WEST virginia legislature

2026 regular session

Committee Substitute

for

Senate Bill 1037

By Senator Bartlett

[Reported February 27, 2026, from the Committee on the Judiciary]

A BILL to amend and reenact §61-2-2 and §62-3-15 of the Code of West Virginia, 1931, as amended; to amend the code by adding twelve new sections, designated §61-2-2a, §61-2-2b, §61-2-2c, §61-2-2d, §61-2-2e, §61-2-2f, §61-2-2g, §61-2-2h, §62-7-4, §62-7-5, §62-7-6, §62-7-6a; and to repeal §61-11-2, relating to imposition of death penalty for first degree murder in the course of committing or attempting to commit sexual assault in the first degree; providing for sentencing procedures relating to imposition of death penalty; setting forth aggravating and mitigating circumstances for the imposition of capital punishment; describing contents of sentencing verdict and requiring it be recorded; providing automatic review of death penalty sentence by the Supreme Court of Appeals; providing for forensic DNA testing in death penalty cases; permitting Governor to issue reprieve, pardon, or commutation of sentence in capital case; directing the Division of Corrections and Rehabilitation to carry out death sentence; authorizing Division of Corrections and Rehabilitation to promulgate rules and emergency rules; providing exception for death penalty sentence in murder cases; providing for the execution of death sentence; providing for delivery of sentence of death; providing for transmission of certain court records to warden of the state correctional facility; transferring of person sentenced to death to the state correctional facility; providing for presence of certain persons at execution; providing for record of execution; and providing disposition of deceased defendant’s body.

Be it enacted by the Legislature of West Virginia:

Chapter 61. Crimes and their punishment.

ARTICLE 2.  CRIMES AGAINST THE PERSON.

§61-2-2. Penalty for murder of first degree.

Murder of the first degree shall be punished by confinement in the penitentiary for life: Provided, That a person convicted of murder in the first degree may be sentenced to death if any of the aggravating circumstances enumerated in §61-2-2b of this code have been charged and proven beyond a reasonable doubt without a finding of the presence of any one or more of the mitigating circumstances enumerated in §61-2-2c of this code.  

61-2-2a. Sentencing procedures when seeking imposition of death penalty.

(a) Procedure in jury trials. --

Upon a unanimous jury finding that the state has proven beyond a reasonable doubt the existence of an aggravating circumstance specified in §61-2-2b of this code, the court shall conduct a separate sentencing hearing in which the jury shall make a determination as to whether the defendant shall be sentenced to death or life imprisonment with or without mercy. In the sentencing hearing, evidence shall be presented by either party as to any matter that the court determines relevant and admissible on the question of the sentence to be imposed. Such evidence shall include evidence relating to mitigating circumstances specified in §61-2-2c of this code.  Following the presentation of evidence, the court shall permit counsel for the state and defendant to present an argument for and against the sentence of death. The court shall then instruct the jury in accordance with subsection (b) of this section.

(b) Instructions to jury. --

Before retiring to determine the imposition of sentence, the court shall specifically instruct the jury as to the following:

(1) That the jury shall fully consider any mitigating circumstances, including those specified in §61-2-2c of this code, for which any evidence has been presented;

(2) That only upon the unanimous finding of the jury, shall the sentence of death be imposed; and

(3) That the jury shall consider any other matter that the judge determines to be just and proper under the circumstances.

§61-2-2b. Aggravating circumstances for imposition of capital punishment.

(a) When a defendant is convicted of murder in the first degree as defined in §61-2-1, it is an aggravating circumstance when the defendant intentionally commits the murder in the course of committing or attempting to commit sexual assault in the first degree as defined in §61-8B-3.

(b) A finding of aggravated circumstances may not be based on circumstantial evidence, but requires evidence including, but not limited to, forensic DNA evidence, witness testimony, or an uncoerced confession.

§61-2-2c. Mitigating circumstances for imposition of capital punishment.

(a) When a defendant is convicted of murder in the first degree with a further finding that the state has proven beyond a reasonable doubt the existence of an aggravating circumstance specified in §61-2-2b of this code, the jury shall consider mitigating circumstances in the matter of sentencing.

(b) The mitigating circumstances to be considered in the matter of sentencing include the following:

(1) The defendant was under the influence of extreme mental or emotional disturbance at the time of the commission of the murder;

(2) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law was substantially impaired at the time of the commission of the murder;

(3) The defendant, at the time of the murder at issue, was under the age of 18 years;

(4) The defendant acted under duress, or acted under the substantial influence of another person at the time of the commission of the offense; and

(5) Any other evidence of mitigation concerning the character and record of the defendant, and the circumstances of the murder that would mitigate the appropriateness or necessity of imposing a sentence of death.

(c) The defendant shall bear the burden of proving the existence of a mitigating circumstance by clear and convincing evidence.

