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Chapter 10.95 RCW

CAPITAL PUNISHMENT — AGGRAVATED FIRST DEGREE MURDER

RCW Sections

10.95.010Court rules.
10.95.020Definition.
10.95.030Sentences for aggravated first degree murder.
10.95.035Return of persons to sentencing court if sentenced prior to June 1, 2014, for a term of life without the possibility of parole for an offense committed prior to eighteenth birthday.
10.95.040Special sentencing proceeding -- Notice -- Filing -- Service.
10.95.050Special sentencing proceeding -- When held -- Jury to decide matters presented -- Waiver -- Reconvening same jury -- Impanelling new jury -- Peremptory challenges.
10.95.060Special sentencing proceeding -- Jury instructions -- Opening statements -- Evidence -- Arguments -- Question for jury.
10.95.070Special sentencing proceeding -- Factors which jury may consider in deciding whether leniency merited.
10.95.080When sentence to death or sentence to life imprisonment shall be imposed.
10.95.090Sentence if death sentence commuted, held invalid, or if death sentence established by chapter held invalid.
10.95.100Mandatory review of death sentence by supreme court -- Notice -- Transmittal -- Contents of notice -- Jurisdiction.
10.95.110Verbatim report of trial proceedings -- Preparation -- Transmittal to supreme court -- Clerk's papers -- Receipt.
10.95.120Information report -- Form -- Contents -- Submission to supreme court, defendant, prosecuting attorney.
10.95.130Questions posed for determination by supreme court in death sentence review -- Review in addition to appeal -- Consolidation of review and appeal.
10.95.140Invalidation of sentence, remand for resentencing -- Affirmation of sentence, remand for execution.
10.95.150Time limit for appellate review of death sentence and filing opinion.
10.95.160Death warrant -- Issuance -- Form -- Time for execution of judgment and sentence.
10.95.170Imprisonment of defendant.
10.95.180Death penalty -- How executed.
10.95.185Witnesses.
10.95.190Death warrant -- Record -- Return to trial court.
10.95.200Proceedings for failure to execute on day named.
10.95.900Severability -- 1981 c 138.
10.95.901Construction -- Chapter applicable to state registered domestic partnerships -- 2009 c 521.

Notes:

Homicide: Chapter 9A.32 RCW.


10.95.010
Court rules.

No rule promulgated by the supreme court of Washington pursuant to RCW 2.04.190 and 2.04.200, now or in the future, shall be construed to supersede or alter any of the provisions of this chapter.

[1981 c 138 § 1.]




10.95.020
Definition.

A person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, and one or more of the following aggravating circumstances exist:

     (1) The victim was a law enforcement officer, corrections officer, or firefighter who was performing his or her official duties at the time of the act resulting in death and the victim was known or reasonably should have been known by the person to be such at the time of the killing;

     (2) At the time of the act resulting in the death, the person was serving a term of imprisonment, had escaped, or was on authorized or unauthorized leave in or from a state facility or program for the incarceration or treatment of persons adjudicated guilty of crimes;

     (3) At the time of the act resulting in death, the person was in custody in a county or county-city jail as a consequence of having been adjudicated guilty of a felony;

     (4) The person committed the murder pursuant to an agreement that he or she would receive money or any other thing of value for committing the murder;

     (5) The person solicited another person to commit the murder and had paid or had agreed to pay money or any other thing of value for committing the murder;

     (6) The person committed the murder to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group;

     (7) The murder was committed during the course of or as a result of a shooting where the discharge of the firearm, as defined in RCW 9.41.010, is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge;

     (8) The victim was:

     (a) A judge; juror or former juror; prospective, current, or former witness in an adjudicative proceeding; prosecuting attorney; deputy prosecuting attorney; defense attorney; a member of the indeterminate sentence review board; or a probation or parole officer; and

     (b) The murder was related to the exercise of official duties performed or to be performed by the victim;

     (9) The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime, including, but specifically not limited to, any attempt to avoid prosecution as a persistent offender as defined in RCW 9.94A.030;

     (10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;

     (11) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes:

     (a) Robbery in the first or second degree;

     (b) Rape in the first or second degree;

     (c) Burglary in the first or second degree or residential burglary;

     (d) Kidnapping in the first degree; or

     (e) Arson in the first degree;

     (12) The victim was regularly employed or self-employed as a newsreporter and the murder was committed to obstruct or hinder the investigative, research, or reporting activities of the victim;

     (13) At the time the person committed the murder, there existed a court order, issued in this or any other state, which prohibited the person from either contacting the victim, molesting the victim, or disturbing the peace of the victim, and the person had knowledge of the existence of that order;

     (14) At the time the person committed the murder, the person and the victim were "family or household members" as that term is defined in *RCW 10.99.020(1), and the person had previously engaged in a pattern or practice of three or more of the following crimes committed upon the victim within a five-year period, regardless of whether a conviction resulted:

     (a) Harassment as defined in RCW 9A.46.020; or

     (b) Any criminal assault.

