Okla. Stat. tit. 21, § 21-701.10b

intellectually disabled prior to age 18 - Sentencing proceedings.

A. For purposes of this section:

1. "Intellectual disability" or "intellectually disabled" means

significantly subaverage general intellectual functioning, existing

concurrently with significant limitations in adaptive functioning;

2. "Significant limitations in adaptive functioning" means

significant limitations in two or more of the following adaptive

skill areas: communication, self-care, home living, social skills,

community use, self-direction, health, safety, functional academics,

leisure skills and work skills; and

3. "Significantly subaverage general intellectual functioning"

means an intelligence quotient of seventy (70) or below.

B. Regardless of any provision of law to the contrary, no

defendant who is intellectually disabled shall be sentenced to

death; provided, however, the onset of the intellectual disability

must have been manifested before the defendant attained the age of

eighteen (18) years.

C. The defendant has the burden of production and persuasion to

demonstrate intellectual disability by showing significantly

subaverage general intellectual functioning, significant limitations

in adaptive functioning, and that the onset of the intellectual

disability was manifested before the age of eighteen (18) years. An

intelligence quotient of seventy (70) or below on an individually

administered, scientifically recognized standardized intelligence

quotient test administered by a licensed psychiatrist or

psychologist is evidence of significantly subaverage general

intellectual functioning; however, it is not sufficient without

evidence of significant limitations in adaptive functioning and

without evidence of manifestation before the age of eighteen (18)

years. In determining the intelligence quotient, the standard

measurement of error for the test administrated shall be taken into

account.

However, in no event shall a defendant who has received an

intelligence quotient of seventy-six (76) or above on any

individually administered, scientifically recognized, standardized

intelligence quotient test administered by a licensed psychiatrist

or psychologist, be considered intellectually disabled and, thus,

shall not be subject to any proceedings under this section.

D. A defendant charged with capital murder who intends to raise

an intellectual disability as a bar to the death sentence shall

provide to the state notice of such intention at least ninety (90)

days after formal arraignment or within ninety (90) days after the

filing of a bill of particulars, whichever is later. The notice

shall include a brief but detailed statement specifying the

witnesses, nature and type of evidence sought to be introduced. The

Oklahoma Statutes - Title 21. Crimes and Punishments Page 304

notice must demonstrate sufficient facts that demonstrate a good-

faith belief as to the intellectual disability of the defendant.

E. The district court shall conduct an evidentiary hearing to

determine whether the defendant is intellectually disabled. If the

court determines, by clear and convincing evidence, that the

defendant is intellectually disabled, the defendant, if convicted,

shall be sentenced to life imprisonment or life without parole. If

the district court determines that the defendant is not

intellectually disabled, the capital trial of the offense may

proceed. A request for a hearing under this section shall not waive

entitlement by the defendant to submit the issue of an intellectual

disability to a jury during the sentencing phase in a capital trial

if convicted of an offense punishable by death. The court's

determination on the issue of an intellectual disability shall not

be the subject of an interlocutory appeal.

F. The court shall submit a special issue to the jury as to

whether the defendant is intellectually disabled. This special

issue shall be considered and answered by the jury during the
the sentencing phase in a capital trial

if convicted of an offense punishable by death. The court's

determination on the issue of an intellectual disability shall not

be the subject of an interlocutory appeal.

F. The court shall submit a special issue to the jury as to

whether the defendant is intellectually disabled. This special

issue shall be considered and answered by the jury during the

sentencing stage and prior to the determination of sentence. If the

jury unanimously determines that the defendant is intellectually

disabled, the defendant may only be sentenced to life imprisonment

or life without parole. The defendant has the burden of production

and persuasion to demonstrate an intellectual disability to the jury

by a preponderance of the evidence.

G. If the jury determines that the defendant is not

intellectually disabled or is unable to reach a unanimous decision,

the jury shall proceed to determine the existence of aggravating and

mitigating factors in determining whether the sentence of death

shall be imposed. In those deliberations, the jury may consider any

evidence of an intellectual disability as a mitigating factor in

sentencing the defendant.

H. If the jury determines that the defendant is not

intellectually disabled and imposes a death sentence, the trial

court shall make findings of fact and conclusions of law relating to

the issue of whether the determination on the issue of an

intellectual disability was made under the influence of passion,

prejudice, or any other arbitrary factor. The findings shall be

attached as an exhibit to the report of the trial judge required

under Section 701.13 of Title 21 of the Oklahoma Statutes. If the

trial court finds that the determination of an intellectual

disability was not supported by the evidence, the issue may be

raised on appeal to the Oklahoma Court of Criminal Appeals for

consideration as part of its mandatory sentence review.

I. The standard of review for a trier of fact intellectual

disability determination shall be whether, after reviewing the

evidence in the light most favorable to the state, any rational

trier of fact could have found the defendant not intellectually

Oklahoma Statutes - Title 21. Crimes and Punishments Page 305

disabled as defined by this section, giving full deference to the

findings of the trier of fact.

J. The court shall give appropriate instructions in those cases

in which evidence of the intellectual disability of the defendant

requires the consideration by the jury of the provisions of this

section.