75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1665
House Bill 2670
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Creates procedure for defendant convicted of aggravated murder
to assert that defendant is person with mental retardation and
may not be sentenced to death.
A BILL FOR AN ACT
Relating to the death penalty; creating new provisions; and
amending ORS 137.463, 138.012, 138.530 and 163.150.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) A person with mental retardation is not
eligible for the death penalty.
(2) A defendant who intends to assert that the defendant is not
eligible for the death penalty because the defendant is a person
with mental retardation shall file notice with the court of that
intention at least 90 days before trial, or if the defendant has
pleaded guilty, at least 90 days before the sentencing proceeding
described in ORS 163.150, unless the court allows a later filing
date for good cause. The notice shall include a designation of
whether the defendant intends to introduce any evidence as
mitigation under ORS 163.150 (1)(c)(D) that will also be used for
the purpose of determining whether the defendant is eligible for
the death penalty under this section. Upon the filing of the
notice:
(a) The state has the right to obtain an independent medical,
psychiatric or psychological examination of the defendant; and
(b) The defendant waives any claim of confidentiality or
privilege applicable to medical, psychiatric, psychological,
correctional, educational, employment, military or other records
that are relevant to the determination of whether the defendant
is a person with mental retardation and that were in existence on
the date of the offense is alleged to have been committed. The
waiver described in this paragraph applies only to a sentencing
proceeding conducted under ORS 163.150, a death warrant hearing
described in ORS 137.463, a post-conviction relief hearing
conducted under ORS 138.510 to 135.680 and any hearing on an
application for a writ of habeas corpus.
(3)(a) A medical, psychiatric or psychological examination of
the defendant under this section that is conducted by a person
who will testify on the issue of mental retardation must be
recorded. The recording must contain both audio and video.
Unless disclosure is necessary to conduct a proper examination,
the person conducting the examination and any person to whom
disclosure is necessary to conduct a proper examination may not
disclose any information obtained in connection with the
examination to any person other than the defendant or the
defendant's attorney.
(b) Upon the completion of the state's examination of the
defendant, the person conducting the examination shall prepare a
report that describes the conclusions reached by the person and
the basis for those conclusions. The report and the recording
described in paragraph (a) of this subsection shall be provided
to the defense and filed with the court. The court shall seal the
materials.
(c) No more than 24 hours following the conviction of the
defendant, the court shall determine whether the defendant
intends to introduce expert testimony on the issue of whether the
defendant is eligible for the death penalty under this section.
If the defendant:
(A) Elects not to present expert testimony, except as provided
in paragraph (d) of this subsection, the materials described in
paragraph (b) of this subsection shall remain sealed, the court
shall order a permanent prohibition on the disclosure of
information described in paragraph (a) of this subsection and the
state shall be barred from using the materials or information
obtained in connection with the examination against the
defendant.
(B) Elects to present expert testimony, the court shall provide
the materials described in paragraph (b) of this subsection to
the state and shall order an end to the prohibition on disclosure
described in paragraph (a) of this subsection. The state may use
the materials and any information obtained in connection with the
examination solely to rebut expert testimony offered by the
defendant to prove that the defendant is a person with mental
retardation.
(d) If the defendant places the defendant's mental state in
issue in any subsequent proceeding related to the offense for
which the defendant was convicted, the court shall disclose any
relevant portions of the materials described in paragraph (b) of
this subsection and authorize the disclosure of relevant
information described in paragraph (a) of this subsection.
(e) Except as provided in paragraphs (b) to (d) of this
subsection, the provisions of ORS 135.805 to 135.873 apply to
material and information pertaining to the issue of mental
retardation. The obligations to disclose imposed by this
paragraph shall be performed as soon as practicable following the
filing of the notice described in subsection (2) of this section.
(4) As used in this section:
(a) 'Classes of adaptive functioning' means the following skill
areas:
(A) Communication.
(B) Self-care.
(C) Home living.
(D) Social and interpersonal.
(E) Use of community resources.
(F) Self-direction.
(G) Functional academic.
(H) Work.
(I) Leisure activities.
(J) Health.
(K) Safety.
(b) 'Mental retardation' means significantly subaverage
intellectual functioning existing concurrently with substantial
impairment in at least two classes of adaptive functioning, that:
(A) Originates before a person reaches 18 years of age; or
(B) Was caused by dementia or a traumatic brain injury and was
in existence at the time the offense was alleged to have been
committed.
