Chapter 211D of the General Laws, as so appearing, in the 2002 Official Edition, is hereby amended by inserting after section 16 the following section: -

Section 17.  (a)  The commonwealth shall provide legal services to indigents charged with offenses for which capital punishment is sought and indigents who have been sentenced to death and who seek appellate or collateral review.

(b)  The committee for public counsel services shall be the appointing authority and shall appoint staff attorneys, members of the private bar or both.

(c)  The appointing authority shall:

(1)       solicit applications from all attorneys qualified to be appointed in the proceedings specified in subsection (a);

(2)       draft and at such times as it may deem necessary, but at least annually, publish rosters of all applicants determined to be qualified attorneys;

(3)       draft and at such times as it may deem necessary, but at least annually, establish standards governing the qualifications and performance of such qualified attorneys which shall include, but not be limited to:

(i)         membership in the bar of the commonwealth or admission to practice pro hac vice;

(ii)        knowledge and understanding of pertinent legal authorities regarding the issues in capital cases in general and any case to which an attorney may be appointed in particular;

(iii)       skills in the management and conduct of negotiations and litigation in homicide cases;

(iv)       skills in the investigation of homicide cases, the background of clients and the psychiatric history and current condition of clients;

(v)        skills in trial advocacy;

(vi)       skills in legal research and in the writing of legal petitions, briefs, and memoranda; and

(vii)      skills in the analysis of legal issues bearing on capital cases;

(4)       draft and at such times as it may deem necessary, but at least annually, publish procedures by which such qualified attorneys shall be appointed;

(5)       periodically review the rosters, monitor the performance of all such qualified attorneys so appointed and delete the name of any attorney who:

(i)         fails satisfactorily to complete regular training programs on the representation of defendants in capital cases;

(ii)        fails to meet performance standards in a case to which the attorney has been appointed; or

(iii)       fails otherwise to demonstrate continuing competency to represent defendants in capital cases;

(6)       conduct or sponsor specialized training programs for attorneys representing defendants in capital cases;

(7)       appoint a lead counsel and co-counsel to represent a defendant in a capital case at each relevant stage of proceedings, promptly upon receiving notice of the need for the appointment from the relevant state court; and

(8)       report such appointment or the defendant's failure to accept counsel, in writing, to the court requesting such appointment.

(d)       Upon receipt of notice from the appointing authority that an individual entitled to the appointment of counsel under this section has declined to accept such an appointment, the court requesting such appointment shall conduct, or cause to be conducted, a hearing, at which the individual and counsel proposed to be appointed under this section shall be present, to determine such individual's competency to decline the appointment and whether such individual has knowingly and intelligently declined it.

            (e)       (1)  The appointing authority shall maintain two rosters of attorneys; one of which shall list attorneys qualified to be appointed for the trial and sentencing stages of capital cases and one of which shall list attorneys qualified to be appointed for the appellate or collateral review stages. Each roster shall be divided into two parts, one listing attorneys qualified to be appointed as lead counsel and the other listing attorneys qualified to be appointed as co-counsel.

(2)       An attorney qualified to be appointed lead counsel at the trial or sentencing stages shall:

(i)         be a trial practitioner with at least five years of experience in the representation of criminal defendants or the commonwealth in felony cases;

(ii)        have served as lead counsel or co-counsel at the trial or sentencing stage in at least two homicide cases tried by a jury;

(iii)       have completed such training or refresher courses in current developments in the representation of capital defendants at the trial or sentencing stages as the appointing authority shall require; and

(iv)       have demonstrated the proficiency and commitment necessary to provide legal services in capital cases.

(3)       An attorney qualified to be appointed co-counsel at the trial or sentencing stages shall:

(i)         be a trial practitioner with at least 3 years of experience in the representation of criminal defendants or the commonwealth in felony cases; and

(ii)        meet the standards set forth in clauses (iii), (iv), of paragraph (2) for lead counsel at the trial or sentencing stages.