[2003 c 53 § 96; 1998 c 305 § 1. Prior: 1995 c 129 § 17 (Initiative Measure No. 159); 1994 c 121 § 3; 1981 c 138 § 2.]

Notes:

     *Reviser's note: RCW 10.99.020 was amended by 2004 c 18 § 2, changing subsection (1) to subsection (3).

     Intent -- Effective date -- 2003 c 53: See notes following RCW 2.48.180.

     Findings and intent -- Short title -- Severability -- Captions not law -- 1995 c 129: See notes following RCW 9.94A.510.




10.95.030
Sentences for aggravated first degree murder.

(1) Except as provided in subsections (2) and (3) of this section, any person convicted of the crime of aggravated first degree murder shall be sentenced to life imprisonment without possibility of release or parole. A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer and the indeterminate sentence review board or its successor may not parole such prisoner nor reduce the period of confinement in any manner whatsoever including but not limited to any sort of good-time calculation. The department of social and health services or its successor or any executive official may not permit such prisoner to participate in any sort of release or furlough program.

     (2) If, pursuant to a special sentencing proceeding held under RCW
10.95.050, the trier of fact finds that there are not sufficient mitigating circumstances to merit leniency, the sentence shall be death. In no case, however, shall a person be sentenced to death if the person had an intellectual disability at the time the crime was committed, under the definition of intellectual disability set forth in (a) of this subsection. A diagnosis of intellectual disability shall be documented by a licensed psychiatrist or licensed psychologist designated by the court, who is an expert in the diagnosis and evaluation of intellectual disabilities. The defense must establish an intellectual disability by a preponderance of the evidence and the court must make a finding as to the existence of an intellectual disability.

     (a) "Intellectual disability" means the individual has: (i) Significantly subaverage general intellectual functioning; (ii) existing concurrently with deficits in adaptive behavior; and (iii) both significantly subaverage general intellectual functioning and deficits in adaptive behavior were manifested during the developmental period.

     (b) "General intellectual functioning" means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for the purpose of assessing intellectual functioning.

     (c) "Significantly subaverage general intellectual functioning" means intelligence quotient seventy or below.

     (d) "Adaptive behavior" means the effectiveness or degree with which individuals meet the standards of personal independence and social responsibility expected for his or her age.

     (e) "Developmental period" means the period of time between conception and the eighteenth birthday.

     (3)(a)(i) Any person convicted of the crime of aggravated first degree murder for an offense committed prior to the person's sixteenth birthday shall be sentenced to a maximum term of life imprisonment and a minimum term of total confinement of twenty-five years.

     (ii) Any person convicted of the crime of aggravated first degree murder for an offense committed when the person is at least sixteen years old but less than eighteen years old shall be sentenced to a maximum term of life imprisonment and a minimum term of total confinement of no less than twenty-five years. A minimum term of life may be imposed, in which case the person will be ineligible for parole or early release.

     (b) In setting a minimum term, the court must take into account mitigating factors that account for the diminished culpability of youth as provided in Miller v. Alabama, 132 S.Ct. 2455 (2012) including, but not limited to, the age of the individual, the youth's childhood and life experience, the degree of responsibility the youth was capable of exercising, and the youth's chances of becoming rehabilitated.

     (c) A person sentenced under this subsection shall serve the sentence in a facility or institution operated, or utilized under contract, by the state. During the minimum term of total confinement, the person shall not be eligible for community custody, earned release time, furlough, home detention, partial confinement, work crew, work release, or any other form of early release authorized under RCW 9.94A.728, or any other form of authorized leave or absence from the correctional facility while not in the direct custody of a corrections officer. The provisions of this subsection shall not apply: (i) In the case of an offender in need of emergency medical treatment; or (ii) for an extraordinary medical placement when authorized under RCW 9.94A.728(3).

