MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary En Banc
By: Representative Fleming
AN ACT TO ABOLISH THE DEATH PENALTY AND IMPOSE HARD LABOR; TO AMEND SECTIONS 97-3-21, 97-7-67, 97-9-7, 97-25-55, 99-17-20, 99-19-61, 99-19-85, 99-19-101, 99-35-115, 99-35-135, 99-39-23, 99-39-27, 99-41-5, 47-5-139, 47-5-151, 47-5-1003, 47-7-3, 47-7-17, 47-7-33, 47-7-47 AND 73-15-7, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO REPEAL SECTION 99-15-18, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR COMPENSATION OF COUNSEL IN POST-CONVICTION RELIEF CASES INVOLVING DEATH PENALTY CASES; TO REPEAL SECTIONS 99-18-1, 99-18-3, 99-18-5, 99-18-7, 99-18-9, 99-18-11, 99-18-13, 99-18-15, 99-18-17 AND 99-18-19, MISSISSIPPI CODE OF 1972, WHICH CREATE AND PROVIDE THE DUTIES OF THE OFFICE OF CAPITAL DEFENSE COUNSEL FOR THE PURPOSE OF PROVIDING REPRESENTATION FOR INDIGENT PARTIES UNDER INDICTMENT FOR DEATH PENALTY ELIGIBLE OFFENSES; TO REPEAL SECTIONS 99-39-28 AND 99-39-29, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR RULES OF THE SUPREME COURT FOR POST-CONVICTION PROCEEDINGS IN DEATH PENALTY CASES AND STAY OF EXECUTION BY THE SUPREME COURT; TO REPEAL SECTIONS 99-39-101, 99-39-103, 99-39-105, 99-39-107, 99-39-109, 99-39-111, 99-39-113, 99-39-115, 99-39-117 AND 99-39-119, MISSISSIPPI CODE OF 1972, WHICH CREATE AND PROVIDE THE DUTIES OF THE OFFICE OF CAPITAL POST-CONVICTION FOR THE PURPOSE OF PROVIDING REPRESENTATION FOR COUNSEL TO INDIGENT PARTIES WHO ARE UNDER SENTENCES OF DEATH IN POST-CONVICTION PROCEEDINGS; TO REPEAL SECTIONS 99-19-51, 99-19-53, 99-19-55, 99-19-57, 99-19-87, 99-19-103, 99-19-105, 99-19-106 AND 99-19-107, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE EXECUTION OF THE DEATH SENTENCE, INSTRUCTIONS REGARDING THE DEATH PENALTY, JUDICIAL REVIEW OF THE DEATH PENALTY, SETTING OF THE DATE FOR EXECUTION AND FOR THE IMPOSITION OF A LIFE SENTENCE IMPOSED IF THE DEATH PENALTY IS HELD TO BE UNCONSTITUTIONAL; TO REPEAL SECTION 99-35-137, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE COPY OF THE DEATH SENTENCE TO BE SENT TO THE SHERIFF FROM THE CLERK OF THE COURT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The death penalty is hereby abolished. Any person who is under penalty of death shall have that sentence reduced to life without parole with hard labor imposed.
SECTION 2. 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 99-19-85;
(c) The inmate has forfeited his earned time allowance by order of the commissioner;
(d) The inmate was convicted of a sex crime; or
(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.
(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 3. Section 47-5-151, Mississippi Code of 1972, is amended as follows:
47-5-151. The superintendent (warden) or other person in charge of prisoners, upon the death of any prisoner under his care and control, shall at once notify the county medical examiner or county medical examiner investigator (hereinafter "medical examiner") of the county in which said prisoner died, of the death of the prisoner, and it shall be the duty of such medical examiner, when so notified of the death of such person, to obtain a court order and notify the State Medical Examiner of the death of such prisoner. It shall be mandatory that the State Medical Examiner cause an autopsy to be performed upon the body of the deceased prisoner. Furthermore, the State Medical Examiner shall investigate any case where a person is found dead on the premises of the correctional system, in accordance with Sections 41-61-51 through 41-61-79. The State Medical Examiner shall make a written report of his investigation, and shall furnish a copy of the same, including the autopsy report, to the superintendent (warden) and a copy of the same to the district attorney of the county in which said prisoner died. The copy so furnished to the district attorney shall be turned over by the district attorney to the grand jury, and it shall be the duty of the grand jury, if there be any suspicion of wrongdoing shown by the inquest papers, to thoroughly investigate the cause of such death.
