SENTENCE FOR RAPE OF A CHILD
Under present law, the unlawful sexual penetration of a victim by the defendant or the defendant by the victim, if the victim is no more than eight but less than 13 ("rape of a child") is a Class A felony, which is punishable by imprisonment of not less than 15 nor more than 60 years, with a possible fine not to exceed $50,000. The sentence imposed must generally be punished as a Range II offense, with a sentence of no less than 25 but no more than 40 years, but may be punished as a Range III violation, where appropriate, with a sentence of no less than 40 but no more than 60 years.
This bill requires the punishment for rape of a child as follows:
(1) If the defendant was a juvenile at the time of the offense, the sentence must be within Range III; and
(2) If the defendant was an adult at the time of the offense, then the sentence must be death; imprisonment for life without possibility of parole; or imprisonment for life.
SENTENCE FOR AGGRAVATED RAPE OF A CHILD
Under present law, the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is eight years or less ("aggravated rape of a child") is a Class A Felony requiring a Range III sentence if the defendant was a juvenile at the time of the commission of the offense. If the defendant was an adult at the time of the commission of the offense, then no sentencing hearing will be held, and if a defendant is found guilty of aggravated rape of a child, the judge must sentence the defendant to imprisonment for life without parole.
This bill requires the punishment for aggravated rape of a child as follows:
(1) If the defendant was a juvenile at the time of the offense, the sentence must be within Range III; and
(2) If the defendant was an adult at the time of the offense, then the sentence must be death or imprisonment for life without possibility of parole.
SENTENCE FOR ESPECIALLY AGGRAVATED RAPE OF A CHILD
Under present law, "especially aggravated rape of a child" means the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is less than 18, accompanied by aggravating circumstances including the defendant torturing, mutilating, or kidnapping the victim. This bill would change the age at which a person can be a victim of especially aggravated child rape from less than 18, to more than 12 but less than 18.
INTELLECTUALLY DISABLED DEFENDANTS
Under present law, no defendant with intellectual disability at the time of committing first degree murder must be sentenced to death. This bill prohibits a defendant with intellectual disability at the time of committing an offense from being sentenced to death for any offense.
Present law places the burden of demonstrating intellectual disability on the defendant, and requires the court to make the determination of whether the defendant had intellectual disability at the time of commission of an offense of first degree murder. This bill removes "first degree murder" from this provision.
Under present law, if the court determines that the defendant was a person with intellectual disability at the time of the offense, and if the trier of fact finds the defendant guilty of first degree murder, and if the district attorney general has filed notice of intention to ask for the sentence of imprisonment for life without possibility of parole, the jury must fix the punishment in a separate sentencing proceeding to determine whether the defendant must be sentenced to imprisonment for life without possibility of parole or imprisonment for life. This bill removes from this provision "first degree murder" and replaces it with "an offense punishable by death."
SENTENCING FOR FIRST DEGREE MURDER
Present law requires a jury that finds the defendant guilty of first degree murder to hold a separate sentencing hearing to determine whether the defendant will be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life. This bill removes "first degree murder" wherever it appears and replaces it with "an offense punishable by death."
Under present law, in the sentencing proceeding, the defendant and the victim's family member or representative may present evidence to establish or rebut any aggravating circumstances of the offense of murder. This bill removes "murder" wherever it appears in this provision and replaces it with "offense." This bill also requires that, at such a sentencing hearing, references to first degree murder be replaced with references to first degree murder or rape of a child.
Present law requires that if a defendant is found guilty of first degree murder and the jury unanimously determines that no aggravating circumstance has been proven beyond a reasonable doubt, or that such circumstances have been proven beyond a reasonable doubt but have not been proven by the state to outweigh any mitigating circumstance, the sentence must be imprisonment for life without possibility of parole. This bill adds "aggravated rape of a child" to any instance of first degree murder.
