(a) Death penalty

Title 23, District of Columbia Official Code, is amended by inserting after chapter 15 the following new chapter:

17 Death Penalty

23–1701. Sentence of death

A defendant who has been found guilty of any of the following offenses shall be sentenced to death after consideration of the factors under section 23–1702 of this chapter and in the course of a hearing held pursuant to such section, if it is determined that the imposition of a such a sentence is justified:

(1)

An offense described in section 798 of an Act to establish a code of law for the District of Columbia, approved March 3, 1901 (sec. 22–2101, D.C. Official Code) (murder in the first degree).

(2)

An offense described in section 799 of such Act (sec. 22–2102, D.C. Official Code) (murder in the first degree - placing obstructions upon or displacement of railroads).

(3)

An offense described in section 802a of such Act (sec. 22–2106, D.C. Official Code) (murder of law enforcement officer or public safety employee).

(4)

An offense described in section 802b of such Act (sec. 22–2107, D.C. Official Code) (solicitation of murder).

(5)

An offense described in section 207 of the Anti-Sexual Abuse Act of 1994 (sec. 22–3008, D.C. Official Code) (first degree child sexual abuse).

(6)

An offense described in section 103 of the Ant-Terrorism Act of 2002 (sec. 22–3153, D.C. Official Code) (acts of terrorism).

(7)

An offense described in section 105 of such Act (sec. 22–3155, D.C. Official Code) (use, dissemination, or detonation of a weapon of mass destruction).

(8)

An offense described in section 406 of the District of Columbia Uniform Controlled Substance Act of 1991 (sec. 48–904.06, D.C. Official Code) (distribution to minors) which results in the death of a minor.

23–1702. Factors to be considered in determining whether a sentence of death is justified

(a) Aggravating factors

In determining whether a defendant shall be sentenced to death under section 23–1701 of this chapter, the finder of fact shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist:

(1)

The death, or injury resulting in death, occurred during the commission or attempted commission of a crime of violence or dangerous crime.

(2)

The defendant has previously been convicted of a crime of violence or a dangerous crime.

(3)

The defendant, in the commission of the offense, or in escaping apprehension for the commission of the offense, knowingly created a grave risk of death to not less than 1 other person in addition to the victim of such offense.

(4)

The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved the use of torture or serious physical abuse to the victim.

(5)

The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.

(6)

The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.

(7)

The defendant committed the offense after substantial planning and premeditation.

(8)

The defendant has previously been convicted of not less than 2 Federal, State, including any political subdivision of a State, or District of Columbia offenses punishable by a term of imprisonment of more than 1 year and which were committed on different occasions and involved the distribution of a controlled substance.

(9)

The victim was particularly vulnerable due to old age, youth, or infirmity.

(10)

The defendant, during the commission of the offense, was in, or escaped from, the lawful custody of a law enforcement officer or place of lawful confinement.

(11)

The defendant has previously been convicted of not less than 2 Federal, State, including any political subdivision of a State, or District of Columbia offenses punishable by a term of imprisonment of more than 1 year and which were committed on different occasions and involved the infliction of, or attempted infliction of, serious bodily injury or death upon another person.

(12)

The defendant has previously been convicted of a Federal, State, including any political subdivision of a State, or District of Columbia offense resulting in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute.

(13)

The defendant committed the offense against—

(A)

a Federal, State, or local law enforcement officer or any such former officer during or because of the performance of his or her official duties;

(B)

a judicial officer, former judicial officer, prosecutor, or former prosecutor, during or because of his or her official duties; or

(C)

a Federal, State, local, or District of Columbia government official—

(i)

while he or she is engaged in the performance of his or her official duties;

(ii)

because of the performance of his or her official duties; or

(iii)

because of his or her status as an official.

(14)

The offense was committed against a witness or potential witness committed at any time during the criminal process for the purpose of impeding or deterring prosecution of any crime.

(15)

The offense was committed during the term of imprisonment of such person.

(16)

The defendant previously has been convicted of committing an offense against a person who has not attained 18 years of age.

(17)

The defendant committed the offense as part of their membership or association with a criminal street gang.

