SB 1037 — Allowing death penalty for first degree murder during commission of sexual assault

(2) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law was substantially impaired at the time of the commission of the murder;

(3) The defendant, at the time of the murder at issue, was under the age of 18 years;

(4) The defendant acted under duress, or acted under the substantial influence of another person at the time of the commission of the offense;

and (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.

§61-2-2d.

Sentencing verdict by the jury.

After hearing all the evidence and arguments by counsel and after receiving the instructions from the court, the jury shall deliberate and render a sentencing verdict.

The jury shall 3 CS for SB 1037 set forth, in writing, whether the sentence imposed is death, life imprisonment without mercy, or life imprisonment with mercy.

§61-2-2e.

Recording sentencing verdict;

imposing sentence.

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

The court shall thereafter impose upon the defendant the sentence fixed by the jury.

If the sentencing verdict is death, the court shall direct the West Virginia Division of Corrections and Rehabilitation to carry out the sentence according to the rules and procedures of the Commissioner.

(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.

§61-2-2f.

Review of death sentence.

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

The clerk of the circuit court, within 10 days after receiving the 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 4 CS for SB 1037 prepared and supplied by the Supreme Court of Appeals of West Virginia.

(b) The Supreme Court of Appeals of West Virginia shall consider the punishment as well as any errors enumerated by way of appeal filed by the 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:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) Whether the evidence supports the jury'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 circumstances of the murder and the defendant.

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

(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 review of death sentences, shall:

(1) Affirm the sentence of death;

or (2) Set the sentence aside and remand the case for resentencing by the circuit judge based on the record and argument of counsel.

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 appropriate staff and establish methods to compile any cases or information considered by the court to be appropriate 5 CS for SB 1037 and relevant to the statutory questions concerning the validity of the sentence.

The Supreme Court of Appeals of West Virginia is requested to promulgate rules prior to January 1, 2026, to the extent necessary to comply with the provisions of this section.

(g) The sentence review is in addition to a direct appeal, if taken, and the review and appeal may be consolidated for consideration.

The Supreme 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.

DNA testing in death penalty cases.

(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") biological material that:

(1) Is related to the investigation or prosecution that resulted in the judgment;

(2) Is in the actual or constructive possession of the state;

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

(b) The court shall notify the prosecutor 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 prosecutor of the county in which the 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.

6 CS for SB 1037 (d) The court shall order DNA testing pursuant to an application made under subsection (a) of this section upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or sentenced.

(e) The cost of DNA testing ordered under subsection (d) of this section shall be borne by the state or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the means to pay.

(f) The court may at any time appoint counsel for an indigent applicant under this section.

(g) If the results of DNA testing conducted under this section are unfavorable to the applicant, the court:

(1) Shall dismiss the application;

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

(h) If the results of DNA testing conducted under this section are favorable to the applicant, the court shall:

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

(A) Vacating and setting aside the judgment;

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

(C) Resentencing the applicant;

or (D) Granting a new trial.

(i) Nothing in this section may be construed to limit the circumstances under which a person may obtain DNA testing or other post-conviction relief under any other provision of law.

(j) Notwithstanding any other provision of law, the state shall preserve any biological material secured in connection with a death penalty case for such period of time as a person remains incarcerated awaiting execution under a death penalty sentence.

7 CS for SB 1037 §61-2-2h.

Pardon, reprieve, and commuting by the Governor.

In a case in which capital punishment has been imposed, the Governor shall retain the power to issue a pardon, grant a reprieve, or commute a sentence as set forth in section eleven, article VII of the Constitution of West Virginia.

§62-3-3.

Selection of jury in felony cases;

striking jurors;

alternate jurors.

(a) In a case of felony, twenty jurors shall be drawn from those in attendance for the trial of the accused.

If a sufficient number of jurors for such panel cannot be procured in this way, the court shall order others to be forthwith summoned and selected, until a panel of twenty jurors, free from exception, be completed, from which panel the accused may strike off six jurors and the prosecuting attorney may strike off two jurors.

