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F I S C A L I M P A C T R E P O R T

SPONSOR Foley

ORIGINAL DATE

LAST UPDATED

2/17/07

HB 773/aHCPAC

SHORT TITLE Death Sentences for Certain Sex Offenders

SB

ANALYST Wilson

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$0.1

$0.1

$0.1 Recurring General

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Conflicts with HB 520, HB 663, SB 468 and SB 735.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Administrative Office of the District Attorneys (AODA)

Corrections Department (CD)

SUMMARY

Synopsis of HCPAC Amendment

The House Consumer & Public Affairs Committee amendment removes the alternative of

imposing the sentence of death after a second violent sexual offence.

Synopsis of Original Bill

House Bill 773 imposes a sentence of either life without the possibility of parole or death for

conviction of a second violent sexual offense. It sets forth the sentencing procedure and lists

various aggravating and mitigating factors to be considered by the sentencing jury or sentencing

judge. It also makes for an automatic appeal to the supreme court upon imposition of the

sentence. Under the bill, a conviction for a second violent sexual offense will automatically

result in a sentence of life without the possibility of parole unless the death penalty is imposed.

FISCAL IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the judiciary will be proportional to the

House Bill/aHCPAC 773– Page

2

enforcement of this law, required proceedings under the law, and challenges to the law. New

laws, amendments to existing laws and new hearings have the potential to increase caseloads in

the courts, thus requiring additional resources to handle the increase.

As penalties become more severe, defendants may invoke their right to trial and their right to

trial by jury. More trials and more jury trials will require additional judge time, courtroom staff

time, court room availability and jury fees.

The CD notes that because of the limited number of violent sex offenses as defined in the bill

and because victim of both crimes would have to be under age thirteen, it seems unlikely that this

bill will result in a large number of offenders sentenced to life with no possibility of parole or to

death. However, even a few more convictions for a life sentence with no possibility of parole

means that a person could be in the CD’s custody for 40, 50 or 60 or more years. Ultimately,

even a few more convictions per year for a life sentence will at some point increase the CD’s

prison population by a minimal to moderate and ultimately to a substantial degree. There is no

appropriation in the bill to cover any of these increased costs.

SIGNIFICANT ISSUES:

The AODA provided the following:

New language, a new sub-section D, for section 31-18-26 is proposed. The new language

states that “. . . 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 mitigating circumstances pursuant to section 5 of this 2007 act."

There is similar language in the present Capital Felony Sentencing Procedure statute,

section 31-20A-1. However in 31-20A-1 the language states that “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 6 of this act." The words “aggravating or"

are absent from the proposed language in this bill. This may or may not have been

intentional.

The present Capital Felony Sentencing Act, in section 31-20A-5, already lists seven

aggravating circumstances that could invoke the death penalty if proved to exist in a first

degree murder case. The aggravating circumstances in the present bill could be

incorporated into that existing statute as separate aggravators for seeking life without

parole or death in a second violent sexual offense prosecution.

The new section 4 of the bill lists the aggravating circumstances to be considered. Sub-

section D states “the victim of the crime was less than ten years of age at the time of the

offense." Does this mean that if the victim is ten, eleven or twelve years old, these

sentencing options could apply only if at least one of the first three aggravators is

present.

House Bill/aHCPAC 773– Page

3

CONFLICT

Conflicts with:

HB 520, Life Imprisonment with No Parole

SB 468, No Parole for Life Imprisonment

HB 663 & SB 735, Child Solicitation by Electronic Device

OTHER SUBSTANTIVE ISSUES

The AOC noted that Louisiana passed a law in 1995 making two-time violent offenders who

assault children eligible for the death penalty and several other states did so in 2006, but the

death penalty traditionally has been reserved for homicides in New Mexico and elsewhere. In

1977, in Coker v. Georgia, the U.S. Supreme Court ruled that execution for the crime of rape is

"grossly disproportionate ... and is therefore forbidden." That case involved an adult victim, and

some death penalty proponents hope the court might approve of capital punishment in cases of

repeat violent sexual offenders who assault children. There may be a constitutional challenge to

HB 773’s imposition of the death penalty as constituting cruel, unusual and disproportionate

punishment in violation of the Eighth Amendment to the U.S. Constitution.

POSSIBLE QUESTIONS

The AODA posed the following questions:

The new section 5 of the bill deals with mitigating factors:

Sub-section B lists as a mitigator “the defendant’s capacity to appreciate the criminality

of the defendant’s conduct or to conform the defendant’s conduct to the requirements of

the law was impaired".. What if the impairment is the result of voluntary intoxication or

the consumption of illegal drugs. Will that still constitute a mitigating factor.

Sub-section C lists as a mitigator “the defendant was under the influence of mental or

emotional disturbance". These two terms are not defined. Is being merely “upset" such a

mitigating factor.

DW/nt