An Act concerning the death penalty, amending N.J.S.2C:11-3 and supplementing Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:11-3 is amended to read as follows:

2C:11-3. Murder.

a. Except as provided in N.J.S.2C:11-4, criminal homicide constitutes murder when:

(1) The actor purposely causes death or serious bodily injury resulting in death; or

(2) The actor knowingly causes death or serious bodily injury resulting in death; or

(3) It is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2), and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants; except that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

b. (1) Murder is a crime of the first degree but a person convicted of murder shall be sentenced, except as provided in paragraphs (2), (3) and (4) of this subsection, and except as provided in section 2 of P.L. , c. (C. )(pending before the Legislature as this bill) by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole.

(2) If the victim was a law enforcement officer and was murdered while performing his official duties or was murdered because of his status as a law enforcement officer, the person convicted of that murder shall be sentenced by the court to a term of life imprisonment, during which the person shall not be eligible for parole.

(3) A person convicted of murder shall be sentenced to a term of life imprisonment without eligibility for parole if the murder was committed under all of the following circumstances:

(a) The victim is less than 14 years old; and

(b) The act is committed in the course of the commission, whether alone or with one or more persons, of a violation of N.J.S.2C:14-2 or N.J.S.2C:14-3.

(4) Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct; or who as an accomplice procured the commission of the offense by payment or promise of payment of anything of pecuniary value; or who, as a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 and in furtherance of a conspiracy enumerated in N.J.S.2C:35-3, commanded or by threat or promise solicited the commission of the offense, or, if the murder occurred during the commission of the crime of terrorism, any person who committed the crime of terrorism, shall be sentenced by the court to life imprisonment without eligibility for parole, which sentence shall be served in a maximum security prison, if a jury finds beyond a reasonable doubt that any of the following aggravating factors exist:

(a) The defendant has been convicted, at any time, of another murder. For purposes of this section, a conviction shall be deemed final when sentence is imposed and may be used as an aggravating factor regardless of whether it is on appeal;

(b) In the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim;

(c) The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim;

(d) The defendant committed the murder as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value;

(e) The defendant procured the commission of the murder by payment or promise of payment of anything of pecuniary value;

(f) The murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another;

(g) The murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, robbery, sexual assault, arson, burglary, kidnapping, carjacking or the crime of contempt in violation of subsection b. of N.J.S.2C:29-9;

(h) The defendant murdered a public servant, as defined in N.J.S.2C:27-1, while the victim was engaged in the performance of his official duties, or because of the victim's status as a public servant;

(i) The defendant: (i) as a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 and in furtherance of a conspiracy enumerated in N.J.S.2C:35-3, committed, commanded or by threat or promise solicited the commission of the murder or (ii) committed the murder at the direction of a leader of a narcotics trafficking network as defined in N.J.S.2C:35-3 in furtherance of a conspiracy enumerated in N.J.S.2C:35-3;

(j) The homicidal act that the defendant committed or procured was in violation of paragraph (1) of subsection a. of N.J.S.2C:17-2;

(k) The victim was less than 14 years old; or

(l) The murder was committed during the commission of, or an attempt to commit, or flight after committing or attempting to commit, terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2).

(5) A juvenile who has been tried as an adult and convicted of murder shall be sentenced pursuant to paragraph (1), (2) or (3) of this subsection.

c. (Deleted by amendment, P.L.2007, c.204).

d. (Deleted by amendment, P.L.2007, c.204).

e. (Deleted by amendment, P.L.2007, c.204).

f. (Deleted by amendment, P.L.2007, c.204).

g. (Deleted by amendment, P.L.2007, c.204).

h. (Deleted by amendment, P.L.2007, c.204).

i. For purposes of this section the term "homicidal act" shall mean conduct that causes death or serious bodily injury resulting in death.

j. In a sentencing proceeding conducted pursuant to this section, the display of a photograph of the victim taken before the homicide shall be permitted.

(cf: P.L.2007, c.204, s.1)

2. (New section) a. A person convicted of murder pursuant to paragraphs (2), (3), or (4) of subsection b. of N.J.S.2C:11-3 and a person convicted of murder and sentenced to death prior to the enactment of P.L.2007, c. 204 who is subsequently convicted of another murder committed while the person was incarcerated shall be sentenced as provided in subsection b. of this section.

b. (1) The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or pursuant to the provisions of subsection b. of N.J.S.2C:11-3.

