Citations Affected: IC 35-38-1-7.1; IC 35-46-2-2; IC 35-50-2-9.
Synopsis: Bias crimes. Makes commission of a crime because of the
color, creed, disability, national origin, race, religion, sexual
orientation, or sex of the victim an aggravating circumstance: (1) that
may be considered by a judge when the judge imposes a sentence for
the crime; and (2) that, in a murder case, may provide the grounds on
which the state seeks the death penalty. Makes it discrimination in jury
selection, a Class A misdemeanor, for a public servant having the duty
to select or summon persons for grand jury or trial jury service to
knowingly or intentionally fail to select or summon a person because
of the person's sexual orientation.
Effective: July 1, 2004.
January 8, 2004, read first time and referred to Committee on Judiciary.
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
SECTION 1. IC 35-38-1-7.1, AS AMENDED BY P.L.221-2003,
SECTION 16, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 7.1. (a) In determining what sentence to impose
for a crime, the court shall consider:
(1) the risk that the person will commit another crime;
(2) the nature and circumstances of the crime committed;
(3) the person's:
(A) prior criminal record;
(B) character; and
(C) condition;
(4) whether the victim of the crime was less than twelve (12)
years of age or at least sixty-five (65) years of age;
(5) whether the person committed the offense in the presence or
within hearing of a person who is less than eighteen (18) years of
age who was not the victim of the offense;
(6) whether the person violated a protective order issued against
the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or
IC 34-4-5.1 before their repeal), a workplace violence restraining
order issued against the person under IC 34-26-6, or a no contact
order issued against the person; and
(7) any oral or written statement made by a victim of the crime.
(b) The court may consider the following factors as aggravating
circumstances or as favoring imposing consecutive terms of
imprisonment:
(1) The person has recently violated the conditions of any
probation, parole, or pardon granted to the person.
(2) The person has a history of criminal or delinquent activity.
(3) The person is in need of correctional or rehabilitative
treatment that can best be provided by commitment of the person
to a penal facility.
(4) Imposition of a reduced sentence or suspension of the
sentence and imposition of probation would depreciate the
seriousness of the crime.
(5) The victim of the crime was less than twelve (12) years of age
or at least sixty-five (65) years of age.
(6) The victim of the crime was mentally or physically infirm.
(7) The person committed a forcible felony while wearing a
garment designed to resist the penetration of a bullet.
(8) The person committed a sex crime listed in subsection (e) and:
(A) the crime created an epidemiologically demonstrated risk
of transmission of the human immunodeficiency virus (HIV)
and involved the sex organ of one (1) person and the mouth,
anus, or sex organ of another person;
(B) the person had knowledge that the person was a carrier of
HIV; and
(C) the person had received risk counseling as described in
subsection (g).
(9) The person committed an offense related to controlled
substances listed in subsection (f) if:
(A) the offense involved:
(i) the delivery by any person to another person; or
(ii) the use by any person on another person;
of a contaminated sharp (as defined in IC 16-41-16-2) or other
paraphernalia that creates an epidemiologically demonstrated
risk of transmission of HIV by involving percutaneous contact;
(B) the person had knowledge that the person was a carrier of
the human immunodeficiency virus (HIV); and
(C) the person had received risk counseling as described in
subsection (g).
(HIV) in the person's blood; and
(2) warned of the behavior that can transmit HIV.
SECTION 2. IC 35-46-2-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 2. A public servant
having the duty to select or summon persons for grand jury or trial jury
service who knowingly or intentionally fails to select or summon a
person because of color, creed, disability, national origin, race, religion,
sexual orientation, or sex commits discrimination in jury selection, a
Class A misdemeanor.
SECTION 3. IC 35-50-2-9, AS AMENDED BY P.L.147-2003,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 9. (a) The state may seek either a death sentence
or a sentence of life imprisonment without parole for murder by
alleging, on a page separate from the rest of the charging instrument,
the existence of at least one (1) of the aggravating circumstances listed
in subsection (b). In the sentencing hearing after a person is convicted
of murder, the state must prove beyond 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 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 a 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.
intentionally selecting the victim of the murder because of the
color, creed, disability, national origin, race, religion, sexual
orientation, or sex of the victim.
(c) The mitigating circumstances that may be considered under this
section are as follows:
(1) The defendant has no significant history of prior criminal
conduct.
(2) The defendant was under the influence of extreme mental or
emotional disturbance when the murder was committed.
(3) The victim was a participant in or consented to the defendant's
conduct.
(4) The defendant was an accomplice in a murder committed by
another person, and the defendant's participation was relatively
minor.
(5) The defendant acted under the substantial domination of
another person.
(6) The defendant's capacity to appreciate the criminality of the
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 court shall instruct the jury that, in order for
the jury to recommend to the court that the death penalty or life
imprisonment without parole should be imposed, the jury must find at
least one (1) aggravating circumstance beyond a reasonable doubt as
described in subsection (k) (l) and shall provide a special verdict form
for each aggravating circumstance alleged. 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) For a defendant sentenced after June 30, 2002, 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 (l). If the jury
reaches a sentencing recommendation, the court shall sentence the
defendant accordingly. After a court pronounces sentence, a
representative of the victim's family and friends may present a
statement regarding the impact of the crime on family and friends. The
impact statement may be submitted in writing or given orally by the
representative. The statement shall be given in the presence of the
defendant.
(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 (l).
(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
execution.
(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
(3) sentence:
(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) A person who has been sentenced to death and who has
completed state post-conviction review proceedings may file a written
petition with the supreme court seeking to present new evidence
challenging the person's guilt or the appropriateness of the death
sentence if the person serves notice on the attorney general. The
supreme court shall determine, with or without a hearing, whether the
person has presented previously undiscovered evidence that
undermines confidence in the conviction or the death sentence. If
necessary, the supreme court may remand the case to the trial court for
an evidentiary hearing to consider the new evidence and its effect on
the person's conviction and death sentence. The supreme court may not
make a determination in the person's favor nor make a decision to
remand the case to the trial court for an evidentiary hearing without
first providing the attorney general with an opportunity to be heard on
the matter.
(l) 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
(2) any mitigating circumstances that exist are outweighed by the
aggravating circumstance or circumstances.
SECTION 4. [EFFECTIVE JULY 1, 2004] IC 35-38-1-7.1,
IC 35-46-2-2, and IC 35-50-2-9, all as amended by this act, apply
only to offenses committed after June 30, 2004.