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NO. 119.  AN ACT RELATING TO SENTENCING FOR FIRST AND SECOND DEGREE MURDER.

(H.874)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  It is the role of the Vermont supreme court to determine whether one of its decisions applies retroactively, and the general assembly does not intend to disturb that authority with this act.

(2)  If the Vermont supreme court decides that its decision in State v. Provost, 2005 VT 134 (2005), does apply retroactively, a number of convicted murderers may need to be resentenced.  In this event, it would enhance public safety and assist the administration of criminal justice to have already in place a sentencing system such as the one established by this act which would resentence offenders consistent with the standards required by Provost

Sec. 2.  13 V.S.A. § 2303 is amended to read:

§ 2303.  PENALTIES FOR FIRST AND SECOND DEGREE MURDER

(a)(1)  The punishment for murder in the first degree shall be imprisonment for:

(A)  a minimum term of not less than 35 years and a maximum term of life; or

(B)  life without the possibility of parole.

(2)  The punishment for murder in the second degree shall be imprisonment for:

(A)  a minimum term of not less than 20 years and a maximum term of life; or

(B)  life without the possibility of parole.

(3)  Notwithstanding any other provision of law, this subsection shall apply only if the murder was committed on or after the effective date of this act.

(a)(b)  The punishment for murder in the first degree shall be imprisonment for life and for a minimum term of 35 years unless the court a jury finds that there are aggravating or mitigating factors which justify a different minimum term.  If the court jury finds that the aggravating factors outweigh any mitigating factors, the court may set a minimum term may be longer than 35 years, up to and including life without parole.  If the court jury finds that the mitigating factors outweigh any aggravating factors, the court may set a minimum term may be set at less than 35 years but not less than 15 years.

(b)(c)  The punishment for murder in the second degree shall be imprisonment for life and for a minimum term of 20 years unless the court a jury finds that there are aggravating or mitigating factors which justify a different minimum term.  If the court jury finds that the aggravating factors outweigh any mitigating factors, the court may set a minimum term may be longer than 20 years, up to and including life without parole.  If the court jury finds that the mitigating factors outweigh any aggravating factors, the court may set a minimum term may be set at less than 20 years but not less than 10 years.

(c)(d)(1)(A)  Before sentencing the court sentences a defendant for first or second degree murder, the court shall allow the parties to present arguments concerning aggravating and mitigating factors and sentence recommendations.  The court shall enter written findings of fact, summarizing the offense and the defendant’s participation in it.  The court shall also enter specific written findings concerning aggravating and mitigating factors.  These findings shall be based on the evidence taken at trial and at the sentence hearing, and on information from the presentence investigation report a jury shall consider the aggravating and mitigating factors set forth in subsections (e) and (f) of this section.  The court shall allow the parties to present evidence and argument concerning the aggravating and mitigating factors and may empanel a new jury to consider them or conduct the hearing before the same jury that considered the guilt of the defendant. 

(B)  The parties shall file notice of intent to present evidence regarding specific aggravating and mitigating factors about which the parties have knowledge not less than 60 days before the hearing.  A party may not present evidence on the presence of that aggravating or mitigating factor unless notice has been provided as required by this subdivision.

(C)  The jury shall make findings concerning aggravating and mitigating factors and determine whether the aggravating factors outweigh the mitigating factors or the mitigating factors outweigh the aggravating factors.  The findings shall be based on the evidence on the criminal charges presented to the jury at the sentencing hearing and at the trial.

(D)  The burden shall be on the state to prove beyond a reasonable doubt the presence of aggravating factors or the absence of mitigating factors and to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.

(2)  After the jury renders a verdict on the aggravating and mitigating factors, the court shall allow the parties to present arguments concerning sentencing recommendations.  The court shall make written findings of fact summarizing the offense and the defendant’s participation in it.  The findings shall be based on the evidence taken at trial, the evidence presented on aggravating and mitigating factors at the sentencing hearing, and information from the presentence report.  The court shall impose a sentence consistent with subsection (b) or (c) of this subsection and with the jury’s findings concerning aggravating and mitigating factors.      

(d)(e)  Aggravating factors shall include the following:

(1)  The murder was committed while the defendant was in custody under sentence of imprisonment.

(2)  The defendant was previously convicted of a felony involving the use of violence to a person.

(3)  The murder was committed while the defendant was engaged in the commission of, or in an attempt to commit, or in immediate flight after committing a felony.

(4)  The victim of the murder was particularly weak, vulnerable, or helpless.

(5)  The murder was particularly severe, brutal, or cruel.

(6)  The murder involved multiple victims.

(7)  The murder was random, predatory, or arbitrary in nature.

(8)  Any other factor that the state offers in support of a greater minimum sentence.

(e)(f)  Mitigating factors shall include the following:

(1)  The defendant had no significant history of prior criminal activity before sentencing.

(2)  The defendant was suffering from a mental or physical disability or condition that significantly reduced his or her culpability for the murder.

(3)  The defendant was an accomplice in the murder committed by another person and his or her participation was relatively minor.

(4)  The defendant, because of youth or old age, lacked substantial judgment in committing the murder.

(5)  The defendant acted under duress, coercion, threat, or compulsion insufficient to constitute a defense but which significantly affected his or her conduct.

(6)  The victim was a participant in the defendant’s conduct or consented to it.

(7)  Any other factor that the defendant offers in support of a lesser minimum sentence.

(g)  Subsections (b)–(f) of this section shall apply only if the murder was committed before the effective date of this act, and:

(1)  the defendant was not sentenced before the effective date of this act; or

(2)  the defendant’s sentence was stricken and remanded for resentencing pursuant to the Vermont supreme court’s decision in State v. Provost, 2005 VT 134 (2005).  

Sec. 3.  EFFECTIVE DATE

This act shall take effect on passage.

Approved:  May 1, 2006



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us