2017 Regular Session
To: Judiciary, Division B
By: Senator(s) Tollison, Wiggins
AN ACT TO AMEND SECTION 97-44-1, MISSISSIPPI CODE OF 1972, TO REVISE THE SHORT TITLE OF THE MISSISSIPPI STREET GANG ACT; TO AMEND SECTION 97-44-3, MISSISSIPPI CODE OF 1972, TO DEFINE TERMS; TO AMEND SECTION 97-44-5, MISSISSIPPI CODE OF 1972, TO PROVIDE PENALTIES FOR CRIMINAL GANG ACTIVITY; TO AMEND SECTION 97-44-7, MISSISSIPPI CODE OF 1972, TO CLARIFY EVIDENTIARY STANDARDS; TO CREATE NEW SECTION 97-44-101, MISSISSIPPI CODE OF 1972, TO PROVIDE A CIVIL CAUSE OF ACTION BASED ON GANG ACTIVITY; TO CREATE NEW SECTION 97-44-103, MISSISSIPPI CODE OF 1972, TO SPECIFY VENUE; TO CREATE NEW SECTION 97-44-105, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR SERVICE OF PROCESS; TO CREATE NEW SECTION 97-44-107, MISSISSIPPI CODE OF 1972, TO AUTHORIZE INJUNCTIVE RELIEF; TO CREATE NEW SECTIONS 97-44-109 AND 97-44-111, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR FORFEITURE OF REAL AND PERSONAL PROPERTY; TO REPEAL SECTIONS 97-44-9, 97-44-11, 97-44-13, 97-44-15, 97-44-17 AND 97-44-19, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTED VARIOUS PROVISIONS IN THE STREET GANG ACT THAT ARE ELIMINATED OR SUBSUMED UNDER THIS ACT; TO CREATE NEW SECTION 97-35-53, MISSISSIPPI CODE OF 1972, TO PROHIBIT THREATS AGAINST A LAW ENFORCEMENT OFFICER OR JUDGE; TO PROVIDE THAT OFFENDERS WHO ARE CONVICTED OF CONDUCTING OR PARTICIPATING IN CRIMINAL GANG ACTIVITY SHALL NOT BE ELIGIBLE FOR PAROLE OR ANY EARLY RELEASE PROGRAM OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; TO AMEND SECTIONS 97-3-2, 47-5-138.1, 47-5-139 AND 47-5-142, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-44-1, Mississippi Code of 1972, is amended as follows:
97-44-1. This chapter shall
be known as the "Mississippi * * *
SECTION 2. Section 97-44-3, Mississippi Code of 1972, is amended as follows:
97-44-3. For the purposes
of this chapter, the following words and phrases shall have the meanings
ascribed * * *
(a) * * *
"Gang" * * * means * * * :
(i) An association of three (3) or more persons:
1. Whose members collectively identify themselves by adopting a group identity by employing one or more of the following:
a. A common name, slogan, identifying sign, symbol, tattoo or other physical marking;
b. Style or color of clothing or hairstyle;
c. Hand sign, hand gesture or finger position; or
d. Graffiti; and
2. Whose members are involved in criminal gang activity.
(ii) The term does not include three (3) or more persons, associated in law or in fact, who are not engaged in criminal gang activity.
* * *
(b) "Public authority"
means the state and political subdivisions as defined in Section 11-46-1 * * *
(c) * * *
member" means any person who actually and in fact belongs to a gang, and
any person who knowingly acts in the capacity of an agent for or accessory to,
or is legally accountable for, or voluntarily associates himself with a * * * criminal gang
activity, whether in a preparatory, executory or cover-up phase of any criminal
gang activity, or who knowingly performs, aids or abets * * * criminal gang activity.