Where the defendant has been tried by a jury, the proceeding shall be conducted by the judge who presided at the trial and before the jury which determined the defendant's guilt, except that, for good cause, the court may discharge that jury and conduct the proceeding before a jury empaneled for the purpose of the proceeding. Where the defendant has entered a plea of guilty or has been tried without a jury, the proceeding shall be conducted by the judge who accepted the defendant's plea or who determined the defendant's guilt and before a jury empaneled for the purpose of the proceeding. On motion of the defendant and with consent of the prosecuting attorney the court may conduct a proceeding without a jury. Nothing in this section shall be construed to prevent the participation of an alternate juror in the sentencing proceeding if one of the jurors who rendered the guilty verdict becomes ill or is otherwise unable to proceed before or during the sentencing proceeding.

(2) (a) At the proceeding, the State shall have the burden of establishing beyond a reasonable doubt the existence of any aggravating factors set forth in paragraph (4) of this subsection. The defendant shall have the burden of producing evidence of the existence of any mitigating factors set forth in paragraph (5) of this subsection but shall not have a burden with regard to the establishment of a mitigating factor.

(b) The admissibility of evidence offered by the State to establish any of the aggravating factors shall be governed by the rules governing the admission of evidence at criminal trials. The defendant may offer, without regard to the rules governing the admission of evidence at criminal trials, reliable evidence relevant to any of the mitigating factors. If the defendant produces evidence in mitigation which would not be admissible under the rules governing the admission of evidence at criminal trials, the State may rebut that evidence without regard to the rules governing the admission of evidence at criminal trials.

(c) Evidence admitted at the trial, which is relevant to the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection, shall be considered without the necessity of reintroducing that evidence at the sentencing proceeding; provided that the fact finder at the sentencing proceeding was present as either the fact finder or the judge at the trial.

(d) The State and the defendant shall be permitted to rebut any evidence presented by the other party at the sentencing proceeding and to present argument as to the adequacy of the evidence to establish the existence of any aggravating or mitigating factor.

(e) Prior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor, the prosecuting attorney shall give notice to the defendant of the aggravating factors which he intends to prove in the proceeding.

(f) Evidence offered by the State with regard to the establishment of a prior homicide conviction pursuant to paragraph (4)(a) of this subsection may include the identity and age of the victim, the manner of death and the relationship, if any, of the victim to the defendant.

(3) The jury or, if there is no jury, the court shall return a special verdict setting forth in writing the existence or nonexistence of each of the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection. If any aggravating factor is found to exist, the verdict shall also state whether it outweighs beyond a reasonable doubt any one or more mitigating factors.

(a) If the jury or the court finds that any aggravating factors exist and that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating factors, the court shall sentence the defendant to death.

(b) If the jury or the court finds that no aggravating factors exist, or that all of the aggravating factors which exist do not outweigh all of the mitigating factors, the court shall sentence the defendant pursuant to subsection b. of N.J.S.2C:11-3.

(c) If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b. of N.J.S.2C:11-3.

(4) The aggravating factors which may be found by the jury or the court are:

(b) In the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim;

(c) The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim;

(d) The defendant committed the murder as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value;

(e) The defendant procured the commission of the murder by payment or promise of payment of anything of pecuniary value;

(f) The murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another;

(j) The homicidal act that the defendant committed or procured was in violation of paragraph (1) of subsection a. of N.J.S.2C:17-2;

(k) The victim was less than 14 years old; or

(l) The murder was committed during the commission of, or an attempt to commit, or flight after committing or attempting to commit, terrorism pursuant to section 2 of P.L.2002, c.26 (C.2C:38-2).

(5) The mitigating factors which may be found by the jury or the court are:

(a) The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution;

(b) The victim solicited, participated in or consented to the conduct which resulted in his death;

(d) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution;

(e) The defendant was under unusual and substantial duress insufficient to constitute a defense to prosecution;

(f) The defendant has no significant history of prior criminal activity;

(g) The defendant rendered substantial assistance to the State in the prosecution of another person for the crime of murder; or

(h) Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense.