(c) 'Significantly subaverage intellectual functioning ' means
an intelligence quotient that is at least two standard deviations
below the mean on a standardized intelligence test. + }
SECTION 2. ORS 163.150 is amended to read:
163.150. (1)(a) Upon a finding that the defendant is guilty of
aggravated murder, the court, except as otherwise provided in
subsection (3) of this section, shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to life imprisonment, as described in ORS 163.105
(1)(c), life imprisonment without the possibility of release or
parole, as described in ORS 163.105 (1)(b), or death. The
proceeding shall be conducted in the trial court before the trial
jury as soon as practicable. If a juror for any reason is unable
to perform the function of a juror, the juror shall be dismissed
from the sentencing proceeding. The court shall cause to be drawn
the name of one of the alternate jurors, who shall then become a
member of the jury for the sentencing proceeding notwithstanding
the fact that the alternate juror did not deliberate on the issue
of guilt. The substitution of an alternate juror shall be allowed
only if the jury has not begun to deliberate on the issue of the
sentence. If the defendant has pleaded guilty, the sentencing
proceeding shall be conducted before a jury impaneled for that
purpose. In the proceeding, evidence may be presented as to any
matter that the court deems relevant to sentence including, but
not limited to, victim impact evidence relating to the personal
characteristics of the victim or the impact of the crime on the
victim's family and any aggravating or mitigating evidence
relevant to the issue in paragraph { - (b)(D) - } { +
(b)(E) + } of this subsection { - ; - } { + . If the defendant
has filed the notice described in section 1 of this 2009 Act,
evidence relevant to whether the defendant is a person with
mental retardation shall be admitted in accordance with paragraph
(b) of this subsection. + } { - However, - } Neither the state
nor the defendant shall be allowed to introduce
{ - repetitive - } evidence that has previously been offered
and received during the trial on the issue of guilt. The court
shall instruct the jury that all evidence previously offered and
received may be considered for purposes of the sentencing
{ - hearing - } { + proceeding + }. This paragraph shall not
be construed to authorize the introduction of any evidence
secured in violation of the Constitution of the United States or
of the State of Oregon. The state and the defendant or the
counsel of the defendant shall be permitted to present arguments
for or against a sentence of death and for or against a sentence
of life imprisonment with or without the possibility of release
or parole.
{ + (b) If a defendant files the notice described in section
1 of this 2009 Act and the notice indicates that the defendant:
(A) Does not intend to introduce any evidence as mitigation
under paragraph (c)(D) of this subsection that will also be used
for the purposes of determining whether the defendant is eligible
for the death penalty under section 1 of this 2009 Act, the court
shall conduct a hearing prior to the sentencing proceeding
described in this section. The defendant shall bear the burden of
proving that the defendant is not eligible for the death penalty
by a preponderance of the evidence. If the court finds that the
defendant:
(i) Is eligible for the death penalty under section 1 of this
2009 Act, the court shall conduct a sentencing proceeding in
accordance with this subsection and subsection (2) of this
section; or
(ii) Is not eligible for the death penalty, the court shall
conduct a sentencing proceeding in accordance with subsection (3)
of this section.
(B) Intends to introduce evidence as mitigation under paragraph
(c)(D) of this subsection that will also be used for the purposes
of determining whether the defendant is eligible for the death
penalty under section 1 of this 2009 Act, the court shall conduct
a sentencing proceeding in accordance with this subsection,
except that, upon the conclusion of the presentation of evidence,
the court shall determine whether the defendant is eligible for
the death penalty under section 1 of this 2009 Act. If the court
finds that the defendant:
(i) Is eligible for the death penalty under section 1 of this
2009 Act, the court shall submit the issues described in
paragraph (c) of this subsection to the jury and instruct the
jury in accordance with this subsection and subsection (2) of
this section; or
(ii) Is not eligible for the death penalty under section 1 of
this 2009 Act, the court shall instruct the jury in accordance
with subsection (3) of this section. + }
{ - (b) - } { + (c) + } Upon the conclusion of the
presentation of the evidence, the court shall submit the
following issues to the jury:
(A) Whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the
reasonable expectation that death of the deceased or another
would result;
(B) Whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society;
(C) If raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased; and
(D) Whether the defendant should receive a death sentence.