(d) * * *
"Criminal gang activity" means * * * :
(i) The commission, attempted commission or conspiracy to commit, or the solicitation, coercion, encouragement or intimidation of another person to commit an act or acts in this or another state that would constitute a criminal offense or delinquent act in that jurisdiction:
( * * *
1.) With intent to increase * * * a gang's size, membership,
prestige, dominance or control in any geographical area; or
( * * *
2.) With intent to exact revenge or
retribution for * * *
a gang or any gang member * * * ; or
( * * *
3.) With intent to provide * * * a gang with any advantage in, or
any control or dominance over, any criminal market sector, including,
but not limited to, the unlawful manufacture, delivery, possession or
sale of controlled substances; arson; traffic in stolen property or stolen
credit cards; traffic in prostitution, obscenity or pornography; or that
involves * * * burglary * * * , larceny or any crime of violence
as defined in Section 97-3-2; or
( * * *
4.) With intent to obstruct justice,
or harass, intimidate or eliminate any witness reasonably expected to
testify in a legal proceeding against the gang or any gang member * * * ; or
( * * *
5.) With intent to otherwise, directly
or indirectly, cause any benefit, aggrandizement, gain, profit or other
advantage whatsoever to or for the gang, its reputation, influence or
membership * * * ;
6. With intent to obtain or earn membership or maintain or increase the person's status or position in a criminal gang.
(ii) Acquiring or maintaining, directly or indirectly, through criminal gang activity, proceeds derived therefrom or any interest in or control of any real or personal property of any nature, including money.
(iii) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against the other person for providing statements or testimony against a gang or gang member or associate.
(iv) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to intimidate, deter, or prevent the other person from communicating to any law enforcement or corrections officer, prosecuting attorney or judge information relating to a gang, gang member or associate, or criminal gang activity.
(v) Causing, encouraging, soliciting, recruiting, or coercing another to become a member or associate of a gang.
(vi) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to deter the other person from assisting a member or associate of a gang to withdraw from such gang.
(vii) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against the other person for having withdrawn from a gang.
(viii) Communicating, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against the other person for refusing, or encouraging another to refuse, to become a member or associate, or obtain the status of a member or associate, of a gang.
(e) "Underlying offense" means the act or acts that would constitute a criminal offense forming the basis of criminal gang activity.
SECTION 3. Section 97-44-5, Mississippi Code of 1972, is amended as follows:
97-44-5. (1) * * *
unlawful for any person to conduct or participate in criminal gang activity.
(2) * * *
A crime committed
in violation of this chapter shall be considered an offense separate from any
(3) * * *
(a) Except as provided in paragraph (b) of this subsection (3):
(i) Where the underlying offense is a felony, a person who conducts or participates in criminal gang activity shall be punished by imprisonment for not less than five (5) years nor more than fifteen (15) years or by a fine of not less than Ten Thousand Dollars ($10,000.00) nor more than Fifteen Thousand Dollars ($15,000.00), or both, in addition to and consecutive to any sentence imposed for the underlying offense.
(ii) Where the underlying offense is a misdemeanor, a person who conducts or participates in criminal gang activity shall be punished by imprisonment for a period of not more than five (5) years in addition to and consecutive to any sentence imposed for the underlying offense.
(b) Where the person conducts or participates in the criminal gang activity defined in Section 99-44-3(d)(ii) through 99-44-3(d)(viii), the person shall be punished by imprisonment for not less than five (5) years nor more than fifteen (15) years or by a fine of not less than Ten Thousand Dollars ($10,000.00) nor more than Fifteen Thousand Dollars ($15,000.00), or both.
(4) Any sentence imposed pursuant to the provisions of this chapter shall be without the benefit of parole or early release.
(5) The court may elect to suspend all or a part of any additional mandatory punishment or enhanced punishment provided in this chapter to impose alternative punishment in the form of properly supervised community service or placement in an appropriate adolescent offender program, if available, only in an unusual case where the interests of justice would best be served, and if the court specifies on the record and enters into the minutes the circumstances and reasons that the interests of justice would best be served by the suspension of enhanced punishment.
(6) In addition to any other penalty provided by this section, all sentences imposed under this section shall require as a special condition of the sentence that the person sentenced shall not knowingly have contact of any kind or character with any other member or associate of a gang, shall not participate in any criminal gang activity, and, in cases involving a victim, shall not knowingly have contact of any kind or character with any victim or any member of a victim's family or household.