It shall be the duty of the medical examiner of the county in which said prisoner died to arrange for the remains to be transported to the State Medical Examiner for said autopsy, and accompanying the remains shall be the court order for autopsy and any documents or records pertaining to the deceased prisoner, institutional health records or other information relating to the circumstances surrounding the prisoner's death. The State Medical Examiner shall arrange for the remains to be transported to the county in which said prisoner died following completion of the autopsy. If the remains are not claimed for burial within forty-eight (48) hours after autopsy, then said remains may be delivered to the University of Mississippi Medical Center for use in medical research or anatomical study.
The provisions herein set forth in the first paragraph shall likewise apply to any case in which any person is found dead on the premises of the Mississippi State Penitentiary except that the autopsy to be performed on the body of such a person shall not be mandatory upon a person who is not a prisoner unless the medical examiner determines that the death resulted from circumstances raising questions as to the cause of death, in which case the medical examiner may cause an autopsy to be performed upon the body of such deceased person in the same manner as authorized to be performed upon the body of a deceased prisoner.
Provided further, that the provisions herein shall apply with respect to any deceased prisoner who at the time of death is being detained by duly constituted state authority such as the Columbia Training School, Oakley Training School, Mississippi State Hospital at Whitfield, East Mississippi State Hospital, or any other state institution.
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Any officer or employee of the prison system or any other officer, employee or person having charge of any prisoner who shall fail to immediately notify the medical examiner of the death of such prisoner, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred dollars ($500.00) and by confinement in the county jail for not more than one (1) year.
SECTION 4. Section 47-5-1003, Mississippi Code of 1972, is amended as follows:
47-5-1003. (1) An intensive supervision program may be used as an alternative to incarceration for offenders who are low risk and nonviolent as selected by the department or court. Any offender convicted of a sex crime or a felony violation of Section 41-29-139(a)(1) shall not be placed in the program.
(2) The court placing an offender in the intensive supervision program may, acting upon the advice and consent of the commissioner and not later than one (1) year after the defendant has been delivered to the custody of the department, suspend the further execution of the sentence and place the defendant on intensive supervision, except when a sentence of life imprisonment without eligibility for parole with hard labor is imposed or life imprisonment is the maximum penalty which may be imposed or if the defendant has been confined for the conviction of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof or has been convicted of a felony involving the use of a deadly weapon.
(3) To protect and to ensure the safety of the state's citizens, any offender who violates an order or condition of the intensive supervision program shall be arrested by the correctional field officer and placed in the actual custody of the Department of Corrections. Such offender is under the full and complete jurisdiction of the department and subject to removal from the program by the classification hearing officer.
(4) When any circuit or county court places an offender in an intensive supervision program, the court shall give notice to the Mississippi Department of Corrections within fifteen (15) days of the court's decision to place the offender in an intensive supervision program. 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 in an intensive supervision program.
The courts may not require an offender to complete the intensive supervision program as a condition of probation or post-release supervision.
