MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary

By: Senator(s) Carlton

AN ACT TO REVISE SEX OFFENDER REGISTRATION; TO AMEND SECTION 45-33-23, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 45-33-25, MISSISSIPPI CODE OF 1972, TO REVISE THE REGISTRATION INFORMATION REQUIRED; TO AMEND SECTION 45-33-27, MISSISSIPPI CODE OF 1972, TO REVISE THE TIME FRAME FOR REGISTRATION; TO AMEND SECTION 45-33-29, MISSISSIPPI CODE OF 1972, TO REVISE AN OFFENDER'S DUTY TO NOTIFY THE DEPARTMENT OF CHANGES; TO AMEND SECTION 45-33-31, MISSISSIPPI CODE OF 1972, TO REVISE RE-REGISTRATION; TO AMEND SECTION 45-33-33, MISSISSIPPI CODE OF 1972, TO REVISE PENALTIES FOR FAILURE TO REGISTER; TO AMEND SECTION 45-33-35, MISSISSIPPI CODE OF 1972, TO REVISE THE CENTRAL REGISTRY OF OFFENDERS; TO AMEND SECTION 45-33-45, MISSISSIPPI CODE OF 1972, TO REVISE THE DESIGNATION OF SEXUAL PREDATORS; TO AMEND SECTION 45-33-47, MISSISSIPPI CODE OF 1972, TO REVISE THE RELIEF FROM THE DUTY TO REGISTER; TO AMEND SECTION 45-33-49, MISSISSIPPI CODE OF 1972, TO REVISE PUBLIC NOTIFICATION; TO AMEND SECTION 37-9-17, MISSISSIPPI CODE OF 1972, TO REVISE THE CENTRAL REGISTRY OF OFFENDERS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 45-33-23, Mississippi Code of 1972, is amended as follows:

45-33-23. For the purposes of this chapter, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) "Conviction" shall mean that, regarding the person's offense, there has been a determination or judgment of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere regardless of whether adjudication is withheld. "Conviction of similar offenses" includes, but is not limited to, a conviction by a federal or military tribunal, including a court martial conducted by the Armed Forces of the United States, a conviction for an offense committed on an Indian Reservation or other federal property, and a conviction in any state of the United States.

(b) "Jurisdiction" shall mean any state court, federal court, military court or Indian tribunal.

(c) "Permanent residence" is defined as a place where the person abides, lodges, or resides for a period of fourteen (14) or more consecutive days.

(d) "Registration" means providing required information to the appropriate agency within the required timeframe as required by Sections 45-33-25, 45-33-27, 45-33-29 and 45-33-31.

(e) "Registration duties" means obtaining the registration information required on the form specified by the department as well as the photograph, fingerprints, and blood sample of the registrant. Blood samples are to be forwarded to the State Crime Laboratory pursuant to Section 45-33-37; the photograph, fingerprints and other registration information are to be forwarded to the Department of Public Safety within three (3) days of registration.

(f) "Responsible agency" is defined as the person or government entity whose duty it is to obtain information from a criminal sex offender upon conviction and to transmit that information to the Mississippi Department of Public Safety.

(i) For a criminal sex offender being released from the custody of the Department of Corrections, the responsible agency is the Department of Corrections.

(ii) For a criminal sex offender being released from a county jail, the responsible agency is the sheriff of that county.

(iii) For a criminal sex offender being released from a municipal jail, the responsible agency is the police department of that municipality.

(iv) For a sex offender in the custody of youth court, the responsible agency is the youth court.

(v) For a criminal sex offender who is being placed on probation, including conditional discharge or unconditional discharge, without any sentence of incarceration, the responsible agency is the sentencing court.

(vi) For an offender who has been committed to a mental institution following an acquittal by reason of insanity, the responsible agency is the facility from which the offender is released. Specifically, the director of said facility shall notify the Department of Public Safety prior to the offender's release.

(vii) For a criminal sex offender who is being released from a jurisdiction outside this state or who has a prior conviction in another state and who is to reside in this state, the responsible agency is the Department of Public Safety.

