v. Virginia) on mental retardation has stated that it was unconstitutional to execute people with mental retardation, let's clarify this point with the help of Paula Bernstein from Death Penalty Center:
Although it would initially seem that a state would not need to pass a law banning something that the Supreme Court has already said is banned, it is actually quite important that Nevada pass such a bill. Although the Supreme Court said that states could not execute those with mental retardation, they did not specify how states should determine WHO decides if the inmate has MR, HOW that determination is made, or WHEN that determination is made. The bill is important, because it will set those guidelines. Paula Bernstein
DEATH PENALTY
REFORMS DISCUSSED:
Capital punishment
foes urge elimination of aggravating factor.
Death penalty foes
urged Nevada lawmakers Tuesday to eliminate an aggravating factor that
prosecutors can cite in capital cases, saying it's vague and often used
inappropriately.
At least one aggravating
factor is necessary in a murder case for the imposition of a death sentence.
AB14 targets language
that says it's an aggravating factor if "the murder was committed by a
person who knowingly created a great risk of death to more than one person
by means of a weapon, device or course of action which would normally be
hazardous to the lives of more than one person."
Michael Pescetta,
a deputy federal public defender, told the Assembly Judiciary Committee
that district attorneys often aggressively prosecute murder cases using
the aggravating factor that AB14 would erase.
Pescetta said the
result is a broad pool of death-penalty eligible murder defendants, but
the U.S. Supreme Court has ruled states must establish aggravating factors
to narrow the pool of people eligible for death.
Washoe County District
Attorney Daniel Greco argued against AB14, saying the aggravating factor
gives prosecutors an essential tool they need to seek the death penalty
in cases where it's appropriate, and when additional factors don't fit
the case.
Greco also argued
that the factor has been regularly challenged in the Nevada Supreme Court,
and the court continually upholds it.
AB14 also would add
a mitigating circumstance that the "defendant suffers from a mental illness
or has a history of psychological disturbance."
Before a jury can
sentence a person to death, it must determine that the aggravating factors
outweigh the mitigating circumstances of the crime.
Another part of the
bill would change the order of the presentation of evidence during the
penalty phase of a capital case by allowing defense attorneys to have the
final argument during a penalty hearing.
Philip Kohn, special
public defender for Clark County, said the measure is about fairness.
"I can tell you that
allowing the prosecution to go first and last in final argument is a tremendous,
tremendous advantage for the prosecution," Kohn said.
Greco, however, argued
that bill proponents were trying to put an emotional face on the issue
by claiming the defense has the burden of proof in a capital sentencing
hearing.
"The law is straightforward,"
Greco said. "The burden of proof is on the prosecution to prove that one
or more aggravating circumstances exist."
NEVADA CONSIDERING
BAN ON EXECUTING MINORS
A bill banning the
execution of people under the age of 18 convicted of capital crimes was
introduced Thursday in the Nevada Assembly.
Assemblywoman Chris
Giunchigliani, D-Las Vegas, is sponsoring AB118, a proposal she also pushed
in the 2001 legislative session but was unable to get out of the Assembly
Judiciary Committee.
She's hoping for
better success the second time around.
"It just says we
will not execute young men and women under the age of 18,"Giunchigliani
said." Instead, they would be sentenced to life without the possibility
of parole."
Key to the argument,
Giunchigliani said, is that people under the age of 18 are still growing
physically and mentally, and their capacity to make decisions is not fully
developed.
The proposal is not
an effort to excuse their crimes, she said.
"Life without the
possibility of parole is a worse sentence in my mind,"the assemblywoman
said.
Courts can currently
impose the death penalty on anyone who was 16 year old when they committed
the crime.
There is now one
man on Nevada's death row who was convicted as a juvenile. Michael Domingues
was 16 in 1993 when he killed Arjin Pechpho, 24, and her 4-year-old son,
Jonathan Smith, at their home in Las Vegas. Domingues lived next door.
The state Supreme
Court rejected his appeal and the U.S. Supreme Court has declined to review
his claim that executing those under age 18 violates an international treaty.
