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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-3-29 SO AS TO PROVIDE THAT A PERSON CONVICTED OF MURDER WHO WAS MENTALLY RETARDED AT THE TIME OF THE OFFENSE MUST NOT BE SENTENCED TO DEATH, BUT MUST BE SENTENCED TO LIFE IMPRISONMENT; AND TO AMEND SECTION 16-3-20, AS AMENDED, RELATING TO PUNISHMENT FOR MURDER, SO AS TO DELETE MENTAL RETARDATION AS A MITIGATING CIRCUMSTANCE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 3, Title 16 of the 1976 Code is amended by adding:
"Section 16-3-29. (A) As used in this section:
(1) 'Mental Retardation' means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, both of which were manifested before the age of eighteen.
(2) 'Significantly subaverage general intellectual functioning' means an intelligence quotient of seventy or below.
(3) 'Deficits in adaptive behavior' means significant limitations in two or more of the following adaptive skill areas: communication, self-care, health and safety, functional academics, leisure skills, and work skills.
(4) 'Life imprisonment' means imprisonment until death.
(B) Notwithstanding any other provision of law, a person convicted of murder pursuant to Section 16-3-20, but determined by the court to be a person with mental retardation at the time of the commission of the offense, may not be sentenced to death but must be sentenced to life imprisonment.
(C) Upon motion of the defendant, the court may order a pretrial hearing to determine if the defendant is a person with mental retardation. The court shall consider the findings of court-appointed experts and consider the findings of any other expert offered by the state or the defense on the issue of whether the defendant has mental retardation. The defense must establish mental retardation by clear and convincing evidence and the court must make a finding as to the existence of mental retardation. No statement made by the defendant in the course of any evaluation provided for in this section, whether or not the defendant consents, may be admitted in evidence against the defendant in any criminal proceeding.
If the court determines the defendant to be a person with mental retardation, the court must declare the case noncapital and, upon conviction, the defendant must be sentenced to life imprisonment.
(D) The pretrial determination of the court does not preclude the defendant from offering evidence of diminished capacity as a mitigating circumstance pursuant to Section 16-3-20(C)(b)(6).
(E) Within one hundred and twenty days after January 1, 2004, a defendant sentenced to death prior to January 1, 2004, may seek appropriate relief from the defendant's death sentence upon the ground that the defendant was a person with mental retardation, as defined in this section, at the time of the commission of the offense. The court shall grant a prompt hearing on the request and determine the issues and make findings of fact with respect to the request pursuant to the provisions of this section. If the court finds by clear and convincing evidence that the defendant was a person with mental retardation, the sentence of death must be vacated and the court must impose a sentence of life imprisonment."
SECTION 2. Section 16-3-20(C)(b) of the 1976 Code, as last amended by Act 488 of 1992, is further amended to read:
(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 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, the trial judge 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 3. All proceedings pending and all rights and liabilities existing, acquired, or accrued 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 4. This act takes effect on January 1, 2004.
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