SECTION 4. Section 97-44-7, Mississippi Code of 1972, is amended as follows:
97-44-7. * * *
purposes of this chapter, it shall not be necessary to show that a particular
conspiracy, combination or conjoining of persons possesses, acknowledges or is
known by any common name, insignia, flag, means of recognition, secret signal
or code, creed, belief, structure, leadership or command structure, method of
operation or criminal enterprise, concentration or specialty, membership, age
or other qualifications, initiation rites, geographical or territorial situs or
boundary or location, or other unifying mark, manner, protocol or method of
expressing or indicating membership when the conspiracy's existence, in law or
in fact, can be demonstrated by a preponderance of the competent evidence.
However, any evidence reasonably tending to show or demonstrate, in law or in
fact, the existence of or membership in any conspiracy, confederation or other
association described in this chapter, or probative of the existence of or
membership in any criminal gang, or evidence of a common name or common
identifying signs, symbols, tattoos, graffiti, or attire or other
distinguishing characteristics, including, but not limited to, common
activities, customs or behaviors, shall be admissible in any action or
proceeding brought under this chapter.
SECTION 5. The following shall be codified as Section 97-44-101, Mississippi Code of 1972:
99-44-101. (1) (a) A civil cause of action is created in favor of any public authority expending money, allocating or reallocating police, firefighting, emergency or other personnel or resources, or otherwise incurring any loss, deprivation or injury, or sustaining any damage, impairment or harm whatsoever, proximately caused by criminal gang activity.
(b) The cause of action created by this article shall lie against:
(i) Any gang in whose name, for whose benefit, on whose behalf or under whose direction the act was committed; and
(ii) Any gang officer or director who causes, orders, suggests, authorizes, consents to, agrees to, requests, acquiesces in or ratifies any such act; and
(iii) Any gang member who, in the furtherance of or in connection with, any gang-related activity, commits any such act; and
(iv) Any gang officer, director, leader or member.
(c) The cause of action authorized by this article shall be brought by the Attorney General, a district attorney or attorneys, or a county attorney or attorneys. This cause of action shall be in addition to any other civil or criminal proceeding authorized by the laws of this state or by federal law, and shall not be construed as requiring the prosecutor to elect a civil, rather than criminal, remedy, or as replacing any other cause of action. Liability of the gang, its officers, directors, leaders and members shall be joint and several subject only to the apportionment and allocation of punitive damages authorized under Section 99-44-107.
(2) (a) An action may be commenced under this article by the filing of a complaint as in civil cases.
(b) A complaint filed under this article, and all other ancillary or collateral matters arising therefrom, including matter relating to discovery, motions, trial and the perfection or execution of judgments shall be subject to the Rules of Civil Procedure, except as may be otherwise provided in this article, or except as the court may otherwise order upon motion of the prosecutor in matters relating to immunity or the physical safety of witnesses.
(c) The complaint shall name the Attorney General or his designee, if a complainant, each complaining district attorney or his designee, each complaining county attorney, and the public authority represented by him or by them.
(d) The complaint shall also name as defendants the gang, all known gang officers, and any gang members specifically identified or alleged in the complaint as having participated in a gang-related criminal activity. The complaint may also name, as a class of defendants, all unknown gang members.
(e) When, at any point prior to trial, other specific gang officers or members become known, the complaint may be amended to include any such person as a named defendant.
(f) Any individual who suffers any injury under the provisions of this article shall have the right to file a civil action in the individual's name.
SECTION 6. The following shall be codified as Section 99-44-103, Mississippi Code of 1972:
99-44-103. (1) In an action brought under this article, venue shall lie in any county where an act charged in the complaint as part of a criminal gang activity was committed.
(2) It shall not be necessary for all offenses necessary to establishing a criminal activity to have occurred in any one (1) county where the district attorneys or county attorneys of several counties, each complaining of an offense, elected to join in a complaint; it shall be sufficient that the complaint, taken as a whole, alleges a gang-related criminal activity, and each count of any joint complaint shall be considered as cumulative to other counts for purposes of alleging or demonstrating criminal gang activity.
(3) Where an activity is alleged to have been committed or to have occurred in more than one (1) county, the district attorney or county attorney of each county may join their several causes of action in a single complaint, which may be filed in any county agreed to by or among them, but no such joinder shall be had without the consent of the district attorney or county attorney having jurisdiction over each offense alleged as part of the activity.