The prosecuting attorney shall first strike off two jurors, and then the accused six.

If the accused failed to strike from such panel the number of jurors this section allows him to strike, the number not stricken off by him shall be stricken off by the prosecuting attorney, so as to reduce the panel to twelve, who shall compose the jury for the trial of the case.

(b) Whenever, in the opinion of the court the trial is likely to be a protracted one, the court may direct that not more than four jurors, in addition to the regular jury, be called and impanelled to Intr SB 1037 2026R4290 sit as alternate jurors.

Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.

Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors.

An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.

Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impanelled, and two peremptory challenges if three or four alternate jurors are to be impanelled.

The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by this section may not be used against an alternate juror.

(c) A person who has beliefs which preclude her or him from finding a defendant guilty of an offense punishable by death shall not be qualified as a juror in a capital case.

§62-3-5.

Capital punishment and proceedings.

(a) SENTENCE PROCEEDINGS.

— Upon conviction or adjudication of guilt of a defendant under both §61-2-2 and §61-8B-3(c) of this code, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment of this code.

The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.

If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 62 of this code to determine the issue of the imposition of the penalty.

If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant.

In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating factors enumerated in subsection (e) and for Intr SB 1037 2026R4290 which notice has been provided pursuant to §61-2-2 of this code or mitigating circumstances enumerated in subsection (f).

Any such evidence that the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.

However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the United States Constitution or the State Constitution.

The state and the defendant or the defendant’s counsel shall be permitted to present argument for or against a sentence of death.

(b) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.—This subsection applies only if the defendant has not waived his or her right to a sentencing proceeding by a jury.

(1) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least two aggravating factors set forth in subsection (e).

(2) The jury shall return findings identifying each aggravating factor found to exist.

A finding that at least two aggravating factors exist must be unanimous.

If the jury:

(A) Does not unanimously find at least two aggravating factors, the defendant is ineligible for a sentence of death.

(B) Unanimously finds at least two aggravating factors, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without the possibility of parole or to death.

The recommendation shall be based on a weighing of all of the following:

(i) Whether sufficient aggravating factors exist.

(ii) Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.

(iii) Based on the considerations in sub-subparagraphs (i) and (ii), whether the defendant should be sentenced to life imprisonment without the possibility of parole or to death.

(3) If at least eight jurors determine that the defendant should be sentenced to death, the Intr SB 1037 2026R4290 jury’s recommendation to the court shall be a sentence of death.

If fewer than eight jurors determine that the defendant should be sentenced to death, the jury’s recommendation to the court shall be a sentence of life imprisonment without the possibility of parole.

(c) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.— (1) If the jury has recommended a sentence of:

(A) Life imprisonment without the possibility of parole, the court shall impose the recommended sentence of life imprisonment without the possibility of parole.

(B) Death, the court, after considering each aggravating factor found by the jury and all mitigating circumstances, may impose a sentence of life imprisonment without the possibility of parole or a sentence of death.

The court may consider only an aggravating factor that was unanimously found to exist by the jury.

The court may impose a sentence of death only if the jury unanimously found at least two aggravating factors beyond a reasonable doubt.

(2) If the defendant waived his or her right to a sentencing proceeding by a jury, the court, after considering all aggravating factors and mitigating circumstances, may impose a sentence of life imprisonment without the possibility of parole or a sentence of death.

The court may impose a sentence of death only if the court finds that at least two aggravating factors have been proven to exist beyond a reasonable doubt.

(d) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—In each case in which the court imposes a sentence of life imprisonment without the possibility of parole or death, the court shall, considering the records of the trial and the sentencing proceedings, enter a written order addressing the aggravating factors set forth in subsection (e) found to exist, the mitigating circumstances in subsection (f) reasonably established by the evidence, whether there are sufficient aggravating factors to warrant the death penalty, and whether the aggravating factors outweigh the mitigating circumstances reasonably established by the evidence.