Assembly Minority
Leader Lynn Hettrick, R-Gardnerville, said he is against the proposal,
arguing that prosecutors and the courts have enough discretion to decide
who the state should execute.
"To get the death
penalty in this state you have to do a pretty heinous crime. People at
age 16 are competent enough to drive cars and do a lot of other things
like adults, and I guess that I have concerns that age is the only factor,"Hettrick
said.
"We get too many
things here done on absolutes and the same cookie-cutter size fits all,"he
said.
Assemblywoman Sheila
Leslie, D-Reno, agreed with Giunchigliani that the measure has a better
chance this year. Leslie chaired an interim subcommittee that studied the
death penalty and came one vote short of officially recommending the bill.
"I've found a great
willingness to be open on this issue,"Leslie said.
She also noted that
major reforms often take time and that the death penalty was rarely discussed
during her first term in office in 1999.
Leslie agreed the
development issue would play a key role in the argument.
"There's a reason
we have a juvenile justice system. It's because juveniles aren't adults,"she
said.
And another effort
to ban executions of those who were juveniles when their crimes were committed
also is expected, which should prove more controversial. The U.S. Supreme
Court refused to take up this issue earlier this year. Nevada allows the
death penalty to be imposed on teens as young as 16. An effort to change
the law in 2001 failed.
"We're going to hit
the ground running on the death penalty bills," said Assemblywoman Sheila
Leslie, D-Reno. "But I don't think it's going to be a smooth process."
But it should still
be less intense than in 2001, when a former state senator called unsuccessfully
for a controversial moratorium on executions, and inmate Sebastian Bridges
was executed for a Las Vegas murder.
Leslie, who served
as chairwoman of an interim study of death penalty issues following the
2001 session, said a lower level of intensity on the subject may prove
helpful as lawmakers consider the various proposals.
"It's a little less
emotional, which I think is better," she said. "I'm hopeful it will be
more deliberative."
But though lawmakers
are obligated to change Nevada statute regarding the execution of the retarded
and in the use of three-judge panels, no mandate exists concerning execution
of juveniles.
Leslie said any effort
to change the law will be a challenge, given the Washington, D.C.-area
sniper case involving Lee Boyd Malvo, who is 17, and the recent slaying
in Mesquite of 3-year-old Kristyanna Cowen, in which a 16-year-old girl
has been implicated. Kristyanna's older half-sister was left paralyzed
in the attack. Prosecutors have yet to decide whether to seek the death
penalty against either of the two suspects in that case.
"The political climate
is not great for this bill," she said. "Getting people to separate the
horrible crime from the issue of whether we as a society should be executing
juveniles is very difficult. Emotions may run high."
The ban on capital
punishment for those under 18 just missed an endorsement from the interim
study panel, and it failed because of the position of Sen. Joe Neal, D-North
Las Vegas, a death penalty opponent. Neal said he would not vote for the
ban on capital punishment for juvenile offenders because the vote could
be misconstrued as support for the death penalty for adults.
Assemblywoman Chris
Giunchigliani, D-Las Vegas, who sought the ban on capital punishment for
those under 18 two years ago, said she will try again.
"We're not talking
about releasing these people, we're talking about a sentence of life in
prison," Giunchigliani said.
Of the 38 states
that have the death penalty, 16 prohibit it for those who were under 18
when they committed their crimes. The federal government also bans capital
punishment for juveniles.
Nevada has one such
death row inmate. Michael Domingues was 16 in 1993 when he killed a woman
and her 4-year-old son in Las Vegas when they returned home during a robbery.
Only one death sentence
was imposed in 2002, in a Reno-area case. Also in 2002, two death sentences
were reversed, one was commuted and two death row inmates died of natural
causes.
The actual death
row population declined by four in 2002, to 81 men and one woman. There
has not been an execution in Nevada since Bridges was put to death by lethal
injection in April 2001.
ILLINOIS EXAMPLE:
Death penalty changes sought
Foes of Nevada
system hope Ryan's commutations will affect Silver State debate
Nevada death penalty
foes hope the dramatic emptying of Illinois' death row will help their
efforts to change this state's capital punishment laws.
