1999 Legislation
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HOUSE BILL NO. 265 – Inmate, death row, visits

HOUSE BILL NO. 265

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H0265................................by JUDICIARY, RULES AND ADMINISTRATION
INMATES - DEATH ROW - Amends existing law to provide for contact visits
between a death row inmate and the attorney of record and for noncontact
visits between the condemned prisoner and specified agents of the attorney
of record; and to authorize prison officials to suspend or deny such visits
if the security of the facility or public safety could be compromised.

02/16    House intro - 1st rdg - to printing
02/17    Rpt prt - to Jud
02/26    Rpt out - rec d/p - to 2nd rdg
03/01    2nd rdg - to 3rd rdg
03/03    3rd rdg - PASSED - 61-0-9
      AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Black, Boe,
      Bruneel, Chase, Clark, Cuddy, Deal, Denney, Ellsworth, Field(13),
      Field(20), Gagner, Gould, Hadley, Hammond, Hansen(23), Hansen(29),
      Henbest, Hornbeck, Jaquet, Jones, Judd, Kempton, Kendell, Kunz, Lake,
      Limbaugh, Linford, Loertscher, Marley, McKague, Meyer, Montgomery,
      Mortensen, Moyle, Pischner, Pomeroy, Reynolds, Ridinger, Ringo,
      Robison, Sellman, Smith, Smylie, Stevenson, Stoicheff, Stone, Taylor,
      Tilman, Tippets, Trail, Watson, Wheeler, Williams, Wood, Zimmermann
      NAYS -- None
      Absent and excused -- Callister, Campbell, Crow, Geddes, Kellogg,
      Mader, Sali, Schaefer, Mr Speaker
    Floor Sponsor - Smith
    Title apvd - to Senate
03/04    Senate intro - 1st rdg - to Jud
03/08    Rpt out - rec d/p - to 2nd rdg
03/09    2nd rdg - to 3rd rdg
03/11    3rd rdg - PASSED - 30-0-5
      AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
      Danielson, Darrington, Dunklin, Frasure, Geddes, Hawkins, Ingram,
      Ipsen, Keough, Lee, McLaughlin, Noh, Richardson, Riggs, Risch, Sandy,
      Schroeder, Sorensen, Stegner, Stennett, Thorne, Twiggs, Wheeler,
      Whitworth
      NAYS--None
      Absent and excused--Branch, Davis, Deide, King, Parry
    Floor Sponsor - Ingram
    Title apvd - to House
03/12    To enrol
03/15    Rpt enrol - Sp signed
03/16    Pres signed - to Governor
03/24    Governor signed
         Session Law Chapter 285
         Effective: 03/24/99

Bill Text


H0265


                                                                        
 ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
Fifty-fifth Legislature                 First Regular Session - 1999
                                                                        

                             IN THE HOUSE OF REPRESENTATIVES

                                    HOUSE BILL NO. 265

                     BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE

 1                                        AN ACT
 2    RELATING TO CONFINEMENT UNDER THE DEATH PENALTY; PROVIDING A STATEMENT OF LEG-
 3        ISLATIVE INTENT; AMENDING CHAPTER 27, TITLE 19, IDAHO CODE, BY  THE  ADDI-
 4        TION  OF  A NEW SECTION 19-2705, IDAHO CODE, TO PROVIDE FOR CONTACT VISITS
 5        BETWEEN A CONDEMNED PRISONER AND THE ATTORNEY OF RECORD AND FOR NONCONTACT
 6        VISITS BETWEEN THE CONDEMNED PRISONER AND SPECIFIED AGENTS OF THE ATTORNEY
 7        OF RECORD IN ACCORDANCE WITH PRISON RULES, TO PROVIDE DEFINITIONS, TO PRO-
 8        VIDE THAT PRISON OFFICIALS MAY SUSPEND OR DENY VISITATION  IF  THE  SECURE
 9        AND  ORDERLY  OPERATION OF THE FACILITY OR THE PUBLIC SAFETY COULD BE COM-
10        PROMISED AND TO PROVIDE THAT THE SECTION SHALL NOT CREATE A LIBERTY INTER-
11        EST IN THE CONDEMNED PERSON OR EXPAND THE RIGHT OF ACCESS TO COURTS  UNDER
12        STATE OR FEDERAL LAW; AMENDING SECTION 19-2705, IDAHO CODE, TO REDESIGNATE
13        THE  SECTION,  TO  PROVIDE FOR CONTACT VISITS BETWEEN THE CONDEMNED PERSON
14        AND THE ATTORNEY OF RECORD IN ACCORDANCE WITH PRISON RULES WHERE  A  DEATH
15        WARRANT  HAS  BEEN  ISSUED AND EXECUTION HAS NOT BEEN STAYED, TO PROVIDE A
16        DEFINITION, TO PROVIDE THAT PRISON OFFICIALS MAY SUSPEND OR  DENY  VISITA-
17        TION  IF  THE  SECURE  AND ORDERLY OPERATION OF THE FACILITY OR THE PUBLIC
18        SAFETY COULD BE COMPROMISED AND TO PROVIDE THAT THE SECTION SHALL NOT CRE-
19        ATE A LIBERTY INTEREST IN THE CONDEMNED PERSON  OR  EXPAND  THE  RIGHT  OF
20        ACCESS TO COURTS UNDER STATE OR FEDERAL LAW; AND DECLARING AN EMERGENCY.

