SB 264 — Allowing death penalty for intentionally killing law-enforcement officer or first responder in line of duty

(c) For purposes of this section, “law-enforcement officer” has the same meaning as ascribed in §30-29-1 of this code and shall include law-enforcement officials and pre-certified law- enforcement officers as those terms are defined in §30-29-1 of this code.

(d) For purposes of this section, “emergency responder” means a paid or volunteer firefighter, emergency services personnel, or any other similar individuals authorized to respond to call for public safety services or emergency medical assistance.

(a) When a defendant is convicted of murder in the first degree,degree with a further finding that the state has proven beyond a reasonable doubt the existence of an aggravating circumstance specified in §61-2-2b of this code, mitigating circumstances includeshall be considered in the following:matter of sentencing.

(1)(b) The defendantmitigating wascircumstances underto thebe influenceconsidered ofin extreme mental or emotional disturbance at the timematter of thesentencing commissioninclude of the murderfollowing: at issue;

(2)(1) The capacity of the defendant towas appreciateunder the criminalityinfluence of hisextreme ormental her conduct or toemotional conformdisturbance his or her conduct to the requirements of the law was substantially impaired at the time of Intr SB 2025R1159 the commission of the actionmurder; that led to the death of the member of law enforcement or first responder;

(3)(2) The defendant,capacity atof the timedefendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the murderrequirements atof issue,the law was 17substantially yearsimpaired oldat orthe younger;time of the commission of the murder;

(4)(3) The defendant'sdefendant, participationat inthe time of the murder at issueissue, was relativelyunder minor;the age of 18 years;

and(4) (5)The Anydefendant otheracted evidenceunder ofduress, mitigationor concerningacted under the charactersubstantial andinfluence record of another person at the defendanttime andof the circumstancescommission of the murder.offense;

and 3 CS for SB 264 (5) Any other evidence of mitigation concerning the character and record of the defendant, and the circumstances of the murder that would mitigate the appropriateness or necessity of imposing a sentence of death.

(c) The defendant shall bear the burden of proving the existence of a mitigating circumstance by clear and convincing evidence.

InThe rendering the verdict, the jury shall set forthforth, in writingwriting, whether the findingssentence uponimposed whichis thedeath, sentencelife isimprisonment based.without mercy, or life imprisonment with mercy.

Based upon these findings, the jury shall set forth in writing whether the sentence is death or life imprisonment without probation or parole.

(a) Whenever the jury unanimously agrees uponto athe sentencing verdict, it shall be received and recorded by the court.

InIf anythe casesentencing inverdict whichis death, the deathcourt penaltyshall isdirect imposed,the executionWest shallVirginia beDivision byof lethalCorrections injection.and Rehabilitation to carry out the sentence according the rules and procedures of the Commissioner.

§61-2-2f.(b) The West Virginia Division of Corrections and Rehabilitation shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq.

of this code, and may promulgate emergency rules pursuant to §29A-3-15 of this code when necessary, to adopt the procedures and methods that the West Virginia Division of Corrections and Rehabilitation will use to carry out a sentence of death.

The rules authorized by this section shall at a minimum provide for the carrying out of a death sentence within the walls of a West Virginia correctional facility under the direction of West Virginia corrections officials.

The method of execution shall comply with both the United states and West Virginia Constitution and shall be carried out according to current evidence-based scientific research, including but not limited to, lethal injection or firing squad.

4 CS for SB 264 §61-2-2f.

(a) Whenever the death penalty is imposed and upon the judgment becoming final in the circuit court, the sentence shall automatically be reviewed automatically on the record by the Supreme Court of Appeals.Appeals of West Virginia.

The clerk of the circuit court, within 10 days after receiving the transcript,transcript of all recorded proceedings, shall transmit the entire record and transcript to the Supreme Court of Appeals of West Virginia together with a notice prepared by the clerk and a report prepared by the circuit judge.

The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his or her attorney, and a narrative statement of the judgment, the offense and the punishment prescribed.

The report shall be in a standard form prepared and supplied by the Supreme Court of Appeals.Appeals of West Virginia.