     (d) Any person sentenced pursuant to this subsection shall be subject to community custody under the supervision of the department of corrections and the authority of the indeterminate sentence review board. As part of any sentence under this subsection, the court shall require the person to comply with any conditions imposed by the board.

     (e) No later than five years prior to the expiration of the person's minimum term, the department of corrections shall conduct an assessment of the offender and identify programming and services that would be appropriate to prepare the offender for return to the community. To the extent possible, the department shall make programming available as identified by the assessment.

     (f) No later than one hundred eighty days prior to the expiration of the person's minimum term, the department of corrections shall conduct, and the offender shall participate in, an examination of the person, incorporating methodologies that are recognized by experts in the prediction of dangerousness, and including a prediction of the probability that the person will engage in future criminal behavior if released on conditions to be set by the board. The board may consider a person's failure to participate in an evaluation under this subsection in determining whether to release the person. The board shall order the person released, under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the person will commit new criminal law violations if released. If the board does not order the person released, the board shall set a new minimum term not to exceed five additional years. The board shall give public safety considerations the highest priority when making all discretionary decisions regarding the ability for release and conditions of release.

     (g) In a hearing conducted under (f) of this subsection, the board shall provide opportunities for victims and survivors of victims of any crimes for which the offender has been convicted to present statements as set forth in RCW 7.69.032. The procedures for victim and survivor of victim input shall be developed by rule. To facilitate victim and survivor of victim involvement, county prosecutor's offices shall ensure that any victim impact statements and known contact information for victims of record and survivors of victims are forwarded as part of the judgment and sentence.

     (h) An offender released by the board is subject to the supervision of the department of corrections for a period of time to be determined by the board. The department shall monitor the offender's compliance with conditions of community custody imposed by the court, department, or board, and promptly report any violations to the board. Any violation of conditions of community custody established or modified by the board are subject to the provisions of RCW 9.95.425 through 9.95.440.

[2014 c 130 § 9; 2010 c 94 § 3; 1993 c 479 § 1; 1981 c 138 § 3.]

Notes:

     Application -- Effective date -- 2014 c 130: See notes following RCW 9.94A.510.

     Purpose -- 2010 c 94: See note following RCW 44.04.280.




10.95.035
Return of persons to sentencing court if sentenced prior to June 1, 2014, for a term of life without the possibility of parole for an offense committed prior to eighteenth birthday.

(1) A person, who was sentenced prior to June 1, 2014, to a term of life without the possibility of parole for an offense committed prior to their eighteenth birthday, shall be returned to the sentencing court or the sentencing court's successor for sentencing consistent with RCW 10.95.030. Release and supervision of a person who receives a minimum term of less than life will be governed by RCW 10.95.030.

     (2) The court shall provide an opportunity for victims and survivors of victims of any crimes for which the offender has been convicted to present a statement personally or by representation.

     (3) The court's order setting a minimum term is subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986.

     (4) A resentencing under this section shall not reopen the defendant's conviction to challenges that would otherwise be barred by RCW 10.73.090, 10.73.100, 10.73.140, or other procedural barriers.

[2014 c 130 § 11.]

Notes:

     Effective date -- 2014 c 130: See note following RCW 9.94A.510.




10.95.040
Special sentencing proceeding — Notice — Filing — Service.

(1) If a person is charged with aggravated first degree murder as defined by RCW 10.95.020, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency.

     (2) The notice of special sentencing proceeding shall be filed and served on the defendant or the defendant's attorney within thirty days after the defendant's arraignment upon the charge of aggravated first degree murder unless the court, for good cause shown, extends or reopens the period for filing and service of the notice. Except with the consent of the prosecuting attorney, during the period in which the prosecuting attorney may file the notice of special sentencing proceeding, the defendant may not tender a plea of guilty to the charge of aggravated first degree murder nor may the court accept a plea of guilty to the charge of aggravated first degree murder or any lesser included offense.

     (3) If a notice of special sentencing proceeding is not filed and served as provided in this section, the prosecuting attorney may not request the death penalty.

[1981 c 138 § 4.]




10.95.050
Special sentencing proceeding — When held — Jury to decide matters presented — Waiver — Reconvening same jury — Impanelling new jury — Peremptory challenges.

(1) If a defendant is adjudicated guilty of aggravated first degree murder, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, a special sentencing proceeding shall be held if a notice of special sentencing proceeding was filed and served as provided by RCW 10.95.040. No sort of plea, admission, or agreement may abrogate the requirement that a special sentencing proceeding be held.

