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1 S.155
2 Introduced by Senators Vyhovsky, Gulick and Watson
3 Referred to Committee on
4 Date:
5 Subject: Criminal procedure; sentencing; life without parole
6 Statement of purpose of bill as introduced: This bill proposes to eliminate life
7 without parole as a sentencing option, to prohibit consecutive sentencing for
8 persons who were 25 years of age or younger at the time they committed the
9 offenses, and to make all persons eligible for second look sentencing review.
10 An act relating to eliminating life without parole and implementing second
11 look sentencing
12 It is hereby enacted by the General Assembly of the State of Vermont:
13 Sec. 1. 13 V.S.A. § 2303 is amended to read:
14 § 2303. PENALTIES FOR FIRST AND SECOND DEGREE MURDER
15 (a)(1) The punishment for murder in the first degree shall be imprisonment
16 for:
17 (A) a minimum term of not less than 35 years and a maximum term
18 of life; or
19 (B) life without the possibility of parole.
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1 (2) The punishment for murder in the second degree shall be
2 imprisonment for:
3 (A) a minimum term of not less than 20 years and a maximum term
4 of life; or
5 (B) life without the possibility of parole.
6 (3) Notwithstanding any other provision of law, this subsection shall
7 apply only if the murder was committed on or after the effective date of this
8 act.
9 (b) The punishment for murder in the first degree shall be imprisonment for
10 life and for a minimum term of 35 years unless a jury finds that there are
11 aggravating or mitigating factors which that justify a different minimum term.
12 If the jury finds that the aggravating factors outweigh any mitigating factors,
13 the court may set a minimum term longer than 35 years, up to and including
14 imprisonment for life without parole. If the jury finds that the mitigating
15 factors outweigh any aggravating factors, the court may set a minimum term at
16 less than 35 years but not less than 15 years.
17 (c) The punishment for murder in the second degree shall be imprisonment
18 for life and for a minimum term of 20 years unless a jury finds that there are
19 aggravating or mitigating factors which that justify a different minimum term.
20 If the jury finds that the aggravating factors outweigh any mitigating factors,
21 the court may set a minimum term longer than 20 years, up to and including VT LEG #368604 v.2
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1 imprisonment for life without parole. If the jury finds that the mitigating
2 factors outweigh any aggravating factors, the court may set a minimum term at
3 less than 20 years but not less than 10 years.
4 ***
5 (g) Subsections (b)–(f) of this section shall apply only if the murder was
6 committed before the effective date of this act May 1, 2006, and:
7 (1) the defendant was not sentenced before the effective date of this act
8 May 1, 2006; or
9 (2) the defendant’s sentence was stricken and remanded for resentencing
10 pursuant to the Vermont Supreme Court’s decision in State v. Provost, 2005
11 VT 134.
12 Sec. 2. 13 V.S.A. § 2311 is amended to read:
13 § 2311. AGGRAVATED MURDER DEFINED
14 (a) A person is guilty of aggravated murder if he or she the person commits
15 a first or second degree murder, as defined in section 2301 of this title, and at
16 the time of his or her the person’s actions, one or more of the following
17 circumstances was in fact present:
18 (1) The murder was committed while the defendant was in custody
19 under sentence for murder or aggravated murder.
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1 (2) The defendant had, prior to commencement of the trial for
2 aggravated murder, been convicted of another aggravated murder or murder in
3 any jurisdiction in the United States and territories.
4 (3) At the time of the murder, the defendant also committed another
5 murder.
6 (4) At the time of the murder, the defendant knowingly created a great
7 risk of death to another person or persons.
8 (5) The murder was committed for the purpose of avoiding or
9 preventing lawful arrest by a law enforcement officer of any person, or
10 effecting an escape by any person from lawful custody of a law enforcement
11 officer.
12 (6) The murder was committed by a person hired for such purpose in
13 return for anything of value. Both the person hired and the person hiring him
14 or her that person are guilty of aggravated murder.
15 (7) The victim of the murder was known by the person to be a
16 firefighter, a member of emergency medical personnel as defined in 24 V.S.A.
17 § 2651(6), a person employed in any capacity in or about a correctional
18 facility, or a law enforcement officer, and was performing his or her the
19 victim’s official duties.
20 (8) The murder was committed in perpetrating or attempting to
21 perpetrate sexual assault or aggravated sexual assault.