(g) "Sex offense" means any of the following offenses:

(i) Section 97-3-53 relating to kidnapping, if the victim was below the age of eighteen (18);

(ii) Section 97-3-65 relating to rape;

(iii) Section 97-3-71 relating to rape and assault with intent to ravish;

(iv) Section 97-3-95 relating to sexual battery;

(v) Section 97-5-5 relating to enticing child for concealment, prostitution or marriage;

(vi) Section 97-5-23 relating to the touching of a child for lustful purposes;

(vii) Section 97-5-27 relating to the dissemination of sexually oriented material to children;

(viii) Section 97-5-33 relating to the exploitation of children;

(ix) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;

(x) Section 97-29-59 relating to unnatural intercourse;

(xi) Section 97-1-7 relating to attempt to commit any of the above-referenced offenses;

(xii) Section 97-29-3 relating to adultery or fornication between teacher and pupil;

(xiii) Any other offense resulting in a conviction in another jurisdiction, whether state, federal or military, which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere; * * *

(xiv) Any offense resulting in a conviction in another jurisdiction, whether state, federal or military, for which registration is required * * *;

(h) "Sexual predator" means a person * * * designated as a sexual predator under Section 45-33-45.

(i) "Temporary residence" is defined as a place where the person abides, lodges, or resides for a period of fourteen (14) or more days in the aggregate during any calendar year and which is not the person's permanent address; for a person whose permanent residence is not in this state, the place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in the state; or a place where a person routinely abides, lodges or resides for a period of four (4) or more consecutive or nonconsecutive days in any month and which is not the person's permanent residence.

(j) "Department" unless otherwise specified is defined as the Mississippi Department of Public Safety.

SECTION 2. Section 45-33-25, Mississippi Code of 1972, is amended as follows:

45-33-25. (1) Any person residing in this state who has been convicted of any sex offense or attempted sex offense or who has been acquitted by reason of insanity for any sex offense or attempted sex offense or twice adjudicated delinquent for any sex offense or attempted sex offense shall register with the Mississippi Department of Public Safety. The department shall provide the initial registration information as well as every change of address to the sheriff of the county of the residence address of the registrant through either written notice, electronic or telephone transmissions, or online access to registration information. Further, the department shall provide this information to the Federal Bureau of Investigation. Additionally, upon notification by the registrant that he intends to reside outside the State of Mississippi, the department shall notify the appropriate state law enforcement agency of any state to which a registrant is moving or has moved.

(2) Any person required to register under this chapter shall submit the following information at the time of registration:

(a) Name, including a former name which has been legally changed;

(b) Address;

(c) Place of employment;

(d) Crime for which convicted;

(e) Date and place of conviction, adjudication or acquittal by reason of insanity;

(f) Aliases used;

(g) Social security number;

(h) Date and place of birth;

(i) Age, race, sex, height, weight, and hair and eye colors;

(j) A brief description of the offense or offenses for which the registration is required;

(k) Identifying factors;

(l) Anticipated future residence;

(m) Offense history;

(n) Photograph;

(o) Fingerprints;

(p) For sexual predators, documentation of any treatment received for any mental abnormality or personality disorder of the person;

(q) Blood sample; * * *

(r) Name of any institution of higher learning at which the offender is employed, carries on a vocation (with or without compensation) or is enrolled as a student; and

(s) Any other information deemed necessary.

(3) For purposes of this chapter, a person is considered to be residing in this state if he maintains a permanent or temporary residence as defined in Section 45-33-23, including students, temporary employees and military personnel on assignment.

SECTION 3. Section 45-33-27, Mississippi Code of 1972, is amended as follows:

45-33-27. (1) A person required to register on the basis of a conviction, adjudication of delinquency or acquittal by reason of insanity entered shall register within three (3) days of the date of judgment unless the person is immediately confined or committed, in which case the person shall register when released in accordance with the procedures established by the department. * * *

(2) If a person who is required to register under this section is released from prison or placed on parole or supervised release, the Department of Corrections shall perform the registration duties at the time of release and forward the registration information to the Department of Public Safety within three (3) days.

(3) If a person required to register under this section is placed on probation, the court, at the time of entering the order, shall inform the person of the duty to register, obtain the registration information and forward the registration information to the Department of Public Safety within three (3) days.

(4) Any person required to register who is neither incarcerated, detained nor committed at the time the requirement to register shall attach shall present himself to the county sheriff who shall perform the registration duties and forward the registration information to the Department of Public Safety within three (3) days.

(5) An offender moving to or returning to this state from another jurisdiction shall notify the Department of Public Safety ten (10) days before the person first resides in or returns to a county in this state and shall register with the department within ten (10) days of first residing in or returning to a county of this state. The offender must then present himself to the sheriff of the county in which he intends to reside to provide the required registration information.

