(By Delegates Overington, Pulliam,
Dalton, Osborne, Walters, Hall and Evans)

(Introduced January 14, 1998; referred to the
Committee on Constitutional Revision.)
Proposing an amendment to the Constitution of the State of West
Virginia, by adding thereto a new article, designated article fifteen, relating to imposing the death penalty for the crime of first degree murder; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.

Resolved by the Legislature of West Virginia, two thirds of the members elected to each house agreeing thereto:
That the question of ratification or rejection of an amendment to the Constitution of the State of West Virginia be submitted to the voters of the State at the next general election to be held in the year one thousand nine hundred ninety-eight, which proposed amendment is that a new article be added thereto, designated article fifteen, to read as follows:

§1. Penalty for murder in the first degree.
Murder in the first degree shall be punished by death if any one or more of the aggravating circumstances enumerated in section three of this article has been charged and found to be true without a finding of any one or more of the mitigating circumstances enumerated in section four of this article. Any person otherwise guilty of murder in the first degree shall be punished by confinement in the correctional facility for life without probation or parole.
§2. Sentencing procedures for murder in the first degree.
(a) Procedure in jury trials.
After a verdict of murder in the first degree is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment. In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed, including evidence relating to any of the aggravating or mitigating circumstances specified in sections three and four of this article. Evidence of aggravating circumstances shall be limited to those circumstances specified in sections three and four of this article. After the presentation of evidence, the court shall permit counsel to present argument for or against the sentence of death. The court shall then instruct the jury in accordance with subsection (c) of this section. Failure of the jury to unanimously agree upon a sentence shall not impeach or in any way affect the guilty verdict previously recorded.
(b) Procedure in nonjury trials and guilty pleas.
If the defendant has waived a jury trial or pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose unless waived by the defendant with the consent of the state, in which latter case the trial judge shall hear the evidence and determine the penalty in the same manner as would a jury.
(c) Instructions to jury.
Before retiring to determine the imposition of sentence, the jury shall be instructed by the court as to the following:
(1) The aggravating circumstances specified in section three of this article for which any evidence has been presented;
(2) Mitigating circumstances, including those specified in section four of this article, for which any evidence has been presented;
(3) Aggravating circumstances must be proved by the state beyond a reasonable doubt. Mitigating circumstances must be proved by the defendant by a preponderance of the evidence;
(4) The sentence shall be death if the jury unanimously finds at least one aggravating circumstance specified in section three of this article and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh all mitigating circumstances. The sentence shall be life imprisonment without probation or parole in all other cases;
(5) The court may, in its discretion, discharge the jury if it is of the opinion that further deliberation will not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment; and
(6) The court shall instruct the jury on any other matter that may be just and proper under the circumstances.
§3. Aggravating circumstances for imposition of capital punishment.
Aggravating circumstances, for purposes of this article, are limited to the following:
(1) The murder occurred when the defendant was incarcerated, or under order of incarceration in a municipal, county or state correctional institution, or if the murder occurred while defendant was an escaped convict;
(2) The victim was a fireman, peace officer, correctional officer, parole officer, judicial officer or any individual who was killed in the performance of his duty;
(3) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity;
(4) The defendant has a significant history of felony convictions involving the use or threat of violence to the person;
(5) The defendant has been convicted of another federal or state offense, committed either before or at the time of the murder at issue, for which a sentence of life imprisonment or death could be imposed, or the defendant was serving a sentence of life imprisonment for any reason at the time of the commission of the murder; and
§4. Mitigating circumstances for imposition of capital