     (2) A jury shall decide the matters presented in the special sentencing proceeding unless a jury is waived in the discretion of the court and with the consent of the defendant and the prosecuting attorney.

     (3) If the defendant's guilt was determined by a jury verdict, the trial court shall reconvene the same jury to hear the special sentencing proceeding. The proceeding shall commence as soon as practicable after completion of the trial at which the defendant's guilt was determined. If, however, unforeseen circumstances make it impracticable to reconvene the same jury to hear the special sentencing proceeding, the trial court may dismiss that jury and convene a jury pursuant to subsection (4) of this section.

     (4) If the defendant's guilt was determined by plea of guilty or by decision of the trial court sitting without a jury, or if a retrial of the special sentencing proceeding is necessary for any reason including but not limited to a mistrial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve persons plus whatever alternate jurors the trial court deems necessary. The defense and prosecution shall each be allowed to peremptorily challenge twelve jurors. If there is more than one defendant, each defendant shall be allowed an additional peremptory challenge and the prosecution shall be allowed a like number of additional challenges. If alternate jurors are selected, the defense and prosecution shall each be allowed one peremptory challenge for each alternate juror to be selected and if there is more than one defendant each defendant shall be allowed an additional peremptory challenge for each alternate juror to be selected and the prosecution shall be allowed a like number of additional challenges.

[1981 c 138 § 5.]




10.95.060
Special sentencing proceeding — Jury instructions — Opening statements — Evidence — Arguments — Question for jury.

(1) At the commencement of the special sentencing proceeding, the trial court shall instruct the jury as to the nature and purpose of the proceeding and as to the consequences of its decision, as provided in RCW 10.95.030.

     (2) At the special sentencing proceeding both the prosecution and defense shall be allowed to make an opening statement. The prosecution shall first present evidence and then the defense may present evidence. Rebuttal evidence may be presented by each side. Upon conclusion of the evidence, the court shall instruct the jury and then the prosecution and defense shall be permitted to present argument. The prosecution shall open and conclude the argument.

     (3) The court shall admit any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence, including hearsay evidence and evidence of the defendant's previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity. The defendant shall be accorded a fair opportunity to rebut or offer any hearsay evidence.

     In addition to evidence of whether or not there are sufficient mitigating circumstances to merit leniency, if the jury sitting in the special sentencing proceeding has not heard evidence of the aggravated first degree murder of which the defendant stands convicted, both the defense and prosecution may introduce evidence concerning the facts and circumstances of the murder.

     (4) Upon conclusion of the evidence and argument at the special sentencing proceeding, the jury shall retire to deliberate upon the following question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?"

     In order to return an affirmative answer to the question posed by this subsection, the jury must so find unanimously.

[1981 c 138 § 6.]




10.95.070
Special sentencing proceeding — Factors which jury may consider in deciding whether leniency merited.

In deciding the question posed by RCW 10.95.060(4), the jury, or the court if a jury is waived, may consider any relevant factors, including but not limited to the following:

     (1) Whether the defendant has or does not have a significant history, either as a juvenile or an adult, of prior criminal activity;

     (2) Whether the murder was committed while the defendant was under the influence of extreme mental disturbance;

     (3) Whether the victim consented to the act of murder;

     (4) Whether the defendant was an accomplice to a murder committed by another person where the defendant's participation in the murder was relatively minor;

     (5) Whether the defendant acted under duress or domination of another person;

     (6) Whether, at the time of the murder, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired as a result of mental disease or defect. However, a person found to have an intellectual disability under RCW 10.95.030(2) may in no case be sentenced to death;

     (7) Whether the age of the defendant at the time of the crime calls for leniency; and

     (8) Whether there is a likelihood that the defendant will pose a danger to others in the future.

[2010 c 94 § 4; 1993 c 479 § 2; 1981 c 138 § 7.]

Notes:

     Purpose -- 2010 c 94: See note following RCW 44.04.280.




10.95.080
When sentence to death or sentence to life imprisonment shall be imposed.

(1) If a jury answers affirmatively the question posed by RCW 10.95.060(4), or when a jury is waived as allowed by RCW 10.95.050(2) and the trial court answers affirmatively the question posed by RCW 10.95.060(4), the defendant shall be sentenced to death. The trial court may not suspend or defer the execution or imposition of the sentence.

     (2) If the jury does not return an affirmative answer to the question posed in RCW 10.95.060(4), the defendant shall be sentenced to life imprisonment as provided in RCW 10.95.030(1).