(6) A person, other than a person confined in a correctional or juvenile detention facility or involuntarily committed on the basis of mental illness, who is required to register on the basis of a sex offense for which a conviction, adjudication of delinquency or acquittal by reason of insanity was entered prior to July 1, 1995, shall register with the sheriff of the county in which he resides no later than August 15, 2000.

SECTION 4. Section 45-33-29, Mississippi Code of 1972, is amended as follows:

45-33-29. Change notification. (1) Upon any change of address, an offender under this chapter must notify the department in writing no less than ten (10) days before he intends to first reside at the new address.

(2) Upon any change in the status of a registrant, employment or vocation at any institution of higher learning, the offender must notify the department in writing within ten (10) days of the change.

SECTION 5. Section 45-33-31, Mississippi Code of 1972, is amended as follows:

45-33-31. A registrant not designated a sexual predator shall reregister annually. A registrar designated a sexual predator, as defined in Section 45-33-45, shall reregister every ninety (90) days. Reregistration includes the submission of current information to the department and the verification of registration information, including address, telephone number, place of employment, address of employment, to the department and any other registration information that may need to be verified.

(a) The Department of Public Safety shall send a nonforwardable verification form to the last reported address of the person * * *.

(b) The person shall return the verification form to the department within ten (10) days after receipt of the form verifying that the person resides at the address last reported.

(c) If the person fails to submit the verification form to the department within ten (10) days after receipt of the form, the person shall be in violation of this section.

SECTION 6. Section 45-33-33, Mississippi Code of 1972, is amended as follows:

45-33-33. (1) The failure of an offender to provide any registration or other information, including, but not limited to, initial registration, reregistration or change of address information, as required by this chapter, is a violation of the law. Additionally, forgery of information or submission of information under false pretenses is also a violation of the law.

(2) Unless otherwise specified, a violation of this chapter shall be considered a felony and shall be punishable by a fine not more than Five Thousand Dollars ($5,000.00) or imprisonment in the State Penitentiary for not more than five (5) years, or both fine and imprisonment.

(3) Whenever it appears that an offender has failed to comply with the duty to register or reregister, the department shall promptly notify the sheriff of the county of the last known address of the offender. Upon notification, the sheriff shall attempt to locate the offender at his last known address.

(a) If the sheriff locates the offender he shall enforce the provisions of this chapter. The sheriff shall then notify the department with the current information regarding the offender.

(b) If the sheriff is unable to locate the offender, the sheriff shall promptly notify the department and initiate a criminal prosecution against the offender for the failure to register or reregister. The sheriff shall make the appropriate transactions into the Federal Bureau of Investigation's wanted-person database.

(4) A first violation of this chapter may result in the arrest of the offender. Upon any second or subsequent violation of this chapter, the offender shall be arrested for such violation.

(5) Any prosecution for a violation of this section shall be brought by a prosecutor in the county of such violation.

SECTION 7. Section 45-33-35, Mississippi Code of 1972, is amended as follows:

45-33-35. (1) The Mississippi Department of Public Safety shall maintain a central registry of sex offender information as defined in Section 45-33-25 and shall adopt rules and regulations necessary to carry out this section. The responsible agencies shall provide the information required in Section 45-33-25 on a form developed by the department to ensure accurate information is maintained.

(2) Upon conviction, adjudication or acquittal by reason of insanity of any sex offender, if the sex offender is not immediately confined or not sentenced to a term of imprisonment, the clerk of the court which convicted and sentenced the sex offender shall inform the person of the duty to register and shall perform the registration duties as described in Section 45-33-23 and forward the information to the department.

(3) Upon release from prison, placement on parole or supervised release, the Department of Corrections shall inform the person of the duty to register and shall perform the registration duties as described in Section 45-33-23 and forward the information to the Department of Public Safety.

(4) Upon release from confinement in a mental institution following an acquittal by reason of insanity, the director of the facility shall inform the offender of the duty to register and shall notify the Department of Public Safety of the offender's release.

(5) Upon release from a youthful offender facility, the director of the facility shall inform the person of the duty to register and shall perform the registration duties as described in Section 45-33-23 and forward the information to the Department of Public Safety.

(6) In addition to performing the registration duties, the responsible agency shall:

(a) Inform the person having a duty to register that:

(i) The person shall report in writing any change of address to the department ten (10) days before changing address.

(ii) Any change of address to another state shall be reported to the department in writing no less than ten (10) days before the change of address. The offender shall comply with any registration requirement in the new state.

(iii) The person must register in any state where the person is employed, carries on a vocation, is stationed in the military or is a student.

