Citations Affected: IC 35-36-2-5 ; IC 35-50-2.
Synopsis: Murder sentences for mentally ill defendants. Prohibits a
court from sentencing a defendant to death or life imprisonment
without parole for committing murder if the defendant is found guilty
but mentally ill at the time the defendant committed the murder or
enters a plea to that effect that is accepted by the court.
Effective: July 1, 2001.
January 9, 2001, read first time and referred to Committee on Courts and Criminal Code.
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
shall be further evaluated and then treated in such a manner as is
psychiatrically indicated for the defendant's mental illness. Treatment
may be provided by:
(1) the department of correction; or
(2) the division of mental health after transfer under IC 11-10-4.
(d) If a defendant who is found guilty but mentally ill at the time of the crime is placed on probation, the court may, in accordance with IC 35-38-2-2.3 , require that the defendant undergo treatment.
(e) As used in this subsection, "mentally retarded individual" has the meaning set forth in IC 35-36-9-2. If:
(1) a defendant is found guilty but mentally ill at the time the defendant committed murder or enters a plea to that effect that is accepted by the court; or
(2) a court determines under IC 35-36-9 that a defendant who is charged with a murder for which the state seeks a death sentence or a sentence of life imprisonment without parole is a mentally retarded individual;
the court shall sentence the defendant under IC 35-50-2-3 (a).
reasonable doubt the existence of at least one (1) of the aggravating
circumstances alleged. However, the state may not proceed against a
defendant under this section if:
(1) the defendant is found guilty but mentally ill at the time the person committed the murder or enters a plea to that effect that is accepted by the court; or
(2) a court determines at a pretrial hearing under IC 35-36-9 that the defendant is a mentally retarded individual.
(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:
(A) Arson (IC 35-43-1-1).
(B) Burglary (IC 35-43-2-1).
(C) Child molesting (IC 35-42-4-3).
(D) Criminal deviate conduct (IC 35-42-4-2).
(E) Kidnapping (IC 35-42-3-2).
(F) Rape (IC 35-42-4-1).
(G) Robbery (IC 35-42-5-1).
(H) Carjacking (IC 35-42-5-2).
(I) Criminal gang activity (IC 35-45-9-3).
(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawful detonation of an explosive with intent to injure person or damage property.
(3) The defendant committed the murder by lying in wait.
(4) The defendant who committed the murder was hired to kill.
(5) The defendant committed the murder by hiring another person to kill.
(6) The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either:
(A) the victim was acting in the course of duty; or
(B) the murder was motivated by an act the victim performed while acting in the course of duty.
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.
(9) The defendant was:
(A) under the custody of the department of correction;
defendant's conduct or to conform that conduct to the
requirements of law was substantially impaired as a result of
mental disease or defect or of intoxication.
(7) The defendant was less than eighteen (18) years of age at the time the murder was committed.
(8) Any other circumstances appropriate for consideration.
(d) If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing. The jury or the court may consider all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing hearing. The court shall instruct the jury concerning the statutory penalties for murder and any other offenses for which the defendant was convicted, the potential for consecutive or concurrent sentencing, and the availability of good time credit and clemency. The defendant may present any additional evidence relevant to:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) Except as provided by IC 35-36-9 , if the hearing is by jury, the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (k). The court shall make the final determination of the sentence, after considering the jury's recommendation, and the sentence shall be based on the same standards that the jury was required to consider. The court is not bound by the jury's recommendation. In making the final determination of the sentence after receiving the jury's recommendation, the court may receive evidence of the crime's impact on members of the victim's family.
(f) If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.
(g) If the hearing is to the court alone, except as provided by IC 35-36-9 , the court shall:
(1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (k).
(h) If a court sentences a defendant to death, the court shall order
the defendant's execution to be carried out not later than one (1) year
and one (1) day after the date the defendant was convicted. The
supreme court has exclusive jurisdiction to stay the execution of a
death sentence. If the supreme court stays the execution of a death
sentence, the supreme court shall order a new date for the defendant's
(i) If a person sentenced to death by a court files a petition for post-conviction relief, the court, not later than ninety (90) days after the date the petition is filed, shall set a date to hold a hearing to consider the petition. If a court does not, within the ninety (90) day period, set the date to hold the hearing to consider the petition, the court's failure to set the hearing date is not a basis for additional post-conviction relief. The attorney general shall answer the petition for post-conviction relief on behalf of the state. At the request of the attorney general, a prosecuting attorney shall assist the attorney general. The court shall enter written findings of fact and conclusions of law concerning the petition not later than ninety (90) days after the date the hearing concludes. However, if the court determines that the petition is without merit, the court may dismiss the petition within ninety (90) days without conducting a hearing under this subsection.
(j) A death sentence is subject to automatic review by the supreme court. The review, which shall be heard under rules adopted by the supreme court, shall be given priority over all other cases. The supreme court's review must take into consideration all claims that the:
(1) conviction or sentence was in violation of the:
(A) Constitution of the State of Indiana; or
(B) Constitution of the United States;
(2) sentencing court was without jurisdiction to impose a sentence; and
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the sentencing court for the defendant's execution under subsection (h), the supreme court shall stay the execution of the death sentence and set a new date to carry out the defendant's execution.
(k) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and