[1981 c 138 § 8.]




10.95.090
Sentence if death sentence commuted, held invalid, or if death sentence established by chapter held invalid.

If any sentence of death imposed pursuant to this chapter is commuted by the governor, or held to be invalid by a final judgment of a court after all avenues of appeal have been exhausted by the parties to the action, or if the death penalty established by this chapter is held to be invalid by a final judgment of a court which is binding on all courts in the state, the sentence for aggravated first degree murder if there was an affirmative response to the question posed by RCW 10.95.060(4) shall be life imprisonment as provided in RCW 10.95.030(1).

[1981 c 138 § 9.]




10.95.100
Mandatory review of death sentence by supreme court — Notice — Transmittal — Contents of notice — Jurisdiction.

Whenever a defendant is sentenced to death, upon entry of the judgment and sentence in the trial court the sentence shall be reviewed on the record by the supreme court of Washington.

     Within ten days of the entry of a judgment and sentence imposing the death penalty, the clerk of the trial court shall transmit notice thereof to the clerk of the supreme court of Washington and to the parties. The notice shall include the caption of the case, its cause number, the defendant's name, the crime or crimes of which the defendant was convicted, the sentence imposed, the date of entry of judgment and sentence, and the names and addresses of the attorneys for the parties. The notice shall vest with the supreme court of Washington the jurisdiction to review the sentence of death as provided by this chapter. The failure of the clerk of the trial court to transmit the notice as required shall not prevent the supreme court of Washington from conducting the sentence review as provided by chapter 138, Laws of 1981.

[1981 c 138 § 10.]




10.95.110
Verbatim report of trial proceedings — Preparation — Transmittal to supreme court — Clerk's papers — Receipt.

(1) Within ten days after the entry of a judgment and sentence imposing the death penalty, the clerk of the trial court shall cause the preparation of a verbatim report of the trial proceedings to be commenced.

     (2) Within five days of the filing and approval of the verbatim report of proceedings, the clerk of the trial court shall transmit such verbatim report of proceedings together with copies of all of the clerk's papers to the clerk of the supreme court of Washington. The clerk of the supreme court of Washington shall forthwith acknowledge receipt of these documents by providing notice of receipt to the clerk of the trial court, the defendant or his or her attorney, and the prosecuting attorney.

[1981 c 138 § 11.]




10.95.120
Information report — Form — Contents — Submission to supreme court, defendant, prosecuting attorney.

In all cases in which a person is convicted of aggravated first degree murder, the trial court shall, within thirty days after the entry of the judgment and sentence, submit a report to the clerk of the supreme court of Washington, to the defendant or his or her attorney, and to the prosecuting attorney which provides the information specified under subsections (1) through (8) of this section. The report shall be in the form of a standard questionnaire prepared and supplied by the supreme court of Washington and shall include the following:

     (1) Information about the defendant, including the following:

     (a) Name, date of birth, gender, marital status, and race and/or ethnic origin;

     (b) Number and ages of children;

     (c) Whether his or her parents are living, and date of death where applicable;

     (d) Number of children born to his or her parents;

     (e) The defendant's educational background, intelligence level, and intelligence quotient;

     (f) Whether a psychiatric evaluation was performed, and if so, whether it indicated that the defendant was:

     (i) Able to distinguish right from wrong;

     (ii) Able to perceive the nature and quality of his or her act; and

     (iii) Able to cooperate intelligently with his or her defense;

     (g) Any character or behavior disorders found or other pertinent psychiatric or psychological information;

     (h) The work record of the defendant;

     (i) A list of the defendant's prior convictions including the offense, date, and sentence imposed; and

     (j) The length of time the defendant has resided in Washington and the county in which he or she was convicted.

     (2) Information about the trial, including:

     (a) The defendant's plea;

     (b) Whether defendant was represented by counsel;

     (c) Whether there was evidence introduced or instructions given as to defenses to aggravated first degree murder, including excusable homicide, justifiable homicide, insanity, duress, entrapment, alibi, intoxication, or other specific defense;

     (d) Any other offenses charged against the defendant and tried at the same trial and whether they resulted in conviction;

     (e) What aggravating circumstances were alleged against the defendant and which of these circumstances was found to have been applicable; and

     (f) Names and charges filed against other defendant(s) if tried jointly and disposition of the charges.