SECTION 5. Section 47-7-3, Mississippi Code of 1972, is amended as follows:
47-7-3. (1) Every prisoner who has been convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi State Penitentiary for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the Penitentiary, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided, except that:
(a) No prisoner convicted as a confirmed and habitual criminal under the provisions of Sections 99-19-81 through 99-19-85 shall be eligible for parole;
(b) Any person who shall have been convicted of a sex crime shall not be released on parole except for a person under the age of nineteen (19) who has been convicted under Section 97-3-67;
(c) No one shall be eligible for parole until he shall have served one (1) year of his sentence, unless such person has accrued any meritorious earned time allowances, in which case he shall be eligible for parole if he has served (i) nine (9) months of his sentence or sentences, when his sentence or sentences is two (2) years or less; (ii) ten (10) months of his sentence or sentences when his sentence or sentences is more than two (2) years but no more than five (5) years; and (iii) one (1) year of his sentence or sentences when his sentence or sentences is more than five (5) years;
(d) (i) No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole. The provisions of this paragraph (d) shall also apply to any person who shall commit robbery or attempted robbery on or after July 1, 1982, through the display of a deadly weapon. This subparagraph (d)(i) shall not apply to persons convicted after September 30, 1994;
(ii) No person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery, attempted robbery or carjacking as provided in Section 97-3-115 et seq., through the display of a firearm or drive-by shooting as provided in Section 97-3-109. The provisions of this subparagraph (d)(ii) shall also apply to any person who shall commit robbery, attempted robbery, carjacking or a drive-by shooting on or after October 1, 1994, through the display of a deadly weapon;
(e) No person shall be eligible for parole who, on or after July 1, 1994, is charged, tried, convicted and sentenced to life imprisonment without eligibility for parole under the provisions of Section 99-19-101;
(f) No person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment under the provisions of Section 99-19-101;
(g) No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that a first offender convicted of a nonviolent crime after January 1, 2000, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph. In addition to other requirements, if a first offender is convicted of a drug or driving under the influence felony, the offender must complete a drug and alcohol rehabilitation program prior to parole or the offender may be required to complete a post-release drug and alcohol program as a condition of parole. For purposes of this paragraph, "nonviolent crime" means a felony other than homicide, robbery, manslaughter, sex crimes, arson, burglary of an occupied dwelling, aggravated assault, kidnapping, felonious abuse of vulnerable adults, felonies with enhanced penalties, the sale or manufacture of a controlled substance under the Uniform Controlled Substances Law, and felony child abuse.
(2) Notwithstanding any other provision of law, an inmate shall not be eligible to receive earned time, good time or any other administrative reduction of time which shall reduce the time necessary to be served for parole eligibility as provided in subsection (1) of this section; however, this subsection shall not apply to the advancement of parole eligibility dates pursuant to the Prison Overcrowding Emergency Powers Act. Moreover, meritorious earned time allowances may be used to reduce the time necessary to be served for parole eligibility as provided in paragraph (c) of subsection (1) of this section.
(3) The State Parole Board shall by rules and regulations establish a method of determining a tentative parole hearing date for each eligible offender taken into the custody of the Department of Corrections. The tentative parole hearing date shall be determined within ninety (90) days after the department has assumed custody of the offender. Such tentative parole hearing date shall be calculated by a formula taking into account the offender's age upon first commitment, number of prior incarcerations, prior probation or parole failures, the severity and the violence of the offense committed, employment history and other criteria which in the opinion of the board tend to validly and reliably predict the length of incarceration necessary before the offender can be successfully paroled.
(4) Any inmate within twenty-four (24) months of his parole eligibility date and who meets the criteria established by the classification board shall receive priority for placement in any educational development and job training programs. Any inmate refusing to participate in an educational development or job training program may be ineligible for parole.
SECTION 6. Section 47-7-17, Mississippi Code of 1972, is amended as follows:
47-7-17. Within one (1) year after his admission and at such intervals thereafter as it may determine, the board shall secure and consider all pertinent information regarding each offender, except any under a sentence of life imprisonment without eligibility for parole with hard labor is imposed or otherwise ineligible for parole, including the circumstances of his offense, his previous social history, his previous criminal record, including any records of law enforcement agencies or of a youth court regarding that offender's juvenile criminal history, his conduct, employment and attitude while in the custody of the department, and the reports of such physical and mental examinations as have been made. The board shall furnish at least three (3) months' written notice to each such offender of the date on which he is eligible for parole.
Before ruling on the application for parole of any offender, the board may have the offender appear before it and interview him. The hearing shall be held two (2) months prior to the month of eligibility in order for the department to address any special conditions required by the board. No application for parole of a person convicted of a capital offense shall be considered by the board unless and until notice of the filing of such application shall have been published at least once a week for two (2) weeks in a newspaper published in or having general circulation in the county in which the crime was committed. The board shall also give notice of the filing of the application for parole to the victim of the offense for which the prisoner is incarcerated and being considered for parole or, in case the offense be homicide, a designee of the immediate family of the victim, provided the victim or designated family member has furnished in writing a current address to the board for such purpose. A parole shall be ordered only for the best interest of society, not as an award of clemency; it shall not be considered to be a reduction of sentence or pardon. An offender shall be placed on parole only when arrangements have been made for his proper employment or for his maintenance and care, and when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen. Within forty-eight (48) hours prior to the release of an offender on parole, the Director of Records of the department shall give the written notice which is required pursuant to Section 47-5-177. Every offender while on parole shall remain in the legal custody of the department from which he was released and shall be amenable to the orders of the board. The board, upon rejecting the application for parole of any offender, shall within thirty (30) days following such rejection furnish that offender in general terms the reasons therefor in writing. Upon determination by the board that an offender is eligible for release by parole, notice shall also be given by the board to the victim of the offense or the victim's family member, as indicated above, regarding the date when the offender's release shall occur, provided a current address of the victim or the victim's family member has been furnished in writing to the board for such purpose.