(18)

The defendant has been convicted of committing a sex offense against a person who has not attained 18 years of age.

(19)

Any other aggravating factor for which notice has been given.

(b) Mitigating factors

In determining whether a defendant shall be sentenced to death under section 23–1701 of this chapter, the finder of fact shall consider any mitigating factor, including the following:

(1)

The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

(2)

The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

(3)

The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.

(4)

Another defendant, or defendants, equally culpable in the crime, will not be punished by death.

(5)

The defendant did not have a significant prior history of other criminal conduct.

(6)

The defendant committed the offense under severe mental or emotional disturbance.

(7)

The victim consented to the criminal conduct that resulted in the victim’s death.

(8)

Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigates against the imposition of a sentence of death.

(c) Definitions

In this section:

(1) Crime of violence; dangerous crime

The terms crime of violence and dangerous crime have the meanings given such terms in section 23–1331.

(2) Law enforcement officer

The term law enforcement officer is a person authorized by law to conduct or engage in the prevention, investigation, or prosecution or adjudication of an offense, and includes peace officers, corrections officers, and firemen.

23–1703. Special hearing to determine whether a sentence of death is justified

(a) Notice by the Government

(1) In general

If, in a case involving an offense described in section 23–1701 of this chapter, the attorney for the Government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, at a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice—

(A)

stating that the Government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the Government will seek the sentence of death; and

(B)

setting forth the aggravating factor or factors describe in section 23–1702(a) of this chapter that the Government, if the defendant is convicted, proposes to prove as justifying a sentence of death.

(2) Good cause amendments

The court may permit the attorney for the Government to amend the notice upon a showing of good cause.

(b) Hearing before a court or jury

If the attorney for the Government has filed the required notice under subsection (a) and the defendant is found guilty of, or pleads guilty to, an offense described in section 23–1701 of this chapter, the judge who presided at the trial or before whom the guilty plea was entered, or another judge if such judge is unavailable, shall conduct a separate sentencing hearing to determine the punishment to be imposed. Such hearing shall be conducted—

(1)

before the jury that determined the defendant’s guilt;

(2)

before a jury of 12 members (or less if the parties so stipulate and the court accepts) impaneled for the purpose of the hearing if—

(A)

the defendant was convicted upon a plea of guilty;

(B)

the defendant was convicted after a trial before the court sitting without a jury;

(C)

the jury that determined the defendant’s guilt was discharged for good cause; or

(D)

after initial imposition of a sentence under this section, reconsideration of the sentence under this section is necessary; or

(3)

before the court alone, upon the motion of the defendant and with the approval of the attorney for the Government.

(c) Mitigating and aggravating factors

At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 23–1702. Information presented may include—

(1)

the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge’s discretion;

(2)

any information presented by the defendant relevant to a mitigating factor; or

(3)

any information presented by the Government relevant to an aggravating factor for which notice has been provided under subsection (a).

(d) Hearing procedures

(1) Presentencing report

Notwithstanding rule 32 of the Federal Rules of Criminal Procedure, when a defendant is found guilty or pleads guilty to an offense under section 23–1701 of this chapter, no presentence report shall be prepared for the hearing under subsection (b).

(2) Rules of evidence

Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.

(3) Rebuttal

The Government shall open the argument. The defendant shall be permitted to reply. The Government shall then be permitted to reply in rebuttal. The Government and the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor, and as to the appropriateness in the case of imposing a sentence of death.

(4) Burden of proof

The burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information.

(e) Return of special findings

The jury, or if there is no jury, the court, shall consider all the information received during the hearing. It shall return special findings identifying any aggravating factor or factors set forth in section 23–1702 of this chapter found to exist and any other aggravating factor for which notice has been provided under subsection (a) found to exist. A finding with respect to a mitigating factor may be made by 1 or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established for purposes of this section regardless of the number of jurors who concur that the factor has been established. A finding with respect to any aggravating factor must be unanimous. If no aggravating factor set forth in section 23–1702 of this section is found to exist, the court shall impose a sentence other than death authorized by law.

