2007 Regular Session
To: Judiciary B; Corrections
By: Representative Martinson, Chism, Formby, Gregory, Hamilton (6th), Ishee, Lott, Moore, Robinson (84th), Rotenberry, Staples, Stevens, Upshaw, Wells-Smith, Woods, Zuber, Palazzo
AN ACT 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 99-19-84, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A SPLIT SENTENCE FOR SEX OFFENDERS; 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 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 45-33-49, MISSISSIPPI CODE OF 1972, TO REQUIRE SHARING OF INFORMATION BETWEEN LAW ENFORCEMENT AGENCIES; TO AMEND SECTION 97-5-23, MISSISSIPPI CODE OF 1972, TO IMPOSE A MORE SEVERE PENALTY FOR FONDLING WHEN THE VICTIM IS BELOW A CERTAIN AGE; 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; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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 2. 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 3. 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 4. 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 5. 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 6. Section 99-19-84, Mississippi Code of 1972, is amended as follows:
99-19-84. (1) Whenever probation is a part of a sentence prescribed for an offense for which registration as a sex offender is required under Title 45, Chapter 33, the court may include as a condition of probation that the sex offender be placed on electronic monitoring. The Department of Corrections shall promulgate rules and regulations for the implementation of electronic monitoring of sex offenders on probation.
(2) 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 7. 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 8. (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 9. 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 10. 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, 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 11. 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 12. 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 13. 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 Constitution 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 14. This act shall take effect and be in force from and after July 1, 2007.