Failure to provide notice to the victim or the victim's family member of the filing of the application for parole or of any decision made by the board regarding parole shall not
constitute grounds for vacating an otherwise lawful parole determination nor shall it create any right or liability, civilly or criminally, against the board or any member thereof.
A letter of protest against granting an offender parole shall not be treated as the conclusive and only reason for not granting parole.
The board may adopt such other rules not inconsistent with law as it may deem proper or necessary with respect to the eligibility of offenders for parole, the conduct of parole hearings, or conditions to be imposed upon parolees, including a condition that the parolee 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. The board shall have the authority to adopt rules permitting certain offenders to be placed on unsupervised parole. However, in no case shall an offender be placed on unsupervised parole before he has served a minimum of three (3) years of supervised parole.
SECTION 7. 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 sentence of life imprisonment without eligibility for parole with hard labor is imposed 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.
SECTION 8. Section 47-7-47, Mississippi Code of 1972, is amended as follows:
47-7-47. (1) The judge of any circuit court may place an offender on a program of earned probation after a period of confinement as set out in this section and the judge may seek the advice of the commissioner and shall direct that the defendant be under the supervision of the department.
(2) (a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered to the custody of the department, to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation, except when a sentence of life imprisonment without eligibility for parole with hard labor is imposed or life imprisonment is the maximum penalty which may be imposed or if the defendant has been confined two (2) or more times for the conviction of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof or has been convicted of a felony involving the use of a deadly weapon.
(b) The authority granted in this subsection shall be exercised by the judge who imposed sentence on the defendant, or his successor.
(c) The time limit imposed by paragraph (a) of this subsection is not applicable to those defendants sentenced to the custody of the department prior to April 14, 1977. Persons who are convicted of crimes that carry mandatory sentences shall not be eligible for earned probation.
(3) When any circuit or county court places an offender on earned 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 earned 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 earned probation.
(4) If the court places any person on probation or earned probation, the court may order the person, as a condition of probation, to a period of confinement and treatment at a private or public agency or institution, either within or without the state, which treats emotional, mental or drug-related problems. Any person who, as a condition of probation, is confined for treatment at an out-of-state facility shall be supervised pursuant to Section 47-7-71, and any person confined at a private agency shall not be confined at public expense. Time served in any such agency or institution may be counted as time required to meet the criteria of subsection (2)(a).
(5) If the court places any person on probation or earned probation, the court may order the person to make appropriate restitution to any victim of his crime or to society through the performance of reasonable work for the benefit of the community.
(6) If the court places any person on probation or earned probation, the court may order the person, as a condition of probation, to 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.
SECTION 9. Section 73-15-7, Mississippi Code of 1972, is amended as follows:
73-15-7. The following shall be excepted from the provisions of this chapter:
(a) Gratuitous nursing by friends and members of the family.
(b) The furnishing of nursing assistance in an emergency.
(c) The practice of nursing which is incidental to a program of study by a student enrolled in an approved educational program of nursing, provided the practice is under the supervision of a registered nurse.
(d) The practice of nursing by a graduate of an approved educational program of nursing pending the results of the first licensing examination scheduled by the board following such graduation, provided the practice is under the supervision of a registered nurse or a licensed physician if the nurse is practicing in a physician's office and the graduate holds a temporary permit to practice nursing in Mississippi.
(e) The practice of nursing by any legally qualified nurse of another state who is employed by the United States government or any bureau, division or agency thereof while in the discharge of his or her official duties.
