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H.B. 180

             1     

DEATH PENALTY PROVISIONS

             2     
2004 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Sheryl L. Allen

             5     
             6      LONG TITLE
             7      General Description:
             8          This bill repeals use of a firing squad as a means of carrying out the death penalty.
             9      Highlighted Provisions:
             10          This bill:
             11          .    repeals references to the use of a firing squad, and makes the repeal retroactive; and
             12          .    makes provision for the possibility that the retroactive provision is ruled
             13      unconstitutional, in which case the defendant who has selected the firing squad may
             14      be so executed.
             15      Monies Appropriated in this Bill:
             16          None
             17      Other Special Clauses:
             18          This bill provides an immediate effective date.
             19          This bill provides revisor instructions.
             20      Utah Code Sections Affected:
             21      AMENDS:
             22          76-2-404, as last amended by Chapter 92, Laws of Utah 1987
             23          77-18-5.5, as last amended by Chapter 209, Laws of Utah 2001
             24          77-19-6, as last amended by Chapter 190, Laws of Utah 1988
             25          77-19-10, as last amended by Chapter 113, Laws of Utah 1996
             26     
             27      Be it enacted by the Legislature of the state of Utah:



             28          Section 1. Section 76-2-404 is amended to read:
             29           76-2-404. Peace officer's use of deadly force.
             30          (1) A peace officer, or any person acting by his command in his aid and assistance, is
             31      justified in using deadly force when:
             32          (a) the officer is acting in obedience to and in accordance with the judgment of a
             33      competent court in executing a penalty of death under Subsection 77-18-5.5 (4);
             34          (b) effecting an arrest or preventing an escape from custody following an arrest, where
             35      the officer reasonably believes that deadly force is necessary to prevent the arrest from being
             36      defeated by escape; and
             37          (i) the officer has probable cause to believe that the suspect has committed a felony
             38      offense involving the infliction or threatened infliction of death or serious bodily injury; or
             39          (ii) the officer has probable cause to believe the suspect poses a threat of death or
             40      serious bodily injury to the officer or to others if apprehension is delayed; or
             41          (c) the officer reasonably believes that the use of deadly force is necessary to prevent
             42      death or serious bodily injury to the officer or another person.
             43          (2) If feasible, a verbal warning should be given by the officer prior to any use of
             44      deadly force under Subsection (1)(b) or (1)(c).
             45          Section 2. Section 77-18-5.5 is amended to read:
             46           77-18-5.5. Judgment of death -- Defendant to select method -- Time of selection.
             47          (1) When a [person] defendant is convicted of a capital felony and the judgment of
             48      death has been imposed, [the defendant is entitled to select, at the time of sentencing, either a
             49      firing squad or a] lethal intravenous injection [as] is the method of execution. [If the defendant
             50      does not indicate a preference at that time to the court, the judgment of death shall be executed
             51      by lethal intravenous injection.]
             52          (2) Subsection (1) applies to:
             53          (a) any defendant sentenced to death on or after the effective date of this act; and
             54          (b) any defendant sentenced to death prior to the effective date of this act, whether or
             55      not that defendant previously chose a different method of execution.
             56          (3) (a) If on the effective date of this act any death warrant issued under Section
             57      77-19-6 specifying the method of execution as a firing squad is pending, the court shall issue
             58      another warrant specifying that the method is lethal intravenous injection.



             59          (b) If a defendant has previously selected a firing squad as the method of execution and
             60      no death warrant is pending, the court, upon issuing a death warrant, shall specify that the
             61      method is lethal intravenous injection.
             62          (4) Notwithstanding Subsection (3), if a final judgment holds that a defendant has a
             63      right to be executed by a firing squad, the court shall issue another death warrant under Section
             64      77-19-6 specifying the method of execution as a firing squad. This Subsection (4) applies to
             65      any defendant whose right to be executed by a firing squad is preserved by that final judgment.
             66          Section 3. Section 77-19-6 is amended to read:
             67           77-19-6. Judgment of death -- Warrant -- Delivery of warrant -- Determination of
             68      execution time.
             69          (1) (a) When judgment of death is rendered, a warrant, signed by the judge and attested
             70      by the clerk under the seal of the court, shall be drawn and delivered to the sheriff of the county
             71      where the conviction is had.
             72          (b) The sheriff shall deliver the warrant and a certified copy of the judgment to the
             73      executive director of the Department of Corrections or his designee at the time of delivering the
             74      defendant to the custody of the Department of Corrections.
             75          (2) The warrant shall state the conviction, the judgment, the method of execution,
             76      which is lethal injection except under Subsection 77-18-5.5 (4), and the appointed day the
             77      judgment is to be executed, which may not be fewer than 30 days nor more than 60 days from
             78      the date of issuance of the warrant.
             79          (3) The Department of Corrections shall determine the hour, within the appointed day,
             80      at which the judgment is to be executed.
             81          Section 4. Section 77-19-10 is amended to read:
             82           77-19-10. Judgment of death -- Location and procedures for execution.
             83          (1) The executive director of the Department of Corrections or his designee shall
             84      ensure that the method of judgment of death specified in the warrant is carried out at a secure
             85      correctional facility operated by the department and at an hour determined by the department
             86      on the date specified in the warrant.
             87          [(2) If the judgment of death is to be carried out by shooting, the executive director of
             88      the department or his designee shall select a five-person firing squad of peace officers.]
             89          [(3) If] (2) When the judgment of death is to be carried out by lethal intravenous


             90      injection, the executive director of the department or his designee shall select two or more
             91      persons trained in accordance with accepted medical practices to administer intravenous
             92      injections, who shall each administer a continuous intravenous injection, one of which shall be
             93      of a lethal quantity of sodium thiopental or other equally or more effective substance sufficient
             94      to cause death. [Death shall be certified by a physician.]
             95          (3) If the judgment of death is to be carried out by firing squad under Subsection
             96      77-18-5.5 (4), the executive director of the department or his designee shall select a five-person
             97      firing squad of peace officers.
             98          (4) Compensation for [members of a firing squad or] persons administering
             99      intravenous injections and for members of a firing squad under Subsection 77-18-5.5 (4) shall
             100      be in an amount determined by the director of the Division of Finance.
             101          (5) Death under this section shall be certified by a physician.
             102          [(5)] (6) The department shall adopt and enforce rules governing procedures for the
             103      execution of judgments of death.
             104          Section 5. Effective date.
             105          If approved by two-thirds of all the members elected to each house, this bill takes effect
             106      upon approval by the governor, or the day following the constitutional time limit of Utah
             107      Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
             108      the date of veto override.
             109          Section 6. Revisor instructions.
             110           It is the intent of the Legislature that the Office of Legislature Research and General
             111      Counsel, in preparing the Utah Code for publication, shall replace the words "the effective date
             112      of this act" in Section 77-18-5.5 with the actual date on which Section 77-18-5.5 takes effect.




Legislative Review Note
    as of 10-17-03 3:15 PM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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