Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas
2 93rd General Assembly A Bill
3 Regular Session, 2021 SENATE BILL 29
4
5 By: Senator T. Garner
6
7 For An Act To Be Entitled
8 AN ACT TO MAKE TRAFFICKING FENTANYL A CAPITAL
9 OFFENSE; CONCERNING CAPITAL OFFENSES; CONCERNING
10 FENTANYL OFFENSES; AND FOR OTHER PURPOSES.
11
12
13 Subtitle
14 TO MAKE TRAFFICKING FENTANYL A CAPITAL
15 OFFENSE; CONCERNING CAPITAL OFFENSES; AND
16 CONCERNING FENTANYL OFFENSES.
17
18
19 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
20
21 SECTION 1. Arkansas Code 5-3-203 is amended to read as follows:
22 5-3-203. Classification.
23 A criminal attempt is a:
24 (1) Class Y felony if the offense attempted is capital murder,
25 5-10-101;
26 (2) Class A felony if the offense attempted is treason, 5-51-
27 201, trafficking of fentanyl, 5-64-440, or a Class Y felony other than
28 capital murder, 5-10-101;
29 (3) Class B felony if the offense attempted is a Class A felony;
30 (4) Class C felony if the offense attempted is a Class B felony;
31 (5) Class D felony if the offense attempted is a Class C felony;
32 (6) Class A misdemeanor if the offense attempted is a Class D
33 felony or an unclassified felony;
34 (7) Class B misdemeanor if the offense attempted is a Class A
35 misdemeanor;
36 (8) Class C misdemeanor if the offense attempted is a Class B
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1 misdemeanor; or
2 (9) Violation if the offense attempted is a Class C misdemeanor
3 or an unclassified misdemeanor.
4
5 SECTION 2. Arkansas Code 5-3-301(b)(1), concerning the inchoate
6 offense of solicitation, is amended to read as follows:
7 (1) Class A felony if the offense solicited is capital murder,
8 treason capital murder, 5-10-101, treason, 5-51-201, trafficking of
9 fentanyl, 5-64-440, or a Class Y felony;
10
11 SECTION 3. Arkansas Code 5-3-404 is amended to read as follows:
12 5-3-404. Classification.
13 Criminal conspiracy is a:
14 (1) Class A felony if an object of the conspiracy is commission
15 of capital murder, treason capital murder, 5-10-101, treason, 5-51-201,
16 trafficking of fentanyl, 5-64-440, or a Class Y felony;
17 (2) Class B felony if an object of the conspiracy is commission
18 of a Class A felony;
19 (3) Class C felony if an object of the conspiracy is commission
20 of a Class B felony;
21 (4) Class D felony if an object of the conspiracy is commission
22 of a Class C felony;
23 (5) Class A misdemeanor if an object of the conspiracy is
24 commission of a Class D felony or an unclassified felony;
25 (6) Class B misdemeanor if an object of the conspiracy is
26 commission of a Class A misdemeanor; or
27 (7) Class C misdemeanor if an object of the conspiracy is
28 commission of a Class B misdemeanor.
29
30 SECTION 4. Arkansas Code 5-4-104(a)-(e), concerning authorized
31 sentences, are amended to read as follows:
32 (a) No defendant convicted of an offense shall be sentenced otherwise
33 than in accordance with this chapter.
34 (b) A defendant convicted of capital murder, 5-10-101, or treason,
35 5-51-201, or trafficking of fentanyl, 5-64-440, shall be sentenced to death
36 or life imprisonment without parole in accordance with 5-4-601 5-4-605,
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1 5-4-607, and 5-4-608, except if the defendant was younger than eighteen (18)
2 years of age at the time he or she committed the capital murder or treason
3 capital murder, 5-10-101, treason, 5-51-201, or trafficking of fentanyl,
4 5-64-440, he or she shall be sentenced to life imprisonment with the
5 possibility of parole after serving a minimum of thirty (30) years'
6 imprisonment.
7 (c)(1) A defendant convicted of a Class Y felony or murder in the
8 second degree, 5-10-103, shall be sentenced to a term of imprisonment in
9 accordance with 5-4-401 5-4-404.