     (3) Information concerning the special sentencing proceeding, including:

     (a) The date the defendant was convicted and date the special sentencing proceeding commenced;

     (b) Whether the jury for the special sentencing proceeding was the same jury that returned the guilty verdict, providing an explanation if it was not;

     (c) Whether there was evidence of mitigating circumstances;

     (d) Whether there was, in the court's opinion, credible evidence of the mitigating circumstances as provided in RCW
10.95.070;

     (e) The jury's answer to the question posed in RCW 10.95.060(4);

     (f) The sentence imposed.

     (4) Information about the victim, including:

     (a) Whether he or she was related to the defendant by blood or marriage;

     (b) The victim's occupation and whether he or she was an employer or employee of the defendant;

     (c) Whether the victim was acquainted with the defendant, and if so, how well;

     (d) The length of time the victim resided in Washington and the county;

     (e) Whether the victim was the same race and/or ethnic origin as the defendant;

     (f) Whether the victim was the same sex as the defendant;

     (g) Whether the victim was held hostage during the crime and if so, how long;

     (h) The nature and extent of any physical harm or torture inflicted upon the victim prior to death;

     (i) The victim's age; and

     (j) The type of weapon used in the crime, if any.

     (5) Information about the representation of the defendant, including:

     (a) Date counsel secured;

     (b) Whether counsel was retained or appointed, including the reason for appointment;

     (c) The length of time counsel has practiced law and nature of his or her practice; and

     (d) Whether the same counsel served at both the trial and special sentencing proceeding, and if not, why not.

     (6) General considerations, including:

     (a) Whether the race and/or ethnic origin of the defendant, victim, or any witness was an apparent factor at trial;

     (b) What percentage of the county population is the same race and/or ethnic origin of the defendant;

     (c) Whether members of the defendant's or victim's race and/or ethnic origin were represented on the jury;

     (d) Whether there was evidence that such members were systematically excluded from the jury;

     (e) Whether the sexual orientation of the defendant, victim, or any witness was a factor in the trial;

     (f) Whether any specific instruction was given to the jury to exclude race, ethnic origin, or sexual orientation as an issue;

     (g) Whether there was extensive publicity concerning the case in the community;

     (h) Whether the jury was instructed to disregard such publicity;

     (i) Whether the jury was instructed to avoid any influence of passion, prejudice, or any other arbitrary factor when considering its verdict or its findings in the special sentencing proceeding;

     (j) The nature of the evidence resulting in such instruction; and

     (k) General comments of the trial judge concerning the appropriateness of the sentence considering the crime, defendant, and other relevant factors.

     (7) Information about the chronology of the case, including the date that:

     (a) The defendant was arrested;

     (b) Trial began;

     (c) The verdict was returned;

     (d) Post-trial motions were ruled on;

     (e) Special sentencing proceeding began;

     (f) Sentence was imposed;

     (g) Trial judge's report was completed; and

     (h) Trial judge's report was filed.

     (8) The trial judge shall sign and date the questionnaire when it is completed.

[1981 c 138 § 12.]




10.95.130
Questions posed for determination by supreme court in death sentence review — Review in addition to appeal — Consolidation of review and appeal.

(1) The sentence review required by RCW 10.95.100 shall be in addition to any appeal. The sentence review and an appeal shall be consolidated for consideration. The defendant and the prosecuting attorney may submit briefs within the time prescribed by the court and present oral argument to the court.

     (2) With regard to the sentence review required by chapter 138, Laws of 1981, the supreme court of Washington shall determine:

     (a) Whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4); and

     (b) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For the purposes of this subsection, "similar cases" means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120;

     (c) Whether the sentence of death was brought about through passion or prejudice; and

     (d) Whether the defendant had an intellectual disability within the meaning of RCW 10.95.030(2).

[2010 c 94 § 5; 1993 c 479 § 3; 1981 c 138 § 13.]

Notes:

     Purpose -- 2010 c 94: See note following RCW 44.04.280.




10.95.140
Invalidation of sentence, remand for resentencing — Affirmation of sentence, remand for execution.

Upon completion of a sentence review:

     (1) The supreme court of Washington shall invalidate the sentence of death and remand the case to the trial court for resentencing in accordance with RCW
10.95.090 if:

     (a) The court makes a negative determination as to the question posed by RCW 10.95.130(2)(a); or

     (b) The court makes an affirmative determination as to any of the questions posed by RCW 10.95.130(2) (b), (c), or (d).