(4)       An attorney qualified to be appointed lead counsel at the appellate or collateral review stages shall:

(i)         be an appellate practitioner with at least 5 years of experience in the representation of criminal defendants or the commonwealth in felony cases at the appellate or collateral review stages;

(ii)        have served as lead counsel or co-counsel at the appellate or collateral review stages in at least 3 cases in which the client had been convicted of a felony offense;

(iii)       have completed such training or refresher courses in current developments in the representation of capital clients at the appellate and collateral review stages as the state appointing authority shall require; and

(iv)       have demonstrated the proficiency and commitment necessary to provide legal services in capital cases.

(5)       An attorney qualified to be appointed co-counsel at the appellate, collateral or unitary review stage shall:

(i)         be an appellate practitioner with at least 3 years of experience in the representation of criminal defendants or the commonwealth in felony cases at the appellate or collateral review stages; and

(ii)        meet the standards set forth in clauses (iii) and (iv) of paragraph (4) for lead counsel at the appellate or collateral review stages.

(f)         (1)       Attorneys appointed from the private bar shall be

(i)         compensated for actual time and service, computed on an hourly basis and  at a reasonable rate in consideration of the attorney's qualifications and experience and the local market for legal representation in cases reflecting the complexity and responsibility of capital cases;

(ii)        reimbursed for expenses reasonably incurred in the representation of the defendant including the costs of law clerk and paralegals reasonably necessary in the representation of such defendant; and

(iii)       reimbursed for the costs of investigators and experts whose services have been approved in advance by the court and are reasonably necessary in the representation of the defendant.

(2)       (i)         Payments under clause (ii) of paragraph (1) shall be computed on an hourly basis reflecting the local market for law clerk and paralegal services; and

(ii)        Payments under clause (iii) of paragraph (1) shall be commensurate with the schedule of fees paid by state authorities for investigative and expert services.

(g)  Appointed attorneys from the private bar shall receive prompt payment for legal services and reimbursement for expenses and support services upon the submission of periodic bills, receipts or other appropriate documentation to the appointing authority or other appropriate state agency. The appointing authority shall promptly resolve any disputes with respect to such bills.

SECTION 2. Chapter 234 of the General Laws, as so appearing, is hereby amended by inserting after section 28 the following section:-

Section 28A. In a capital case, counsel shall have the right to question prospective jurors. Such examination shall be conducted individually and outside the presence of other prospective jurors. 

When, upon inquiry, it appears that a prospective juror's views or attitude concerning the death penalty would affect the juror's ability to consider any mitigating or aggravating circumstances, the court shall direct that the prospective juror be excused for cause.

SECTION 3. Chapter 258C of the General Laws, as so appearing, is hereby amended by inserting after section 3 the following four sections:-

Section 3A. Upon a judgment of conviction of murder in the first degree and the affirmance thereof by the supreme judicial court, a prisoner shall be required to submit, under the pains and penalties of perjury, a financial statement as devised by regulations promulgated by the commissioner of correction, subject to the approval of the attorney general. The financial statement form shall require the listing of all property, income sources and amounts, investments, contract rights, securities, and all other assets of the prisoner.

The regulations promulgated hereunder shall provide for the assessment of a fixed sum to be paid out of the prisoner's assets to the victim compensation fund, as established by the state treasurer pursuant to this chapter.

Upon conviction of murder in the first degree, every prisoner under sentence of life imprisonment without the possibility of parole shall be required to submit a financial statement on or before July 1 of each year to the department of correction, listing the prisoner's assets at the time of the signing of the statement and an assessment of a fixed sum, as may be appropriate under the regulations, shall be determined annually by the commissioner of correction on or before October 1 and paid over to the victim compensation fund.

            Section 3B. Subject to the approval of the attorney general, the commissioner of correction shall promulgate regulations whereby any prisoner under sentence of life imprisonment without the possibility of parole, upon his conviction of murder in the first degree, shall have his prison wages garnished according to a formula established in such regulations and deposited in the victim compensation fund. Said fund shall be maintained by the state treasurer and shall be utilized for the purposes set forth in section 3, including the support of charitable and other non-profit providers of therapeutic and other services to the families and dependents of murder victims.

Section 3C. All families of victims of the crime of murder in the first degree shall, upon the conviction and imposition of sentence upon the defendant, be notified by the office of the prosecuting district attorney of their right to make application to receive compensation from the victim compensation fund.

