2005 Regular Session
To: Judiciary, Division A
By: Senator(s) Walls
AN ACT TO AMEND SECTION 97-3-21, MISSISSIPPI CODE OF 1972, TO ELIMINATE DEATH AS A PENALTY FOR CAPITAL MURDER; TO AMEND SECTIONS 99-19-101 AND 99-19-103, MISSISSIPPI CODE OF 1972, TO CONFORM; TOREPEAL SECTION 99-19-87, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR NONABROGATION OF THE DEATH PENALTY; TO REPEAL SECTION 99-19-105, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THE MANNER IN WHICH AUTOMATIC APPEAL OF THE DEATH PENALTY TO THE SUPREME COURT IS HAD; TO REPEAL SECTION 99-19-106, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE MANNER OF EXECUTION OF THE DEATH SENTENCE; TO AMEND SECTION 99-19-107, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE EVENTUALITY THAT THE DEATH SENTENCE IS FOUND UNCONSTITUTIONAL; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-3-21, Mississippi Code of 1972, is amended as follows:
97-3-21. Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.
Every person who shall be convicted of capital murder shall be sentenced * * * (a) to imprisonment for life in the State Penitentiary without parole; or (b) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f).
SECTION 2. Section 99-19-101, Mississippi Code of 1972, is amended as follows:
99-19-101. (1) Upon conviction or adjudication of guilt of a defendant of capital murder or other capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to * * * life imprisonment without eligibility for parole or life imprisonment. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a jury to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose or may be conducted before the trial judge sitting without a jury if both the State of Mississippi and the defendant agree thereto in writing. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitutions of the United States or of the State of Mississippi. The state and the defendant and/or his counsel shall be permitted to present arguments for or against the sentence * * *.
(2) After hearing all the evidence, the jury shall deliberate on the following matters:
* * *
(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (4) of this section;
(b) Whether sufficient mitigating circumstances exist as enumerated in subsection (5) of this section, which outweigh the aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be sentenced to life imprisonmentor life imprisonment without eligibility for parole * * *.
(3) For the jury to impose a sentence of life imprisonment without eligibility for parole, it must unanimously find in writing the following:
* * *
(a) That sufficient aggravating circumstances exist as enumerated in subsection (4) of this section; and
(b) That there are insufficient mitigating circumstances, as enumerated in subsection (5), to outweigh the aggravating circumstances.
* * * If, after the trial of the penalty phase, the jury does not make the findings requiring * * * life imprisonment without eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life imprisonment.
* * *
(4) Aggravating circumstances shall be limited to the following:
(a) The capital offense was committed by a person under sentence of imprisonment.
(b) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, Mississippi Code of 1972, or the unlawful use or detonation of a bomb or explosive device.
(e) The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital offense was committed for pecuniary gain.
(g) The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital offense was especially heinous, atrocious or cruel.
(5) Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
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SECTION 3. Section 99-19-103, Mississippi Code of 1972, is amended as follows:
99-19-103. The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in the charge and in writing to the jury for its deliberation. The jury * * * shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt. * * * If the jury cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment for life.
SECTION 4. Section 99-19-87, Mississippi Code of 1972, which provides that nothing in Sections 99-19-81 through 99-19-87 shall abrogate or affect punishment by death, is repealed.
SECTION 5. Section 99-19-105, Mississippi Code of 1972, which provides the manner in which automatic appeal of the death penalty to the Supreme Court is had, is repealed.
SECTION 6. Section 99-19-106, Mississippi Code of 1972, which provides for the manner of the execution of the death sentence, is repealed.
SECTION 7. Section 99-19-107, Mississippi Code of 1972, which provides for the eventuality that the death sentence is found unconstitutional, is repealed.
SECTION 8. This act shall take effect and be in force from and after July 1, 2005.