§61-2-2d. Sentencing verdict by the jury.

After hearing all the evidence and arguments by counsel and after receiving the instructions from the court, the jury shall deliberate and render a sentencing verdict. The jury shall set forth, in writing, whether the sentence imposed is death, life imprisonment without mercy, or life imprisonment with mercy.

§61-2-2e. Recording sentencing verdict; imposing sentence.

(a) Whenever the jury unanimously agrees to the sentencing verdict, it shall be received and recorded by the court. The court shall thereafter impose upon the defendant the sentence fixed by the jury. If the sentencing verdict is death, the court shall direct the West Virginia Division of Corrections and Rehabilitation to carry out the sentence according to the rules and procedures of the Commissioner.

(b) The West Virginia Division of Corrections and Rehabilitation shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code, and may promulgate emergency rules pursuant to §29A-3-15 of this code when necessary, to adopt the procedures and methods that the West Virginia Division of Corrections and Rehabilitation will use to carry out a sentence of death.  The rules authorized by this section shall at a minimum provide for the carrying out of a death sentence within the walls of a West Virginia correctional facility under the direction of West Virginia corrections officials.  The method of execution shall comply with both the United States and West Virginia Constitution and shall be carried out according to current evidence-based scientific research, including but not limited to, lethal injection or firing squad.

§61-2-2f. Review of death sentence.

(a) Whenever the death penalty is imposed and upon the judgment becoming final in the circuit court, the sentence shall be reviewed automatically on the record by the Supreme Court of Appeals of West Virginia. The clerk of the circuit court, within 10 days after receiving the transcript of all recorded proceedings, shall transmit the entire record and transcript to the Supreme Court of Appeals of West Virginia together with a notice prepared by the clerk and a report prepared by the circuit judge. The notice shall set forth the title and docket number of the case, the name of the defendant, and the name and address of his or her attorney, and a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in a standard form prepared and supplied by the Supreme Court of Appeals of West Virginia.

(b) The Supreme Court of Appeals of West Virginia shall consider the punishment as well as any errors enumerated by way of appeal filed by the defendant, and the sentencing review set forth in subsection (a) of this section may be consolidated with the appeal.

(c) With regard to the sentence, the Supreme Court of Appeals of West Virginia shall specifically determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) Whether the evidence supports the jury's finding of a statutory aggravating circumstance; and

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the murder and the defendant.

(d) Both the defendant and the state have the right to submit briefs within the time limitations set forth in the rules by the Supreme Court of Appeals of West Virginia, and to present oral argument to the court.

(e) The Supreme Court of Appeals of West Virginia shall render a written decision which shall include a reference to those similar cases, including similar cases from jurisdictions outside of West Virginia, which it took into consideration. The Supreme Court of Appeals, with regard to review of death sentences, shall:

(1) Affirm the sentence of death; or

(2) Set the sentence aside and remand the case for resentencing by the circuit judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of Appeals of West Virginia in its written decision shall be provided to the resentencing judge for his or her consideration.

(f) The Supreme Court of Appeals of West Virginia may employ appropriate staff and establish methods to compile any cases or information considered by the court to be appropriate and relevant to the statutory questions concerning the validity of the sentence. The Supreme Court of Appeals of West Virginia is requested to promulgate rules prior to January 1, 2026, to the extent necessary to comply with the provisions of this section.  

(g) The sentence review is in addition to a direct appeal, if taken, and the review and appeal may be consolidated for consideration. The Supreme Court of Appeals of West Virginia shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

(h)  Appeals involving a sentence of death shall be given expedited consideration by the  Supreme Court of Appeals of West Virginia.

§61-2-2g. DNA testing in death penalty cases.

(a) Notwithstanding any other provision of law to the contrary, a person in custody pursuant to the judgment of a court of this state in which the death penalty has been imposed may, at any time after conviction, apply to the court that entered the judgment for the testing of any forensic deoxyribonucleic acid ("DNA") biological material that:

(1) Is related to the investigation or prosecution that resulted in the judgment;

(2) Is in the actual or constructive possession of the state; and

(3) Was not previously subjected to DNA testing or can be subjected to retesting with DNA techniques that were previously not available that provide a reasonable likelihood of more accurate and probative results.

(b) The court shall notify the prosecutor of the county in which the sentence of death was entered and the Attorney General of an application made under subsection (a) of this section and shall afford the state an opportunity to respond.

(c) Upon receiving notice of an application made under subsection (a) of this section, the prosecutor of the county in which the sentence of death was entered or the Attorney General shall take necessary steps to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.

(d) The court shall order DNA testing pursuant to an application made under subsection (a) of this section upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or sentenced.

(e) The cost of DNA testing ordered under subsection (d) of this section shall be borne by the state or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the means to pay.

