House Bill No. 98

Introduced By clark

By Request of the Department of Corrections

A Bill for an Act entitled: An Act eliminating hanging as a means of execution; revising the requirements for applications for executive clemency; requiring application for executive clemency in capital cases to be made within 10 days after an execution date is set; clarifying that there is no appeal from the governor's grant or denial of clemency; amending sections 46-19-103 and 46-23-301, MCA; and providing an immediate effective date and an applicability date.

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 46-19-103, MCA, is amended to read:

"46-19-103.   Execution of death sentence. (1) In pronouncing the sentence of death, the court shall set the date of execution, which must may not be less than 30 days or more than 60 days from the date the sentence is pronounced. If execution has been stayed by any court and the date set for execution has passed prior to dissolution of the stay, the court in which the defendant was previously sentenced shall, upon dissolution of the stay, set a new date of execution for not less than 20 or more than 90 days from the day the date is set. The defendant is entitled to be present in court on the day the new date of execution is set.

(2)  Pending execution of a sentence of death, the sheriff may deliver the defendant to the a state prison for confinement, and the state shall bear the costs of imprisoning the defendant from the date of delivery.

(3)  The punishment of death must be inflicted by hanging the defendant by the neck until he is dead or, at the election of the defendant, by administration of a continuous, intravenous injection of a lethal quantity of an ultra-fast-acting barbiturate in combination with a chemical paralytic agent until a licensed physician pronounces that the defendant is dead according to accepted standards of medical practice. A defendant who wishes to choose execution by lethal injection shall do so at the hearing at which an execution date is set, and if he does not, the option to choose death by lethal injection is waived.

(4)  When an execution date is set, a death warrant signed by the judge and attested by the clerk of court under the seal of the court must, within 5 days, be prepared. The warrant and a certified copy of the judgment must be delivered to the warden of the state prison director of the department of corrections. The warrant must be directed to the warden director and recite the conviction, judgment, method of execution, appointed date of execution, and the duration of the warrant.

(5)  The warden of the Montana state prison shall provide a suitable and efficient room or place in which executions will be carried out, enclosed from public view, within the walls of the state prison, and shall provide all implements necessary to the execution. The warden shall, subject to subsection (6), select the person to perform the execution, and the warden or his the warden's designee shall supervise the execution. The identity of the executioner must remain anonymous. Facts pertaining to the selection and training of the executioner must remain confidential.

(6)  An execution carried out by lethal injection must be performed by a person selected by the warden and trained to administer the a lethal injection. The person administering the injection need not be a physician, registered nurse, or licensed practical nurse licensed or registered under the laws of this or any other state. The warden must shall allow the execution to be observed by 12 witnesses, 3 of whom may be designated by the person to be executed.

(7)  Within 20 days after the execution, the warden shall return the death warrant to the clerk of the court from which it was issued, noting on the warrant the time, mode, and manner in which it was executed."

Section 2.  Section 46-23-301, MCA, is amended to read:

"46-23-301.   Cases of executive clemency -- application for clemency -- definitions. (1) (a) "Clemency" means kindness, mercy, or leniency that may be exercised by the governor towards toward a convicted person. The governor may grant clemency in the form of:

(i)  the remission of fines or forfeitures;

(ii) the commutation of a sentence to one which that is less severe;

(iii) respite; or

(iv) pardon.

(b)  "Pardon" means a declaration of record that an individual is to be relieved of all legal consequences of a prior conviction.

(2)  A person convicted of a crime need not exhaust judicial or administrative remedies before he files filing an application for clemency, except that an application may not be filed with respect to a sentence of death while an automatic review proceeding is pending before the Montana supreme court under 46-18-307 through 46-18-310. The board shall consider cases of executive clemency only upon application. All applications for executive clemency must be made to the board. An application for executive clemency in capital cases may be filed with the board no later than 10 days after the district court sets a date of execution. Applications may be filed only by the person convicted of the crime, by his the person's attorney acting on his the person's behalf and with his the person's consent, or by a court-appointed next friend, guardian, or conservator acting on his the person's behalf. The board shall cause an investigation to be made of and base any recommendation it makes on:

(a)  all the circumstances surrounding the crime for which the applicant was convicted; and

(b)  the individual circumstances relating to social conditions of the applicant prior to commission of the crime, at the time the offense was committed, and at the time of the application for clemency.

(3)  The board shall advise the governor and recommend action to be taken. The board may recommend that clemency be granted or denied. In noncapital cases, if the board recommends that clemency be denied, the application must may not be forwarded to the governor and the governor may not take action on the case. In capital cases, the board shall transmit the application and either a recommendation that clemency be granted or a recommendation that clemency be denied to the governor. The governor is not bound by any recommendation of the board, but he the governor shall review the record of the hearing and the board's recommendation before he grants granting or denies denying clemency. The governor has the final authority to grant or deny clemency in those cases forwarded to him the governor. An appeal may not be taken from the governor's decision to grant or deny clemency."

Section 3.  Effective date. [This act] is effective on passage and approval.

Section 4.  Applicability. [This act] applies to death warrants issued by a court on or after [the effective date of this act].