S 435 Session 109 (1991-1992)
S 0435 General Bill, By J.M. Waddell, Bryan, H.U. Fielding, Giese, J.C. Hayes 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.
01/09/91 Senate Introduced and read first time SJ-26
01/09/91 Senate Referred to Committee on Judiciary SJ-26
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' is defined as in
Section 44-20-30(11).
(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.
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