(b) The Supreme Court of Appeals of West Virginia shall consider the punishment as well as any errors Intrenumerated SBby 2025R1159way enumeratedof appeal filed by waythe defendant, and the sentencing review set forth in subsection (a) of this section may be consolidated with the appeal.

(c) With regard to the sentence, the Supreme Court of Appeals of West Virginia shall specifically determine:

(2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance;

and (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crimecircumstances of the murder and the defendant.

(d) Both the defendant and the state shall have the right to submit briefs within the time limitations set forth in the rules by the Supreme Court of Appeals,Appeals of West Virginia, and to present oral argument to thethat Supremecourt. Court of Appeals.

(e) The Supreme Court of Appeals of West Virginia shall render a written decision which shall include a reference to those similar cases, including similar cases from jurisdictions outside of West Virginia, which it took into consideration.

The Supreme Court of Appeals, with regard to CS for SB 264 review of death sentences, shall:

The records of those similar cases referred to by the Supreme Court of Appeals of West Virginia in its written decision shall be provided to the resentencing judge for his or her consideration.

(f) The Supreme Court of Appeals of West Virginia may employ an appropriate staff and establish methods to compile any cases or information considered by the chiefcourt justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.

(g) The sentenceSupreme reviewCourt shallof beAppeals inof additionWest Virginia is requested to directpromulgate appeal,rules ifprior taken,to andJanuary 1, 2026, to the reviewextent andnecessary appealto shallcomply bewith consolidatedthe forprovisions consideration.of this section.

(g) The Supremesentence Courtreview ofis Appealsin shalladdition renderto itsa decisiondirect onappeal, legalif errorstaken, enumerated,and the factualreview substantiation of the verdict and theappeal validitymay ofbe theconsolidated sentence.for consideration.

INTRODUCEDThe 2017R1640Supreme §61-2-2g.Court of Appeals of West Virginia shall render its decision on legal errors enumerated, the factual substantiation of the verdict and the validity of the sentence.

(h) Appeals involving a sentence of death shall be given expedited consideration by the Supreme Court of Appeals of West Virginia.

§61-2-2g.

(a) Notwithstanding any other provision of law to the contrary, a person in custody pursuant to the judgment of a court of this state in which the death penalty has been imposed may, at any time after conviction, apply to the court that entered the judgment for the testing of any forensic deoxyribonucleic acid ("DNA") testing of any biological material that:

and (3) Was not previously subjected to DNA testing or can be subjected to retesting with new DNA techniques that were previously not available that provide a reasonable likelihood of more 6 CS for SB 264 accurate and probative results.

(b) The court shall notify the stateprosecutor of the county in which the sentence of death was entered and the Attorney General of an application made under subsection (a) of this section and shall afford the state an opportunity to respond.

(c) Upon receiving notice of an application made under subsection (a) of this section, the stateprosecutor shallof takethe suchcounty stepsin aswhich arethe sentence of death was entered or the Attorney General shall take necessary steps to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.

and (2) In the case of an applicant who is not indigent, may assess the applicant for the cost of Intr SB 2025R1159 such testing.

(1) OrderNotwithstanding a hearing, notwithstanding any other provision of law to the contrary that would bar sucha hearing, order a hearing;hearing, and (2) Enter any order that serves the interests of justice, including an order:

and7 (2)CS Enterfor anySB order264 that(A) servesVacating theand interestssetting ofaside justice,the includingjudgment; an order:

(A)(B) VacatingDischarging andthe settingapplicant, asideif the judgment;applicant is in custody;

(B) Discharging the applicant if the applicant is in custody;

[Repealed.]If ARTICLEa 7.person indicted for murder is found by the jury guilty thereof, they shall in their verdict find whether he or she is guilty of murder of the first degree or second degree.

If the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be eligible for parole:

Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve, except that, notwithstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen 8 CS for SB 264 years:

Provided, however, That if the accused pleads guilty of murder of the first degree, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy, except that, notwithstanding any provision of said article twelve or any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years:

Provided further, That nothing in this section shall preclude a sentence of death where the individual is guilty of the offense of murder in the first degree and there is a further finding that the state has proven beyond a reasonable doubt the existence of an aggravating circumstance specified in §61-2-2b of this code.