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1 ***
2 (c) The punishment for aggravated murder shall be imprisonment for life
3 with the possibility of parole and for no lesser term. The Except as provided
4 for in this section, the court shall not place on probation or suspend or defer the
5 sentence of any person convicted of aggravated murder. A person sentenced
6 under this section shall not be eligible for parole during the term of
7 imprisonment imposed herein and shall not be eligible for work-release or
8 noncustodial furlough except when serious medical services make custodial
9 furlough inappropriate after serving 25 years of the sentence.
10 Sec. 3. 13 V.S.A. § 7032 is amended to read:
11 § 7032. CONSECUTIVE SENTENCES
12 (a) If a person who has been sentenced to a term or terms of imprisonment
13 is convicted of another offense punishable by imprisonment before he or she
14 the person has been discharged from the former sentence or sentences, the
15 court may sentence him or her the person to an additional term of
16 imprisonment and shall specify whether this additional term shall be served
17 concurrent with or consecutive to the prior sentence or sentences.
18 (b) In any case where a person is convicted of two or more offenses
19 punishable by imprisonment and is sentenced for more than one of these
20 offenses, he or she the person may be sentenced to as many terms as there are
21 offenses of which he or she the person is convicted. When Subject to the VT LEG #368604 v.2
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1 limitation set forth in subsection (d) of this section, when such multiple
2 sentences are imposed they shall run concurrent with or consecutive to each
3 other as the court determines at the time of sentencing and each shall run from
4 its respective date of commitment after sentence. When such multiple
5 sentences are in addition to a prior sentence or sentences from which the
6 person has not yet been discharged, they shall run concurrently with or
7 consecutive to any prior sentence or sentences as the court shall determine at
8 the time of sentencing.
9 ***
10 (d) When multiple sentences are imposed pursuant to this section on a
11 person who was 25 years of age or younger at the time of the commission of
12 the offenses, the sentences shall run concurrent with each other.
13 Sec. 4. 13 V.S.A. § 7045 is amended to read:
14 § 7045. LIFE WITHOUT PAROLE SENTENCE PROHIBITED FOR
15 PERSONS UNDER 18 YEARS OF AGE
16 A court shall not sentence a person to life imprisonment without the
17 possibility of parole if the person was under 18 years of age at the time of the
18 commission of the offense.
19 Sec. 5. 13 V.S.A. § 7046 is added to read:
20 § 7046. SECOND LOOK SENTENCING
21 (a) Short title. This section may be cited as the “Second Look Act.”
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1 (b) Definitions.
2 (1) “Authorized representative” means the incarcerated person’s
3 counsel, family member, or a licensed healthcare professional.
4 (2) “Developmental disability” has the same meaning as in 18 V.S.A.
5 § 9302.
6 (3) “Family member” has the same meaning as in section 5301(2) of this
7 title.
8 (4) “Intellectual disability” has the same meaning as in 1 V.S.A. § 146.
9 (5) “Mental illness” has the same meaning as in 18 V.S.A. § 7101(14).
10 (6) “Successor judge” means the current judge presiding in the judicial
11 unit where the original sentence was imposed if the original sentencing judge
12 is unavailable.
13 (7) “Victim” has the same meaning as in section 5301(4) of this title.
14 (c) Eligibility.
15 (1) An incarcerated person may petition the judge who presided when
16 the original sentence was imposed for a reduction of the person’s sentence if
17 the person has served the lesser of:
18 (A) 10 years in custody of the Department of Corrections; or
19 (B) at least 50 percent of person’s sentence, provided the person was
20 sentenced to at least five years of incarceration.
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1 (2) Notwithstanding any other provision of law to the contrary, an
2 otherwise ineligible incarcerated person shall be deemed eligible to petition for
3 a reduction in sentence upon consent of the prosecutor, regardless of person’s
4 number of years in custody.
5 (3) Except as otherwise provided in this subsection, if a petition for a
6 reduction in sentence filed pursuant to this section has been denied, the
7 incarcerated person or an authorized representative shall not file another
8 petition until at least two years have elapsed after the date the preceding
9 petition was denied. A court may require a waiting period longer than two
10 years, but in no event shall the waiting period be more than five years after the
11 date the preceding petition was denied.