The court shall include in its written order the reasons for not accepting the jury’s recommended sentence, if applicable.

If the court does not issue its order requiring the death Intr SB 1037 2026R4290 sentence within 30 days after the rendition of the judgment and sentence, the court shall impose a sentence of life imprisonment without the possibility of parole in accordance with §62-3-15 of this code.

(e) AGGRAVATING FACTORS.—Aggravating factors shall be limited to the following:

(1) The capital felony was committed by a person previously convicted of a felony violation of §61-8B-1 et seq.

of this code, and under sentence of imprisonment or placed on community control or on felony probation.

(2) The defendant was previously convicted of another felony involving the use or threat of violence to the person.

(3) The capital felony was committed by a sexual offender who is required to register under §15-12-1 et seq.

of this code.

(4) The defendant used a firearm or knowingly directed, advised, authorized, or assisted another to use a firearm to threaten, intimidate, assault, or injure a person in committing the offense or in furtherance of the offense.

(5) The capital felony was committed for pecuniary gain.

(6) The capital felony was especially heinous, atrocious, or cruel.

(7) The victim of the capital felony was particularly vulnerable due to age or disability, or because the defendant stood in a position of familial or custodial authority over the victim.

(8) The capital felony was committed by a person subject to an injunction issued pursuant to §48-27-501 or §48-27-403 of this code, or a foreign protection order accorded full faith and credit pursuant to §48-27-310 of this code, and was committed against the petitioner who obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.

(f) MITIGATING CIRCUMSTANCES.—Mitigating circumstances shall be the following:

(1) The defendant has no significant history of prior criminal activity.

(2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

Intr SB 1037 2026R4290 (3) The defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor.

(4) The defendant acted under extreme duress or under the substantial domination of another person.

(5) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired at the time of the commission of the murder.

(6) The age of the defendant at the time of the crime.

(7) The defendant was under the influence of extreme mental or emotional disturbance at the time of the commission of the murder.

(8) The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty.

(g) VICTIM IMPACT EVIDENCE.—Once the prosecution has provided evidence of the existence of two or more aggravating factors as described in subsection (e), the prosecution may introduce, and subsequently argue, victim impact evidence to the jury by family.

Such evidence shall be designed to demonstrate the victim’s uniqueness as an individual human being and the physical and psychological harm to the victim.

Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.

(h) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Appeals West Virginia and disposition rendered within two years after the filing of a notice of appeal.

The review by the Supreme Court of Appeals of West Virginia shall have priority over all other cases and shall be heard in accordance with rules adopted by the Supreme Court of Appeals of West Virginia, which shall require both the defendant and the state the opportunity to submit briefs and present oral arguments.

The review shall consider at a minimum:

Intr SB 1037 2026R4290 (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) Whether the evidence supports the jury'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 circumstances of the murder and the defendant.

(i) DNA TESTING.

(1) 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") biological material that:

(A) Is related to the investigation or prosecution that resulted in the judgment;

(B) Is in the actual or constructive possession of the state;

and (C) Was not previously subjected to DNA testing or can be subjected to retesting with DNA techniques that were previously not available that provide a reasonable likelihood of more accurate and probative results.

(2) The court shall notify the prosecutor of the county in which the sentence of death was entered and the Attorney General of an application made under paragraph (1) of this subsection and shall afford the state an opportunity to respond.

(3) Upon receiving notice of an application made under paragraph (1) of this subsection, the prosecutor of the county in which the 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.

(4) The court shall order DNA testing pursuant to an application made under paragraph (1) of this subsection upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or Intr SB 1037 2026R4290 sentenced.

(5) The cost of DNA testing ordered under paragraph (4) of this subsection shall be borne by the state or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the means to pay.

(6) The court may at any time appoint counsel for an indigent applicant under this subsection.