{ - (c)(A) - } { + (d)(A) + } The court shall instruct the
jury to consider, in determining the issues in paragraph
{ - (b) - } { + (c) + } of this subsection, any mitigating
circumstances offered in evidence, including but not limited to
the defendant's age, the extent and severity of the defendant's
prior criminal conduct and the extent of the mental and emotional
pressure under which the defendant was acting at the time the
offense was committed.
(B) The court shall instruct the jury to answer the question in
paragraph { - (b)(D) - } { + (c)(D) + } of this subsection
'no' if, after considering any aggravating evidence and any
mitigating evidence concerning any aspect of the defendant's
character or background, or any circumstances of the offense and
any victim impact evidence as described in paragraph (a) of this
subsection, one or more of the jurors believe that the defendant
should not receive a death sentence.
{ - (d) - } { + (e) + } The state must prove each issue
submitted under paragraph { - (b)(A) - } { + (c)(A) + } to
(C) of this subsection beyond a reasonable doubt, and the jury
shall return a special verdict of ' yes' or 'no' on each issue
considered.
{ - (e) - } { + (f) + } The court shall charge the jury
that it may not answer any issue 'yes,' under paragraph
{ - (b) - } { + (c) + } of this subsection unless it agrees
unanimously.
{ - (f) - } { + (g) + } If the jury returns an affirmative
finding on each issue considered under paragraph { - (b) - }
{ + (c) + } of this subsection, the trial judge shall sentence
the defendant to death.
(2)(a) Upon the conclusion of the presentation of the evidence,
the court shall { - also - } instruct the jury that if
{ - it - } { + the jury + } reaches a negative finding on any
issue under subsection
{ - (1)(b) - } { + (1)(c) + } of this section, the trial
court shall sentence the defendant to life imprisonment without
the possibility of release or parole, as described in ORS 163.105
(1)(b), unless 10 or more members of the jury further find that
there are sufficient mitigating circumstances to warrant life
imprisonment, in which case the trial court shall sentence the
defendant to life imprisonment as described in ORS 163.105
(1)(c).
(b) If the jury returns a negative finding on any issue under
subsection { - (1)(b) - } { + (1)(c) + } of this section and
further finds that there are sufficient mitigating circumstances
to warrant life imprisonment, the trial court shall sentence the
defendant to life imprisonment in the custody of the Department
of Corrections as provided in ORS 163.105 (1)(c).
(3)(a) When the defendant is found guilty of aggravated murder,
and ORS 137.707 (2) applies { + , the court finds under
subsection (1)(b) of this section that the defendant is not
eligible for the death penalty under section 1 of this 2009
Act + } or the state advises the court on the record that the
state declines to present evidence for purposes of sentencing the
defendant to death, the court:
(A) { - Shall - } { + May + } not conduct a sentencing
proceeding as described in subsection (1) of this section, and a
sentence of death { - shall - } { + may + } not be ordered.
(B) Shall conduct a sentencing proceeding to determine whether
the defendant shall be sentenced to life imprisonment without the
possibility of release or parole as described in ORS 163.105
(1)(b) or life imprisonment as described in ORS 163.105 (1)(c).
If the defendant waives all rights to a jury sentencing
proceeding, the court shall conduct the sentencing proceeding as
the trier of fact. The procedure for the sentencing proceeding,
whether before a court or a jury, shall follow the procedure of
subsection (1)(a) of this section, as modified by this
subsection. In the proceeding, evidence may be presented as to
any matter that the court deems relevant to sentence, including,
but not limited to, victim impact evidence relating to the
personal characteristics of the victim or the impact of the crime
on the victim's family.
(b) Following the presentation of evidence and argument under
paragraph (a) of this subsection, the court shall instruct the
jury that the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole as
described in ORS 163.105 (1)(b), unless after considering all of
the evidence submitted, 10 or more members of the jury find there
are sufficient mitigating circumstances to warrant life
imprisonment with the possibility of parole as described in ORS
163.105 (1)(c). If 10 or more members of the jury find there are
sufficient mitigating circumstances to warrant life imprisonment
with the possibility of parole, the trial court shall sentence
the defendant to life imprisonment as described in ORS 163.105
(1)(c).