(6) When a defendant at a sentencing proceeding presents evidence of the defendant's character or record pursuant to subparagraph (h) of paragraph (5) of this subsection, the State may present evidence of the murder victim's character and background and of the impact of the murder on the victim's survivors. If the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds the existence of a mitigating factor pursuant to subparagraph (h) of paragraph (5) of this subsection, the jury may consider the victim and survivor evidence presented by the State pursuant to this paragraph in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection. As used in this paragraph "victim and survivor evidence" may include the display of a photograph of the victim taken before the homicide.

(7) If the jury or court found the existence of one or more aggravating factors, but that such factors did not outweigh the mitigating factors found to exist by the jury or court or the jury was unable to reach a unanimous verdict as to the weight of the factors, the defendant shall be sentenced by the court to a second term of life imprisonment without eligibility for parole. With respect to a sentence imposed pursuant to this section, the defendant shall not be entitled to a deduction of commutation and work credits from that sentence.

c. The sentencing proceeding set forth in this section shall not be waived by the prosecuting attorney.

d. Every judgment of conviction which results in a sentence of death under this section shall be appealed, pursuant to the Rules of Court, to the Supreme Court. Upon the request of the defendant, the Supreme Court shall also determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Proportionality review under this section shall be limited to a comparison of similar cases in which a sentence of death has been imposed under this section. In any instance in which the defendant fails, or refuses to appeal, the appeal shall be taken by the Office of the Public Defender or other counsel appointed by the Supreme Court for that purpose.

e. Prior to the jury's sentencing deliberations, the trial court shall inform the jury of the sentences which may be imposed pursuant to subsection b. of N.J.S.2C:11-3 on the defendant if the defendant is not sentenced to death. The jury shall also be informed that a failure to reach a unanimous verdict shall result in sentencing by the court pursuant to subsection b. of N.J.S.2C:11-3.

f. A juvenile who has been tried as an adult and convicted of murder shall not be sentenced pursuant to the provisions of this section but shall be sentenced pursuant to the provisions of subsection b. of N.J.S.2C:11-3.

g. In a sentencing proceeding conducted pursuant to this section, no evidence shall be admissible concerning the method or manner of execution which would be imposed on a defendant sentenced to death.

h. For purposes of this section the term "homicidal act" shall mean conduct that causes death or serious bodily injury resulting in death.

i. In a sentencing proceeding conducted pursuant to this section, the display of a photograph of the victim taken before the homicide shall be permitted.

3. N.J.S.2B:23-10 is amended to read as follows:

2B:23-10. Examination of jurors. a. In the discretion of the court, parties to any trial may question any person summoned as a juror after the name is drawn and before the swearing, and without the interposition of any challenge, to determine whether or not to interpose a peremptory challenge or a challenge for cause. Such examination shall be permitted in order to disclose whether or not the juror is qualified, impartial and without interest in the result of the action. The questioning shall be conducted in open court under the trial judge's supervision.

b. [(Deleted by amendment, P.L.2007, c.204).] The examination of jurors shall be under oath only in cases in which a death penalty may be imposed pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2007, c.204, s.4)

4. (New section) Definitions.

As used in this act:

a. "Commissioner" means the Commissioner of the Department of Corrections.

b. "Department" means the Department of Corrections.

c. "Inmate" means a person who is incarcerated in the department who is sentenced to death pursuant to the provisions of N.J.S. 2C:11-3.

5. (New section) When a person is sentenced to death pursuant to the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), that punishment shall be imposed by continuous, intravenous, administration until the person is dead of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent in a quantity sufficient to cause death. Prior to the injection of the lethal substance, the person shall be sedated by a licensed physician, registered nurse, or other qualified personnel, by either an oral tablet or capsule or an intramuscular injection of a narcotic or barbiturate such as morphine, cocaine or demerol.

