Currently, when a defendant is charged capitally, there is a two-part trial. The first part of the trial is the guilt / innocence phase, in which evidence is presented to a jury on whether a defendant committed the crime, and if so, whether the defendant committed first degree murder. If a defendant is found guilty of first degree murder, there is a second phase of the trial, which is called the sentencing phase. In this phase, the State presents aggravating factors in support of an argument for the death penalty, and the defendant presents mitigating factors he hopes will sway the jury in favor of a sentence of life without parole.

Under the proposed legislation, the State and the defendant may present evidence regarding severe mental disability to a Superior Court Judge before the jury trial begins. If the Judge determines a defendant was severely mentally disabled at the time of the crime, the case is declared non-capital, and the defendant becomes ineligible for the death penalty. If the judge permits the capital proceeding, the proposed legislation does not prohibit a defendant from presenting evidence of serious mental illness at other stages of the trial. The proposed legislation allows the defendant to be criminally responsible, but caps the punishment at life without the possibility of parole. The proposed change will also apply to persons already on death row when the legislation goes into effect.