S 0241 General Bill, By J.M. Waddell, Bryan, H.U. Fielding, Giese and 
R.C. Shealy
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
 16-3-23 so as to provide that a person who is convicted of or pleads guilty to
 murder and is found to be mentally retarded must be sentenced to life
 imprisonment, define mentally retarded, and provide a procedure to determine
 mental retardation; and to amend Section 16-3-20, as amended, relating to the
 punishment for murder, so as to prohibit the execution of a person found to be
 mentally retarded.

   10/15/90  Senate Prefiled
   10/15/90  Senate Referred to Committee on Judiciary
   01/08/91  Senate Introduced and read first time SJ-89
   01/08/91  Senate Referred to Committee on Judiciary SJ-89

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-3-23 SO AS TO PROVIDE THAT A PERSON WHO IS CONVICTED OF OR PLEADS GUILTY TO MURDER AND IS FOUND TO BE MENTALLY RETARDED MUST BE SENTENCED TO LIFE IMPRISONMENT, DEFINE MENTALLY RETARDED, AND PROVIDE A PROCEDURE TO DETERMINE MENTAL RETARDATION; AND TO AMEND SECTION 16-3-20, AS AMENDED, RELATING TO THE PUNISHMENT FOR MURDER, SO AS TO PROHIBIT THE EXECUTION OF A PERSON FOUND TO BE MENTALLY RETARDED.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The 1976 Code is amended by adding:

"Section 16-3-23. (A) A person who is convicted of or pleads guilty to murder and is found to be mentally retarded must be sentenced to life imprisonment. This section does not prohibit the imposition of a sentence of life imprisonment without the eligibility of parole until the service of thirty years as provided in Section 16-3-20(A). For the purposes of this section, 'mentally retarded' means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.

(B) Where the solicitor has served notice of the state's intention to seek the death penalty pursuant to Section 16-3-26, the defendant may file notice not less than ten days before the date of trial alleging that he is mentally retarded. If notice is filed, the court shall conduct a hearing to determine if the defendant is mentally retarded. The defendant and the prosecution may present evidence and argument to the court. At the conclusion of the hearing, the court shall issue its order stating whether the defendant has established, by the greater weight or preponderance of the evidence, that he is mentally retarded. If the court determines that the defendant is mentally retarded, the punishment for murder, upon conviction, is life imprisonment. If the court determines that the defendant is not mentally retarded, the case proceeds under the provisions of Section 16-3-20 and subsection (C).

(C) In a capital sentencing proceeding conducted before a jury under the provisions of Section 16-3-20, where the defendant has filed notice alleging that he is mentally retarded and where evidence is introduced that the defendant is mentally retarded, the jury must be instructed that the defendant must not be sentenced to death if it finds by the greater weight or preponderance of the evidence that he is mentally retarded. This procedure is in addition to the hearing required in subsection (B).

(D) In a capital sentencing proceeding conducted before the court under the provisions of Section 16-3-20, where the defendant has filed notice alleging that he is mentally retarded and where evidence is introduced that the defendant is mentally retarded, the court may not sentence the defendant to death if it finds by the greater weight or preponderance of the evidence that he is mentally retarded. This procedure is in addition to the hearing required in subsection (C)."

SECTION 2. Section 16-3-20(A) of the 1976 Code is amended to read:

"(A) A person who is convicted of or pleads guilty to murder must be punished by death or by imprisonment for life and is not eligible for parole until the service of twenty years; provided, however. However, that when the State seeks the death penalty and an aggravating circumstance is specifically is found beyond a reasonable doubt pursuant to subsections (B) and (C), and a recommendation of death is not made, the court must shall impose a sentence of life imprisonment without eligibility for parole until the service of thirty years. Provided, further, that under no circumstances may a A female who is pregnant with child be executed so long as she is in that condition or a person found to be mentally retarded under Section 16-3-23 must not be executed. When the Governor commutes a sentence of death under the provisions of Section 14 of, Article IV of the Constitution of South Carolina, 1895, the commutee is not eligible for parole. No person sentenced under the provisions of this subsection may receive any work-release credits, good-time credits, or any other credit that would reduce the mandatory imprisonment required by this subsection."

SECTION 3. This act takes effect upon approval by the Governor.