(c) Nothing in this subsection { - shall preclude - } { +
precludes + } the court from sentencing the defendant to life
imprisonment, as described in ORS 163.105 (1)(c), or life
imprisonment without the possibility of release or parole, as
described in ORS 163.105 (1)(b), pursuant to a stipulation of
sentence or stipulation of sentencing facts agreed to and offered
by both parties if the defendant waives all rights to a jury
sentencing proceeding.
(4) If any part of subsection (2) of this section is held
invalid and as a result thereof a defendant who has been
sentenced to life imprisonment without possibility of release or
parole will instead be sentenced to life imprisonment in the
custody of the Department of Corrections as provided in ORS
163.105 { - (2) - } { + (1)(c) + }, the defendant shall be
confined for a minimum of 30 years without possibility of parole,
release on work release or any form of temporary leave or
employment at a forest or work camp. Subsection (2) of this
section { - shall apply - } { + applies + } only to trials
commencing on or after July 19, 1989.
(5) Notwithstanding subsection (1)(a) of this section, if the
trial court grants a mistrial during the sentencing proceeding,
the trial court, at the election of the state, shall either:
(a) Sentence the defendant to { + life + } imprisonment
{ - for life - } in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c); or
(b) Impanel a new sentencing jury for the purpose of conducting
a new sentencing proceeding to determine if the defendant should
be sentenced to:
(A) Death;
(B) { + Life + } imprisonment { - for life - } without the
possibility of release or parole as provided in ORS 163.105
(1)(b); or
(C) { + Life + } imprisonment { - for life - } in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c).
SECTION 3. ORS 137.463 is amended to read:
137.463. (1) When a sentence of death is pronounced, the clerk
of the court shall deliver a copy of the judgment of conviction
and sentence of death to the sheriff of the county. The sheriff
shall deliver the defendant within 20 days from the date the
judgment is entered to the correctional institution designated by
the Director of the Department of Corrections pending the
determination of the automatic and direct review by the Supreme
Court under ORS 138.012.
(2) If the Supreme Court affirms the sentence of death, a death
warrant hearing shall take place in the court in which the
judgment was rendered within 30 days after the effective date of
the appellate judgment or, upon motion of the state, on a later
date. The following apply to a death warrant hearing under this
subsection:
(a) The defendant must be present; and
(b) The defendant may be represented by counsel. If the
defendant was represented by appointed counsel on automatic and
direct review, that counsel's appointment continues for purposes
of the death warrant hearing and any related matters. If that
counsel is unavailable, the court shall appoint counsel pursuant
to the procedure in ORS 135.050 and 135.055.
(3)(a) If the defendant indicates the wish to waive the right
to counsel for the purpose of the death warrant hearing, the
court shall inquire of the defendant on the record to ensure that
the waiver is competent, knowing and voluntary.
(b) If the court finds that the waiver is competent, knowing
and voluntary, the court shall discharge counsel.
(c) If the court finds on the record that the waiver of the
right to counsel granted by this section is not competent,
knowing or voluntary, the court shall continue the appointment of
counsel.
(d) Notwithstanding the fact that the court finds on the record
that the defendant competently, knowingly and voluntarily waives
the right to counsel, the court may continue the appointment of
counsel as advisor only for the purposes of the death warrant
hearing.
(4) At the death warrant hearing, the court:
(a) After appropriate inquiry { + in accordance with
subsection (5) of this section + }, shall make { - findings - }
{ + a finding + } on the record whether { - the defendant
suffers from a mental condition that prevents the defendant from
comprehending the reasons for the death sentence or its
implication. The defendant has the burden of proving by a
preponderance of the evidence that the defendant suffers from a
mental condition that prevents the defendant from comprehending
the reasons for the death sentence or its implication. - }
{ + any condition or circumstance exists that would render the
execution of the defendant's sentence of death unconstitutionally
cruel and unusual. + }
(b) Shall advise the defendant that the defendant is entitled
to counsel in any post-conviction proceeding and that counsel
will be appointed if the defendant is financially eligible for
appointed counsel at state expense.
(c) Shall determine whether the defendant intends to pursue any
challenges to the sentence or conviction. If the defendant states
on the record that the defendant does not intend to challenge the
sentence or conviction, the court after advising the defendant of
the consequences shall make a finding on the record whether the
defendant competently, knowingly and voluntarily waives the right
to pursue:
(A) A petition for certiorari to the United States Supreme
Court;
(B) Post-conviction relief under ORS 138.510 to 138.680; and
(C) Federal habeas corpus review under 28 U.S.C. 2254.
