HB1737

SECTION 1. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§712- Sex trafficking of a minor; capital punishment. (1) This section shall apply only to a defendant who has been convicted of sex trafficking of a minor under section 712‑1202(1)(b).

(2) Upon the defendant's conviction, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or to life imprisonment without possibility of parole; provided that a defendant shall not be sentenced to death under this section if the defendant:

(a) Is under the age of eighteen years; or

(b) As a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person's own defense, so long as the incapacity endures.

The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empanelled for that purpose, unless waived by the defendant. In the proceeding, evidence shall be presented regarding any of the aggravating circumstances listed in subsection (4) and the mitigating circumstances listed in subsection (5), and evidence may be presented as to any other matter that the court deems relevant to the sentence. Any evidence that the court deems to have probative value may be received; provided that this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the Constitution of the State of Hawaii. The defendant and the State shall be permitted to present arguments for or against the sentence of death.

(3) After hearing all evidence, the jury shall deliberate and recommend to the court whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole. A recommendation of death shall require a unanimous vote of the jury and shall be based on a written finding that there are insufficient mitigating circumstances to overcome the circumstances of the act of sex trafficking of a minor, and a listing of any aggravating circumstances. The jury shall not recommend a death sentence unless the jury finds:

(a) That there exists at least one aggravating circumstance under subsection (4) that justifies the death penalty; and

(b) That there are no mitigating circumstances under subsection (5), or there are insufficient mitigating circumstances considered as a whole to outweigh each aggravating circumstance considered separately.

(4) In making its recommendation, the jury shall consider the following as aggravating circumstances, if they apply:

(a) The defendant knowingly created a substantial risk of death to the victim;

(b) The offense was committed while the defendant was engaged in the commission of, or an attempt to commit, any other felony; and

(5) In making its recommendation, the jury shall consider the following mitigating circumstances, if they apply:

(a) The defendant has no significant history of prior criminal activity;

(b) The defendant acted against the defendant's will, under extreme duress, or under the substantial domination of another person, a finding of which shall eliminate the possible imposition of the death penalty;

(c) At the time of the act of sex trafficking, the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired by something other than the defendant's voluntary and knowing ingestion of intoxicating substances;

(d) The age of the defendant at the time of the offense; and

(e) The defendant was an accomplice in the offense committed by another person and the defendant's participation was relatively minor, a finding of which shall eliminate the possible imposition of the death penalty.

(6) The court may enter a sentence of death only upon the recommendation of the jury but shall have full discretion to decline to issue that sentence. The court shall set forth in writing its findings upon which the sentence of death is based, including the finding required of the jury in subsection (3). If the court does not make the findings required to impose the death sentence, the court shall impose a sentence of life imprisonment without the possibility of parole.

(7) The judgment of conviction and sentence of death shall be subject to automatic review by the supreme court within sixty days after certification by the sentencing court of the entire record unless time is extended by the supreme court for an additional period, not to exceed thirty days, for good cause shown. The review by the supreme court shall have priority over all other cases before the supreme court and shall be heard in accordance with rules adopted by the supreme court. The supreme court shall determine whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the finding of a statutory aggravating circumstance, and whether the sentence is disproportionate as compared to other cases of a similar nature. If the sentence is affirmed, the supreme court's findings shall include a reference to other cases of a similar nature that the court considered, if any, in affirming the sentence.

(8) A person sentenced to death under this section shall be executed by the administration of lethal injection at a place and time to be determined by the sentencing court, which may delegate the decision to the director of corrections and rehabilitation; provided that the death penalty shall be stayed, if imposed on a pregnant person, until after the person has given birth.

(9) If the death penalty as provided in this section is held to be unconstitutional by the supreme court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death shall cause the person to be brought before the court, and the court shall sentence the person to life imprisonment without possibility of parole.

(10) As part of the sentence imposed under this section, the court shall order the director of corrections and rehabilitation and the Hawaii paroling authority to prepare an application for the governor to commute a sentence of death to life imprisonment without the possibility of parole.

(11) Any deoxyribonucleic acid samples or evidence that have been collected from:

(a) The defendant pursuant to a court order; or

(b) The victim, the scene of the offense, or from any other person or place relevant to any of the offenses in question,

shall be further preserved for evidentiary purposes by the appropriate law enforcement agency to allow the defendant the opportunity to introduce that deoxyribonucleic acid evidence at any hearing, the purpose of which in whole or in part is to overturn the defendant's conviction. The deoxyribonucleic acid evidence shall be preserved until either the defendant's conviction has been overturned or the defendant has been executed pursuant to this section."

SECTION 2. Section 712-1202, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) [~~Sex~~] Except as provided in section 712- , sex trafficking is a class A felony."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1737
THIRTY-SECOND LEGISLATURE, 2024
STATE OF HAWAII