MISSISSIPPI LEGISLATURE
2006 Regular Session
To: Judiciary, Division B; Appropriations
By: Senator(s) Horhn
AN ACT TO AMEND SECTION 97-5-23, MISSISSIPPI CODE OF 1972, TO IMPOSE A MORE SEVERE PENALTY FOR FONDLING OF A CHILD WHO IS VERY YOUNG; TO AMEND SECTION 99-19-83, MISSISSIPPI CODE OF 1972, TO INCLUDE A SECOND SEX OFFENSE WHEN THE VICTIM OF THE SECOND OFFENSE IS UNDER AGE 15 AS REQUIRING LIFE IMPRISONMENT; TO CREATE NEW SECTION 99-19-84, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A SPLIT SENTENCE FOR SEX OFFENDERS; TO AMEND SECTION 99-19-101, MISSISSIPPI CODE OF 1972, TO SPECIFY THAT CERTAIN SEX OFFENSES ARE AN AGGRAVATING CIRCUMSTANCE IN SENTENCING FOR A CAPITAL OFFENSE; TO CREATE NEW SECTION 99-19-205, MISSISSIPPI CODE OF 1972, TO MANDATE GEOPOSITIONAL SUPERVISION FOR CERTAIN SEX OFFENDERS UPON EXPIRATION OF TERM; TO CREATE NEW SECTION 47-5-1017, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR GEOPOSITIONAL MONITORING OF SEX OFFENDERS SUBJECT TO A SPLIT SENTENCE; TO CREATE NEW SECTION 47-5-1019, MISSISSIPPI CODE OF 1972, TO IMPOSE PUNISHMENT FOR TAMPERING WITH A GEOPOSITIONAL MONITORING DEVICE; AND FOR RELATED PURPOSES.
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 sixteen (16) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be as follows: If the victim is over the age of twelve (12) years but under the age of sixteen (16) years, the offender shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court; if the victim is under the age of twelve (12), the offender shall be committed to the custody of the State Department of Corrections for life without possibility of probation or parole.
(2) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself who is at least sixteen (16) years of age but under the age of eighteen (18) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
(3) Upon a second conviction for an offense under this section when the offense is subject to imprisonment of less than life in prison without parole, the person so convicted shall be punished by commitment to the State Department of Corrections for a term not to exceed thirty (30) years, which sentence shall be neither suspended nor reduced.
SECTION 2. Section 99-19-83, Mississippi Code of 1972, is amended as follows:
99-19-83. (1) Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
(2) Every person convicted in this state of a felony sex offense in which the victim was not more than fourteen (14) years of age and who previously has been convicted of any felony sex offense, whether in this state or elsewhere, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. For the purposes of this subsection, the term "sex offense" shall have the meaning ascribed in Section 45-33-23.
SECTION 3. The following shall be codified as Section 99-19-84, Mississippi Code of 1972:
99-19-84. Whenever punishment by imprisonment for a felony, except for a capital felony, is prescribed for an offense for which registration as a sex offender is required under Title 45, Chapter 33, if the victim was not more than fourteen (14) years old and the offender was at least twenty-one (21) years old at the time of the offense, the court shall impose a split sentence whereby the defendant is to be placed on geopositional monitoring following release from incarceration for the term of his natural life. The offender shall be required to pay the cost of the monitoring.
SECTION 4. 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 Constitutions of the United States or of the State of Mississippi. The state and the defendant and/or his counsel shall be permitted to present arguments for or against the sentence of death.
(2) After hearing all the evidence, the jury shall deliberate on the following matters:
(a) Whether sufficient factors exist as enumerated in subsection (7) of this section;
(b) Whether sufficient aggravating circumstances exist as enumerated in subsection (5) of this section;
(c) Whether sufficient mitigating circumstances exist as enumerated in subsection (6) of this section, which outweigh the aggravating circumstances found to exist; and
(d) Based on these considerations, whether the defendant should be sentenced to life imprisonment, life imprisonment without eligibility for parole, or death.
(3) For the jury to impose a sentence of death, it must unanimously find in writing the following:
(a) That sufficient factors exist as enumerated in subsection (7) of this section;
(b) That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and
(c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.
In each case in which the jury imposes the death sentence, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) of this section and upon the records of the trial and the sentencing proceedings. If, after the trial of the penalty phase, the jury does not make the findings requiring the death sentence or life imprisonment without eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life imprisonment.
(4) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Mississippi within sixty (60) days after certification by the sentencing court of entire record, unless the time is extended for an additional period by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.
(5) Aggravating circumstances shall be limited to the following:
(a) The capital offense was committed by a person under sentence of imprisonment.
(b) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, Mississippi Code of 1972, or the unlawful use or detonation of a bomb or explosive device.
(e) The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital offense was committed for pecuniary gain.
(g) The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital offense was especially heinous, atrocious or cruel.
(i) The capital offense was committed by a person previously convicted of one or more of the following offenses:
(i) Section 97-3-65 relating to rape;
(ii) Section 97-3-71 relating to rape and assault with intent to ravish;
(iii) Section 97-3-95 relating to sexual battery;
(iv) Subsection (1) or (2) of Section 97-5-33 relating to the exploitation of children;
(v) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner; or
(vi) Any conviction for violation of a similar law of another jurisdiction or designation as a sexual predator in another jurisdiction.
(6) Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(7) In order to return and impose a sentence of death the jury must make a written finding of one or more of the following:
(a) The defendant actually killed;
(b) The defendant attempted to kill;
(c) The defendant intended that a killing take place;
(d) The defendant contemplated that lethal force would be employed.
SECTION 5. The following shall be codified as Section 99-19-205, Mississippi Code of 1972:
99-19-205. Any person who is convicted of a sex offense on or after July 1, 2006, and who is sentenced to any state or local correctional facility, placed on probation, given a suspended sentence or other disposition, and the unlawful activity involved a victim who was under fifteen (15) years of age and the offender was over the age of twenty-one (21) years, or the offender is subject to lifetime registration under Section 45-33-47(2), shall be sentenced by the court to mandatory geopositional monitoring for life subsequent to any release of the offender from incarceration.
SECTION 6. The following shall be codified as Section 47-5-1017, Mississippi Code of 1972:
47-5-1017. The department shall geopositionally monitor an offender upon whom a split sentence is imposed pursuant to Section 99-19-84. The department, in carrying out a court order to geopositionally monitor an offender, must use a system that actively monitors and identifies the offender's location and timely reports or records the offender's presence near or within a crime scene or in prohibited areas or the offender's departure from specified geographic limitations. The offender shall pay the cost of the monitoring.
SECTION 7. The following shall be codified as Section 47-5-1019, Mississippi Code of 1972:
47-5-1019. A person who intentionally alters, tampers with, damages or destroys any geopositional monitoring equipment, unless the person is the owner of the equipment or an agent of the owner performing ordinary maintenance and repairs, commits a felony punishable by imprisonment not to exceed five (5) years in the custody of the Department of Corrections.
SECTION 8. This act shall take effect and be in force from and after July 1, 2006.