(f) The practice of nursing by a registered nurse or a licensed practical nurse for a period of not more than ninety (90) days pending licensure in Mississippi, provided the nurse upon employment has furnished the employer with satisfactory evidence of current registration and licensure in another state, and provided such nurse furnishes evidence to the prospective employer of having submitted proper application and fees to the board prior to employment and holds a temporary permit to practice nursing in Mississippi.
(g) The furnishing of nursing assistance by any duly qualified auxiliary personnel employed by state mental health facilities until December 31, 1983.
(h) Any registered nurse or licensed practical nurse for nursing duties performed in a physician's office under the direction and supervision of a licensed physician; provided, however, that said registered nurse or licensed practical nurse shall otherwise comply with the other provisions of this chapter.
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SECTION 10. Section 97-3-21, Mississippi Code of 1972, is amended as follows:
97-3-21. Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.
Every person who shall be convicted of capital murder shall be sentenced (a) * * * to imprisonment for life in the State Penitentiary without parole with hard labor imposed or (b) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f).
SECTION 11. Section 97-7-67, Mississippi Code of 1972, is amended as follows:
97-7-67. If any person shall levy war against this state, or adhere to its enemies, giving them aid and comfort, he shall be guilty of treason, and, shall, upon conviction, suffer a sentence of life imprisonment without eligibility for parole with hard labor imposed or imprisonment for life in the State Penitentiary.
SECTION 12. Section 97-9-7, Mississippi Code of 1972, is amended as follows:
97-9-7. Every person having a knowledge of the actual commission of any offense punishable by a sentence of life imprisonment without eligibility for parole with hard labor imposed or by imprisonment in the Penitentiary for life, who shall take any money or property of another, or any gratuity or reward, or any engagement or promise therefor, upon any agreement or understanding, express or implied, to compound or conceal any such crime, or to abstain from any prosecution thereof, or to withhold any evidence thereof, shall, upon conviction, be punished by imprisonment in the Penitentiary not exceeding five (5) years, or in the county jail not exceeding one (1) year.
SECTION 13. Section 97-25-55, Mississippi Code of 1972, is amended as follows:
97-25-55. (1) The offense of aircraft piracy is defined as the seizure or exercise of control, by force or violence or threat of force or violence, of any aircraft within the airspace jurisdiction of the State of Mississippi. Any person convicted of the offense of aircraft piracy shall suffer a sentence of life imprisonment without eligibility for parole with hard labor imposed or imprisonment for life in the State Penitentiary.
(2) The offense of assault with the intent to commit aircraft piracy is defined as an intimidation, threat, assault or battery toward any flight crew member or flight attendant (including any steward or stewardess) of such aircraft so as to interfere with the performance of duties by such member or attendant to perform his duties, with the intent to commit aircraft piracy as defined in subsection (1) of this section. Any person convicted of the offense of assault with intent to commit aircraft piracy shall serve a term not to exceed twenty (20) years or be fined a sum not to exceed Ten Thousand Dollars ($10,000.00), or both.
Any person who, in the commission of such intimidation, threat, assault or battery with the intent to commit aircraft piracy, employs a dangerous or deadly weapon or other means capable of inflicting serious bodily injury shall serve a term not to exceed fifty (50) years or be fined a sum not to exceed Twenty Thousand Dollars ($20,000.00), or both.
(3) Any person who boards an aircraft with a dangerous or deadly weapon or other means capable of inflicting serious bodily injury concealed upon his person or effects shall, upon conviction, serve a term not to exceed ten (10) years or be fined a sum not to exceed Five Thousand Dollars ($5,000.00), or both. The prohibition of this subsection shall not apply to duly elected or appointed law enforcement officers or commercial security personnel who are in possession of weapons used within the course and scope of their employment; nor shall the prohibition apply to persons who are in possession of weapons or means with the consent of the owner of such aircraft, or his agent, or the lessee or bailee of such aircraft.
(4) Anyone accused of violating subsection (1), (2) or (3) of this section shall be indicted and tried as provided by Section 99-11-19.