     (2) The court shall affirm the sentence of death and remand the case to the trial court for execution in accordance with RCW 10.95.160 if:

     (a) The court makes an affirmative determination as to the question posed by RCW 10.95.130(2)(a); and

     (b) The court makes a negative determination as to the questions posed by RCW 10.95.130(2) (b), (c), and (d).

[1993 c 479 § 4; 1981 c 138 § 14.]




10.95.150
Time limit for appellate review of death sentence and filing opinion.

In all cases in which a sentence of death has been imposed, the appellate review, if any, and sentence review to or by the supreme court of Washington shall be decided and an opinion on the merits shall be filed within one year of receipt by the clerk of the supreme court of Washington of the verbatim report of proceedings and clerk's papers filed under RCW 10.95.110. If this time requirement is not met, the chief justice of the supreme court of Washington shall state on the record the extraordinary and compelling circumstances causing the delay and the facts supporting such circumstances. A failure to comply with the time requirements of this subsection shall in no way preclude the ultimate execution of a sentence of death.

[1988 c 202 § 17; 1981 c 138 § 15.]

Notes:

     Severability -- 1988 c 202: See note following RCW 2.24.050.




10.95.160
Death warrant — Issuance — Form — Time for execution of judgment and sentence.

(1) If a death sentence is affirmed and the case remanded to the trial court as provided in RCW 10.95.140(2), a death warrant shall forthwith be issued by the clerk of the trial court, which shall be signed by a judge of the trial court and attested by the clerk thereof under the seal of the court. The warrant shall be directed to the superintendent of the state penitentiary and shall state the conviction of the person named therein and the judgment and sentence of the court, and shall appoint a day on which the judgment and sentence of the court shall be executed by the superintendent, which day shall not be less than thirty nor more than ninety days from the date the trial court receives the remand from the supreme court of Washington.

     (2) If the date set for execution under subsection (1) of this section is stayed by a court of competent jurisdiction for any reason, the new execution date is automatically set at thirty judicial days after the entry of an order of termination or vacation of the stay by such court unless the court invalidates the conviction, sentence, or remands for further judicial proceedings. The presence of the inmate under sentence of death shall not be required for the court to vacate or terminate the stay according to this section.

[1990 c 263 § 1; 1981 c 138 § 16.]




10.95.170
Imprisonment of defendant.

The defendant shall be imprisoned in the state penitentiary within ten days after the trial court enters a judgment and sentence imposing the death penalty and shall be imprisoned both prior to and subsequent to the issuance of the death warrant as provided in RCW 10.95.160. During such period of imprisonment, the defendant shall be confined in the segregation unit, where the defendant may be confined with other prisoners not under sentence of death, but prisoners under sentence of death shall be assigned to single-person cells.

[1983 c 255 § 1; 1981 c 138 § 17.]

Notes:

     Severability -- 1983 c 255: See RCW 72.74.900.

Convicted female persons, commitment and procedure as to death sentences: RCW 72.02.250.




10.95.180
Death penalty — How executed.

(1) The punishment of death shall be supervised by the superintendent of the penitentiary and shall be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until the defendant is dead, or, at the election of the defendant, by hanging by the neck until the defendant is dead. In any case, death shall be pronounced by a licensed physician.

     (2) All executions, for both men and women, shall be carried out within the walls of the state penitentiary.

[1996 c 251 § 1; 1986 c 194 § 1; 1981 c 138 § 18.]

Notes:

     Severability -- 1996 c 251: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1996 c 251 § 2.]




10.95.185
Witnesses.

(1) Not less than twenty days prior to a scheduled execution, judicial officers, law enforcement representatives, media representatives, representatives of the families of the victims, and representatives from the family of the defendant who wish to attend and witness the execution, must submit an application to the superintendent. Such application must designate the relationship and reason for wishing to attend.

     (2) Not less than fifteen days prior to the scheduled execution, the superintendent shall designate the total number of individuals who will be allowed to attend and witness the planned execution. The superintendent shall determine the number of witnesses that will be allowed in each of the following categories:

     (a) No less than five media representatives with consideration to be given to news organizations serving communities affected by the crimes or by the commission of the execution of the defendant.

     (b) Judicial officers.

     (c) Representatives of the families of the victims.

     (d) Representatives from the family of the defendant.

     (e) Up to two law enforcement representatives. The chief executive officer of the agency that investigated the crime shall designate the law enforcement representatives.

     After the list is composed, the superintendent shall serve this list on all parties who have submitted an application pursuant to this section. The superintendent shall develop and implement procedures to determine the persons within each of the categories listed in this subsection who will be allowed to attend and witness the execution.