6. (New section) a. The commissioner shall determine the substances and procedure to be used in an execution. Any imposition of the punishment of death by administration of the required lethal substances in the manner required by section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be construed to be the practice of medicine and any pharmacist or pharmaceutical supplier is authorized to dispense drugs to the commissioner or his designee, without prescription, for carrying out the provisions of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), notwithstanding any other provision of law to the contrary.

b. The commissioner shall designate persons who are qualified to administer injections and who are familiar with medical procedures, other than licensed physicians, as execution technicians to assist in the carrying out of executions, but the procedures and equipment utilized in imposing the lethal substances shall be designed to insure that the identity of the person actually inflicting the lethal substance is unknown even to the person himself.

7. (New section) The department shall provide and maintain a suitable and efficient facility enclosed from public view, within the confines of a designated State prison for the imposition of the punishment of death. That facility shall contain the apparatus and equipment necessary for the carrying out of executions in accordance with the provisions of this act.

8. (New section) a. When a person is sentenced to the punishment of death, the judge who presided at the sentencing proceeding or if that judge is unavailable for any reason, then the assignment judge of the vicinage and, if not available, then any Superior Court judge of the vicinage, shall make out, sign and deliver to the sheriff of the county, a warrant directed to the commissioner, stating the conviction and sentence, appointing a date on which the sentence shall be executed, and commanding the commissioner to execute the sentence on that date.

b. If the execution of the sentence on the date appointed shall be delayed while the conviction or sentence is being appealed, the judge authorized to act pursuant to subsection a. of this section, at the conclusion of the appellate process, if the conviction or sentence is not set aside, shall make out, sign and deliver another warrant as provided in subsection a. of this section. If the execution of the sentence on the date appointed is delayed by any other cause, the judge shall, as soon as such cause ceases to exist, make out, sign and deliver another warrant as provided in subsection a. of this section.

c. The date appointed in the warrant shall be not less than 30 days and not more than 60 days after the issuance of the warrant. The commissioner may fix the time of execution on that date.

9. (New section) a. Within 10 days after issuance of a warrant as provided in section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), the sheriff shall deliver the warrant, and also the person sentenced, if he is not already in the custody of the department, to the department. From the time of the delivery of the warrant and until the imposition of the punishment of death upon him, unless discharged from the sentence, the person shall be kept isolated from the general prison population in a designated State prison.

b. During the confinement and isolation no person shall be allowed physical access to him without a court order which shall not be unreasonably withheld, except corrections officers and officials, his counsel, and the members of his immediate family, and then only in accordance with the department's rules for security. Upon the request of the inmate, a clergyman or a member of the press shall be allowed access to the inmate without a court order but only in accordance with the department's rules for security.

10. (New section) a. The commissioner, the persons designated by the commissioner to act as execution technicians, and one licensed physician shall be present at the execution. The commissioner shall also select and invite the presence of, by at least three days' prior notice, six adult citizens. The names of the execution technicians shall not be disclosed, and the names of the six adult citizens who witnessed the execution shall not be disclosed until after the execution.

b. The commissioner shall, at the request of the person sentenced to death, authorize and permit no more than two clergymen, who are not related to the inmate, to be present at the execution. The commissioner may, at the request of the person sentenced to death, authorize and permit no more than two adult members of the person's immediate family to be present at the execution.

c. The commissioner shall permit four representatives of the news media to be present at the execution, for the purpose of giving their respective newspapers and associations accounts of the execution. The four representatives shall be composed of one representative of the major wire services, one representative of television news services, one representative of newspapers, and one representative of radio news services. Immediately following the execution, the four representatives of the news media may hold a press conference for the purpose of giving other news representatives an account of the execution.

d. The commissioner shall not authorize or permit any person to be present, except those authorized by this section.

e. The commissioner shall authorize and permit no more than four adult members of the victim's immediate family to be present at the execution. The names of the members of the victim's immediate family who witnessed the execution shall not be disclosed.

f. For purposes of this section, "immediate family" means a spouse, parent, stepparent, legal guardian, grandparent, child, or sibling.

g. Nothing in this section shall be construed to give a right to any person to delay or prevent the execution of a sentence of death on the date appointed in the warrant pursuant to section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill).

