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Introduced Version House Bill 4210 History

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Key: Green = existing Code. Red = new code to be enacted
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H. B. 4210

 

         (By Delegates Fleischauer, Skinner, Poore,

         Longstreth, Barill, Ellem, Sponaugle, Lynch,

         Manypenny, Hamilton and Pethtel)

 

         [Introduced January 17, 2014; referred to the

         Committee on the Judiciary then Finance.]

 

A BILL to amend and reenact §61-2-2 of the Code of West Virginia, 1931, as amended; to amend and reenact §61-2-14a of said code; to amend and reenact §62-3-15 of said code; to amend said code by adding thereto two new sections, designated §62-3-22 and §62-3-23; and to amend said code by adding thereto one new section, designated §62-12-13b, all relating to, the trying for crimes of juveniles as adults; prohibiting life sentences without parole as a penalty for juveniles convicted of murder of the first degree; prohibiting life sentences without parole as a penalty for juveniles convicted of kidnaping; stipulating that only people aged eighteen or older may be given life sentences without eligibility for parole; stating legislative findings relating to the diminished capacity of juveniles; specifying factors to be considered by courts when sentencing juveniles tried and convicted as adults; and requiring special parole considerations for juveniles tried and convicted as adults.

Be it enacted by the Legislature of West Virginia:

    That §61-2-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §61-2-14a of said code be amended and reenacted; that §62-3-15 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated, §62-3-22 and §62-3-23; and that said code be amended by adding thereto one new section, designated, §62-12-13b, all to read as follows:

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-2. Penalty for murder of first degree.

    Murder of the first degree shall be punished by confinement in the penitentiary a correctional facility for life, except that a juvenile convicted under this section shall be punished by a term of imprisonment of not less than fifteen years or for life. A juvenile imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of fifteen years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two, whichever is greater.

§61-2-14a. Kidnaping; penalty.

    (a) Any person who unlawfully restrains another person with the intent:

    (1) To hold another person for ransom, reward or concession;

    (2) To transport another person with the intent to inflict bodily injury or to terrorize the victim or another person; or

    (3) To use another person as a shield or hostage, shall be is guilty of a felony and, upon conviction, shall be punished by confinement by the division of corrections for life, and, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall is not be eligible for parole; Provided, That a person who is under eighteen years of age at the time of the offense and is convicted under this section shall be punished by a term of imprisonment of not less than fifteen years or for life. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of fifteen years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two, whichever is greater.

    (b) The following exceptions shall apply to the penalty contained in subsection (a):

    (1) A jury may, in their its discretion, recommend mercy, and if such recommendation is added to their its verdict, such person shall be is eligible for parole in accordance with the provisions of said article twelve;

    (2) If such a person pleads guilty, the court may, in its discretion, provide that such the person shall be is eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such the person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like similar effect as if such the person had been found guilty by the verdict of a jury and the jury had recommended mercy;

    (3) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than twenty nor more than fifty; or

    (4) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than ten nor more than thirty.

    (c) For purposes of this section: "To use another as a hostage" means to seize or detain and threaten to kill or injure another in order to compel, a third person or a governmental organization to do or abstain from doing any legal act as an explicit or implicit condition for the release of the person detained.

    (d) Notwithstanding any other provision of this section, if a violation of this section is committed by a family member of a minor abducted or held hostage and he or she is not motivated by monetary purposes, but rather intends to conceal, take, remove the child or refuse to return the child to his or her lawful guardian in the belief, mistaken or not, that it is in the child's interest to do so, he or she shall be guilty of a felony and, upon conviction thereof, be confined in a correctional facility for not less than one or more than five years or fined not more than one thousand dollars, or both.

    (e) Notwithstanding any provision of this code to the contrary, where a law-enforcement agency of this state or a political subdivision thereof receives a complaint that a violation of the provisions of this section has occurred, the receiving law-enforcement agency shall notify any other law-enforcement agency with jurisdiction over the offense, including, but not limited to, the state police and each agency so notified, shall cooperate in the investigation forthwith immediately.

    (f) It shall be a defense to a violation of subsection (d) of this section, that the accused’s action was necessary to preserve the welfare of the minor child and the accused promptly reported his or her actions to a person with lawful custody of the minor, to law-enforcement or to Child Protective Services division of the Department of Health and Human Resources.

CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 3. TRIAL OF CRIMINAL CASES.

§62-3-15. Verdict and sentence in murder cases.

    If a person indicted for murder be is found by the jury guilty thereof guilty by the jury, they the jury shall in their its verdict find whether he or she is guilty of murder of the first degree or second degree. If the person is eighteen years of age or older and is indicted for murder is and found guilty by the jury guilty thereof, and if the jury find in their its verdict that he or she is guilty of murder of the first degree, or if a person is eighteen years of age or older and is indicted for murder and pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary a correctional facility for life, and he or she, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be is not eligible for parole: Provided, That the jury may, in their its discretion, recommend mercy, and if such recommendation is added to their its verdict, such the person shall be is eligible for parole in accordance with the provisions of said article twelve, except that, notwithstanding any other provision of this code to the contrary, such the person shall is not be eligible for parole until he or she has served fifteen years: Provided, however, That if the accused pleads guilty of murder of the first degree, the court may, in its discretion, provide that such the person shall be is eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said that article twelve in the same manner and with like effect as if such the person had been found guilty by the verdict of a jury and the jury had recommended mercy, except that, notwithstanding any provision of said article twelve or any other provision of this code to the contrary, such the person shall is not be eligible for parole until he or she has served fifteen years.