     (3) Not less than ten days prior to the scheduled execution, the superintendent shall file the witness list with the superior court from which the conviction and death warrant was issued with a petition asking that the court enter an order certifying this list as a final order identifying the witnesses to attend the execution. The final order of the court certifying the witness list shall not be entered less than five days after the filing of the petition.

     (4) Unless a show cause petition is filed with the superior court from which the conviction and death warrant was issued within five days of the filing of the superintendent's petition, the superintendent's list, by order of the superior court, becomes final, and no other party has standing to challenge its appropriateness.

     (5) In no case may the superintendent or the superior court order or allow more than seventeen individuals other than required staff to witness a planned execution.

     (6) All witnesses must adhere to the search and security provisions of the department of corrections' policy regarding the witnessing of an execution.

     (7) The superior court from which the conviction and death warrant was issued is the exclusive court for seeking judicial process for the privilege of attending and witnessing an execution.

     (8) For purposes of this section:

     (a) "Judicial officer" means: (i) The superior court judge who signed the death warrant issued pursuant to RCW
10.95.160 for the execution of the individual, (ii) the current prosecuting attorney or a deputy prosecuting attorney of the county from which the final judgment and sentence and death warrant were issued, and (iii) the most recent attorney of record representing the individual sentenced to death.

     (b) "Law enforcement representatives" means those law enforcement officers responsible for investigating the crime for which the defendant was sentenced to death.

     (c) "Media representatives" means representatives from news organizations of all forms of media serving the state.

     (d) "Representatives of the families of the victims" means representatives from the immediate families of the victim(s) of the individual sentenced to death, including victim advocates of the immediate family members. Victim advocates shall include any person working or volunteering for a recognized victim advocacy group or a prosecutor-based or law enforcement-based agency on behalf of victims or witnesses.

     (e) "Representative from the family of the defendant" means a representative from the immediate family of the individual sentenced to death.

     (f) "Superintendent" means the superintendent of the Washington state penitentiary.

[1999 c 332 § 1; 1993 c 463 § 2.]

Notes:

     Policy -- 1993 c 463: "The legislature declares that, to the extent that the attendance of witnesses can be accommodated without compromising the security or the orderly operation of the Washington state penitentiary, it is the policy of the state of Washington to provide authorized individuals the opportunity to attend and witness the execution of an individual sentenced to death pursuant to chapter 10.95 RCW. Further, it is the policy of the state of Washington to provide for access to the execution to credentialed members of the media." [1993 c 463 § 1.]

     Severability -- 1993 c 463: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1993 c 463 § 3.]




10.95.190
Death warrant — Record — Return to trial court.

(1) The superintendent of the state penitentiary shall keep in his or her office as part of the public records a book in which shall be kept a copy of each death warrant together with a complete statement of the superintendent's acts pursuant to such warrants.

     (2) Within twenty days after each execution of a sentence of death, the superintendent of the state penitentiary shall return the death warrant to the clerk of the trial court from which it was issued with the superintendent's return thereon showing all acts and proceedings done by him or her thereunder.

[1981 c 138 § 19.]




10.95.200
Proceedings for failure to execute on day named.

Whenever the day appointed for the execution of a defendant shall have passed, from any cause, other than the issuance of a stay by a court of competent jurisdiction, without the execution of such defendant having occurred, the trial court which issued the original death warrant shall issue a new death warrant in accordance with RCW 10.95.160. The defendant's presence before the court is not required. However, nothing in this section shall be construed as restricting the defendant's right to be represented by counsel in connection with issuance of a new death warrant.

[1990 c 263 § 2; 1987 c 286 § 1; 1981 c 138 § 20.]




10.95.900
Severability — 1981 c 138.

If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

[1981 c 138 § 22.]




10.95.901
Construction — Chapter applicable to state registered domestic partnerships — 2009 c 521.

For the purposes of this chapter, the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family shall be interpreted as applying equally to state registered domestic partnerships or individuals in state registered domestic partnerships as well as to marital relationships and married persons, and references to dissolution of marriage shall apply equally to state registered domestic partnerships that have been terminated, dissolved, or invalidated, to the extent that such interpretation does not conflict with federal law. Where necessary to implement chapter 521, Laws of 2009, gender-specific terms such as husband and wife used in any statute, rule, or other law shall be construed to be gender neutral, and applicable to individuals in state registered domestic partnerships.

[2009 c 521 § 28.]