Section 3D. Applications for financial assistance from families and dependents of murder victims shall receive priority over all other applications for financial assistance under this chapter.

SECTION 4. Said chapter 265 is hereby further amended by inserting after section 2, as so amended, the following section:-

            Section 2A. In cases of murder in the first degree, in which the penalty of death is authorized under section 2, and in which the commonwealth seeks to impose the penalty of death, the indictments shall specify the aggravating circumstances set forth in section 69 of chapter 279 which are alleged to be present by specifying with particularity which aggravating circumstance or circumstances set forth in said section 69 are being alleged. Only so much of an indictment as alleges the offense of murder in the first degree, and not the aggravating circumstances, shall be presented to the jury during their deliberation as to the guilt or innocence of the defendant. That portion of the indictment which sets forth the aggravating circumstances shall be presented to the jury only during the presentencing proceedings in accordance with section 68 of said chapter 279.

SECTION 5.  Said chapter 265 of the General Laws is hereby further amended by inserting after said section 2A the following section:-

            Section 2B.  When the commonwealth seeks to impose the death penalty, it shall disclose to the defendant promptly after indictment all exculpatory information known to it or its agents and all exculpatory evidence in the possession of it or its agents that is material either to guilt or punishment.  When the commonwealth learns of exculpatory information or obtains such evidence after indictment, it shall promptly disclose it to the defense.  The death penalty shall not be imposed if the commonwealth fails to timely disclose any exculpatory information or evidence to the defense.

SECTION 6.  Section 47 of chapter 277 of the General Laws, as appearing in the 2000 Official Edition is hereby amended by striking out lines 1 and 2 and inserting in place thereof the following words:-

            Section 47.  If a prisoner under indictment for first degree murder where the commonwealth has alleged that such murder involved an aggravating circumstance or circumstances set forth in section 69 of said chapter 279, pleads guilty, upon being arraigned, a presentence hearing pursuant to section 68 of said chapter 279 shall be conducted; if a prisoner, under indictment for any other capital crime, pleads guilty, upon being arraigned the court shall award sentence against him.

SECTION 7. Chapter 277 of the General Laws, as so appearing, is hereby amended by adding the following section:-

            Section 80. In all cases in which the commonwealth seeks an indictment for an offense punishable by death, the commonwealth shall instruct the grand jurors on the legal definitions of murder in the first degree, murder in the second degree and manslaughter. The grand jurors shall be entitled to receive such further instructions as they may request from the commonwealth. A stenographic record shall be made of all instructions and shall be included in the minutes of the grand jury and made available to the defendant.  The court shall retain as part of the record copies of any questionnaires completed by grand jurors.

SECTION 8. Chapter 279 of the General Laws, as so appearing, is hereby amended by striking out section 60 and inserting in place thereof the following section:-

Section 60.  The punishment of death shall be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such prisoner is dead.

SECTION 9. Section 65 of said chapter 279 is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:-

There may be present at the execution of the sentence of death, in addition to the superintendent, deputy and such officers of the state prison as the superintendent deems necessary, the commissioner of correction or his representative, the person performing the execution under the direction of the superintendent, if any, the prisoner's attorney, and the following physicians: the prison physicians, the state surgeon, and a medical examiner for Norfolk county, and if any or all are unable to be present, such physicians as the superintendent approves.

            SECTION 10.  Said section 65 of said chapter 279, as so appearing, is hereby further amended by adding the following two sentences:- In the period preceding and during the execution, the prisoner’s attorney shall have access to a judicial officer having jurisdiction to consider and grant a stay of execution or other relief on the prisoner’s petition.  Such petition may be permitted to be transmitted telephonically.