21    Be It Enacted by the Legislature of the State of Idaho:

22        SECTION 1.  STATEMENT OF LEGISLATIVE INTENT. The purpose of this act is to
23    provide prisoners condemned to death with reasonable access to their attorneys
24    and specified agents of their attorneys, subject to strict adherence to prison
25    rules. The legislation authorizes noncontact visits between the condemned per-
26    son  and  agents of the attorney of record and contact visits between the con-
27    demned person and his attorney of record. The Legislature recognizes that pro-
28    viding attorneys access to clients on death row is necessary if the client  is
29    to  obtain  a  fair  and adequate defense.  The Legislature further recognizes
30    that under American jurisprudence  an adequate  defense  of  a  death  penalty
31    inmate  is  an  interdisciplinary  endeavor  requiring  the skills of counsel,
32    experts, investigators  and  paralegals  working  together  on  the  convict's
33    behalf.   Each member of the team must have access to the client if the client
34    is to be represented competently and fairly.
35        The Legislature also recognizes that prison administrators must be free to
36    exercise professional discretion in determining the steps necessary to  ensure
37    the  orderly  functioning  of  the facility and to secure the safety of prison
38    staff, inmates and visitors.   Prison administrators are under  an  obligation
39    to  take  reasonable  measures to guarantee public safety and must be alert to
40    and prevent, so far as possible, any attempts to introduce  drugs,  contraband
41    or  illicit  weapons into the prisons.  It is critical that prison administra-
42    tors maintain the  necessary  discretion  and  control  of  prison  functions,
43    including outside access to prisoners, especially those condemned to death.
44        In authorizing attorneys and their agents access to their clients on death


                                          2

 1    row  and in permitting attorneys to have contact visits with their clients, it
 2    is  the  intent of the Legislature that such visits occur in strict accordance
 3    with prison rules and subject to the authority of prison officials to  suspend
 4    or deny those visits if the safe, secure and orderly operation of the facility
 5    or the public safety could be compromised.

 6        SECTION  2.  That  Chapter  27,  Title 19, Idaho Code, be, and the same is
 7    hereby amended by the addition thereto of a  NEW SECTION  ,  to  be
 8    known and designated as Section 19-2705, Idaho Code, and to read as follows:

 9        19-2705. DEATH  SENTENCE AND CONFINEMENT THEREUNDER -- ACCESS TO CONDEMNED
10    PERSON.  (1) Whenever a person is sentenced to death, the  warden  shall  keep
11    such  condemned  person  in  solitary  confinement until execution.  No person
12    shall be allowed access to the condemned person except law enforcement person-
13    nel investigating matters within the scope of their duties,  the  attorney  of
14    record and agents of the attorney of record, attending physicians, a spiritual
15    adviser  of  the  condemned's choosing, and members of the immediate family of
16    the condemned, and then only in accordance with prison rules.   Persons  under
17    sentence  of  death  will  be  allowed  contact visits with their attorneys of
18    record. Such visits will take place subject to prison rules. No other  contact
19    visits  shall be permitted. Prison officials have authority to suspend or deny
20    visits when the safe, secure and orderly operation of the facility  or  public
21    safety could be compromised.
22        (2)  For the purposes of this section an "agent of the attorney of record"
23    is  defined  as an employee of the attorney of record to include an investiga-
24    tor, paralegal, legal intern, or mitigation specialist but  does  not  include
25    retained experts or other independent contractors of the attorney of record.
26        (3)  For  the  purposes  of  this section a "legal intern" is defined as a
27    qualified law student or recent law school graduate who, upon application  and
28    approval  by  the Idaho state bar association, is granted a limited license to
29    engage in the practice of law.
30        (4)  For the purposes of this section a "contact visit" is  defined  as  a
31    meeting  between  the condemned person and the attorney of record during which
32    the parties are not separated by a screen or other partition  which  prohibits
33    physical  contact.   Contact visits will take place in a private, confidential
34    setting where the prisoner and his attorney are in the same room.
35        (5)  Nothing in this section shall be construed to create a liberty inter-
36    est in the condemned person or to expand the right of access to  courts  under
37    state or federal law.

