H 3054 General Bill, By Leach
 A BILL TO AMEND SECTION 16-3-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
 1976, RELATING TO THE PUNISHMENT FOR MURDER AND THE SEPARATE SENTENCING
 PROCEEDING TO DETERMINE WHETHER THE SENTENCE SHOULD BE DEATH OR LIFE
 IMPRISONMENT, SO AS TO PROVIDE THAT THE JURY RENDERS AN ADVISORY SENTENCE TO
 THE COURT AND THE COURT, NOTWITHSTANDING THE RECOMMENDATION OF THE JURY AND
 AFTER WEIGHING THE AGGRAVATING AND MITIGATING CIRCUMSTANCES, SHALL ENTER THE
 SENTENCE OF A MANDATORY MINIMUM TERM OF IMPRISONMENT FOR THIRTY YEARS, LIFE
 IMPRISONMENT, OR DEATH, AND TO PROVIDE THAT IF THE COURT'S SENTENCE IS DEATH,
 THE DETERMINATION MUST BE SUPPORTED BY SPECIFIC WRITTEN FINDINGS OF FACT.

   12/06/00  House  Prefiled
   12/06/00  House  Referred to Committee on Judiciary
   01/09/01  House  Introduced and read first time HJ-33
   01/09/01  House  Referred to Committee on Judiciary HJ-34

TO AMEND SECTION 16-3-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PUNISHMENT FOR MURDER AND THE SEPARATE SENTENCING PROCEEDING TO DETERMINE WHETHER THE SENTENCE SHOULD BE DEATH OR LIFE IMPRISONMENT, SO AS TO PROVIDE THAT THE JURY RENDERS AN ADVISORY SENTENCE TO THE COURT AND THE COURT, NOTWITHSTANDING THE RECOMMENDATION OF THE JURY AND AFTER WEIGHING THE AGGRAVATING AND MITIGATING CIRCUMSTANCES, SHALL ENTER THE SENTENCE OF A MANDATORY MINIMUM TERM OF IMPRISONMENT FOR THIRTY YEARS, LIFE IMPRISONMENT, OR DEATH, AND TO PROVIDE THAT IF THE COURT'S SENTENCE IS DEATH, THE DETERMINATION MUST BE SUPPORTED BY SPECIFIC WRITTEN FINDINGS OF FACT.

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

SECTION    1.    Section 16-3-20(A), (B), and (C) of the 1976 Code, as last amended by Act 317 of 1996, is further amended to read:

    "(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 life imprisonment. For purposes of this section, 'life imprisonment' means until death of the offender. No person sentenced to life imprisonment pursuant to this section is 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 person sentenced to a mandatory minimum term of imprisonment for thirty years pursuant to this section is 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 advisory sentencing proceeding. In the advisory proceeding, if a statutory aggravating circumstance is found, the jury may recommend the defendant must be sentenced to either death or life imprisonment. If no statutory aggravating circumstance is found, the jury may recommend the defendant must be sentenced to either 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.

    After hearing all the evidence, the jury shall deliberate and render an advisory verdict to the judge. The statutory instructions as to statutory aggravating and mitigating circumstances must be given in charge and in writing to the jury for its deliberation in rendering its advisory verdict. The jury, if its advisory 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 in its advisory verdict, 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 by the judge.

    Notwithstanding the recommendation of the jury, the judge, after weighing the aggravating and mitigating circumstances, shall enter a sentence of death, life imprisonment, or a mandatory minimum term of imprisonment for thirty years. If the judge imposes a sentence of death, he shall set forth in writing the findings upon which the sentence of death is based. The determination of the judge must be supported by specific written findings of facts based upon the circumstances in subitems (a) and (b) and upon the records of the trial and advisory sentencing proceeding. 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 life imprisonment 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, If the judge does not make the findings necessary to impose a death sentence, the trial judge he shall sentence the defendant to either life imprisonment or a mandatory minimum term of imprisonment for thirty years. No person sentenced to life imprisonment or a mandatory minimum term of imprisonment for thirty years under this section is 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 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 life imprisonment as provided in subsection (A)."

SECTION    2.    This act takes effect upon approval by the Governor and applies to all death penalty trials commenced after that date.