SECTION 11. Said chapter 279 of the General Laws is hereby further amended by striking out sections 68 to 70 inclusive, as so appearing, and inserting in place thereof the following three sections:-

            Section 68. In cases in which a sentence of death may be imposed and which are tried before a jury, the court shall submit to the jury special questions concerning the issue of murder in the first degree. If the jury determines beyond a reasonable doubt that the defendant is guilty of murder in the first degree, the jury shall specify whether the defendant is guilty of murder with deliberate premeditation, murder with extreme atrocity or cruelty or both.  In cases in which a sentence of death may be imposed and which are tried without a jury and the court finds beyond a reasonable doubt that the defendant is guilty of murder in the first degree, the court shall specify whether the defendant is guilty of murder with deliberate premeditation, murder with extreme atrocity or cruelty or both.  The death penalty shall not be applicable to a defendant convicted under a felony murder theory.

No mentally retarded person shall be subject to the death penalty.   For purposes of this section a person is mentally retarded who has significantly sub average general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.  During the presentence hearing, upon a motion of the defendant, the commonwealth and the defendant shall present evidence to determine whether the defendant is mentally retarded.  The defendant shall be examined by one or more qualified psychiatrists or psychologists designated by the court, who are experts in the diagnosis and evaluation of mental retardation.  At the conclusion of the examination period, the examining psychiatrists or psychologists shall forthwith give to the court written signed reports of their findings relative to the question of whether of not the defendant is mentally retarded, and said psychiatrists or psychologists shall be available to testify during the presentence hearing.  The defense must establish mental retardation by a preponderance of the evidence.  Unless the jury unanimously finds that the defendant is not mentally retarded the court shall impose a sentence of life imprisonment without the possibility of parole in accordance with section 2 of chapter 265.    

Upon a verdict, finding, or plea of guilty of murder in the first degree with deliberate premeditation or murder in the first degree with extreme atrocity or cruelty or both in cases where the commonwealth has alleged in its indictment or indictments that such murder involved an aggravating circumstance or circumstances set forth in section 69, a presentence hearing shall be conducted before the jury before which the case was tried; provided, however, that if in the opinion of the judge presiding at the presentence hearing, it is impossible or impracticable for the trial jury to sit at the presentence hearing, a new jury shall be impaneled to sit at the presentence hearing or if the matter of guilt was determined by the court after trial without a jury or by a plea of guilty rather than by a jury, a jury shall be impaneled to sit at the presentencing hearing. The selection of such jury shall be according to the laws and rules governing the selection of a jury for the trial of a capital case. A presentence hearing need not be conducted if the commonwealth determines either that it cannot prove beyond a reasonable doubt the existence of one or more of the aggravating circumstances set forth in section 69, or that the penalty of death should not be imposed, in which case the court shall impose the sentence of imprisonment for life without the possibility of parole as provided in section 2 of chapter 265.

During the presentence hearing, the only issues shall be the determination of mental retardation and the punishment to be imposed. During such hearing the jury shall hear all additional evidence in mitigation of punishment, including evidence concerning any statutory mitigating circumstances set forth in subsection (b) of section 69, and evidence concerning any other aspect of the defendant's character or record or any of the circumstances of the offense that the defendant or the commonwealth may proffer to the jurors for their consideration as a basis for a sentence less than death, regardless of its admissibility under the rules governing the admission of evidence at criminal trials.

During such hearing, the jury shall also hear such evidence in aggravation of punishment as is relevant to any statutory aggravating circumstance set forth in subsection (a) of said section 69, and which is alleged in the indictment; provided, however, that only such evidence in aggravation of punishment as the commonwealth has made known to the defendant prior to his trial shall be admissible; and provided further, that such evidence is otherwise admissible according to the rules governing the admission of evidence at criminal trials. The jury shall also hear arguments by the defendant or his counsel or both and by the commonwealth regarding the punishment to be imposed. The commonwealth and the defendant or his counsel shall be allowed to make opening statements and closing arguments at the presentence hearing. The order of such statements and arguments and the order of presentation of evidence shall be the same as at trial; provided, however, that the commonwealth shall make closing arguments first and the defendant or his counsel shall make closing arguments last.