11. (New section) a. Immediately after the execution an examination of the body of the inmate shall be made by the licensed physicians present at the execution, and their report in writing stating the nature of the examination and occurrence of death, so made by them, shall be annexed to the certificate hereinafter mentioned and filed therewith.

b. The commissioner shall prepare and sign a certificate setting forth the time and place of the execution and stating that the execution was conducted in conformity to the sentence of the court and the provisions of this act. He shall cause the certificate to be filed, within 10 days after the execution, with the Superior Court in the county in which the person executed was convicted.

c. The commissioner may appoint a deputy within the department to execute the warrant of execution and to perform all the other duties imposed upon the commissioner by this act.

12. (New section) a. Prior to the execution, the inmate shall be given the opportunity to decide in writing to whom his body shall be delivered after the execution. The commissioner or his deputy designated pursuant to subsection c. of section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall sign and authorize the inmate's request if the request is not contrary to public policy or law. If the inmate does not indicate to whom his body shall be delivered or if his request is contrary to public policy or law, then the body of an inmate who has been legally executed shall be embalmed immediately and so directed by the commissioner, unless prior to execution, the inmate, relative, or bona fide friend indicates that the body is to be cremated or buried within 48 hours after death. If the body is not demanded or requested by a relative or bona fide friend within 72 hours after execution then it shall be delivered to a duly authorized and incorporated pathological and anatomical association in the State, if requested by an authorized association. If the body is requested by a relative or bona fide friend, the State shall pay a fee, not to exceed $25 to the mortician for his services in embalming the body for which the mortician shall issue to the State a written receipt. If the body is requested by a duly authorized and incorporated pathological and anatomical association, the association shall pay a fee, not to exceed $25 to the mortician for his services in embalming the body for which the mortician shall issue to the association a written receipt. When the receipt is delivered to the commissioner, the body of the deceased shall be delivered to the party named in the receipt or his authorized agent.

b. If the body is not delivered to a relative, bona fide friend, or a duly authorized and incorporated pathological and anatomical association, the commissioner shall cause the body to be decently buried, and the fee for embalming shall be paid by the State, and no religious or other services shall be held over the body after the execution, except within the facility selected for the execution by the department, and no one shall be present at the service except the officers of the prison, the person conducting the services and relatives by blood or marriage of the person executed.

c. The commissioner shall contact the Social Security Administration, Veterans' Administration, Public Welfare, and appropriate insurance companies for any possible death benefits to offset the State incurred burial expenses. The inmate's account may also be used for burial expenses.

13. (New section) a. If there is reasonable ground to believe that a female inmate, sentenced to the punishment of death, is pregnant, the superintendent of the State institution having custody of the inmate shall impanel a jury of three licensed physicians to inquire into her pregnancy. A physician acting as a juror upon this inquisition need not be qualified to serve as a juror in a court of record.

b. The inquisition of the jury shall be signed by the jurors and the superintendent of the institution. If it is found by the jury that the inmate is pregnant, the superintendent shall suspend the execution of the warrant directing her execution until he receives a warrant from the commissioner directing that the convict be executed.

c. The superintendent shall immediately transmit the inquisition to the commissioner, who, as soon as he is satisfied that the inmate is no longer pregnant, shall issue his warrant, appointing a time and place for her execution, pursuant to her sentence.

14. (New section) The department may adopt any rules or regulations necessary to implement the provisions of this amendatory and supplementary act.

15. (New section) The Judiciary Committee of the General Assembly and the Judiciary Committee of the Senate, or their respective successors, are constituted a joint committee for the purposes of monitoring and evaluating the effectiveness of the implementation of this act. The Commissioner of the Department of Corrections shall, two years from the effective date of this act, report to the joint committee, an evaluation of the effectiveness of this act and the joint committee shall, upon receiving the report, issue as it may deem necessary and proper, recommendations for administrative or legislative changes affecting the implementation of this act.

16. This act shall take effect immediately and shall be applicable to any murder committed on or after the effective date.

STATEMENT

P.L.2007, c.204, enacted on December 17, 2007, repealed the death penalty in this State and replaced it with life without parole. This bill would restore the death penalty for persons who are already incarcerated for life because of a murder conviction and who subsequently commit another murder during their incarceration. The bill reenacts the applicable statutes that were in effect prior to the enactment of P.L.2007, c.204 for these persons.

It is the sponsor's intent to introduce this legislation as a means by which those individuals who are corrections officers and are charged with the responsibility of maintaining security in our prisons are protected.