H 4565 Session 112 (1997-1998)
H 4565 General Bill, By Easterday, Barrett, Beck, Campsen, Cooper, Davenport,
Fleming, Hamilton, Harrell, Harrison, Haskins, Hinson, Kirsh, Koon, Leach,
Limehouse, Mason, McGee, J.D. McMaster, Meacham, Quinn, Rice, Robinson, Rodgers,
Sandifer, Simrill, R. Smith, Stille, Stuart, Trotter, Vaughn, Woodrum and
W.J. Young
A BILL TO AMEND SECTION 16-3-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO PUNISHMENT FOR MURDER AND THE SEPARATE SENTENCING PROCEEDING
TO DETERMINE WHETHER A PERSON CONVICTED OF MURDER MUST BE SENTENCED TO LIFE
IMPRISONMENT, A MANDATORY MINIMUM TERM OF IMPRISONMENT FOR THIRTY YEARS, OR
DEATH, SO AS TO PROVIDE THAT A SENTENCING JUDGE HAS DISCRETION TO IMPOSE
EITHER OF THESE SENTENCES DESPITE THE SENTENCING JURY'S RECOMMENDATION EXCEPT
WHEN THE SENTENCING JURY FINDS AN AGGRAVATING CIRCUMSTANCE AND RECOMMENDS
DEATH.
02/04/98 House Introduced and read first time HJ-6
02/04/98 House Referred to Committee on Judiciary HJ-6
A BILL
TO AMEND SECTION 16-3-20, AS AMENDED, CODE OF LAWS
OF SOUTH CAROLINA, 1976, RELATING TO PUNISHMENT
FOR MURDER AND THE SEPARATE SENTENCING
PROCEEDING TO DETERMINE WHETHER A PERSON
CONVICTED OF MURDER MUST BE SENTENCED TO LIFE
IMPRISONMENT, A MANDATORY MINIMUM TERM OF
IMPRISONMENT FOR THIRTY YEARS, OR DEATH, SO AS TO
PROVIDE THAT A SENTENCING JUDGE HAS DISCRETION
TO IMPOSE EITHER OF THESE SENTENCES DESPITE THE
SENTENCING JURY'S RECOMMENDATION EXCEPT WHEN
THE SENTENCING JURY FINDS AN AGGRAVATING
CIRCUMSTANCE AND RECOMMENDS DEATH.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 16-3-20 of the 1976 Code, as last amended
by Act 317 of 1996, is further amended to read:
"Section 16-3-20. (A) A person who is convicted of or pleads
guilty to murder must be punished by death, by imprisonment for life,
or by a mandatory minimum term of imprisonment for thirty years.
If the State seeks the death penalty and a statutory aggravating
circumstance is found beyond a reasonable doubt pursuant to
subsections (B) and (C), and a recommendation of death is not made,
the trial judge must impose a sentence of either life
imprisonment, a mandatory minimum term of imprisonment of
thirty years, or death. For purposes of this section, 'life
imprisonment' means until death of the offender. No
A person sentenced to life imprisonment pursuant to this
section is not eligible for parole, community supervision, or
any early release program, nor is the person eligible to receive any
work credits, education credits, good conduct credits, or any other
credits that would reduce the mandatory life imprisonment required
by this section. No A person sentenced to a
mandatory minimum term of imprisonment for thirty years pursuant
to this section is not eligible for parole or any early release
program, nor is the person eligible to receive any work credits,
education credits, good conduct credits, or any other credits that
would reduce the mandatory minimum term of imprisonment for
thirty years required by this section. Under no circumstances may a
female who is pregnant be executed so long as she is pregnant or for
a period of at least nine months after she is no longer pregnant.
When the Governor commutes a sentence of death to life
imprisonment under the provisions of Section 14 of Article IV of the
Constitution of South Carolina, 1895, the commutee is not eligible
for parole, community supervision, or any early release program, nor
is the person eligible to receive any work credits, good conduct
credits, education credits, or any other credits that would reduce the
mandatory imprisonment required by this subsection.
(B) When the State seeks the death penalty , upon conviction or
adjudication of guilt of a defendant of murder, the court shall conduct
a separate sentencing proceeding. In the proceeding, if a statutory
aggravating circumstance is found, the defendant must be sentenced
to either death, or life imprisonment, or a
mandatory minimum term of imprisonment for thirty years. If
no statutory aggravating circumstance is found, the defendant must
be sentenced to either death, life imprisonment, or
a mandatory minimum term of imprisonment for thirty years. The
proceeding must be conducted by the trial judge before the trial jury
as soon as practicable after the lapse of twenty-four hours unless
waived by the defendant. If trial by jury has been waived by the
defendant and the State, or if the defendant pleaded guilty, the
sentencing proceeding must be conducted before the judge. In the
sentencing proceeding, the jury or judge shall hear additional
evidence in extenuation, mitigation, or aggravation of the
punishment. Only such evidence in aggravation as the State has
informed the defendant in writing before the trial is admissible. This
section must not be construed to authorize the introduction of any
evidence secured in violation of the Constitution of the United States
or the State of South Carolina or the applicable laws of either. The
State, the defendant, and his counsel are permitted to present
arguments for or against the sentence to be imposed. The defendant
and his counsel shall have the closing argument regarding the
sentence to be imposed.