Upon the conclusion of evidence and arguments at the presentence hearing, the court shall instruct the jury orally as to, and shall provide to the jury, in writing, copies of the statutory aggravating circumstance or circumstances which is set forth in the indictment and which it determines to be warranted by the evidence. The court shall instruct the jury that it may choose to find that the penalty of death shall be imposed upon the defendant or it may choose not to find that the penalty of death be imposed on the defendant, but that it may not find that the penalty of death shall be imposed unless it shall first make a unanimous determination of the existence of one or more of the aggravating circumstances set forth in section 69 of this chapter and in the indictment, beyond a reasonable doubt.  The jury shall further be instructed that if it finds the existence of such aggravating circumstance beyond a reasonable doubt, it must then consider all of the evidence presented to it relevant to any of the mitigating circumstances set forth in subsection (b) of section 69, or to any other mitigating circumstances and determine whether, in view of all the relevant circumstances of the offense and of the defendant, the sentence shall be life imprisonment without the possibility of parole or death. The jury shall further be instructed that the penalty of death may not be imposed unless it unanimously finds, after a review of all of the evidence of mitigation proffered as a basis for a sentence less than death, that the penalty of death should be imposed. If the jury is unable to reach a unanimous verdict, the court shall impose the sentence of imprisonment for life without the possibility of parole as provided in section 2 of chapter 265.

If the jury's unanimous verdict is to impose the penalty of death, such jury shall designate, in writing and signed by the foreperson of the jury, the statutory aggravating circumstance or circumstances which it unanimously found existed beyond a reasonable doubt and that the jury, after consideration of all of the evidence of mitigation relevant to the circumstances of the defendant and the offense proffered as a basis for a sentence less than death, unanimously found that the death penalty should be imposed.

            After the jury has made its findings, the court shall set a sentence in accordance with section 70.

A declaration of a mistrial during the course of the presentence hearing or any error in the presentence hearing determined on final appeal or otherwise shall not affect the validity of the conviction.

Section 69.  (a)  In all cases in which the death penalty may be authorized, the statutory aggravating circumstances shall be:

(1)      the murder was knowingly committed on a victim because of his position as, or while engaged in the performance of his official duties as one or more of the following:

police officer, special police officer, parole officer, probation officer, state or federal law enforcement officer, court officer, firefighter, officer or employee of the department of correction, officer or employee of a sheriff’s department, officer or employee of a jail or officer or employee of a house of correction;

(2)       the murder was committed by a defendant who was at the time incarcerated in a jail or a correctional or penal institution or the treatment center for the sexually dangerous or a facility used for the housing or treatment or housing and treatment of prisoners or while on furlough or work release from such jail, correctional or penal institution or facility or during an escape from there;

(3)       the murder was knowingly committed on a victim because of his position as, or while engaged in the performance of his official duties as a judge, prosecuting attorney, clerk magistrate, juror or witness;

(4)       the murder was committed by a defendant who had previously been convicted of murder in the first or second degree or of an offense in any other federal, state, or territorial jurisdiction of the United States which is the same as or necessarily includes the elements of the offense of murder in the first or second degree;

(5)      the murder was committed by a defendant who had previously been convicted of two or more federal or state offenses for which a sentence of life in prison or death was authorized by law;

(6)       the murder was committed by the defendant pursuant to a contract agreement, or understanding by which such defendant was to receive money or other thing of value in return for committing the murder;

(7)       the murder was committed by the defendant for the purpose of avoiding, interfering with or preventing a lawful arrest of the defendant or another or for the purpose of effectuating an escape or attempting to effectuate an escape of the defendant or another from custody in a place of lawful confinement;

(8)       the murder involved torture to the victim or the intentional infliction of extreme pain prior to death demonstrating a total disregard for the suffering of the victim;

(9)       the murder was committed as part of a course of conduct involving the killing of or causing serious bodily injury to or the attempted killing of or the attempted causing of serious bodily injury to more than one person by the defendant;

(10)     the murder was committed by means of a destructive device, bomb, or explosive planted, hidden, mailed, delivered, or concealed in any place, area, dwelling, building or structure by the defendant or by means such that the defendant knew or reasonably should have known that his acts would create a grave risk of death or serious bodily injury to more than one person such as with a machine gun or other automatic weapon;

