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Introduced Version Senate Bill 370 History

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Senate Bill No. 370

(By Senator Palumbo)

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[Introduced January 16, 2014; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §61-2-14a of the Code of West Virginia, 1931, as amended; to amend and reenact §62-3-15 of said code; to amend said code by adding thereto a new section, designated §62-3-22; and to amend said code by adding thereto a new section, designated §62-12-13b, all relating to sentencing juveniles treated as adults in the criminal justice system; requiring that juveniles treated as adults who are convicted of kidnapping or first degree murder and sentenced to life in prison be given mercy and the associated parole review; stating legislative findings; providing special parole review for juveniles convicted of a crime as an adult; requiring the Parole Board to address certain factors before determining whether a convicted juvenile should receive parole; and requiring that all juveniles convicted as adults be reviewed for parole eligibility no later than after having served fifteen years.

Be it enacted by the Legislature of West Virginia:

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

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-14a. 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.

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

    (1) The court shall add a recommendation of mercy if the person convicted was under the age of eighteen at the time the offense was committed and the A jury may, in their its discretion, recommend mercy if the convicted person was age eighteen or older at the time the offense was committed. and if such If the recommendation is added to their its verdict, such the convicted person shall be is eligible for parole in accordance with the provisions of said article twelve, chapter sixty-two of this code;

    (2) If such the 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 of this chapter, and, if the court so provides, such the person shall be is eligible for parole in accordance with the provisions of said article twelve of this chapter in the same manner and with like effect as if such 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 or her, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be is 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 is 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 is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than one or more than five years or fined not more than §1,000, 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, and shall also cooperate in the investigation. forthwith.

    (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 guilty by the jury guilty thereof, they it shall in their its verdict find whether he or she is guilty of murder of the first degree or second degree. If the person indicted for murder is 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 indicted for murder 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 of this chapter, sixty-two of this code shall not be eligible is ineligible for parole: Provided, That the court shall add a recommendation of mercy if the convicted person was under the age of eighteen at the time the murder was committed and the jury may, in their its discretion, recommend mercy if the convicted person was aged eighteen or older at the time the murder was committed, and if such a 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 of this chapter, except that, notwithstanding any other provision of this code to the contrary, such the person shall not be eligible is ineligible 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 shall, for convicted persons aged under eighteen at the time the murder was committed and may, in its discretion, for convicted persons aged eighteen or older at the time the murder was committed, provide that such the person shall be is eligible for parole in accordance with the provisions of said article twelve of this chapter, and, if the court so provides, such the person shall be is eligible for parole in accordance with the provisions of said article twelve of this chapter 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 of this chapter or any other provision of this code to the contrary, such the person shall may not be eligible for parole until he or she has served fifteen years.

§62-3-22. Abolishing life sentences without parole for juveniles.

    The West Virginia Legislature hereby finds that:

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

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

    (3) 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.” Id. at 2464-65 (internal quotations and brackets omitted).

    (4) 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.” Id. at 2464 (internal quotations and brackets omitted).

    (5) As stated and emphasized by the U.S. Supreme Court, “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Id. at 2465.

    (6) 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.

    (7) 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 two countries that has not ratified the U.N. Convention on the Rights of the Child which protects juvenile offenders from “torture or other cruel, inhuman or degrading treatment.”

    (8) 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 eighteen years of age.”

    (9) 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.

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

    (11) The purposes of this section, section thirteen-b, article twelve of this chapter and the amendments made to section fifteen of this article by this act are to abolish life imprisonment without parole for juveniles under the age of eighteen and establish parole review mechanisms for juveniles sentenced in adult court in line with the meaning and spirit of Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); J.D.B v. North Carolina, 131 S. Ct. 2394 (2011),; and Miller v. Alabama, 132 S. Ct. 2455 (2012).

ARTICLE 12. PROBATION AND PAROLE.

§62-12-13b. Special parole considerations for persons convicted for actions taken when they were 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 under the age of eighteen 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 create guidelines consistent with this code and existing case law regarding the imprisonment of juveniles treated as adults in the criminal justice system.

    (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 deems relevant.

    NOTE: The purpose of this bill is to abolish life imprisonment without parole for juveniles under the age of eighteen and establish parole review mechanisms for juveniles sentenced in adult court in line with the meaning and spirit of recent Supreme Court cases.


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


    §62-3-22 and §62-12-13b are new; therefore, strike-throughs and underscoring have been omitted.

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