{ + (5)(a) A defendant who intends to assert that a condition
or circumstance exists that would render the execution of the
defendant's sentence of death unconstitutionally cruel and
unusual shall file a notice with the court of that intention at
least 14 days before the scheduled death warrant hearing.
Notwithstanding the failure of the defendant to file the notice,
on motion of the state or the court's own motion, the court may
order an inquiry into whether a condition or circumstance exists
that would render the execution of the defendant's sentence of
death unconstitutionally cruel and unusual if there is a
substantial reason to believe that the condition or circumstance
exists.
(b) Notwithstanding paragraph (a) of this subsection, if a
court has previously found that the condition or circumstance at
issue does not exist or does not render the execution of the
defendant's sentence of death unconstitutionally cruel and
unusual, the court may not inquire as to the existence of the
condition or circumstance unless the court finds by clear and
convincing evidence that a material change in the condition or
circumstance has occurred since the previous finding became
final.
(c) In an inquiry conducted under this subsection:
(A) The state and the defendant each have the right to obtain
an independent medical, psychiatric or psychological examination
of the defendant for purposes of the hearing;
(B) Section 1 (2)(b) and (3) of this 2009 Act apply; and
(C) The defendant has the burden of proving by a preponderance
of the evidence that the condition or circumstance exists. + }
{ - (5) Following the death warrant hearing, a death warrant,
signed by the trial judge of the court in which the judgment was
rendered and attested by the clerk of that court, shall be drawn
and delivered to the superintendent of the correctional
institution designated by the Director of the Department of
Corrections. The death warrant shall specify a day on which the
sentence of death is to be executed and shall authorize and
command the superintendent to execute the judgment of the court.
The trial court shall specify the date of execution of the
sentence, taking into consideration the needs of the Department
of Corrections. The trial court shall specify a date not less
than 90 days nor more than 120 days following the effective date
of the appellate judgment. - }
{ - (6)(a) Notwithstanding any other provision in this
section, if the court finds that the defendant suffers from a
mental condition that prevents the defendant from comprehending
the reasons for the sentence of death or its implications - }
{ + (6)(a) If the court finds that a condition or
circumstance exists that would render the execution of the
defendant's sentence of death unconstitutionally cruel and
unusual + }, the court may not issue a death warrant until such
time as the court, after appropriate inquiries, finds that the
{ - defendant is able to comprehend the reasons for the sentence
of death and its implications. - }
{ - (b)(A) If the court does not issue a death warrant
because it finds that the defendant suffers from a mental
condition that prevents the defendant from comprehending the
reasons for the sentence of death or its implications, - } { +
condition or circumstance no longer exists. + } The court shall
conduct subsequent hearings on the issue on motion of the
district attorney or the defendant's counsel or on the court's
own motion, upon a showing { - that there is substantial reason
to believe that the defendant's - } { + by clear and convincing
evidence that there has been a material change in the + }
condition { + or circumstance + } { - has changed - } .
{ - (B) - } { + (b) + } The court may hold a hearing under
this { - paragraph - } { + subsection + } no more frequently
than once every six months.
{ - (C) - } { + (c) + } The state and the defendant may
obtain an independent medical, psychiatric or psychological
examination of the defendant in connection with a hearing under
this { - paragraph - } { + subsection + }.
{ - (D) - } { + (d) + } In a hearing under this
{ - paragraph - } { + subsection + }, the defendant has the
burden of proving by a preponderance of the evidence that
{ - the defendant continues to suffer from a mental condition
that prevents the defendant from comprehending the reasons for
the sentence of death or its implications - } { + a condition
or circumstance exists that renders the execution of the
defendant's sentence of death unconstitutionally cruel and
unusual.
(e) Section 1 (3) of this 2009 Act applies to a hearing under
this subsection.
(7) Except as provided in subsection (6) of this section,
following the death warrant hearing, a death warrant, signed by
the trial judge of the court in which the judgment was rendered
and attested by the clerk of that court, shall be drawn and
delivered to the superintendent of the correctional institution
designated by the Director of the Department of Corrections. The
death warrant shall specify a day on which the sentence of death
is to be executed and shall authorize and command the
superintendent to execute the judgment of the court. The trial
court shall specify the date of execution of the sentence, taking
into consideration the needs of the Department of Corrections.