They say changes
suggested by a study subcommittee already ensured extensive attention to
the issue during the 2003 Nevada Legislature, and that debate should increase
after former Illinois Gov. George Ryan announced Saturday that he had commuted
the death sentences of all 167 condemned inmates in his state.
Calling the death
penalty process "arbitrary and capricious, and therefore immoral," Ryan
said recent studies raised questions about the how the death penalty was
imposed. He cited problems with trials, sentencing, the appeals process
and the state's "spectacular failure" to reform the system.
"The same things
that Governor Ryan is talking about as being problematic in death penalty
cases in his state are the same problems that our legislative subcommittee
identified here," said Michael Pescetta, a deputy federal public defender
who specializes in capital cases.
"To the extent that
we have the same problems that Illinois has, I would hope ... the same
or a greater degree of attention will be paid here," Pescetta said Tuesday.
Nevada has 84 men
and one woman on death row. Pescetta said the count gives Nevada the highest
per-capita rate in the nation, and he has seen many cases of sentencing
disparities and other problems of the sort cited by the outgoing Illinois
governor.
Before commuting
the death sentences, Ryan had halted all executions in Illinois nearly
three years ago after courts found that 13 death row inmates had been wrongly
convicted there since capital punishment resumed in 1977.
Richard Siegel, head
of the Nevada American Civil Liberties Union, said the Illinois action
will help mobilize death penalty foes in Nevada and throughout the nation,
and reflects a public opinion shift away from capital punishment.
"Politicians have
lost their certainty that the death penalty is a winner in political terms,"
Siegel said. "The public and the politicians have been put off stride by
the weight of evidence that the death penalty is too often inaccurate and
arbitrary."
The Nevada study
panel was chaired by Assemblywoman Sheila Leslie, D-Reno, who said that
at a minimum the 2003 Legislature will have to bring state laws into line
with last year's U.S. Supreme Court rulings against executions of mentally
retarded people and limiting the use of judicial sentencing panels.
Leslie said she expects
debate on the execution of juveniles "since we are one of just a handful
of states that still have this law on the books." A bill to ban such executions
is expected from Assemblywoman Chris Giunchigliani, D-Las Vegas.
Leslie's subcommittee
also has recommended changes to prevent racial, gender or economic discrimination in capital cases, and to revise the aggravating and mitigating factors that are considered in such cases. Other recommendations would ensure condemned convicts can file post-conviction petitions requesting DNA analyses and evidence preservation.
"I think everyone
in Nevada, whether you believe in the morality of the death penalty or
not, would agree that justice demands fairness," Leslie said.
Assembly Judiciary
Chairman Bernie Anderson, D-Sparks, said he expects Sen. Joe Neal, D-North
Las Vegas, to again seek a moratorium on executions. Anderson's committee
and its Senate counterpart also will review death penalty-related bills.
Anderson said the
Illinois action will affect the Nevada debate.
"I don't see how
you can leave it out," he said.
He said the proposals
coming from Leslie's study subcommittee have to be considered if the majority
of state lawmakers favor retaining capital punishment in Nevada. Otherwise,
Anderson said legal challenges from condemned inmates would have a better
chance of success "and we wouldn't have a death penalty statute."
Anderson also said
that aside from the morality issues there's a question of finances, an
important concern given the state's revenue shortage.
Death penalty opponents
say a capital punishment case can average about $2 million in legal costs,
compared with an average $1 million cost of imprisoning someone for life.
"It isn't just a
moral question," he said. "It's a dollar question, too. The burden is going
to be on the taxpayer to come up with all the dollars."
Whatever Nevada does
with its death penalty laws, what occurred in Illinois can't occur here.
Sentence commutations
are handled in Nevada by the state Pardons Board -- and the governor is
one of nine people who serve on that panel. Guinn chairs the Pardons Board,
whose other members include the state attorney general and all seven justices
of the state Supreme Court.
Nevada's last execution
was in April 2001, when Sebastian Bridges was executed after refusing to
challenge his conviction for the murder of his estranged wife's lover.
Bridges' execution
was Nevada's ninth since the U.S. Supreme Court allowed states to revive
capital punishment in the mid-1970s. All but one of Nevada's executions
have involved inmates who declined to appeal.
