2006 Regular Session
To: Judiciary B
By: Representative Moore, Wells-Smith
AN ACT TO CREATE THE SEX OFFENDER ESTIMATING CONFERENCE AND SPECIFY THE DUTIES THEREOF; TO AMEND SECTION 45-33-25, MISSISSIPPI CODE OF 1972, TO REQUIRE ADDITIONAL INFORMATION FROM SEX OFFENDERS WHO ARE REQUIRED TO REGISTER; TO AMEND SECTION 45-33-31, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DEPARTMENT OF PUBLIC SAFETY TO DEVELOP AND IMPLEMENT A VERIFICATION SYSTEM FOR THE REGISTRATION INFORMATION GIVEN BY SEX OFFENDERS; TO AMEND SECTION 45-33-33, MISSISSIPPI CODE OF 1972, TO CREATE THE CRIME OF CONSPIRING WITH A SEX OFFENDER TO ELUDE REGISTRATION AND OF PROVIDING FALSE REGISTRATION INFORMATION; TO AMEND SECTION 45-33-47, MISSISSIPPI CODE OF 1972, TO ALLOW A LIFETIME REGISTRANT TO PETITION THE CIRCUIT COURT FOR RELIEF FROM THE DUTY TO REGISTER; TO AMEND SECTION 45-33-49, MISSISSIPPI CODE OF 1972, TO REQUIRE SHARING OF REGISTRATION INFORMATION BETWEEN LAW ENFORCEMENT AGENCIES; TO CREATE NEW SECTION 47-5-1017, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ELECTRONIC MONITORING OF SEX OFFENDERS UPON WHOM A SPLIT SENTENCE IS IMPOSED; TO CREATE NEW SECTION 47-5-1019, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR PUNISHMENT FOR TAMPERING WITH AN ELECTRONIC MONITORING DEVICE; TO CREATE NEW SECTION 47-7-32, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DEPARTMENT OF CORRECTIONS TO STUDY INSTANCES OF SEX OFFENDERS WHO ARE SUBSEQUENTLY ARRESTED; TO AMEND SECTION 47-7-33, MISSISSIPPI CODE OF 1972, TO REQUIRE ELECTRONIC MONITORING OF CERTAIN PAROLEES AND PROBATIONERS; TO AMEND SECTION 47-7-34, MISSISSIPPI CODE OF 1972, TO CONFORM TO SPLIT SENTENCING; TO AMEND SECTION 47-7-35, MISSISSIPPI CODE OF 1972, TO MANDATE ELECTRONIC MONITORING UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 47-7-37, MISSISSIPPI CODE OF 1972, TO ENACT CERTAIN RESTRICTIONS ON THE IMPOSITION OF BAIL FOR PERSONS WHO ARE REQUIRED TO REGISTER AS SEX OFFENDERS; TO AMEND SECTION 97-5-23, MISSISSIPPI CODE OF 1972, TO IMPOSE A MORE SEVERE PENALTY ON FOR FONDLING WHEN THE VICTIM IS BELOW A CERTAIN AGE; TO CREATE NEW SECTION 99-19-84, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A SPLIT SENTENCE FOR SEX OFFENDERS; TO AMEND SECTION 99-19-101, MISSISSIPPI CODE OF 1972, TO SPECIFY THAT CERTAIN SEX OFFENSES ARE AN AGGRAVATING CIRCUMSTANCE IN SENTENCING FOR A CAPITAL OFFENSE; TO CREATE NEW SECTION 99-19-205, MISSISSIPPI CODE OF 1972, TO MANDATE ELECTRONIC SUPERVISION FOR CERTAIN SEX OFFENDERS UPON EXPIRATION OF ANY TERM OF INCARCERATION; TO REQUIRE THE DEPARTMENT OF PUBLIC SAFETY TO STUDY THE SEX OFFENDER REGISTRY SYSTEM AND THE PEER COMMITTEE TO PERIODICALLY REVIEW THE SYSTEM; TO PROHIBIT PLEA BARGAINING FOR SEX OFFENSES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) The Sex Offender Estimating Conference is hereby created. The purpose of the Sex Offender Estimating Conference shall be to develop such official information relating to the number of sex offenders who are subject to electronic monitoring as the conference determines is needed for the state planning and budgeting system.