(iv) All address verifications must be returned to the department within the required time period.

(iv) Any change in status of a registrant's enrollment, employment or vocation at any institution of higher learning shall be reported to the department in writing within ten (10) days of the change.

(b) Require the person to read and sign a form stating that the duty of the person to register under this chapter has been explained.

(c) Obtain or facilitate the obtaining of a blood sample from every registrant as required by this chapter if such blood sample has not already been provided to the Mississippi Crime Lab.

SECTION 8. Section 45-33-45, Mississippi Code of 1972, is amended as follows:

45-33-45. (1) The designation of a person by the department as a sexual predator is neither a sentence nor a punishment, but is simply a status resulting from the conviction of certain crimes.

(2) An offender shall be designated a sexual predator in the State of Mississippi if:

(a) The offender is convicted of any of the following crimes or attempt to commit any of the following crimes on or after July 1, 1995.

(i) Section 97-3-65 relating to rape * * *;

(ii) Section 97-3-71 relating to rape and assault with intent to ravish;

(iii) Section 97-3-95 relating to sexual battery;

(iv) Subsection (1) or (2) of Section 97-5-33 relating to the exploitation of children;

(v) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner; or

(vi) Any conviction for a similar law of another jurisdiction.

(b) The offender receives two (2) separate convictions of any of the qualifying offenses as described in Section 45-33-23 as long as one (1) of the convictions was entered on or after July 1, 1995.

(c) The offender is twice adjudicated delinquent in a youth court for the crime of rape pursuant to Section 97-3-65 or sexual battery pursuant to Section 97-3-95.

(3) Any offender convicted as described in subsection (2) of this section shall be required to maintain lifetime registration without the opportunity to petition for removal from the sex offender registry.

(4) The offender will be considered a sexual predator for such convictions unless the conviction is set aside in any post-conviction proceeding, * * * the offender receives a pardon, or the charge is dismissed.

(5) An offender who resides in Mississippi and who has been designated a sexual predator, a sexually violent predator or a similar designation in another state will be designated a sexual predator in the Mississippi sex offender registry.

SECTION 9. Section 45-33-47, Mississippi Code of 1972, is amended as follows:

45-33-47. (1) A sex offender with a duty to register under Section 45-33-25 shall only be relieved of the duty under subsection (2) of this section.

(2) A person having a duty to register under Section 45-33-25 may petition the circuit court of the sentencing jurisdiction to be relieved of that duty under the following conditions:

(a) The offender has maintained his registration in Mississippi for not less than ten (10) years from the most recent date of occurrence of at least one (1) of the following: release from prison, placement on parole, supervised release or probation. Incarceration for any offense will restart the ten-year minimum registration requirement. Registration in any other jurisdiction or state does not reduce the ten-year time requirement for maintaining registration in Mississippi.

(b) The offender has not been designated a sexual predator.

(3) In determining whether to release an offender from the obligation to register, the court shall consider the nature of the registerable offense committed and the criminal and relevant noncriminal behavior of the petitioner both before and after conviction. The court may relieve the offender of the duty to register only if the petitioner shows, by clear and convincing evidence, that the registrant properly maintained his registration as required by law and that future registration of the petitioner will not serve the purposes of this chapter.

(4) The offender will be required to continue registration for any sex offense conviction unless the conviction is set aside in any post-conviction proceeding, the offender receives a pardon, or the charge is dismissed. Upon submission of the appropriate documentation to the department of one (1) of these occurrences, registration duties will be discontinued.

SECTION 10. Section 45-33-49, Mississippi Code of 1972, is amended as follows:

45-33-49. (1) Records maintained pursuant to this chapter shall be open to law enforcement agencies which shall be authorized to release relevant and necessary information regarding sex offenders to the public.

(2) The identity of a victim of an offense that requires registration under this chapter shall not be released.

(3) A sheriff shall maintain records for registrants of the county and shall make available to any person upon request the name, address, place of employment, crime for which convicted, date and place of conviction of any registrant, and any other information deemed necessary for the protection of the public. The sheriffs shall be responsible for verifying their respective registries annually against the department's records to ensure current information is available at both levels.

(4) Upon written request, the department may also provide to any person the name, address, photograph, if available, date of photograph, place of employment, crime for which convicted, date and place of conviction of any registrant, hair, eye color, height, race, sex and date of birth of any registrant, and any other information deemed necessary for the protection of the public. Additionally, the department may utilize an internet website or other electronic means to release the information.