(f) Return of a finding concerning a sentence of death

If, in the case of an offense described in section 23–1701 of this chapter, an aggravating factor required to be considered under section 23–1702 of this chapter is found to exist, the finder of fact shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote, or if there is no jury, the court, shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release, or some other lesser sentence.

23–1704. Imposition of a sentence of death

Upon a recommendation under section 23–1703(f) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly; otherwise, the court shall impose any lesser sentence that is authorized by law.

23–1705. Review of a sentence of death

(a) Appeal

In a case in which a sentence of death is imposed, the sentence shall be subject to review by the District of Columbia Court of Appeals upon appeal by the defendant. Notice of appeal must be filed within the time specified for the filing of a notice of appeal. An appeal under this section may be consolidated with an appeal of the judgment of conviction and shall have priority over all other cases.

(b) Review

The District of Columbia Court of Appeals shall review the entire record in the case, including—

(1)

the evidence submitted during the trial;

(2)

the information submitted during the sentencing hearing;

(3)

the procedures employed in the sentencing hearing; and

(4)

the special findings returned under section 23–1703 of this chapter.

(c) Decision and disposition

(1) In general

The District of Columbia Court of Appeals shall address all substantive and procedural issues raised on the appeal of a sentence of death, and shall consider whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor and whether the evidence supports the special finding of the existence of an aggravating factor required to be considered under section 23–1702 of this chapter.

(2) Reconsideration

The District of Columbia Court of Appeals shall remand the case for reconsideration under section 23–1703 of this chapter for imposition of a sentence other than death whenever the court of appeals finds that—

(A)

the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(B)

the admissible evidence and information adduced does not support the special finding of the existence of the required aggravating factor; or

(C)

the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure.

(3) Harmless error

The District of Columbia Court of Appeals shall not reverse or vacate a sentence of death on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless.

(4) Disposition

The District of Columbia Court of Appeals shall state in writing the reasons for its disposition of an appeal of a sentence of death under this section.

23–1706. Implementation of a sentence of death

(a) In general

Except as provided under subsection (c), a person who has been sentenced to death under this chapter shall be committed to the custody of the United States Attorney for the District of Columbia until exhaustion of the procedures for appeal of the judgment of conviction and for review of the sentence. When the sentence is to be implemented, the United States Attorney shall release the person sentenced to death to the custody of the Director of the Department of Corrections of the District of Columbia, who shall supervise implementation of the sentence in the District of Columbia in accordance with subsection (b).

(b) Methods of execution

(1) In general

Except as provided under paragraph (2), a person sentenced to death under this chapter and released under subsection (a) to the custody of the Director of the Department of Corrections of the District of Columbia for the implementation of such sentence shall have such sentence implemented by electrocution.

(2) Election of alternate method of execution

A person sentenced to death under this chapter may elect to have such sentence implemented by lethal injection, firing squad, lethal gas, or nitrogen hypoxia. Such an election may be made in writing not later than 14 days before the date on which the sentence of death is to be implemented, or such election shall be considered waived. If, for any reason, a person so sentenced receives a stay of execution, or the execution date has passed, an election for an alternate method of execution shall be considered to have expired but may be reelected. If a person so sentenced at any point waives the right to elect an alternate method of execution, such person may not retract such waiver.

(3) Unavailability of alternate method of execution

If an alternate method of execution described in paragraph (2) is not available on the date on which such method is to be implemented, the person sentenced to death under this chapter who elected such alternate method shall have such sentence implemented by electrocution, unless such person elects a different, available alternate method of execution under paragraph (2).

(4) Notification of alternate method

Each person sentenced to death under this chapter shall be provided written notification of such person’s right to elect an alternate method of execution under paragraph (2).

(5) Prohibition on delay of sentence due to unavailability of method of executions

The implementation of a sentence of death under this chapter may not be delayed as a result of the unavailability of any selected method of execution selected under this subsection by a person sentenced to death under this chapter.

(c) Exceptions

A sentence of death shall not be carried out upon—

(1)

a woman while she is pregnant;

(2)

a person who has not attained the age of 18; or

(3)

a person who, as a result of mental disability, lacks the mental capacity to understand the death penalty and why it was imposed on that person.

(b) Conforming amendments