(2) The conference shall consist of the following members: the Commissioner of the Department of Corrections or his designee; the Commissioner of the Department of Public Safety or his designee; the Director of the Administrative Office of Courts; the Director of the Department of Finance and Administration or his designee; the Director of the Legislative Budget Office or his designee; the Attorney General or his designee; a member of the Governor's staff appointed by the Governor who shall preside over meetings of the conference and exercise the authority to call meetings.
SECTION 2. The Sex Offender Estimating Conference created in Section 1 of this act shall study the factors relating to the sentencing of sex offenders from the point of arrest through the imposition of sanctions by the sentencing court, including original charges, plea negotiations, trial dispositions and sanctions. The Department of Corrections, Department of Finance and Administration, Administrative Office of Courts, Department of Public Safety, Office of the Attorney General and the various district attorneys shall provide information deemed necessary for the study. The final report shall be filed with the Clerk of the House and the Secretary of the Senate no later than November 1, 2006.
SECTION 3. 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. Registration shall not be required for an offense that is not a registrable sex offense. 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) Street address of any permanent residence and of any current temporary residence within state or out of state;
(c) Date and 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) If the registrant's residence is a motor vehicle, trailer, mobile home or manufactured home, the registrant shall also provide vehicle identification number, license tag number, registration number and a description, including color scheme, of the motor vehicle, trailer, mobile home or manufactured home; if the registrant's place of residence is a vessel or houseboat, the registrant shall also provide the hull identification number, manufacturer's serial number, name of the vessel or houseboat, registration number and a description, including color scheme, of the vessel or houseboat;
(n) Vehicle make, model, color and license tag number;
(o) Offense history;
(r) Documentation of any treatment received for any mental abnormality or personality disorder of the person;
(s) Biological sample;
(t) Name of any institution of higher learning, including each campus attended at which the offender is employed, carries on a vocation (with or without compensation) or is enrolled as a student, and the registrant's status; and
(u) 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 4. Section 45-33-31, Mississippi Code of 1972, is amended as follows:
45-33-31. (1) All registrants are required to personally appear at a Department of Public Safety Driver's License Station to reregister every ninety (90) days. Reregistration includes the submission of current information to the department and the verification of registration information, including the street address and telephone number of the registrant; name, social security number, street address and telephone number of the registrant's employment along with any other registration information that may need to be verified and the payment of any required fees. A person who fails to reregister as required by this section commits a violation of this chapter.
(2) The department shall implement a system for verifying the addresses of registrants. The system must be consistent with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to such verification or required to be met as a condition for the receipt of federal funds by the state. County and local law enforcement agencies, in conjunction with the department, shall verify the addresses of registrants who are not under the care, custody, control or supervision of the Department of Corrections.
SECTION 5. Section 45-33-33, Mississippi Code of 1972, is amended as follows:
45-33-33. (1) (a) The failure of an offender to personally appear at a Department of Public Safety Driver's License Station or to provide any registration or other information, including, but not limited to, initial registration, reregistration or change of address information, or required notification to a volunteer organization, 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.
(b) Any person who has reason to believe that a sex offender is not complying, or has not complied, with the requirements of this chapter and who, with the intent to assist the sex offender in eluding a law enforcement agency that is seeking to find the sex offender to question the sex offender about, or to arrest the sex offender for, noncompliance with the requirements of this chapter, commits a violation of this chapter;
(c) A person commits a violation of this chapter who:
(i) Withholds information from, or does not notify, the law enforcement agency about the sex offender's noncompliance with the requirements of this chapter, and, if known, the whereabouts of the sex offender;
(ii) Harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the sex offender;
(iii) Conceals, or attempts to conceal, or assists another person in concealing or attempting to conceal, the sex offender; or
(iv) Provides information to a law enforcement agency regarding the sex offender which the person knows to be false.
(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 the violation.
(5) Any prosecution for a violation of this section shall be brought by a prosecutor in the county of the violation.