SECTION 14. Section 99-17-20, Mississippi Code of 1972, is amended as follows:
99-17-20. No person shall be tried for capital murder, or any other crime punishable by a sentence of life imprisonment without eligibility for parole with hard labor imposed as provided by law, unless such offense was specifically cited in the indictment returned against the accused by setting forth the section and subsection number of the code defining the offense alleged to have been committed by the accused. The judge, in cases where the offense cited in the indictment is punishable by a sentence of life imprisonment without eligibility for parole with hard labor imposed, may grant an instruction for the state or the defendant which instructs the jury as to their discretion to convict the accused of the commission of an offense not specifically set forth in the indictment returned against the accused. Any conviction of the accused for an offense punishable by a sentence of life imprisonment without eligibility for parole with hard labor imposed shall not be valid unless the offense for which the accused is convicted shall have been set forth in the indictment by section and subsection number of the code which defined the offense allegedly committed by the accused.
SECTION 15. Section 99-19-61, Mississippi Code of 1972, is
amended as follows:
99-19-61. The commissioner of corrections is hereby
authorized and empowered to pay out of any available funds of the
Department of Corrections all lawful costs, fees, and expenses * * * of any person, not a legal resident of Sunflower County, Mississippi, who is charged and tried * * * for the commission of a crime within the confines of the Penitentiary, or any crime committed outside the bounds of the land of the Penitentiary by any inmate lawfully charged thereto. * * *
SECTION 16. Section 99-19-85, Mississippi Code of 1972, is amended as follows:
99-19-85. Nothing in Sections 99-19-81 through 99-19-85 shall be construed or considered as seeking or tending to impair the pardoning power or other powers reserved to the Governor under Section 124 of the Mississippi Constitution of 1890.
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 * * * life imprisonment without eligibility for parole with hard labor imposed, 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. * * *
(2) After hearing all the evidence, the jury shall deliberate on the following matters:
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(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (4) of this section;
(b) Whether sufficient mitigating circumstances exist as enumerated in subsection (5) of this section, which outweigh the aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or life imprisonment without eligibility for parole with hard labor imposed.
(3) For the jury to impose a sentence of life imprisonment without eligibility for parole with hard labor imposed, it must unanimously find in writing the following:
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(a) That sufficient aggravating circumstances exist as enumerated in subsection (4) of this section; and
(b) That there are insufficient mitigating circumstances, as enumerated in subsection (5), to outweigh the aggravating circumstances.
In each case in which the jury imposes a sentence of life imprisonment without eligibility for parole with hard labor imposed, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (4) and (5) 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 a sentence of life imprisonment without eligibility for parole with hard labor imposed, or is unable to reach a decision, the court shall impose a sentence of life imprisonment.
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(4) Aggravating circumstances shall be limited to the following:
(a) The capital offense was committed by a person under sentence of imprisonment.
(b) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, Mississippi Code of 1972, or the unlawful use or detonation of a bomb or explosive device.
(e) The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital offense was committed for pecuniary gain.
(g) The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital offense was especially heinous, atrocious or cruel.
(5) Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
* * *
SECTION 18. Section 99-35-115, Mississippi Code of 1972, is amended as follows:
99-35-115. (1) A person convicted of felony child abuse or any offense in which a sentence of life imprisonment without eligibility for parole with hard labor imposed or life imprisonment is imposed shall not be entitled to be released from imprisonment pending an appeal to the Supreme Court.
(2) (a) A person convicted of any felony, not enumerated in subsection (1), shall be entitled to be released from imprisonment on bail pending an appeal to the Supreme Court, within the discretion of a judicial officer, if the convict shows by clear and convincing evidence that release of the convict would not constitute a special danger to any other person or to the community, and that a condition or a combination of conditions may be placed on release that will reasonably assure the appearance of the convict as required, and only when the peculiar circumstances of the case render it proper.
(b) If bail is denied, the judicial officer shall place the reasons for such denial of record in the case.
(c) For the purposes of this section, "judicial officer" means the trial court or trial judge, a judge of the district in which the conviction occurred, the Supreme Court or a justice of the Supreme Court in vacation of the court.
(d) The victim or family of a victim shall be entitled to submit a written statement objecting to the granting of release on bail pending appeal.
SECTION 19. Section 99-35-135, Mississippi Code of 1972, is amended as follows:
99-35-135. If the judgment be affirmed, on appeal, and * * * the sentence be for confinement in the Penitentiary, and the defendant be not present, but in custody, the clerk of the supreme court shall forthwith notify the legal authorities of the Penitentiary as in cases of conviction for Penitentiary offenses in the circuit court, who shall send for the convict as provided in such cases.