Present law requires the trial judge, in cases where the defendant has been found guilty of first degree murder but the jury cannot agree on punishment, to inquire of the foreperson whether the jury is divided on giving a death sentence, and if so, the judge must dismiss the jury and impose a sentence of life without parole. This bill adds "aggravated rape of a child" to any instance of "first degree murder."
Present law clarifies that no death penalty or sentence of imprisonment for life without possibility of parole must be imposed except upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one or more aggravating circumstances, including the defendant knowingly created a risk of death to two or more persons; the defendant was previously convicted of one or more felonies whose statutory elements involve violence to a person; the murder was committed at random and reasons for the killing are not obvious or easily understood; and the murder was especially heinous, atrocious, or cruel. This bill changes the language of this provision to reference an offense instead of murder, thereby allowing the death penalty for serious offenses such as aggravated rape of a child.
Present law also allows a jury to consider mitigating circumstances when determining a defendant's sentence. Such circumstances include the following: (i) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance; (ii) the victim was a participant in the defendant's conduct or consented to the act; (iii) the murder was committed under circumstances that the defendant reasonably believed to provide a moral justification for the defendant's conduct; and (iv) the defendant was an accomplice in the murder committed by another person and the defendant's participation was relatively minor. In these provisions, each instance of "murder" is replaced with "offense."
Present law requires the court, upon motion for a new trial, after a conviction of first degree murder, and if the court finds error in the trial determining guilt, to hold a new trial on both guilt and sentencing. However, if the court finds error alone in the trial determining punishment, a new trial on the issue of punishment alone must be held by a new jury empanelled for that purpose. If the trial court, or any other court with jurisdiction to do so, orders that a defendant convicted of first degree murder, whether the sentence is death, imprisonment for life without possibility of parole or imprisonment for life, be granted a new trial, either as to guilt or punishment, or both, the new trial must include the possible punishments of death, imprisonment for life without possibility of parole, or, unless the defendant is convicted of first degree murder, imprisonment for life. This bill changes references of "first degree murder" to "offense."
WAIVER OF JURY TRIALS
Present law requires that, in trials of first degree murder, the defendant, with the advice of the defendant's attorney and the consent of the court and district attorney general, may waive the right to a jury to determine guilt, in which case the trial judge must determine guilt; provided, that such waiver will not affect the defendant's right to a jury to determine punishment, if the defendant is found guilty of first degree murder.
After a verdict of first degree murder is found, the defendant, with the advice of the defendant's attorney and the consent of the court and the district attorney general, may waive the right to have a jury determine punishment, in which case the trial judge must determine punishment as provided by law.
This bill changes the references of "first degree murder" to "offense that is punishable by death."
APPEAL AND REVIEW OF SENTENCE
Present law requires that whenever the death penalty is imposed for first degree murder and when the judgment has become final in the trial court, the Tennessee supreme court must automatically review the conviction and the sentence of death. Upon the conviction becoming final in the trial court, the clerk must docket the case in the supreme court and the case must proceed in accordance with the Tennessee Rules of Appellate Procedure.
If the defendant has been convicted of first degree murder and sentenced to death, the record as to guilt and sentence must be expeditiously filed with the Tennessee supreme court within the time limit provision of Tennessee Rules of Appellate Procedure. If the defendant has been convicted of other crimes at the same trial where a death sentence is imposed, the Tennessee supreme court will have authority to review by direct appeal the other crimes, if appealed by the defendant with the conviction of first degree murder and sentence of death.
The appeal of the conviction of first degree murder and the review of the sentence of death must have priority over all other cases and must be heard according to the rules promulgated by the Tennessee supreme court. The Tennessee supreme court must first consider any errors assigned and then the court must review the sentence of death.
In reviewing the sentence of death for first degree murder, the Tennessee supreme court must determine whether:
(1) The sentence of death was imposed in any arbitrary fashion;
(2) The evidence supports the jury's finding of statutory aggravating circumstance or circumstances;
(3) The evidence supports the jury's finding that the aggravating circumstance or circumstances outweigh any mitigating circumstances; and
(4) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.