(6) A person required to register under this chapter who commits any act or omission in violation of this chapter may be prosecuted for the act or omission in the county in which the act or omission was committed, the county of the last registered address of the sex offender, or the county in which the conviction occurred for the offense or offenses that meet the criteria requiring the person to register. A sex offender may be prosecuted for any such act or omission in the county in which he was designated a sex offender.
(7) The Commissioner of Public Safety or his authorized agent shall suspend the driver's license of any offender failing to comply with the duty to report, register or reregister.
SECTION 6. 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) A person having a duty to register under Section 45-33-25 may petition the circuit court of the county in which the registrant resides to be relieved of that duty under the following conditions:
(i) 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.
(ii) Except as provided in paragraph (b) of this subsection, if the offender has been convicted of one (1) of the following offenses, the offender is subject to lifetime registration and shall not be relieved of the duty to register:
1. Section 97-3-65 relating to rape;
2. Section 97-3-71 relating to rape and assault with intent to ravish;
3. Section 97-3-95 relating to sexual battery;
4. Subsection (1) or (2) of Section 97-5-33 relating to the exploitation of children;
5. Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner; or
6. Any conviction for violation of a similar law of another jurisdiction or designation as a sexual predator in another jurisdiction.
(b) A person having a lifetime duty to register under paragraph (a) of this subsection may petition the circuit court in the county in which the registrant resides to be relieved of that duty if the offender has maintained his registration in Mississippi for not less than twenty (20) 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 twenty-year minimum registration requirement. Registration in any other jurisdiction or state does not reduce the twenty-year time requirement for maintaining registration in Mississippi.
(c) An offender who has two (2) separate convictions for any of the offenses described in Section 45-33-23 is subject to lifetime registration and shall not be eligible to petition to be relieved of the duty to register as long as at least one (1) of the convictions was entered on or after July 1, 1995.
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(d) An offender twice adjudicated delinquent in a youth court for the crime of rape pursuant to Section 96-3-65 or sexual battery pursuant to Section 97-3-95 is subject to lifetime registration and shall not be eligible to petition to be relieved of the duty to register except as is provided in subsection (2)(b) of this section.
(e) Registration following arrest or arraignment for failure to register is not a defense and does not relieve the sex offender of criminal liability for failure to register.
(3) In determining whether to release an offender from the obligation to register, the court shall consider the nature of the registrable 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 and the court is otherwise satisfied that the petitioner is not a current or potential threat to public safety. The district attorney in the circuit in which the petition is filed must be given notice of the petition at least three (3) weeks before the hearing on the matter. The district attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied. If the court denies the petition, the court may set a future date at which the sex offender may again petition the court for relief, subject to the standards set forth in this section.
(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 7. 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.
(8) The Department of Public Safety shall share sex offender information with local law enforcement agencies in an effort to ensure that sex offenders who fail to respond to address verification attempts or who otherwise abscond from registration are located in a timely manner. The department shall use analytical resources to assist local law enforcement agencies to determine the potential whereabouts of any sex offender who fails to respond to address verification attempts or who otherwise absconds from registration. The department shall review and analyze all available information concerning any such offender who fails to respond to address verification attempts or who otherwise absconds from registration and provide the information to local law enforcement agencies in order to assist the agencies in locating and apprehending the sex offender.
(9) The department shall provide, through a toll-free telephone number, public access to registration information regarding sex offenders and may provide other information reported to the department which is not exempt from public disclosure.
SECTION 8. The following shall be codified as Section 47-5-1017, Mississippi Code of 1972:
47-5-1017. The department shall electronically monitor an offender upon whom a split sentence is imposed pursuant to Section 99-19-84. The department, in carrying out a court order to electronically monitor an offender, must use a system that actively monitors and identifies the offender's location and timely reports or records the offender's presence near or within a crime scene or in prohibited areas or the offender's departure from specified geographic limitations.
SECTION 9. The following shall be codified as Section 47-5-1019, Mississippi Code of 1972:
47-5-1019. A person who intentionally alters, tampers with, damages or destroys any electronic monitoring equipment, unless the person is the owner of the equipment or an agent of the owner performing ordinary maintenance and repairs, commits a felony punishable by imprisonment not to exceed five (5) years in the custody of the Department of Corrections.