(C) The judge shall consider, or he shall include in his instructions
to the jury for it to consider, mitigating circumstances otherwise
authorized or allowed by law and the following statutory aggravating
and mitigating circumstances which may be supported by the
evidence:
(a) Statutory aggravating circumstances:
(1) The murder was committed while in the commission of
the following crimes or acts:
(a) criminal sexual conduct in any degree;
(b) kidnapping;
(c) burglary in any degree;
(d) robbery while armed with a deadly weapon;
(e) larceny with use of a deadly weapon;
(f) killing by poison;
(g) drug trafficking as defined in Section 44-53-370(e),
44-53-375(B), 44-53-440, or 44-53-445;
(h) physical torture; or
(i) dismemberment of a person.
(2) The murder was committed by a person with a prior
conviction for murder.
(3) The offender by his act of murder knowingly created a
great risk of death to more than one person in a public place by
means of a weapon or device which normally would be hazardous to
the lives of more than one person.
(4) The offender committed the murder for himself or another
for the purpose of receiving money or a thing of monetary value.
(5) The murder of a judicial officer, former judicial officer,
solicitor, former solicitor, or other officer of the court during or
because of the exercise of his official duty.
(6) The offender caused or directed another to commit murder
or committed murder as an agent or employee of another person.
(7) The murder of a federal, state, or local law enforcement
officer, peace officer or former peace officer, corrections employee
or former corrections employee, or fireman or former fireman during
or because of the performance of his official duties.
(8) The murder of a family member of an official listed in
subitems (5) and (7) above with the intent to impede or retaliate
against the official. 'Family member' means a spouse, parent,
brother, sister, child, or person to whom the official stands in the
place of a parent or a person living in the official's household and
related to him by blood or marriage.
(9) Two or more persons were murdered by the defendant by
one act or pursuant to one scheme or course of conduct.
(10) The murder of a child eleven years of age or under.
(11) The murder of a witness or potential witness committed
at any time during the criminal process for the purpose of impeding
or deterring prosecution of any crime.
(b) Mitigating circumstances:
(1) The defendant has no significant history of prior criminal
conviction involving the use of violence against another person.
(2) The murder was committed while the defendant was
under the influence of mental or emotional disturbance.
(3) The victim was a participant in the defendant's conduct
or consented to the act.
(4) The defendant was an accomplice in the murder
committed by another person and his participation was relatively
minor.
(5) The defendant acted under duress or under the domination
of another person.
(6) 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.
(7) The age or mentality of the defendant at the time of the
crime.
(8) The defendant was provoked by the victim into
committing the murder.
(9) The defendant was below the age of eighteen at the time
of the crime.
(10) The defendant had mental retardation at the time of the
crime. 'Mental retardation' means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period.
The statutory instructions as to statutory aggravating and mitigating
circumstances must be given in charge and in writing to the jury for
its deliberation. The jury, if its verdict is a recommendation of death,
shall designate in writing, and signed by all members of the jury, the
statutory aggravating circumstance or circumstances which it found
beyond a reasonable doubt. The jury, if it does not recommend
death, after finding a statutory aggravating circumstance or
circumstances beyond a reasonable doubt, shall designate in writing,
and signed by all members of the jury, the statutory aggravating
circumstance or circumstances it found beyond a reasonable doubt.
In nonjury cases the judge shall make the designation of the statutory
aggravating circumstance or circumstances. Unless at least one
of the statutory aggravating circumstances enumerated in this section
is found, the death penalty must not be imposed.
Where a statutory aggravating circumstance is found and a
recommendation of death is made, the trial judge shall sentence the
defendant to death. The trial judge, before imposing the death
penalty , shall find as an affirmative fact that the death penalty was
warranted under the evidence of the case and was not a result of
prejudice, passion, or any other arbitrary factor. Where a statutory
aggravating circumstance is found and a sentence of death is not
recommended by the jury, the trial judge shall sentence the defendant
to either life imprisonment, a mandatory minimum term
of imprisonment of thirty years, or death as provided in
subsection (A). Before dismissing the jury, the trial judge shall
question the jury as to whether or not it found a statutory aggravating
circumstance or circumstances beyond a reasonable doubt. If the jury
does not unanimously find any statutory aggravating circumstances
or circumstances beyond a reasonable doubt, it shall not make a
sentencing recommendation. Where a statutory aggravating
circumstance is not found, the trial judge shall sentence the defendant
to either life imprisonment, death, or a mandatory minimum
term of imprisonment for thirty years. No A person
sentenced to life imprisonment or a mandatory minimum term of
imprisonment for thirty years under this section is not
eligible for parole or to receive any work credits, good conduct
credits, education credits, or any other credits that would reduce the
sentence required by this section. If the jury has found a statutory
aggravating circumstance or circumstances beyond a reasonable
doubt, the jury shall designate this finding, in writing, signed by all
the members of the jury. The jury shall not recommend the death
penalty if the vote for such this penalty is not
unanimous as provided. If members of the jury after a
reasonable deliberation cannot agree on a recommendation as to
whether or not the death sentence should be imposed on a defendant
found guilty of murder, the trial judge shall dismiss such jury and
shall sentence the defendant to either life imprisonment,
a mandatory minimum term of imprisonment of thirty years, or
death as provided in subsection (A).
(D) Notwithstanding the provisions of Section 14-7-1020, in cases
involving capital punishment a person called as a juror must be
examined by the attorney for the defense.
(E) In a criminal action in which a defendant is charged with a
crime which may be punishable by death, a person may not be
disqualified, excused, or excluded from service as a juror by reason
of his beliefs or attitudes against capital punishment unless such
beliefs or attitudes would render him unable to return a verdict
according to law."
SECTION 2. All proceedings pending and all rights and liabilities
existing, acquired, or incurred at the time this act takes effect are
saved. The provisions of this act apply prospectively to crimes and
offenses committed on or after the effective date of this act.
SECTION 3. This act takes effect upon approval by the Governor.
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