§62-3-22. Legislative findings.

    (a) Nationally, eighty percent of juveniles serving life sentences reported witnessing violence in their homes and more than fifty percent witnessed weekly violence in their neighborhoods.

    (b) Nearly fifty percent of all children sentenced to life imprisonment without parole have been physically abused and twenty percent of juveniles serving life sentences have been sexually abused.

    (c) As stated by the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012), "only a relatively small proportion of adolescents" who engage in illegal activity "develop entrenched patterns of problem behavior" and that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds," including "parts of the brain involved in behavior control."

    (d) Further, the U.S. Supreme Court noted that children "are more vulnerable to negative influences and outside pressures, including from their family and peers," and "they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings."

    (e) The U.S. Supreme Court lastly emphasized, "the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes."

    (f) Youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society.

    (g) The United States is the only country in the world that allows children to be sentenced to life imprisonment without parole and is one of only three countries that has not ratified the United Nations Convention on the Rights of the Child which protects juvenile offenders from "torture or other cruel, inhuman or degrading treatment."

    (h) Article 37 of the U.N. Convention on the Rights of the Child categorically bars the imposition of "capital punishment or life without the possibility of release for offenses committed by persons below 18 years of age."

    (i) Children are constitutionally different from adults and criminal sentences must take their status as children, and the accompanying emotional, psychological and developmental differences into account.

    (j) Life imprisonment without parole for juvenile offenders is a violation of human rights, international norms and the constitutional prohibition on cruel and unusual punishment.

    (k) The purpose of this section is to prohibit life imprisonment without parole for juveniles, establish parole review mechanisms for juveniles sentenced in adult court, and establish sentencing procedures prior to the sentencing of juveniles who are tried and convicted in adult court in line with the meaning and spirit of Roper v. Simmons, 125 S. Ct. 1183 (2005); Graham v. Florida, 133 S. Ct. 1799 (2010); J.D.B v. North Carolina, 131 S. Ct. 502 (2011); and Miller v. Alabama, 132 S. Ct. 2455 (2012).

§62-3-23. Factors to be considered prior to sentencing a juvenile convicted as an adult.

    (a) In determining the appropriate sentence to be imposed on a juvenile who has been transferred to the criminal jurisdiction of the court pursuant to section ten, article five, chapter forty-nine of this code and who has been subsequently tried and convicted of an offense as an adult, the court shall consider the following mitigating circumstances:

    (1) Age at the time of the offense;

    (2) Impetuosity;

    (3) Family and community environment;

    (4) Ability to appreciate the risks and consequences of the conduct;

    (5) Intellectual capacity;

    (6) The outcomes of a comprehensive mental health evaluation conducted by an mental health professional licensed to treat adolescents in the State of West Virginia;

    (7) Peer or familial pressure;

    (8) Level of participation in the offense;

    (9) Ability to participate meaningfully in his or her defense;

    (10) Capacity for rehabilitation;

    (11) School records and special education evaluations;

    (12) Trauma history;

    (13) Faith and community involvement;

    (14) Involvement in the child welfare system; and

    (15) Any other mitigating factor or circumstances.

    (b) Prior to sentencing a juvenile under this section, the court shall consider the outcomes of a comprehensive mental health evaluation conducted by an mental health professional licensed to treat adolescents in the State of West Virginia. The comprehensive mental health evaluation must include the following:

    (1) Family interviews;

    (2) Prenatal history;

    (3) Developmental history;

    (4) Medical history;

    (5) History of treatment for substance use;

    (6) Social history; and

    (7) A psychological evaluation.

ARTICLE 12. PROBATION AND PAROLE.

§62-12-13b. Special parole considerations for persons convicted as juveniles.

    (a) Unless subject to earlier parole eligibility pursuant to the provisions of section thirteen, article twelve, chapter sixty-two or other statutory provisions, a prisoner who was a juvenile at the time of the offense or multiple offenses and was tried and sentenced as an adult, is eligible for parole no later than his or her fifteenth year of incarceration. The Parole Board shall ensure that the hearing to consider parole under this subsection provides a meaningful opportunity to obtain release and shall promulgate rules and guidelines consistent with existing case law.

    (b) During a parole hearing involving a prisoner who was convicted and sentenced as a juvenile, the Parole Board shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner during incarceration. The board shall also consider the following:

    (1) A review of educational and court documents;

    (2) Participation in available rehabilitative and educational programs while in prison;

    (3) Age at the time of the offense;

    (4) Immaturity at the time of the offense;

    (5) Home and community environment at the time of the offense;

    (6) Efforts made toward rehabilitation;

    (7) Evidence of remorse; and

    (8) Any other factors or circumstances the board considers relevant.






    NOTE: The purpose of this bill is to prevent juveniles convicted of first degree murder from being sentenced to life without parole, and to provide considerations for courts to make when sentencing juveniles tried and convicted as adults.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


    §62-3-22, §62-3-23 and §62-12-13b are new; therefore, have been completely underscored.

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