SECTION 10. The following shall be codified as Section 47-7-32, Mississippi Code of 1972:
47-7-32. (1) The Department of Corrections shall review the circumstances related to any offender placed on supervision who is subject to registration as a sex offender under Title 45, Chapter 33, who is subsequently arrested.
(2) The department shall provide a statistical data summary from these reviews to the Joint Committee on Performance Evaluation and Expenditure Review which shall analyze this data and file a written report with the Secretary of the Senate and the Clerk of the House of Representatives by November 1, 2007. The report must include, at a minimum, any identified systemic deficiencies in managing high-risk offenders on supervision; any patterns of noncompliance by probation and parole officers; and recommendations for improving the department's supervision of offenders.
SECTION 11. Section 47-7-33, Mississippi Code of 1972, is amended as follows:
47-7-33. (1) When it appears to the satisfaction of any circuit court or county court in the State of Mississippi having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the Department of Corrections.
(2) When any circuit or county court places an offender on probation, the court shall give notice to the Mississippi Department of Corrections within fifteen (15) days of the court's decision to place the offender on probation. Notice shall be delivered to the central office of the Mississippi Department of Corrections and to the regional office of the department which will be providing supervision to the offender on probation.
(3) When any circuit court or county court places a person on probation in accordance with the provisions of this section and that person is ordered to make any payments to his family, if any member of his family whom he is ordered to support is receiving public assistance through the State Department of Public Welfare, the court shall order him to make such payments to the county welfare officer of the county rendering public assistance to his family, for the sole use and benefit of said family.
(4) If probation or parole is revoked by the court and the offender is designated as a sex offender for unlawful sexual activity involving a victim under sixteen (16) years of age and the offender is eighteen (18) years of age or older, and if the court imposes a subsequent term of supervision following the revocation of supervision, the court must order electronic monitoring as a condition of any subsequent term of probation or parole.
SECTION 12. Section 47-7-34, Mississippi Code of 1972, is amended as follows:
47-7-34. (1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.
(2) The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.
(3) Post-release supervision programs shall be operated through the probation and parole unit of the Division of Community Corrections of the department. The maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.
(4) The provisions of this section shall not affect the ability of a court to impose a split sentence pursuant to Section 99-19-84.
SECTION 13. Section 47-7-35, Mississippi Code of 1972, is amended as follows:
47-7-35. (1) The courts referred to in Section 47-7-33 or 47-7-34 shall determine the terms and conditions of probation or post-release supervision and may alter or modify, at any time during the period of probation or post-release supervision the conditions and may include among them the following or any other:
That the, offender shall:
(a) Commit no offense against the laws of this or any other state of the United States, or of the United States;
(b) Avoid injurious or vicious habits;
(c) Avoid persons or places of disreputable or harmful character;
(d) Report to the probation and parole officer as directed;
(e) Permit the probation and parole officer to visit him at home or elsewhere;
(f) Work faithfully at suitable employment so far as possible;
(g) Remain within a specified area;
(h) Pay his fine in one (1) or several sums;
(i) Support his dependents;
(j) Submit, as provided in Section 47-5-601, to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a substance prohibited or controlled by any law of the State of Mississippi or the United States.
(2) When any court places a defendant on misdemeanor probation, the court must cause to be conducted a search of the probationer's name or other identifying information against the registration information regarding sex offenders maintained under Title 45, Chapter 33. The search may be conducted using the Internet site maintained by the Department of Public Safety Sex Offender Registry.
SECTION 14. Section 47-7-37, Mississippi Code of 1972, is amended as follows:
47-7-37. The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5) years, except that in cases of desertion and/or failure to support minor children, the period of probation may be fixed and/or extended by the court for so long as the duty to support such minor children exists.
At any time during the period of probation the court, or judge in vacation, may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the probationer to be arrested. Any probation and parole officer may arrest a probationer without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the probation and parole officer, violated the conditions of probation. Such written statement delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the probationer.