The Tennessee supreme court may promulgate rules as it deems appropriate to establish such procedures as are necessary to enable it to properly review the death sentence.
In addition to its other authority regarding correction of errors, the Tennessee supreme court, in reviewing the death sentence for first degree murder, is authorized to:
(1) Affirm the sentence of death; or
(2) Modify the punishment to imprisonment for life without possibility of parole or, if applicable, imprisonment for life.
This bill changes references of "first degree murder" to "offense."
SENTENCING WHERE DEATH PENALTY IS NOT SOUGHT
Under present law, in any first degree murder case in which the state does not seek the death penalty, but is seeking imprisonment for life without possibility of parole as the maximum punishment, should the jury find the defendant guilty of first degree murder, the jury must fix the punishment in a separate sentencing proceeding, to determine whether the defendant must be sentenced to imprisonment for life without possibility of parole or imprisonment for life. The sentencing proceeding must be without references to the death penalty. This bill adds "rape of a child" to the type of case described in this provision.
In any first degree murder case in which the state does not seek the death penalty, if the jury finds the defendant guilty of first degree murder, then a sentencing hearing must not be conducted; and the judge must sentence the defendant to imprisonment for life without the possibility of parole. This bill adds "aggravated rape of a child" to the type of case described in this provision.
If the defendant has been found guilty of first degree murder and the jury unanimously determines that no statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, the jury must return its verdict to the judge on the form required, and the court must sentence the defendant to imprisonment for life. This bill adds "rape of a child" to the type of case described in this provision.
NOTICE OF PENALTY TO BE SOUGHT FOR CAPITAL OFFENSES
Under present law, where a capital offense is charged in the indictment or presentment and the district attorney general intends to ask for the sentence of imprisonment for life without possibility of parole, written notice must be filed not less than 30 days prior to trial. If the notice is filed later than this time, the trial judge must grant the defendant, upon motion by the defendant, a reasonable continuance of the trial. The notice must specify that the state intends to seek the sentence of imprisonment for life without possibility of parole and, unless the offense charged is killing of another in perpetration of an act of terrorism, or killing of another in perpetration or attempted perpetration of aggravated rape, rape, rape of a child, or aggravated rape of a child, the notice must specify the aggravating circumstance or circumstances the state intends to rely upon at a sentencing hearing. Specification may be complied with by a reference to the citation of the circumstance or circumstances. Such notice must be in writing and filed with the court and served on counsel. This bill expands the crimes included within this provision to include "aggravated rape of a child," meaning one that does not result in death.
ON APRIL 9, 2024, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 1834, AS AMENDED.
AMENDMENT #1 revises the punishment in the bill for the offense of rape of a child when the defendant was a juvenile at the time of the offense to punishing the defendant as a Range II offender. However the sentence imposed may, if appropriate, be within Range III, but in no case can it be lower than Range II.
ON APRIL 22, 2024, THE HOUSE SUBSTITUTED SENATE BILL 1834 FOR SENATE BILL 1834, ADOPTED AMENDMENT #2, AND PASSED SENATE BILL 1834, AS AMENDED.
AMENDMENT #2 makes a technical correction.

Statutes affected:
Introduced: 39-13-522(b), 39-13-522, 39-13-531(b), 39-13-531, 39-13-535(a), 39-13-535, 39-13-203(b), 39-13-203, 39-13-203(c), 39-13-203(d), 39-13-204(a), 39-13-204, 39-13-204(c), 39-13-204(f)(2)(B)(i), 39-13-204(h)(2), 39-13-204(i), 39-13-204(k), 39-13-205, 39-13-206, 39-13-207(a)(1), 39-13-207, 39-13-207(a)(2), 39-13-207(b), 39-13-208(b), 39-13-208