The trial court shall specify a date not less than 90 days nor
more than 120 days following the effective date of the appellate
judgment + }.
{ - (7) - } { + (8) + } If for any reason a sentence of
death is not executed on the date appointed in the death warrant,
and the sentence of death remains in force and is not stayed
under ORS 138.686 or otherwise by a court of competent
jurisdiction, the court that issued the initial death warrant, on
motion of the state and without further hearing, shall issue a
new death warrant specifying a new date on which the sentence is
to be executed. The court shall specify a date for execution of
the sentence, taking into consideration the needs of the
Department of Corrections. The court shall specify a date not
more than 20 days after the date on which the state's motion was
filed.
{ - (8) - } { + (9) + } No appeal may be taken from an
order issued pursuant to this section.
SECTION 4. ORS 138.530 is amended to read:
138.530. (1) Post-conviction relief pursuant to ORS 138.510 to
138.680 shall be granted by the court when one or more of the
following grounds is established by the petitioner:
(a) A substantial denial in the proceedings resulting in
petitioner's conviction, or in the appellate review thereof, of
petitioner's rights under the Constitution of the United States,
or under the Constitution of the State of Oregon, or both, and
which denial rendered the conviction void.
(b) Lack of jurisdiction of the court to impose the judgment
rendered upon petitioner's conviction.
(c) Sentence in excess of, or otherwise not in accordance with,
the sentence authorized by law for the crime of which petitioner
was convicted; or unconstitutionality of such sentence.
(d) Unconstitutionality of the statute making criminal the acts
for which petitioner was convicted.
{ + (e) Unconstitutionality of a sentence of death under
section 1 of this 2009 Act. + }
(2) Whenever a person petitions for relief under ORS 138.510 to
138.680, ORS 138.510 to 138.680 shall not be construed to deny
relief where such relief would have been available prior to May
26, 1959, under the writ of habeas corpus, nor shall it be
construed to affect any powers of executive clemency or pardon
provided by law.
(3) ORS 138.510 to 138.680 shall not be construed to limit the
original jurisdiction of the Supreme Court in habeas corpus as
provided in the Constitution of this state.
SECTION 5. ORS 138.012 is amended to read:
138.012. (1) The judgment of conviction and sentence of death
entered under ORS 163.150 { - (1)(f) - } { + (1)(g) + } is
subject to automatic and direct review by the Supreme Court. The
review by the Supreme Court has priority over all other cases and
shall be heard in accordance with rules adopted by the Supreme
Court.
(2) Notwithstanding ORS 163.150 (1)(a), after automatic and
direct review of a conviction and sentence of death the following
apply:
(a) If a reviewing court finds prejudicial error in the
sentencing proceeding only, the court may set aside the sentence
of death and remand the case to the trial court. No error in the
sentencing proceeding results in reversal of the defendant's
conviction for aggravated murder. Upon remand and at the election
of the state, the trial court shall either:
(A) Sentence the defendant to imprisonment for life in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c); or
(B) Impanel a new sentencing jury for the purpose of conducting
a new sentencing proceeding to determine if the defendant should
be sentenced to:
(i) Death;
(ii) Imprisonment for life without the possibility of release
or parole as provided in ORS 163.105 (1)(b); or
(iii) Imprisonment for life in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c).
(b) The new sentencing proceeding is governed by the provisions
of ORS 163.150 (1), (2), (3) and (5). A transcript of all
testimony and all exhibits and other evidence properly admitted
in the prior trial and sentencing proceeding are admissible in
the new sentencing proceeding. Either party may recall any
witness who testified at the prior trial or sentencing proceeding
and may present additional relevant evidence.
(c) The provisions of this subsection are procedural and apply
to any defendant sentenced to death after December 6, 1984.
SECTION 6. { + (1) The amendments to ORS 163.150 by section 2
of this 2009 Act apply to sentencing proceedings conducted on or
after the effective date of this 2009 Act.
(2) The amendments to ORS 137.463 by section 3 of this 2009 Act
apply to death warrant hearings conducted on or after the
effective date of this 2009 Act. + }
----------