SECTION 7. The following shall be codified as Section 97-44-105, Mississippi Code of 1972:
97-44-105. (1) All gang members engaged in a gang-related criminal activity within this state impliedly consent to service of process upon them as set forth in this section, or as may be otherwise authorized by the Rules of Civil Procedure.
(2) Service of process upon a gang may be had by leaving a copy of the complaint and summons directed to any officer of such gang, commanding the gang to appear and answer the complaint or otherwise plead at a time and place certain:
(a) With any gang officer; or
(b) With any individual member of the gang simultaneously named therein; or
(c) In the manner provided for service by publication in a civil action; or
(d) With any parent, legal guardian or legal custodian of any persons charged with a criminal gang activity when any person sued civilly under this article is under seventeen (17) years of age and is also charged criminally or as a delinquent minor; or
(e) With the director of any agency or department of this state who is the legal guardian, guardianship administrator or custodian of any person sued under this article; or
(f) With the probation or parole officer of any person sued under this article; or
(g) With such other person or agent as the court may, upon petition of the district attorney or his designee or the county attorney, authorize as appropriate and reasonable under all of the circumstances.
(3) If after being summoned a gang does not appear, the court shall enter an answer for the gang neither affirming nor denying the allegations of the complaint but demanding strict proof thereof, and proceed to trial and judgment without further process.
(4) When any person is named as a defendant gang member in any complaint, or subsequently becomes known and is added or joined as a named defendant, service of process may be had as authorized or provided for in the Rules of Civil Procedure for service of process in a civil case.
SECTION 8. The following shall be codified as Section 99-44-107, Mississippi Code of 1972:
99-44-107. (1) In any action brought under this article, and upon the verified application of the district attorney or the county attorney, the circuit court may at any time enter such restraining orders, injunctions or other prohibitions, or order such other relief as it deems proper, including, but not limited to, ordering any person to divest himself of any involvement or interest, direct or indirect, in any criminal gang activity and imposing other reasonable restrictions on the future illegal activities of any defendant.
(2) A final judgment in favor of a public authority under this article shall entitle it to recover compensatory damages for all damages, losses, impairments or other harm proximately caused, together with the costs of the suit and reasonable attorney's fees. Punitive damages may be assessed against any gang, gang officer or member found guilty of actual participation in, or to be legally accountable for, a criminal gang activity under this article. One hundred percent (100%) of punitive damages awarded will be expended by the public authority to implement preventive programs for juveniles or to fund existing programs.
SECTION 9. The following shall be codified as Section 99-44-109, Mississippi Code of 1972:
99-44-109. (1) Every private building or place used by members of a gang for the commission of illegal activity is a nuisance and may be the subject of an injunction or cause of action for damages or for abatement of the nuisance as provided for in this article.
(2) Any person may file a petition for injunctive relief with the appropriate court seeking eviction from or closure of any premises used for commission of illegal activity by a gang. Upon clear and convincing proof by the plaintiff that the premises are being used by members of a gang for the commission of illegal activity, the court may order the owner of record or the lessee of the premises to remove or evict the persons from the premises and order the premises sealed, prohibit further use of the premises, or enter such order as may be necessary to prohibit the premises from being used for the commission of illegal activity by a gang and to abate the nuisance.
(3) Any action for injunction, damages, abatement, or other relief filed pursuant to this section shall proceed according to the provisions of the Rules of Civil Procedure.
(4) The court shall not issue an injunction or assess a civil penalty against any owner of record or the lessee of the private building or place, unless there is a showing by clear and convincing proof that the person knew or should have known or had been notified of the use of the premises by a gang for illegal activity. Any injunctive relief other than that specifically authorized in subsection (6) of this section shall be limited to that which is necessary to protect the health and safety of the residents or the public or that which is necessary to prevent further illegal activity.