(11)     the murder was committed by the defendant and occurred during the commission or attempted commission or flight after the commission or attempted commission of aggravated rape, rape, rape of a child, indecent assault and battery on a child under 14, assault with intent to rape, assault on a child under 16 years of age with intent to rape, kidnapping for ransom, kidnapping, armed robbery, unarmed robbery, breaking and entering with intent to commit a felony, armed assault in a dwelling, arson, confining or putting in fear or otherwise harming another for the purpose of stealing from depositories;

(12)     the murder occurred during the commission of, or in furtherance of, a violation of the drug trafficking laws as set forth in section 32E of chapter 94C, or during the commission, of or in furtherance of, an attempt or conspiracy to violate said drug trafficking laws;

(13)     the murder was in violation of a valid protective order issued pursuant to chapter 209A and in effect at the time of the murder or was a murder in violation of a similar valid order issued in accordance with the laws of another jurisdiction;

(14)     the murder was in furtherance of and the culmination of a pattern of  physical abuse of the victim by the defendant or a pattern of stalking the victim as defined by section 43 of chapter 265 by the defendant;

(15)    the murder was knowingly committed in the physical presence of family or household member of the victim as defined by section 1 of chapter 209A.

(b)       In all cases in which the death penalty may be authorized, the mitigating circumstances shall be any factors proffered by the defendant or the commonwealth which are relevant in determining whether to impose a sentence less than death, including, but not limited to, any aspect of the defendant's character, propensities, or record and any of the circumstances of the murder, including, but not limited to the following:

(1)       the defendant has no significant history of prior criminal convictions;

(2)       the victim was a co-conspirator or willing participant in the defendant's homicidal conduct or in the criminal conduct which resulted in the murder;

(3)       the murder was committed while the defendant was under extreme duress or under the domination or control of another which was insufficient to establish a defense to the murder but which substantially affected his judgment;

(4)       the offense was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of: (a) a mental disease or defect; (b) organic brain damage; (c) emotional illness brought on by stress or prescribed medication; or (d) intoxication or legal or illegal drug use by the defendant which was insufficient to establish a defense to the murder but which substantially affected his judgment;

(5)       the defendant was over the age of 75 at the time of the murder or any other relevant consideration regarding the age of the defendant at the time of the murder;

(6)       the defendant was battered or otherwise physically or sexually abused by the victim in connection with or prior to the murder for which the defendant was convicted and such abuse was a contributing factor in the murder;

(7)       the defendant was experiencing post-traumatic stress syndrome caused by military service during a declared or undeclared war.

Section 70. Where a person is convicted by a court or jury or pleads guilty to a crime which is punishable by death, a sentence of death shall not he imposed unless findings in accordance with section 68 are made. Where such findings are made and the jury finds that the death penalty shall be imposed, the court shall sentence the defendant to death unless the court determines that a sentence of death should not he imposed under section 71. Where such findings are not made or not unanimously made or where a sentence of death is not a unanimous finding by the jury, the court shall sentence the defendant to life imprisonment without the possibility of parole as provided in section 2 of chapter 265.

SECTION 12.  Said chapter 279 is hereby further amended by striking out section 71, as so appearing, and inserting in place thereof the following sections:-

            Section 71.  (a)  The supreme judicial court shall establish, by rule, such reports or checklists to be utilized by the trial court, the prosecuting attorney and the defense counsel prior to, during, and after the trial of cases in which the death penalty is sought, as it deems necessary to ensure that all possible matters which could be raised in defense have been considered by the defendant and defense counsel and either asserted in a timely and correct manner or waived in accordance with applicable legal requirements so that, for purposes of any pretrial review and the trial and post-trial review, the record and transcript of proceedings shall be as complete as possible for a review by the sentencing court and the supreme judicial court of challenges to the trial, conviction, sentence, and detention of the defendant.

            (b)  If, based on the trial court’s review of the record, the court determines that despite the findings by the jury, the death penalty should not be imposed the judge may set aside the sentence of death and impose a sentence of life imprisonment without parole.  In such case the judge shall set forth in writing the findings and reasons which support such determination.  The commonwealth shall have a right to appeal to the supreme judicial court any such determination and the supreme judicial court may set aside such determination if it is unsupported by the record of the case and may thereafter reimpose the penalty of death.