12 (4) When a petition for a reduction in sentence made pursuant to this
13 section has been granted and the total term of incarceration was reduced by at
14 least 25 percent, the incarcerated person or an authorized representative shall
15 not file a petition for a second sentencing reduction until at least five years
16 have elapsed after the date the preceding petition was granted.
17 (d) Procedure; petition.
18 (1) After a person has served 40 percent of the person’s sentence in
19 custody, the Department of Corrections shall, within 30 days, give written
20 notice of this section to the incarcerated person and to the person’s counsel or,
21 if the person is unrepresented, to the Office of the Defender General. The VT LEG #368604 v.2
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1 Department shall also give written notice of this section to the incarcerated
2 person and to the person’s counsel or, if the person is unrepresented, to the
3 Office of the Defender General, within 30 days after serving nine years and
4 seven months in custody.
5 (2) A petition for a sentence reduction pursuant to this section may be
6 filed six months prior to the date upon which a person becomes eligible for a
7 reduction in sentence pursuant to subsection (b) of this section.
8 (3) The petition shall be filed by the incarcerated person, a prosecutor,
9 or by an authorized representative. A petition filed by an authorized
10 representative shall be accompanied by an affidavit stating:
11 (A) the reason that the incarcerated person is unable to file the
12 petition;
13 (B) a factual statement explaining the petitioner’s relationship to the
14 incarcerated person; and
15 (C) how the authorized representative is acting in the best interests of
16 the incarcerated person.
17 (4) The petition must be filed in writing in the Superior Court in which
18 the original sentence was imposed and may include affidavits, declarations,
19 letters, prison records, or other relevant written and electronic material. The
20 petition shall include the following:
21 (A) the name of the petitioner;
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1 (B) the name of the incarcerated person if different than the
2 petitioner;
3 (C) any docket number relevant to the petitioner’s resentencing
4 request;
5 (D) the name of the judge assigned to any docket number relevant to
6 the petitioner’s resentencing request;
7 (E) the offense and specific counts for which the incarcerated person
8 was convicted relating to the resentencing request;
9 (F) the current term of incarceration being served by the incarcerated
10 person relating to the resentencing request; and
11 (G) a factual statement explaining how the incarcerated person meets
12 the eligibility requirements described in subsection (c) of this section.
13 (e) Hearings.
14 (1) Upon the court’s receipt of a petition filed pursuant to this section,
15 the court shall, within 30 days, provide the prosecutor, the petitioner, and the
16 incarcerated person if not the petitioner with a copy of the petition, including
17 any attached material.
18 (2) A petition made pursuant to this section shall be referred to the judge
19 who presided over the imposition of the original sentence upon the petitioner.
20 If, at the time of the petition to the court, the original sentencing judge is no
21 longer available, then the petition shall be assigned to the successor judge.
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1 (3) Upon receiving the petition, the court shall determine whether the
2 incarcerated person has served at least 10 years in custody of the Department
3 of Corrections or at least 50 percent of the person’s sentence, provided that the
4 person was sentenced to at least five years of incarceration. If the court
5 determines that the incarcerated person has met the requirements of this
6 subdivision, or if the prosecutor otherwise consents, the court shall set a
7 hearing.
8 (4) Unless the court finds good cause to hold the hearing at a later date
9 or at the request of the petitioner, the court shall set the hearing not more than
10 45 days after the date the petition is filed with the court if one or more of the
11 following circumstances are met:
12 (A) The incarcerated person has one or more medical conditions
13 leading to major limitations in activities of daily living, including mental
14 illness or an intellectual or developmental disability.
15 (B) The incarcerated person has one or more medical conditions
16 increasing the likelihood of contracting an illness or disease while incarcerated
17 that could lead to death or cause the person to develop a medical condition that
18 could prevent the performance of one or more activities of daily living without
19 assistance. These conditions include any condition related to a weakened
20 immune system, including human immunodeficiency virus (HIV) or acquired
21 immune deficiency syndrome (AIDS); debilitating health conditions that occur VT LEG #368604 v.2
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1 as a result of dementia, Alzheimer’s disease, or similar degenerative brain
2 disorders; cardiovascular disease; chronic lung disease or asthma; diabetes;
3 hepatitis C; seizure disorders; the need for life-sustaining care such as feeding
4 tubes or colostomy bags; disabling neur