ARTICLE 7.

SentenceThe sentence of death,death exceptshall forshall insurrection or rebellion, may not be executed soonerat thana Intrstate SBcorrectional 2025R1159facility threein monthsaccordance afterwith the§61-2-2e sentenceof isthis pronounced.code.

The sentenceexecution ofshall deathbe shall,performed inunder everythe case,direction beof executedthe bywarden anyof legallythe acceptablestate means,correctional includingfacility lethaland injectionthe orauthorities firingin squad.control of the facility.

The sentencewarden shallof bethe executedstate withincorrectional facility or, in the wallscase of ahis stateor correctionalher facilitydeath, withinabsence anor enclosureinability preparedto foract, thatthe purposeCommissioner andof constructedWest soVirginia asDivision toof excludeCorrections publicand view.Rehabilitation shall be the executioner.

TheIn executioncarrying shallout bethe performedexecution underof the directionsentence, of the warden ofor the stateCommissioner correctionalof facilityWest Virginia Division of Corrections and Rehabilitation may secure the authoritiesservices inand controladvice thereof.of any person or persons either considers appropriate.

The warden of the state correctional facility or, in the case of his or her death, absence or inability to act, the Commissioner of Corrections shall be the executioner.

In carrying out the execution of sentence, the warden or the Commissioner of Corrections may secure the services and advice of any person or persons either considers appropriate.

transfer of convict to a state correctional facility;facility;persons present at execution.

personsThe presentclerk atof execution.the court which pronounces the sentence of death shall, as soon as possible after sentence, deliver a certified copy of the sentence to the sheriff, who shall retain the custody of the convict sentenced to death until he or she is delivered to a properly authorized guard sent by 9 CS for SB 264 the warden for the removal of the convict to the state correctional facility.

The clerk of the court whichshall pronouncesalso theimmediately sentencetransmit of death shall, as soon as possible after sentence, deliver a certified copy of the sentence to the sheriff,warden who shall retain the custody of the convictstate sentencedcorrectional tofacility death until he or she is delivered to a properlycopy authorizedof guard sent by the wardenindictment, fororder theof removalconviction ofand the convictsentence toand thejudgment stateentered correctionalthereon. facility.

TheAs clerksoon ofas thepossible courtafter shallreceipt alsoof forthwiththe transmitcopies, to the warden ofshall thesend statea correctionalguard facilityor aguards copyto ofremove the indictment,convict orderto of conviction and the sentencestate andcorrectional judgmentfacility. entered thereon.

As soon as possible after receipt of the copies the warden shall send a guard or guards to remove the convict to the state correctional facility.

At the execution there may be present those officers, guardsguards, and assistants as the warden or Commissioner of West Virginia Division of Corrections and Rehabilitation considers appropriate.

The warden or the commissioner, as the case may be, shall request the presence of the prosecuting attorney of the county whereinin which the conviction occurred, the clerk of the circuit court thereof,of the county, 12 respectable citizens, including a physician and representatives of the press as may be considered appropriate.

INTRODUCED 2017R1640 The warden or Commissioner of West Virginia Division of Corrections and Rehabilitation who executes the sentence of death shall certify to the clerk of the circuit court, by which the sentence was imposed, that the sentence has been executed.

If the friends or relatives of the convict make a request in writing to the warden at any time within two days after the sentence of death has been executed, the body of the convict shall be returned to the friends or relatives, in any county inof the state, for burial.

The warden may draw his or her order on the Auditor of the state for whatever sum is necessary to pay for transportation of the body, to be paid out of funds appropriated to the West Virginia Division of Corrections.Corrections and Rehabilitation.

If no request is made by friends or relatives, the body shall be disposed of as 10 CS for SB 264 provided for other convicts who die within a state correctional facility.

NOTE:11

The purpose of this bill is to provide for the death penalty in limited circumstances;

the bill provides for procedures and standards applicable thereto, and automatic review of the penalty, for commission of murder in the first degree.

Procedures for carrying out the death sentence are established.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.