MISSISSIPPI LEGISLATURE
2006 Regular Session
To: Judiciary B
By: Representative Lott
AN ACT TO AMEND SECTIONS 97-5-23 AND 97-5-41, MISSISSIPPI CODE OF 1972, TO ENHANCE THE PENALTY FOR CHILD MOLESTATION OFFENDERS; TO REQUIRE MANDATORY SENTENCE WITHOUT SENTENCING LENIENCY, PROBATION, PAROLE OR POSSIBILITY THEREOF; TO REMOVE VARIOUS PENALTIES BASED UPON THE AGE OF THE VICTIM OR OFFENDER OR RELATIONSHIP WITH THE VICTIM; TO AMEND SECTIONS 97-3-95 AND 97-3-101, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 47-7-3, MISSISSIPPI CODE OF 1972, TO PROHIBIT PAROLE OR POSSIBILITY THEREOF TO ANY OFFENDER CONVICTED OF A SEX CRIME AGAINST A CHILD VICTIM.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-5-23, Mississippi Code of 1972, is amended as follows:
97-5-23. (1) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of eighteen (18) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in the State Penitentiary for a period of twenty-five (25) years without reduction or suspension of sentence and without the possibility of probation or parole.
(2) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in the State Penitentiary for a period of twenty-five (25) years without reduction or suspension of sentence and without the possibility of probation or parole. A person in a position of trust or authority over a child includes without limitation a child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
(3) Upon a second conviction for an offense under this section, the person so convicted shall be punished by commitment to the State Penitentiary for a term of life imprisonment without the possibility of parole.
SECTION 2. Section 97-5-41, Mississippi Code of 1972, is amended as follows:
97-5-41. (1) Any person who shall have carnal knowledge of his or her unmarried stepchild or adopted child younger than himself or herself and * * * under eighteen (18) years of age, upon conviction, shall be punished by imprisonment in the Penitentiary for a term of twenty-five (25) years without reduction or suspension of sentence and without the possibility of probation or parole.
(2) Any person who shall have carnal knowledge of an unmarried child younger than himself or herself and * * * under eighteen (18) years of age, with whose parent he or she is cohabiting or living together as husband and wife, upon conviction, shall be punished by imprisonment in the Penitentiary for a term of twenty-five (25) years without reduction or suspension of sentence and without the possibility of probation or parole.
SECTION 3. Section 97-3-95, Mississippi Code of 1972, is amended as follows:
97-3-95. (1) A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; * * *
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child; or
(e) A child whose interest is protected under Section 97-5-23 and 97-5-41.
(2) A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
SECTION 4. Section 97-3-101, Mississippi Code of 1972, is amended as follows:
97-3-101. (1) (a) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(a) or (b) * * * shall be imprisoned in the State Penitentiary for a period of not more than thirty (30) years, and for a second or subsequent such offense shall be imprisoned in the penitentiary for not more than forty (40) years.
(b) Every person who shall be convicted of sexual battery under Section 97-3-95(2) and Section 97-5-23(2) shall be imprisoned in the State Penitentiary for a period of twenty-five (25) years without the possibility of probation or parole, and for a second or subsequent such offense shall be imprisoned in the Penitentiary for life without parole.
(2) * * * Every person who shall be convicted of sexual battery under Section 97-3-95(1)(c) or (d) shall be imprisoned for twenty-five (25) years in the State Penitentiary * * * for the first offense, and for a term of life without parole in the State Penitentiary for a second or subsequent offense.
(3) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(e), Section 97-5-23 or Section 97-5-41 shall be imprisoned for twenty-five (25) years in the State Penitentiary for the first offense, and for a second or subsequent offense shall be imprisoned for life in the State Penitentiary without parole.
(4) Every person who shall be convicted of sexual battery under Section 97-3-95(1)(a) or (b) who is thirteen (13) years of age or older but under eighteen (18) years of age shall be sentenced to such imprisonment, fine or other sentence as the court, in its discretion, may determine.
(5) Every person who shall be convicted of sexual battery of a child under Section 97-3-95(1)(c), (d), (e) or (2), Section 97-5-23 or Section 97-5-41 shall be imprisoned for twenty-five (25) years without reduction or suspension of sentence and without the possibility of probation or parole for the first offense without regard to age of victim or offender or offender's relationship with such victim, and for a period of life imprisonment without parole for a second or subsequent such offense.
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 Department of Corrections 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 department, 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 99-19-87 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, felony child abuse, or any crime under Section 97-5-33 or Section 97-5-39(2) or a violation of Section 63-11-30(5) resulting in death, or serious bodily injury resulting in the loss of a limb or dismemberment, loss of eyesight, a coma, permanent dysfunction of any vital organ, paralysis or resulting in an individual's permanent bedridden state. For purposes of this paragraph, "first offender" means a person who at the time of sentencing has not been convicted of a felony on a previous occasion in any court or courts of the United States or in any state or territory thereof. In addition, a first time offender incarcerated for committing the crime of possession of a controlled substance under the Uniform Controlled Substances Law after July 1, 1995, shall be eligible for parole as provided for such offenders in this paragraph after July 1, 2000;
(h) No person who shall be eligible for parole who shall be convicted of a sex crime against a child victim as provided in Section 97-3-95, Section 97-5-23 or Section 97-5-41.
(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) (a) 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.
(b) If an application for parole from an eligible offender is rejected, the Parole Board shall reconsider the application from that offender no later than one (1) year after the initial application for parole is rejected, unless the crime for which the offender was convicted is defined as a violent crime under subsection (2)(g) of this section.
This paragraph shall stand repealed on July 1, 2005.
(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. This act shall take effect and be in force from and after its passage.