If a probationer or offender is subject to registration as a sex offender, the court must make a finding that the probationer or offender is not a danger to the public prior to release with or without bail. In determining the danger posed by the release of the offender or probationer, the court may consider the nature and circumstances of the violation and any new offenses charged; the offender or probationer's past and present conduct, including convictions of crimes and any record of arrests without conviction for crimes involving violence or sex crimes; any other evidence of allegations of unlawful sexual conduct or the use of violence by the offender or probationer; the offender or probationer's family ties, length of residence in the community, employment history and mental condition; the offender or probationer's history and conduct during the probation or other supervised release and any other previous supervisions, including disciplinary records of previous incarcerations; the likelihood that the offender or probationer will engage again in a criminal course of conduct; the weight of the evidence against the offender or probationer; and any other facts the court considers relevant.
The probation and parole officer after making an arrest shall present to the detaining authorities a similar statement of the circumstances of violation. The probation and parole officer shall at once notify the court of the arrest and detention of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation. Thereupon, or upon an arrest by warrant as herein provided, the court, in termtime or vacation, shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.
If the probationer is arrested in a circuit court district in the State of Mississippi other than that in which he was convicted, the probation and parole officer, upon the written request of the sentencing judge, shall furnish to the circuit court or the county court of the county in which the arrest is made, or to the judge of such court, a report concerning the probationer, and such court or the judge in vacation shall have authority, after a hearing, to continue or revoke all or any part of probation or all or any part of the suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been no probation. In such case, the clerk of the court in which the order of revocation is issued shall forward a transcript of such order to the clerk of the court of original jurisdiction, and the clerk of that court shall proceed as if the order of revocation had been issued by the court of original jurisdiction. Upon the revocation of probation or suspension of sentence of any offender, such offender shall be placed in the legal custody of the State Department of Corrections and shall be subject to the requirements thereof.
Any probationer who removes himself from the State of Mississippi without permission of the court placing him on probation, or the court to which jurisdiction has been transferred, shall be deemed and considered a fugitive from justice and shall be subject to extradition as now provided by law. No part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve.
The arresting officer, except when a probation and parole officer, shall be allowed the same fees as now provided by law for arrest on warrant, and such fees shall be taxed against the probationer and paid as now provided by law.
The arrest, revocation and recommitment procedures of this section also apply to persons who are serving a period of post-release supervision imposed by the court.
SECTION 15. Section 97-5-23, Mississippi Code of 1972, is amended as follows:
97-5-23. (1) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be as follows: If the victim is over the age of twelve (12) years but under the age of sixteen (16) years, the offender shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court; if the victim is under the age of twelve (12), the offender shall be committed to the custody of the State Department of Corrections for life without possibility of probation or parole.
(2) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself who is at least sixteen (16) years of age but under the age of eighteen (18) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
(3) Upon a second conviction for an offense under this section when the offense is subject to imprisonment of less than life in prison without parole, the person so convicted shall be punished by commitment to the State Department of Corrections for a term not to exceed thirty (30) years, which sentence shall be neither suspended nor reduced.
SECTION 16. The following shall be codified as Section 99-19-84, Mississippi Code of 1972:
99-19-84. Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed for an offense for which registration as a sex offender is required under Title 45, Chapter 33, the court, in its discretion at the time of sentencing, may impose a split sentence whereby the defendant is to be placed on electronic monitoring following release from incarceration for any term of years or for life.
SECTION 17. 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 death, 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 of death.
(2) After hearing all the evidence, the jury shall deliberate on the following matters:
(a) Whether sufficient factors exist as enumerated in subsection (7) of this section;
(b) Whether sufficient aggravating circumstances exist as enumerated in subsection (5) of this section;
(c) Whether sufficient mitigating circumstances exist as enumerated in subsection (6) of this section, which outweigh the aggravating circumstances found to exist; and
(d) Based on these considerations, whether the defendant should be sentenced to life imprisonment, life imprisonment without eligibility for parole, or death.
(3) For the jury to impose a sentence of death, it must unanimously find in writing the following:
(a) That sufficient factors exist as enumerated in subsection (7) of this section;
(b) That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and
(c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.