            (c)  Nothing in this section shall limit or restrict review, rights or remedies available through the procedures under Rule 30 of the Massachusetts Rules of Criminal Procedure.

            Section 72.  In addition to review of the entire case pursuant to sections 33E of chapter 278, the supreme judicial court shall review the sentence of death imposed pursuant to sections 68, 69, and 70.  If the supreme judicial court determines that (1) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; or (2) the evidence does not support the jury’s findings of a statutory aggravating circumstance or statutory aggravating circumstances as defined in section 69; or (3) the evidence does not support the jury’s finding that the statutory aggravating circumstance or statutory aggravating circumstances defined in section 69 outweigh the statutory or other mitigating circumstance or statutory or other mitigating circumstances; or (4) the sentence of death was imposed in a racially discriminatory manner; or (5) the sentence of death is excessive or disproportionate to the penalty imposed in other similar cases of one or more jurisdictions legally authorized to impose said penalty of death, with the greater weight of such comparison to be given to similar Massachusetts cases in which the death penalty will have been imposed, with due consideration of both those cases in which a sentence of life imprisonment was imposed and those cases in which a sentence of death was imposed, or in the event that the court determines any or all of the five factors as enumerated in this section exist, the court shall (1) reverse the sentence of death and remand for a new presentence hearing pursuant to section 68, or (2) reverse the sentence of death and remand to the superior court department of the trial court for sentence of imprisonment in the state prison for life without the possibility of parole.  The court shall also have the authority to affirm the sentence of death.   

SECTION 13. Said chapter 279, as so appearing, is hereby further amended by adding the following section:-

Section 73. No employee of the commonwealth and no employee providing services under contract to the department of correction or any other department or agency of the commonwealth shall be required, as a condition of employment or contractual obligation, to attend or to participate in any execution if such attendance or participation is contrary to any moral or religious convictions of such employee.

SECTION 14. The district attorneys and the jury commissioners of the several districts, the attorney general, the chief counsel of the committee for public counsel services, the chief justice for administration and management of the trial court, and the chief justice of the supreme judicial court shall annually prepare reports setting out the costs incurred by each such agency or department for the investigation, prosecution, defense, trial, and appeal of all cases in which the commonwealth has sought the death penalty at any stage of the proceedings. For the purposes of this section, the district attorneys shall include in their reports all police and other investigative costs whether expended from municipal, state, or other law enforcement funds.

Said agencies and departments shall attempt to distinguish which of such costs were incurred due to the capital punishment provisions effectuated by this act and which of such costs would have been incurred regardless of said provisions in the course of investigating, prosecuting, defending, trying or appealing cases involving first degree murder. When such agencies or departments are unable to document specific dollar expenditures for such cases, the agency or department shall make reasonable estimates as it finds feasible and shall set forth in its report any formula utilized to make such estimates.

The annual reports from each such agency or department shall be submitted on or before November 1 and shall set out the costs incurred for death penalty prosecutions during the prior fiscal year. Such reports shall be submitted to the clerks of the house and senate and to the house and senate committees on ways and means.

All such reports shall be public records as defined in clause 26 of section 7 of chapter 4 of the General Laws after their submission to the General Court and shall be governed by the provisions of chapter 66 of the General Laws.

SECTION 15. The committee for public counsel services shall promulgate the two rosters of attorneys qualified to be appointed for trial and sentencing stages of capital cases pursuant to section 16(e)(1) of chapter 211D of the General Laws as added by section 1 of this act on the effective date of this act.

SECTION 16.  Where any prisoner who has been sentenced to death or life imprisonment without the possibility of parole for first degree murder is transferred from one facility to another or receives a commutation, the commissioner of the department of corrections shall give notice to any person certified pursuant to the provisions of section 3(t) of chapter 258B and section 172(c) of chapter 6 of the General Laws within one week prior to said transfer; provided however, that if in the opinion of the commissioner, said notice can not be given without endangering the safety of the public, correctional staff, or prisoners, or said notice would cause significant difficulty in the effective management of the department of corrections, notice shall be given within one week after said transfer.  Immediate notice shall be made to any such certified person upon escape or death of that prisoner.