(5) A petition for injunction shall not be filed until thirty (30) days after notice of the unlawful use or criminal conduct has been provided to the owner of record or the lessee, by mail, return receipt requested, postage prepaid, to the owner's last-known address, or by personal service. If the premises are abandoned or closed, or if the whereabouts of the owner of record or lessee is unknown, all notices, process, pleadings, and orders required to be delivered or served under this section may be attached to a door of the premises and mailed, return receipt requested, to the last address which is reflected on the ad valorem tax receipt on file in the office of the tax collector of the county where the property is located, and this shall have the same effect as personal service on the owner of record or lessee. No injunctive relief authorized by subsection (6)(f) of this section shall be issued in the form of a temporary restraining order.
(6) If the court has previously issued injunctive relief ordering the owner of record or the lessee of the premises to close the premises or otherwise to keep the premises from being used for the commission by a gang of illegal activity, the court, upon proof of failure to comply with the terms of the injunction and that the premises continue to be used by a gang for the commission of illegal activity, may do one or more of the following:
(a) Order the premises demolished and cleared at the cost of the owner.
(b) Order the premises sold at public auction and the proceeds from the sale, minus the costs of the sale and the expenses of bringing the action, delivered to the owner.
(c) Order the defendant to pay damages to persons or local governing authorities who have been damaged or injured or have incurred expense as a result of the defendant's failure to take reasonable steps or precautions to comply with the terms of any injunction issued pursuant to the provisions of this article.
(d) Assess a civil penalty not to exceed Five Thousand Dollars ($5,000.00) against the defendant based upon the severity of the nuisance and its duration. In establishing the amount of any civil penalty, the court shall consider all of the following factors:
(i) The actions taken by the defendant to mitigate or correct the problem at the private building or place or the reasons why no such action was taken.
(ii) Any failure of the plaintiff to provide notice as required by subsection (5) of this section.
(iii) Any other factor deemed by the court to be relevant.
(7) No nonprofit, fraternal or charitable organization which is conducting its affairs with ordinary care or skill nor any governmental entity shall be enjoined pursuant to the provisions of this article.
(8) Nothing in this article shall preclude any aggrieved person from seeking any other remedy provided by law.
SECTION 10. The following shall be codified as Section 97-44-111, Mississippi Code of 1972:
97-44-111. (1) Any firearm, ammunition to be used in a firearm, or dangerous weapon in the possession of a member of a gang may be seized by any law enforcement agency or peace officer when the law enforcement agency or peace officer has probable cause to believe that the firearm, ammunition to be used in a firearm, or dangerous weapon is or has been used by a gang in the commission of illegal activity.
(2) The district attorney or an attorney for the seizing agency shall initiate, in a civil action, forfeiture proceedings by petition in the circuit courts as to any property seized pursuant to the provisions of this section within thirty (30) days of seizure. The district attorney shall provide notice of the filing of the petition to those members of the gang who become known to law enforcement officials as a result of the seizure and any related arrests, and to any person determined by law enforcement officials to be the owner of any of the property involved. After initial notice of the filing of the petition, the court shall assure that all persons so notified continue to receive notice of all subsequent proceedings related to the property.
(3) Any person who claims an interest in any seized property shall, in order to assert a claim that the property should not be forfeited, file a notice with the court, without necessity of paying costs, of the intent to establish either of the following:
(a) That the persons asserting the claim did not know of, could not have known of, or had no reason to believe in its use by a gang in the commission of illegal activity; or
(b) That the law enforcement officer lacked the requisite reasonable belief that the property was or had been used by a gang in the commission of illegal activity.
(4) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this section; however, for good cause shown, on motion by the district attorney, the court may stay civil forfeiture proceedings during the criminal trial for related criminal indictment or information alleging a violation of this section. Such a stay shall not be available pending an appeal.
(5) Except as otherwise provided by this section, all proceedings hereunder shall be governed by the provisions of the Mississippi Rules of Civil Procedure.
(6) The issue shall be determined by the court alone, and the hearing on the claim shall be held within sixty (60) days after service of the petition unless continued for good cause. The district attorney shall have the burden of showing by clear and convincing proof that forfeiture of the property is appropriate.