Mitigating circumstances, for purposes of this article, including the following:
(1) The defendant has no significant history of prior criminal convictions;
(2) The defendant was under the influence of extreme mental or emotional disturbance;
(3) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired;
(4) The age of the defendant at the time of the crime;
(5) The defendant acted under extreme duress, or acted under the substantial domination of another person;
(6) The victim was a participant in the defendant's murderous conduct or consented to the murderous acts;
(7) The defendant's participation in the murderous act was relatively minor; and
(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.
§5. Sentencing verdict by the jury.
After hearing all the evidence and arguments by counsel and after receiving the instructions from the court, the jury shall deliberate and render a sentencing verdict. In rendering the verdict, the jury shall set forth in writing the findings upon which the sentence is based. Based upon these findings, the jury shall set forth in writing whether the sentence is death or life imprisonment.
§6. Recording sentencing verdict; imposing sentence.
Whenever the jury agrees upon a sentencing verdict, it shall be received and recorded by the court. The court shall thereafter impose upon the defendant the sentence fixed by the jury. In any case in which the death penalty is imposed, execution shall be by lethal injection.
§7. Review of death sentence.
(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the circuit court, the sentence shall automatically be reviewed on the record by the supreme court of appeals. The clerk of the circuit court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the supreme court of appeals together with a notice prepared by the clerk and a report prepared by the circuit judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his or her attorney, a narrative statement of the judgment, the offense and the punishment prescribed. The report shall be in a standard form prepared and supplied by the supreme court of appeals.
(b) The supreme court of appeals shall consider the punishment as well as any errors enumerated by way of appeal.
(c) With regard to the sentence, the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
(2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(d) Both the defendant and the state shall have the right to submit briefs within the time limitations as set forth in the rules by the supreme court of appeals, and to present oral argument to the court.
(e) The court shall render a written decision which shall include a reference to those similar cases which it took into consideration. The court, with regard to review of death sentences, shall:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by the circuit judge based on the record and argument of counsel. The records of those similar cases referred to by the supreme court of appeals in its written decision shall be provided to the resentencing judge for his consideration.
(f) The court shall be authorized to employ an appropriate staff and to establish methods to compile any cases or information deemed by the chief justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.
(g) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict and the validity of the sentence.
§8. Execution of death sentence.
Sentence of death, except for insurrection or rebellion, shall not be executed sooner than three months after the sentence is pronounced. The sentence of death shall, in every case, be executed by lethal injection. The punishment shall be executed within the walls of Mount Olive Correctional Facility, which shall be properly equipped for such purpose, and not elsewhere, and with an enclosure to be prepared for that purpose, under the direction of the warden and the authorities in control thereof, which enclosure shall be so constructed as to exclude public view. The warden of Mount Olive Correctional Institute, or, in case of his or her death, absence or inability to act, the commissioner of the division of corrections shall be the executioner. In carrying out the execution of sentence, the warden and the commissioner of the division of corrections are hereby authorized to secure the services and advice of any person or persons they or either of them shall deem appropriate.
§9. Certificate of death sentence and indictment to be sent to
warden; transfer of convict to correctional facility; persons present at lethal injection.

The clerk of the court which pronounces the sentence of death shall, as soon as possible after sentence, deliver a certified copy of the sentence to the sheriff, who shall retain the custody of the person sentenced to death until he or she is delivered to a properly authorized guard sent by the warden for the removal of the person to the facility. The clerk of the court shall also forthwith transmit to the warden of the facility a copy of the indictment, order of conviction and the sentence and judgment entered thereon. As soon as possible after receipt of the copies the warden shall send a guard or guards to remove the person to the facility. Unless a suspension of execution is ordered, the execution shall take place at the time and in the manner prescribed in the sentencing order. At the execution there may be present those officers, guards and assistants as the warden or commissioner of corrections shall see fit. The warden or the commissioner, as the case may be, shall request the presence of the prosecuting attorney of the county wherein the conviction occurred, the clerk of the circuit court thereof, twelve respectable citizens, including a physician and representatives of the press as may be deemed appropriate. The counsel of the convict, or any clergymen the convict may desire and any of the convict's relatives may be permitted to attend.
§10. Record of execution.
The warden or commissioner of corrections executing the sentence of death shall certify that the sentence has been executed to the clerk of the circuit court by which the sentence was imposed, who shall file such certificate with the papers of the case and enter the same upon the records of the court.
§11. Disposition of body of executed convict.
If the friends or relatives of the convict make a request in writing to the warden at any time within two days after the sentence of death has been executed, the body of the person executed shall be returned to the friends or relatives in any county in the state for burial. The warden may draw his or her order on the auditor of the state for whatever sum is necessary to pay for transportation of the body, to be paid out of funds appropriated to the division of corrections. If no request is made by friends or relatives, the body shall be disposed of as provided for other convicts dying within the correctional facility.
Resolved further, That in accordance with the provisions of article eleven, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, such proposed amendment is hereby numbered "Amendment No. 1" and designated as the "Capital Punishment Amendment" and the purpose of the proposed amendment is summarized as follows: "To provide a procedure for imposing the death penalty under certain conditions for the crime of murder in the first degree."

NOTE: The purpose of this resolution is to amend the Constitution to provide for a death penalty and procedures and standards applicable thereto, and automatic review of such penalty, for commission of murder in the first degree. Procedures for carrying out the death sentence are established.

This article is new; therefore, strike-throughs and underscoring have been omitted.