(5) The Department of Education, the Mississippi Private School Association and the Department of Health shall notify all schools and licensed day care centers annually regarding the availability upon request of this information.

(6) Nothing in this section shall be construed to prevent law enforcement officers from notifying members of the public exposed to danger of any circumstances or individuals that pose a danger under circumstances that are not enumerated in this section.

(7) Nothing in this chapter shall be construed to prevent law enforcement officers from providing community notification of any circumstances or individuals that pose or could pose a danger under circumstances that are not enumerated in this chapter.

SECTION 11. Section 37-9-17, Mississippi Code of 1972, is amended as follows:

37-9-17. (1) On or before April 1 of each year, the principal of each school shall recommend to the superintendent of the school district the licensed employees or noninstructional employees to be employed for the school involved except those licensed employees or noninstructional employees who have been previously employed and who have a contract valid for the ensuing scholastic year. If such recommendations meet with the approval of the superintendent, the superintendent shall recommend the employment of such licensed employees or noninstructional employees to the school board, and, unless good reason to the contrary exists, the board shall elect the employees so recommended. If, for any reason, the school board shall decline to elect any employee so recommended, additional recommendations for the places to be filled shall be made by the principal to the superintendent and then by the superintendent to the school board as provided above. The school board of any school district shall be authorized to designate a personnel supervisor or another principal employed by the school district to recommend to the superintendent licensed employees or noninstructional employees; however, this authorization shall be restricted to no more than two (2) positions for each employment period for each school in the school district. Any noninstructional employee employed upon the recommendation of a personnel supervisor or another principal employed by the school district must have been employed by the school district at the time the superintendent was elected or appointed to office; a noninstructional employee employed under this authorization may not be paid compensation in excess of the statewide average compensation for such noninstructional position with comparable experience, as established by the State Department of Education. The school board of any school district shall be authorized to designate a personnel supervisor or another principal employed by the school district to accept the recommendations of principals or their designees for licensed employees or noninstructional employees and to transmit approved recommendations to the board; however, this authorization shall be restricted to no more than two (2) positions for each employment period for each school in the school district.

When the licensed employees have been elected as provided in the preceding paragraph, the superintendent of the district shall enter into a contract with such persons in the manner provided in this chapter.

If, at the commencement of the scholastic year, any licensed employee shall present to the superintendent a license of a higher grade than that specified in such individual's contract, such individual may, if funds are available from minimum education program funds of the district, or from district funds, be paid from such funds the amount to which such higher grade license would have entitled the individual, had the license been held at the time the contract was executed.

(2) The superintendent of the school district shall require that current criminal records background checks and current child abuse registry checks are obtained, and that such criminal record information and registry checks are on file for any new hires applying for employment as a licensed or nonlicensed employee at a school not previously employed in such school district prior to July 1, 2000. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. The fee for such fingerprinting and criminal history record check shall be paid by the applicant, not to exceed Fifty Dollars ($50.00); however, the school board of the school district, in its discretion, may elect to pay the fee for the fingerprinting and criminal history record check on behalf of any applicant. Under no circumstances shall a school district superintendent, school board member or any individual other than the subject of the criminal history record checks disseminate information received through any such checks except insofar as required to fulfill the purposes of this section.

(3) If such fingerprinting or criminal record checks disclose a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex offense listed in Section 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault which has not been reversed on appeal or for which a pardon has not been granted, the new hire shall not be eligible to be employed at such school. Any employment contract for a new hire executed by the superintendent of the local school district shall be voidable if the new hire receives a disqualifying criminal record check. However, the school board may, in its discretion, allow any applicant aggrieved by the employment decision under this section to appear before the board, or before a hearing officer designated for such purpose, to show mitigating circumstances which may exist and allow the new hire to be employed at the school. The school board may grant waivers for such mitigating circumstances, which shall include, but not be limited to: (a) age at which the crime was committed; (b) circumstances surrounding the crime; (c) length of time since the conviction and criminal history since the conviction; (d) work history; (e) current employment and character references; (f) other evidence demonstrating the ability of the person to perform the employment responsibilities competently and that the person does not pose a threat to the health or safety of the children at the school.

(4) No school district or school district employee shall be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this Section 37-9-17.

(5) Subsections (2) through (5) of this section shall be repealed on June 30, 2002.

SECTION 12. Section 11 of this act shall take effect and be in force from and after passage, and the remainder of this act shall take effect and be in force from and after July 1, 2001.