38        SECTION  3.  That  Section 19-2705, Idaho Code, be, and the same is hereby
39    amended to read as follows:

40        19-270 5  6 .  DEATH WARRANT AND CONFINEMENT  THERE-
41    UNDER    --  ACCESS  TO CONDEMNED PERSON . (1) Whenever a person is
42    sentenced to death, the judge passing sentence shall, in accordance with  sec-
43    tion  19-2719, Idaho Code, sign and file a death warrant fixing a date of exe-
44    cution not more than thirty (30) days thereafter.
45        (2)  The warrant shall be directed to the warden of the state penitentiary
46    and shall be delivered to him forthwith.
47        (3)   Whenever a person is under death warrant,  execution  of  which
48    has not been stayed, t  T he warden shall keep  the con-
49    demned    person  s under sentence of death  in solitary con-
50    finement  until  execution  .      of  the  death  penalty;  n
51     N o person shall be allowed access to the  said convict


                                          3

 1      condemned person  except law enforcement personnel investi-
 2    gating matters within  the  scope of their  duties,  counsel  
 3    the attorney of record , attending physicians, a  spiritual  adviser  of
 4    the  condemned's  choosing,  and  members  of the immediate family of the con-
 5    demned, and then only in accordance with  the  prison rules.  
 6    Persons  under  sentence  of  death  will be allowed contact visits with their
 7    attorneys of record. Such visits will take place subject to prison  rules.  No
 8    other  contact  visits  shall be permitted. Prison officials have authority to
 9    suspend or deny visits when the safe, secure  and  orderly  operation  of  the
10    facility or public safety could be compromised.
11        (4)  For  purposes of this section a "contact visit" is defined as a meet-
12    ing between a condemned person and the attorney of  record  during  which  the
13    parties are not separated by a screen or other partition which prohibits phys-
14    ical  contact.  Contact visits will take place in a private, confidential set-
15    ting where the prisoner and his attorney are in the same room.
16        (5)  Nothing in this section shall be construed to create a liberty inter-
17    est in the condemned person or to expand the right of access to  courts  under
18    state or federal law. 

19        SECTION  4.  An  emergency  existing  therefor,  which emergency is hereby
20    declared to exist, this act shall be in full force and effect on and after its
21    passage and approval.

Statement of Purpose / Fiscal Impact


                        STATEMENT OF PURPOSE           
                              RS09039

The purpose of this legislation is to allow condemned prisoners
to have contact visits with the attorney of record and noncontact
visits with agents of the attorney of record, subject to strict
adherence with prison rules and subject to the authority of
prison officials to suspend or deny visitation if the safe,
secure and orderly operation of the facility or the public safety
could be compromised. The legislation also defines the terms
attorney of record, legal intern and contact visit and carefully
delineates that the legislation cannot be construed to create a
liberty interest in the condemned prisoner or expand on the
prisoner's right of access to the courts under state or federal
law. The legislation also allows contact visitation privileges
between the condemned prisoner and the attorney of record where a
death warrant has been issued but not stayed, subject to the same
authority of prison officials to suspend or deny visitation if
the safe, secure and orderly operation of the facility or the
public safety could be compromised.

                                 
                            FISCAL NOTE

The legislation will decrease the cost of litigation to the State
Appellate Public Defender. As of 1999, two of Idaho's prisons
will be affected by this legislation. Supervision necessary to
ensure visitor/inmate safety during contact visitation will
require direct observation by security staff throughout the
duration of each contact visit. In addition, as the numbers of
non-contact visits with condemned inmates increase, so will staff
time for processing and supervision of non-contact visits.
Finally, accommodations for contact visits in a private,
confidential setting where the prisoner and his attorneys are in
the same room will require physical plant modifications or
remodeling at both facilities.



CONTACT:  Ronaldo A. Coulter, State Appellate Public Defender
        (208) 334-2712
        Stephanie Altig, Deputy Attorney General
        Department of Correction
        (208) 658-2097
        
STATEMENT OF PURPOSE/ FISCAL NOTE     Bill No.     H 265