(7) Any person who asserts a successful claim in accordance with subsection (3) of this section shall be awarded the seized property by the court, together with costs of filing such action. All property as to which no claim is filed, or as to which no successful claim is made, may be destroyed, sold at a public sale, retained for use by the seizing agency or transferred without charge to any law enforcement agency of the state for use by it. Property that is sold shall be sold by the circuit court at a public auction for cash to the highest and best bidder after advertising the sale for at least once each week for three (3) consecutive weeks, the last notice to appear not more than ten (10) days nor less than five (5) days before the sale in a newspaper having a general circulation in the county. The notice shall contain a description of the property to be sold and a statement of the time and place of sale. It shall not be necessary to the validity of the sale either to have the property present at the place of sale or to have the name of the owner thereof stated in the notice. The proceeds of the sale, less any expenses of concluding the sale, shall be deposited in the seizing agency's general fund to be used only for approved law enforcement activity affecting the agency's efforts to combat gang activities.
(8) Any action under the provisions of this section may be consolidated with any other action or proceedings pursuant to this section relating to the same property on motion of the district attorney.
SECTION 11. Section 97-44-9, Mississippi Code of 1972, which provides venue for civil actions based on criminal gang activity, is repealed.
SECTION 12. Section 97-44-11, Mississippi Code of 1972, which provides service of process for civil actions based on criminal gang activity, is repealed.
SECTION 13. Section 97-44-13, Mississippi Code of 1972, which provides punitive damages for civil actions based on criminal gang activity, is repealed.
SECTION 14. Section 97-44-15, Mississippi Code of 1972, which provides for forfeiture of real property in civil actions based on criminal gang activity, is repealed.
SECTION 15. Section 97-44-17, Mississippi Code of 1972, which provides for forfeiture of personal property in civil actions based on criminal gang activity, is repealed.
SECTION 16. Section 97-44-19, Mississippi Code of 1972, which provides penalties for criminal gang activity, is repealed.
SECTION 17. Sections 1 through 4 of this act shall be codified as Article 1, and Sections 5 through 10 of this act shall be codified as Article 3, Chapter 44, Title 97, Mississippi Code of 1972.
SECTION 18. The following shall be codified as Section 97-35-53, Mississippi Code of 1972:
97-35-53. It is unlawful for any person to threaten to assault, kidnap or murder a judge or law enforcement officer or a member of the judge's or law enforcement officer's immediate family by any means, including social media, with intent to impede, intimidate, or interfere with the judge or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against the judge or law enforcement officer on account of the performance of official duties. Violation of this section is punishable by imprisonment for not more than one (1) year, a fine not to exceed Five Thousand Dollars ($5,000.00), or both.
SECTION 19. Section 97-3-2, Mississippi Code of 1972, is amended as follows:
97-3-2. (1) The following shall be classified as crimes of violence:
(a) Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12)(d);
(b) Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;
(c) Aggravated assault as provided in Sections 97-3-7(2)(a) and (b) and 97-3-7(4)(a);
(d) Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;
(e) Killing of an unborn child as provided in Sections 97-3-37(2)(a) and 97-3-37(2)(b);
(f) Kidnapping as provided in Section 97-3-53;
(g) Human trafficking as provided in Section 97-3-54.1;
(h) Poisoning as provided in Section 97-3-61;
(i) Rape as provided in Sections 97-3-65 and 97-3-71;
(j) Robbery as provided in Sections 97-3-73 and 97-3-79;
(k) Sexual battery as provided in Section 97-3-95;
(l) Drive-by shooting or bombing as provided in Section 97-3-109;
(m) Carjacking as provided in Section 97-3-117;
(n) Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;
(o) Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;
(p) Use of explosives or weapons of mass destruction as provided in Section 97-37-25;
(q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;
(r) Exploitation of a child as provided in Section 97-5-33;
(s) Gratification of lust as provided in
Section 97-5-23; * * *
(t) Shooting into a dwelling as provided
in Section 97-37-29 * * *
(u) Criminal gang activity as provided in Section 97-44-5.
(2) In any felony offense with a maximum sentence of no less than five (5) years, upon conviction, the judge may find and place in the sentencing order, on the record in open court, that the offense, while not listed in subsection (1) of this section, shall be classified as a crime of violence if the facts show that the defendant used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act. No person convicted of a crime of violence listed in this section is eligible for parole or for early release from the custody of the Department of Corrections until the person has served at least fifty percent (50%) of the sentence imposed by the court.