SECTION 20. Section 99-39-23, Mississippi Code of 1972, is amended as follows:
99-39-23. (1) If an evidentiary hearing is required the judge may appoint counsel for a petitioner who qualifies for the appointment of counsel under Section 99-15-15, Mississippi Code of 1972.
(2) The hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.
(3) The parties shall be entitled to subpoena witnesses and compel their attendance, including, but not being limited to, subpoenas duces tecum.
(4) The court may receive proof by affidavits, depositions, oral testimony or other evidence and may order the prisoner brought before it for the hearing.
(5) If the court finds in favor of the prisoner, it shall enter an appropriate order with respect to the conviction or sentence under attack, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.
(6) The order as provided in subsection (5) of this section or any order dismissing the prisoner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. * * * Excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.
(7) No relief shall be granted under this article unless the prisoner proves by a preponderance of the evidence that he is entitled to such.
(8) Proceedings under this section shall be subject to the provisions of Section 99-19-42.
* * *
SECTION 21. Section 99-39-27, Mississippi Code of 1972, is amended as follows:
99-39-27. (1) The application for leave to proceed in the trial court filed with the Supreme Court under Section 99-39-7 shall name the State of Mississippi as the respondent.
(2) The application shall contain the original and two (2) executed copies of the motion proposed to be filed in the trial court together with such other supporting pleadings and documentation as the Supreme Court by rule may require.
(3) The prisoner shall serve an executed copy of the application upon the Attorney General simultaneously with the filing of the application with the court.
(4) The original motion, together with all files, records, transcripts and correspondence relating to the judgment under attack, shall promptly be examined by the court.
(5) Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by such are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application. The court may, in its discretion, require the Attorney General upon sufficient notice to respond to the application.
(6) The court upon satisfaction of the standards set forth in this article is empowered to grant the application.
(7) In granting the application the court, in its discretion, may:
(a) Where sufficient facts exist from the face of the application, motion, exhibits, the prior record and the state's response, together with any exhibits submitted therewith, or upon stipulation of the parties, grant or deny any or all relief requested in the attached motion.
(b) Allow the filing of the motion in the trial court for further proceedings under Sections 99-39-13 through 99-39-23.
(8) No application or relief shall be granted without the Attorney General being given at least five (5) days to respond.
(9) The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article. * * * Excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.
(10) Proceedings under this section shall be subject to the provisions of Section 99-19-42.
* * *
SECTION 22. Section 99-41-5, Mississippi Code of 1972, is amended as follows:
99-41-5. As used in this chapter, unless the context otherwise requires, the term:
(a) "Allowable expense" means reasonable charges incurred for reasonably needed:
(i) Products, services and accommodations, including, but not limited to, medical care, rehabilitation, rehabilitative occupational training and other remedial treatment and care, but not to exceed Ten Thousand Dollars ($10,000.00);
(ii) Mental health counseling and care not to exceed Three Thousand Five Hundred Dollars ($3,500.00) for the victim and victim's family member; provided, however, if there is more than one (1) family member, the amount of compensation awarded shall be prorated and not to exceed Three Thousand Five Hundred Dollars ($3,500.00); and
(iii) Expenses related to funeral, cremation or burial, but not to exceed a total charge of Four Thousand Five Hundred Dollars ($4,500.00) and transportation costs to arrange or attend services, but not to exceed Five Hundred Dollars ($500.00);
(b) "Claimant" means any of the following persons applying for compensation under this chapter:
(i) A victim;
(ii) A dependent of a victim who has died because of criminally injurious conduct; or
(iii) A person authorized to act on behalf of any of the persons enumerated in subparagraphs (i) and (ii) of this paragraph; however, "claimant" shall not include any of the following: provider or creditor of victim; assignee of provider or creditor, including a collection agency; or another person or entity other than those enumerated in this paragraph;
(c) "Collateral source" means a source of benefits or advantages for economic loss for which the claimant would otherwise be eligible to receive compensation under this chapter which the claimant has received, or which is readily available to the claimant, from any one or more of the following:
(i) The offender;
(ii) The government of the United States or any agency thereof, a state or any of its political subdivisions or an instrumentality of two (2) or more states;
(iii) Social Security, Medicare and Medicaid;
(iv) Workers' compensation;
(v) Wage continuation programs of any employer;
(vi) Proceeds of a contract of insurance payable to the claimant for loss which the victim sustained because of the criminally injurious conduct;
(vii) A contract providing prepaid hospital and other health care services or benefits for disability; or
(viii) Any temporary nonoccupational disability insurance;
(d) "Criminally injurious conduct" means an act occurring or attempted within the geographical boundaries of this state, or to a resident of Mississippi while that resident is within any other state of the United States or any foreign country, which state or foreign country does not provide compensation for those injuries caused by an act for which compensation would be available had the act occurred in Mississippi, and which act results in personal injury or death to a victim for which punishment by fine, imprisonment, or death that may have been imposed before the effective date of House Bill No. _ ___, 2004 Regular Session, which abolished the death penalty, may be imposed. The term shall also apply to federal offenses committed within the state and delinquent acts as defined in Section 43-21-105 which meet this definition;
(e) "Department" means the Department of Finance and Administration;
(f) "Dependent" means a natural person wholly or partially dependent upon the victim for care or support, and includes a child of the victim born after the death of the victim where the death occurred as a result of criminally injurious conduct;
(g) "Economic loss of a dependent" means loss, after death of the victim, of contributions or things of economic value to the dependent, not including services which would have been received from the victim if he or she had not suffered the fatal injury, less expenses of the dependent avoided by reason of death of the victim;
(h) "Economic loss" means monetary detriment consisting only of allowable expense, work loss and, if injury causes death, economic loss of a dependent, but shall not include noneconomic loss or noneconomic detriment;
(i) "Family member" means the victim's spouse, parent, grandparent, stepparent, child, stepchild, grandchild, brother, sister, half brother, half sister or spouse's parent;
(j) "Noneconomic loss or detriment" means pain, suffering, inconvenience, physical impairment and nonpecuniary damage;
(k) "Work loss" means loss of income from work the victim or claimant would have performed if the victim had not been injured, but reduced by any income from substitute work actually performed by the victim or claimant or by income the victim or claimant would have earned in available appropriate substitute work that he or she was capable of performing, but unreasonably failed to undertake; and
(l) "Victim" means a person who suffers personal injury or death as a result of criminally injurious conduct.
SECTION 23. Section 99-15-18, Mississippi Code of 1972, which provides for compensation of counsel in post-conviction relief cases involving the death penalty, is repealed.
SECTION 24. Sections 99-18-1, 99-18-3, 99-18-5, 99-18-7, 99-18-9, 99-18-11, 99-18-13, 99-18-15, 99-18-17 and 99-18-19, Mississippi Code of 1972, which create and provide the duties of the Office of Capital Defense Counsel for the purpose of providing representation for indigent parties under indictment for death penalty eligible offenses, are repealed.
SECTION 25. Sections 99-39-28 and 99-39-29, Mississippi Code of 1972, which provides the rules of the Supreme Court for post-conviction proceeding in death penalty cases and stay of execution by the Supreme Court, are repealed.
SECTION 26. Sections 99-39-101, 99-39-103, 99-39-105, 99-39-107, 99-39-109, 99-39-111, 99-39-113, 99-39-115, 99-39-117 and 99-39-119, Mississippi Code of 1972, which create and provide the duties of the Office of Capital Post-Conviction Counsel for the purpose of providing representation for indigent parties who are under sentences of death, are repealed.
SECTION 27. Sections 99-19-51, 99-19-53, 99-19-55, 99-19-57, 99-19-87, 99-19-103, 99-19-105, 99-19-106 and 99-19-107, Mississippi Code of 1972, which provide for the execution of the death sentence, death instructions regarding the death penalty, judicial review of the death penalty, setting of the date for execution, and for the imposition of a life sentence if the death penalty is held to be unconstitutional, are repealed.
SECTION 28. Section 99-35-137, Mississippi Code of 1972, which provides for the copy of the death sentence to be sent to the sheriff from the clerk of the court, is repealed.
SECTION 29. This act shall take effect and be in force from and after July 1, 2004.