In each case in which the jury imposes the death sentence, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) of this section and upon the records of the trial and the sentencing proceedings. If, after the trial of the penalty phase, the jury does not make the findings requiring the death sentence or life imprisonment without eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life imprisonment.
(4) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Mississippi within sixty (60) days after certification by the sentencing court of entire record, unless the time is extended for an additional period by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.
(5) 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.
(i) The capital offense was committed by a person previously convicted of one or more of the following offenses:
(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 violation of a similar law of another jurisdiction or designation as a sexual predator in another jurisdiction.
(6) 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.
(7) In order to return and impose a sentence of death the jury must make a written finding of one or more of the following:
(a) The defendant actually killed;
(b) The defendant attempted to kill;
(c) The defendant intended that a killing take place;
(d) The defendant contemplated that lethal force would be employed.
SECTION 18. The following shall be codified as Section 99-19-205, Mississippi Code of 1972:
99-19-205. Any person who is convicted of a sex offense on or after July 1, 2006, and who is sentenced to any state or local correctional facility, placed on probation, given a suspended sentence or other disposition, and the unlawful activity involved a victim who was under sixteen (16) years of age and the offender was eighteen (18) years of age or older, or the offender is subject to lifetime registration under Section 45-33-47(2), shall be sentenced by the court to mandatory electronic monitoring for life subsequent to the offender's release from incarceration.
SECTION 19. (1) The Department of Public Safety shall examine the collection and dissemination of offender information within thecriminal justice system and community and recommend strategies and actions that may be implemented to enhance coordination and cooperation among the various entities within the criminal justice system with a common goal of public safety. The department shall study:
(a) The collection and dissemination of offender information, including criminal history and any other pertinent matters, to the court, the prosecuting attorney and defense counsel at first appearance hearings.
(b) The collection and dissemination of offender information, including criminal history and any other pertinent matters, to the court, the prosecuting attorney and defensecounsel at all court appearances subsequent to first appearance.
(c) The collection and dissemination of offender information, including criminal history and any other pertinent matters, to county probation officers or officials.
(d) Any other subject that the department deems relevant to the collection and dissemination of offender information within the criminal justice system and community.
(2) The department shall submit its findings and recommendations to the Governor, the President of the Senate, and the Speaker of the House of Representatives by November 1, 2007. The final report shall be filed with the Governor, the President of the Senate, and the Speaker of the House of Representatives. In addition to the findings and recommendations included in the final report, the report must include a draft of proposed rules and proposed legislation for any recommendations requiring proposed rules andproposed legislation.
(3) Each state agency shall fully cooperate with the task force in the performance of its duties.
SECTION 20. The Joint Committee on Performance Evaluation and Expenditure Review, every three (3) years, shall perform a study of the effectiveness of Mississippi's sex offender registration process and community and public notification provisions. As part of determining the effectiveness of the registration process, PEER shall examine the current practices of: the Department of Corrections, county probation offices, clerk of courts, court administrators, county jails and booking facilities, Department of Children and Family Services, judges, district attorneys' offices, Department ofPublic Safety, and local law enforcement agencies as they relate to: sharing of offender information regarding registered sex offenders for purposes of fulfilling the requirements set forth in the registration laws; ensuring the most accurate, current and comprehensive information is provided in a timely manner to the registry; ensuring the effective supervision and subsequent monitoring of sex offenders; and ensuring informed decisions are made at each point of the criminal justice and registration process. In addition to determining the effectiveness of the registration process, the report shall focus on the question of whether the notification provisions in statute are sufficient to apprise communities of the presence of sex offenders. The report shall examine how local law enforcement agencies collect and disseminate information in an effort to notify the public and communities of the presence of sex offenders. If the report finds deficiencies in theregistration process, the notification provisions, or both, the report shall provide options for correcting those deficiencies and shall include the projected cost of implementing those options. In conducting the study, PEER shall consult with interested entities that may offer experiences and perspectives unique to this area of research. The report shall be submitted to the President of the Senate and the Speaker of the House of Representatives.
SECTION 21. No person charged with a sex offense, as that term is defined in Section 45-33-23, shall be eligible for plea bargaining.
SECTION 22. This act shall take effect and be in force from and after July 1, 2006.