2019 Senate Bill 71 - Printed

State of South Dakota  
NINETY-FOURTH SESSION
LEGISLATIVE ASSEMBLY, 2019  

283B0439   SENATE BILL   NO.  71  

Introduced by:    Senators Rusch, Blare, Cronin, Ewing, Foster, Heinert, Kennedy, Nesiba, Partridge, Schoenbeck, Smith (VJ), Soholt, Solano, Steinhauer, and Wismer and Representatives Johns, Barthel, Beal, Bordeaux, Brunner, Chase, Cwach, Deutsch, Duba, Duvall, Glanzer, Hansen, Healy, Johnson (David), Lake, Lesmeister, Marty, McCleerey, Mills, Mulally, Otten (Herman), Peterson (Kent), Pischke, Pourier, Randolph, Reed, Ring, Saba, Schoenfish, Smith (Jamie), Sullivan, Wiese, Willadsen, York, and Zikmund
 

        FOR AN ACT ENTITLED, An Act to prohibit capital punishment of any person with severe mental illness.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. That § 23A-27A-26.1 be amended to read:
    23A-27A-26.1. Notwithstanding any other provision of law, the death penalty may not be imposed upon any person who was intellectually disabled at the time of the commission of the offense and whose intellectual disability was manifested and documented before the age of eighteen years; or upon any person who was severely mentally ill at the time of the commission of the offense and whose severe mental illness was manifested and documented prior to the commission of the offense.
    Section 2. That § 23A-27A-26.2 be amended to read:
    23A-27A-26.2. As used in §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive, intellectual:
            (1)    Intellectual disability means significant subaverage general intellectual functioning existing concurrently with substantial related deficits in applicable adaptive skill areas. An intelligence quotient exceeding seventy on a reliable standardized measure of intelligence is presumptive evidence that the defendant does not have significant subaverage general intellectual functioning; and
            (2)    Severe mental illness means substantial organic or psychiatric disorder of thought, mood, perception, orientation, or memory which significantly impairs judgment, behavior, or ability to cope with the basic demands of life. Epilepsy, other forms of developmental disability, alcohol or substance abuse, brief periods of intoxication, or criminal behavior do not, alone, constitute severe mental illness for purposes of this subdivision.
    Section 3. That § 23A-27A-26.3 be amended to read:
    23A-27A-26.3. Not later than ninety days before the commencement of trial, the a defendant may, upon a motion alleging reasonable cause to believe the defendant was intellectually disabled or severely mental ill at the time of the commission of the offense, apply for an order directing that an intellectual disability or severe mental illness hearing be conducted before trial. If, upon review of the defendant's motion and any response to the defendant's motion, the court finds reasonable cause to believe the defendant was intellectually disabled or severely mentally ill, the court shall promptly conduct a hearing without a jury to determine whether the defendant was intellectually disabled or severely mentally ill.
    If the court finds after the hearing that the defendant was not intellectually disabled or severely mentally ill at the time of the commission of the offense, the court shall, before commencement of trial, enter an order stating the court's finding. Nothing in this paragraph section precludes the defendant from presenting mitigating evidence of an intellectual disability

or severe mental illness at the sentencing phase of the trial. If the court finds after the hearing that the defendant established an intellectual disability or a severe mental illness by a preponderance of the evidence, the court shall, before commencement of trial, enter an order stating the court's finding.

    Unless the court's order is reversed on appeal, a separate sentencing proceeding under this section may not be conducted if the defendant is thereafter convicted of murder in the first degree after entry of the court's order. If a separate sentencing proceeding is not conducted, the court, upon conviction of a defendant for the crime of murder in the first degree, shall sentence the defendant to life imprisonment.
    Section 4. That § 23A-27A-26.4 be amended to read:
    23A-27A-26.4. If the a court enters an order pursuant to in accordance with § 23A-27A-26.3 finding that the defendant was intellectually disabled or severely mentally ill at the time of the commission of the offense, the state may appeal as of right from the order. Upon entering such an the order, the court shall afford allow the state a reasonable period of time, which may not be less than ten days, to determine whether to take an appeal from the order finding that the defendant was intellectually disabled. The taking of an. An appeal by the state under this section stays the effectiveness of the court's order and any order fixing setting a date for trial.
    Section 5. That § 23A-27A-26.5 be amended to read:
    23A-27A-26.5. If a defendant serves notice pursuant to files a motion under § 23A-27A-26.3, the state may make application, upon notice to the defendant, for an order directing that the defendant submit to an examination by a psychiatrist, licensed psychologist, or licensed psychiatric social worker designated by the state's attorney, for the purpose of rebutting any evidence offered by the defendant. Counsel for the state and the defendant have the right to may be present at the examination. A videotaped recording of the examination shall be made

available to the defendant and the state's attorney promptly after its conclusion. The state's attorney shall promptly serve on the defendant a written copy of the findings and evaluation of the examiner. If a defendant is subjected to an examination pursuant to an order issued in accordance with this section, any

    Any statement made by the defendant for the purpose of the during an examination under this section is inadmissible in admissible as evidence against the defendant in any criminal action or proceeding on every issue other than that of only as to whether the defendant was intellectually disabled or severely mentally ill at the time of the commission of the offense, but such statement is admissible upon such an issue or as to whether or not it the statement would otherwise be deemed a privileged communication.
    Section 6. That § 23A-27A-26.6 be amended to read:
    23A-27A-26.6. The For any claim of intellectual disability, the provisions of §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive, apply only to offenses any offense alleged to have been committed by the defendant after July 1, 2000, and for any claim of severe mental illness, only to any offense alleged to have been committed by the defendant after July 1, 2019.

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