(f) The court may at any time appoint counsel for an indigent applicant under this section.

(g) If the results of DNA testing conducted under this section are unfavorable to the applicant, the court:

(1) Shall dismiss the application; and

(2) In the case of an applicant who is not indigent, may assess the applicant for the cost of the testing.

(h) If the results of DNA testing conducted under this section are favorable to the applicant, the court shall:

(1) Notwithstanding any other provision of law to the contrary that would bar a hearing, order a hearing, and

(2) Enter any order that serves the interests of justice, including an order:

(A) Vacating and setting aside the judgment;

(B) Discharging the applicant, if the applicant is in custody;

(C) Resentencing the applicant; or

(D) Granting a new trial.

(i) Nothing in this section may be construed to limit the circumstances under which a person may obtain DNA testing or other post-conviction relief under any other provision of law.

(j) Notwithstanding any other provision of law, the state shall preserve any biological material secured in connection with a death penalty case for such period of time as a person remains incarcerated awaiting execution under a death penalty sentence.

§61-2-2h. Pardon, reprieve, and commuting by the Governor.

In a case in which capital punishment has been imposed, the Governor shall retain the power to issue a pardon, grant a reprieve, or commute a sentence as set forth in section eleven, article VII of the Constitution of West Virginia.  

ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.

§61-11-2. Capital punishment abolished.

[Repealed.]

Chapter 62. Criminal Procedure.

Article 3. Trial of Criminal Cases.

§62-3-15. Verdict and sentence in murder cases.

If a person indicted for murder is found by the jury guilty thereof, they shall in their verdict find whether he or she is guilty of murder of the first degree or second degree. If the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be eligible for parole: Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve, except that, notwithstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years: Provided, however, That if the accused pleads guilty of murder of the first degree, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy, except that, notwithstanding any provision of said article twelve or any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years: Provided further, That nothing in this section shall preclude a sentence of death where the individual is guilty of the offense of murder in the first degree and there is a further finding that the state has proven beyond a reasonable doubt the existence of an aggravating circumstance specified in §61-2-2b of this code.

ARTICLE 7. EXECUTION OF SENTENCES; STAYS.

§62-7-4. Execution of death sentence.

The sentence of death shall be executed at a state correctional facility in accordance with §61-2-2e of this code. The execution shall be performed under the direction of the warden of the state correctional facility and the authorities in control of the facility. The warden of the state correctional facility or, in the case of his or her death, absence, or inability to act, the Commissioner of West Virginia Division of Corrections and Rehabilitation shall be the executioner. In carrying out the execution of the sentence, the warden or the Commissioner of West Virginia Division of Corrections and Rehabilitation may secure the services and advice of any person or persons either considers appropriate.

§62-7-5. Certificate of death sentence and indictment to be sent to warden; transfer of convict to a state correctional facility; persons present at execution.

The clerk of the court which pronounces the sentence of death shall, as soon as possible after sentence, deliver a certified copy of the sentence to the sheriff, who shall retain the custody of the convict sentenced to death until he or she is delivered to a properly authorized guard sent by the warden for the removal of the convict to the state correctional facility. The clerk of the court shall also immediately transmit to the warden of the state correctional facility a copy of the indictment, order of conviction, and the sentence and judgment entered. As soon as possible after receipt of the copies, the warden shall send a guard or guards to remove the convict to the state correctional facility. Unless a suspension of execution is ordered, the execution shall take place at the time and in the manner prescribed in the sentencing order. At the execution there may be present those officers, guards, and assistants as the warden or Commissioner of West Virginia Division of Corrections and Rehabilitation considers appropriate. The warden or the commissioner, as the case may be, shall request the presence of the prosecuting attorney of the county in which the conviction occurred, the clerk of the circuit court of the county, 12 respectable citizens, including a physician and representatives of the press as considered appropriate. The counsel of the convict, or any clergymen the convict may desire, and any of the convict's relations may attend.

§62-7-6. Record of execution.

The warden or Commissioner of West Virginia Division of Corrections and Rehabilitation who executes the sentence of death shall certify to the clerk of the circuit court, by which the sentence was imposed, that the sentence has been executed. The clerk of the circuit court shall file the certificate with the papers of the case and enter the certificate and papers upon the records of the court.

§62-7-6a. Disposition of body of executed convict.

If the friends or relatives of the convict make a request in writing to the warden at any time within two days after the sentence of death has been executed, the body of the convict shall be returned to the friends or relatives, in any county of the state, for burial. The warden may draw his or her order on the Auditor of the state for whatever sum is necessary to pay for transportation of the body, to be paid out of funds appropriated to the West Virginia Division of Corrections and Rehabilitation. If no request is made by friends or relatives, the body shall be disposed of as provided for other convicts who die within a state correctional facility.