MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary En Banc
By: Representative Watson
AN ACT TO ELIMINATE THE DEATH PENALTY FOR PERSONS WHO ARE MENTALLY RETARDED; TO DEFINE MENTAL RETARDATION; TO PROVIDE PROCEEDINGS TO DETERMINE MENTAL RETARDATION; TO PROVIDE FOR THE COMMUTATION OF DEATH SENTENCES FOR PERSONS WHO ARE MENTALLY RETARDED; TO AMEND SECTION 99-19-101, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) No person with mental retardation is eligible for the death penalty. For purposes of this section, "mental retardation" means a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social and practical adaptive skills. Mental retardation originates before age eighteen (18).
(2) If defense counsel has a good faith belief that the defendant in a capital case has mental retardation, counsel shall file a motion with the court, requesting a finding that the defendant is not death eligible because of mental retardation. Such a motion shall be filed at least sixty (60) days prior to the date for trial, unless the information in support of the motion came to counsel's attention at a later date.
Upon receipt of such a motion, the trial court shall conduct a hearing for the presentation of evidence regarding the defendant's possible mental retardation. The hearing shall be conducted before a jury, which shall be specially empanelled for this issue only. Both the defense and the prosecution shall have the opportunity to present evidence, including expert testimony. After considering the evidence, the jury shall be asked, by special verdict, "Do you unanimously find, beyond a reasonable doubt, that the defendant does not have mental retardation?" If the jury finds, beyond a reasonable doubt, that the defendant does not have mental retardation, the case may be certified for a capital trial. Such a trial shall be conducted before a separate jury. The trial jury shall not be informed of the prior proceedings or the findings concerning the defendant's claim of mental retardation, and the defendant shall not be precluded from offering evidence of the defendant's mental disability in the guilt/innocence phase or the penalty phase of the trial.
If the defendant is not eligible for the death penalty because of mental retardation, the trial may proceed as a noncapital trial, and, if convicted, the defendant may be sentenced to any penalty available under state law, other than death.
(3) In cases in which the defendant has been convicted of first degree murder, sentenced to death, and is in custody pending execution of the sentence of death, the following procedures apply:
Notwithstanding any other provision of law or rule of court, a defendant may seek appropriate relief from the defendant's death sentence upon the ground that the defendant was an individual with mental retardation at the time of the commission of the capital offense.
A motion seeking appropriate relief from a death sentence on the ground that the defendant was an individual with mental retardation shall be filed:
(a) Within one hundred eighty (180) days of the effective date of this act; or
(b) Within one hundred eighty (180) days of the imposition of the sentence of death if the trial was in progress at the time of the enactment of this act. For purposes of this section, a trial is considered to be in progress if the process of jury selection has begun.
The petition seeking relief from a sentence of death under this section shall be in substantial compliance with the rules for petitions for relief in capital cases. Upon receipt of a petition under this section, the court shall invite a response from the Attorney General. Following briefing from the parties, the court shall conduct a hearing on the petition in compliance with the rules for post-conviction proceedings.
Findings by a trial court under this section that a defendant either is or is not entitled to relief may be appealed to the Supreme Court.
SECTION 2. Notwithstanding any other provision of state law, the Governor shall have full authority to grant clemency and commute a capital sentence to a noncapital sentence for any inmate whom the Governor and Parole Board determines to have mental retardation.
SECTION 3. 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; * * *
(c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances; and
(d) That the defendant has not been found to have mental retardation as provided in Section 1 of House Bill No. ____, 2003 Regular Session.
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.
(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 4. This act shall take effect and be in force from and after July 1, 2004.