(7) If the results of DNA testing conducted under this subsection are unfavorable to the applicant, the court:

(A) Shall dismiss the application;

and (B) In the case of an applicant who is not indigent, may assess the applicant for the cost of such testing.

(8) If the results of DNA testing conducted under this subsection are favorable to the applicant, the court shall:

(A) Notwithstanding any other provision of law to the contrary that would bar a hearing, order a hearing, and (B) Enter any order that serves the interests of justice, including an order:

(i) Vacating and setting aside the judgment;

(ii) Discharging the applicant, if the applicant is in custody;

(iii) Resentencing the applicant;

or (iv) Granting a new trial.

(9) Nothing in this subsection may be construed to limit the circumstances under which a person may obtain DNA testing or other post-conviction relief under any other provision of law.

(10) Notwithstanding any other provision of law, the state shall preserve any biological material secured in connection with a death penalty case for such period of time as a person remains incarcerated awaiting execution under a death penalty sentence.

Intr SB 1037 2026R4290 If a person indicted for murder be is found guilty by the jury guilty thereof, they the jury 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 §62-12-1of etthis seq.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,code to the contrary, such person shall not be eligible for parole:parole until he or she has served fifteen years:

Provided, however, That if the juryaccused pleads guilty of murder of the first degree, the court may, in theirits discretion, recommendprovide mercy,that andsuch ifperson suchshall recommendationbe iseligible addedfor toparole theirin verdict,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§62-12-1twelve etin seq.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 8 CS for SB 1037 provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years:

ofProvided thisfurther, code,That exceptnothing that,in notwithstandingthis anysection othershall provisionpreclude a sentence of thisdeath codewhere tothe individual is guilty of the contrary,offense suchof personmurder shallin notthe befirst eligibledegree forand parolethere untilis hea orfurther shefinding that the state has servedproven fifteenbeyond years:a reasonable doubt the existence of an aggravating circumstance specified in §61-2-2b of this code.

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§62- 12-1 et seq.

of this code, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve §62-12-1 et seq.

of this code 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 said article twelve of §62-12-1 et seq.

of this code or any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served 15 years.

(a) The Westsentence Virginia Division of Correctionsdeath andshall Rehabilitationbe shallexecuted proposeat rulesa forstate legislativecorrectional approvalfacility in accordance with the§61-2-2e provisions of §29A-3-1this etcode. seq.

ofThe thisexecution code,shall andbe mayperformed promulgateunder emergencythe rulesdirection pursuant to §29A-3-15 of this code when necessary, to adopt the procedureswarden andof methods that the Weststate Virginiacorrectional Divisionfacility of Corrections and Rehabilitationthe willauthorities usein tocontrol carry out a sentence of death.the facility.

The ruleswarden authorizedof bythe thisstate sectioncorrectional shallfacility ator, ain minimumthe providecase Introf SBhis 1037or 2026R4290her fordeath, theabsence, carryingor outinability ofto aact, death sentence within the wallsCommissioner of a West Virginia correctionalDivision facilityof underCorrections theand directionRehabilitation ofshall Westbe Virginiathe correctionsexecutioner. 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.

(b) The execution shall be performed under the direction of the warden of the state correctional facility and the authorities in control of the facility.

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

The clerk of the court shall also immediately transmit to the warden of the state correctional facility a copy of the indictment, order of convictionconviction, and the sentence and judgment enteredentered. thereon.

At the execution there may be 9 CS for SB 1037 present those officers, guards, 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 Intr SB 1037 2026R4290 county in which the conviction occurred, the clerk of the circuit court of the county, 12 respectable citizens, including a physician and representatives of the press as may be considered appropriate.

The counsel of the convict, or any clergymen the convict may desiredesire, and any of the convict's relations may be permitted to attend.

NOTE:10

The purpose of this bill is to impose the death penalty on defendants convicted of first degree murder and first degree sexual abuse of a child in the same proceeding.

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

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