SECTION 20. Section 47-5-138.1, Mississippi Code of 1972, is amended as follows:
47-5-138.1. (1) In addition to any other administrative reduction of sentence, an offender in trusty status as defined by the classification board of the Department of Corrections may be awarded a trusty-time allowance of thirty (30) days' reduction of sentence for each thirty (30) days of participation during any calendar month in an approved program while in trusty status, including satisfactory participation in education or instructional programs, satisfactory participation in work projects and satisfactory participation in any special incentive program.
(2) An offender in trusty status shall not be eligible for a reduction of sentence under this section if:
(a) The offender was sentenced to life imprisonment;
(b) The offender was convicted as an habitual offender under Sections 99-19-81 through 99-19-87;
(c) The offender was convicted of a sex crime;
(d) The offender has
not served the mandatory time required for parole eligibility, as prescribed
under Section 47-7-3, for a conviction of robbery or attempted robbery through
the display of a deadly weapon, carjacking through the display of a deadly
weapon or a drive-by shooting; * * *
(e) The offender was
convicted of trafficking in controlled substances under Section 41-29-139 * * *
(f) The offender was convicted of conducting or participating in criminal gang activity under Section 97-44-5.
SECTION 21. Section 47-5-139, Mississippi Code of 1972, is amended as follows:
47-5-139. (1) An inmate shall not be eligible for the earned-time allowance if:
(a) The inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release;
(b) The inmate was convicted as a habitual offender under Sections 99-19-81 through 99-19-87;
(c) The inmate has forfeited his earned time allowance by order of the commissioner;
(d) The inmate was
convicted of a sex crime; * * *
(e) The inmate has not
served the mandatory time required for parole eligibility for a conviction of
robbery or attempted robbery with a deadly weapon * * *
(f) The inmate was convicted of conducting or participating in criminal gang activity under Section 97-44-5.
(2) An offender under two (2) or more consecutive sentences shall be allowed commutation based upon the total term of the sentences.
(3) All earned time shall be forfeited by the inmate in the event of escape and/or aiding and abetting an escape. The commissioner may restore all or part of the earned time if the escapee returns to the institution voluntarily, without expense to the state, and without act of violence while a fugitive from the facility.
(4) Any officer or employee who shall willfully violate the provisions of this section and be convicted therefor shall be removed from office or employment.
SECTION 22. Section 47-5-142, Mississippi Code of 1972, is amended as follows:
47-5-142. (1) In order to provide incentive for offenders to achieve positive and worthwhile accomplishments for their personal benefit or the benefit of others, and in addition to any other administrative reductions of the length of an offender's sentence, any offender shall be eligible, subject to the provisions of this section, to receive meritorious earned time as distinguished from earned time for good conduct and performance.
(2) Subject to approval by the commissioner of the terms and conditions of the program or project, meritorious earned time may be awarded for the following: (a) successful completion of educational or instructional programs; (b) satisfactory participation in work projects; and (c) satisfactory participation in any special incentive program.
(3) The programs and activities through which meritorious earned time may be received shall be published in writing and posted in conspicuous places at all facilities of the department and such publication shall be made available to all offenders in the custody of the department.
(4) The commissioner shall make a determination of the number of days of reduction of sentence which may be awarded an offender as meritorious earned time for participation in approved programs or projects; the number of days shall be determined by the commissioner on the basis of each particular program or project.
(5) * * *
An offender shall not be
awarded any meritorious earned time:
assigned to the maximum security facilities for disciplinary purposes * * *
(b) If the offender was convicted of conducting or participating in criminal gang activity under Section 97-44-5.
(6) All meritorious earned time shall be forfeited by the offender in the event of escape and/or aiding and abetting an escape.
(7) Any officer or employee of the department who shall willfully violate the provisions of this section and be convicted therefor shall be removed from office or employment.
(8) An offender may forfeit all or any part of his meritorious earned-time allowance for just cause upon the written order of the commissioner, or his designee. Any meritorious earned-time allowance forfeited under this section shall not be restored nor shall it be re-earned by the offender.
SECTION 23. This act shall take effect and be in force from and after July 1, 2017.