10 (2) In addition to imposing a term of imprisonment, the trial
11 court may sentence a defendant convicted of a Class Y felony or murder in the
12 second degree, 5-10-103, to any one (1) or more of the following:
13 (A) Pay a fine as authorized by 5-4-201 and 5-4-202;
14 (B) Make restitution as authorized by 5-4-205; or
15 (C) Suspend imposition of an additional term of
16 imprisonment, as authorized by subdivision (e)(3) of this section.
17 (d) A defendant convicted of an offense other than a Class Y felony,
18 capital murder, 5-10-101, treason, 5-51-201, trafficking of fentanyl,
19 5-64-440, or murder in the second degree, 5-10-103, may be sentenced to any
20 one (1) or more of the following, except as precluded by subsection (e) of
21 this section:
22 (1) Imprisonment as authorized by 5-4-401 5-4-404;
23 (2) Probation as authorized by 5-4-301 5-4-307 and 16-93-
24 306 16-93-314;
25 (3) Payment of a fine as authorized by 5-4-201 and 5-4-202;
26 (4) Restitution as authorized by a provision of 5-4-205; or
27 (5) Imprisonment and payment of a fine.
28 (e)(1)(A) The court shall not suspend imposition of sentence as to a
29 term of imprisonment nor place the defendant on probation for the following
30 offenses:
31 (i) Capital murder, 5-10-101;
32 (ii) Treason, 5-51-201;
33 (iii) Trafficking of fentanyl, 5-64-440;
34 (iii)(iv) A Class Y felony, except to the extent
35 suspension of an additional term of imprisonment is permitted in subsection
36 (c) of this section;
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1 (iv)(v) Driving or boating while intoxicated, 5-
2 65-103;
3 (v)(vi) Murder in the second degree, 5-10-103,
4 except to the extent suspension of an additional term of imprisonment is
5 permitted in subsection (c) of this section; or
6 (vi)(vii) Engaging in a continuing criminal
7 enterprise, 5-64-405.
8 (B)(i) In any other case, the court may suspend imposition
9 of sentence or place the defendant on probation, in accordance with 5-4-
10 301 5-4-307 and 16-93-306 16-93-314, except as otherwise specifically
11 prohibited by statute.
12 (ii) The court may not suspend execution of
13 sentence.
14 (2) If the offense is punishable by fine and imprisonment, the
15 court may sentence the defendant to pay a fine and suspend imposition of the
16 sentence as to imprisonment or place the defendant on probation.
17 (3)(A) The court may sentence the defendant to a term of
18 imprisonment and suspend imposition of sentence as to an additional term of
19 imprisonment.
20 (B) However, the court shall not sentence a defendant to
21 imprisonment and place him or her on probation, except as authorized by 5-
22 4-304.
23
24 SECTION 5. Arkansas Code 5-4-301(a)(1), concerning offenses for
25 which suspension or probation is prohibited, is amended to read as follows:
26 (a)(1) A court shall not suspend imposition of sentence as to a term
27 of imprisonment or place a defendant on probation for the following offenses:
28 (A) Capital murder, 5-10-101;
29 (B) Treason, 5-51-201;
30 (C) Trafficking of fentanyl, 5-64-440;
31 (C)(D) A Class Y felony, except to the extent suspension
32 of an additional term of imprisonment is permitted in 5-4-104(c);
33 (D)(E) Driving or boating while intoxicated, 5-65-103;
34 (E)(F) Murder in the second degree, 5-10-103, except to
35 the extent suspension of an additional term of imprisonment is permitted in
36 5-4-104(c); or
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1 (F)(G) Engaging in a continuing criminal enterprise, 5-
2 64-405.
3
4 SECTION 6. Arkansas Code Title 5, Chapter 4, Subchapter 6, is amended
5 to read as follows:
6 Subchapter 6
7 Trial and Sentence Capital Murder Offenses
8
9 5-4-601. Legislative intent.
10 (a) In enacting this subchapter, it is the intent of the General
11 Assembly to specify the procedures and standards pursuant to which a
12 sentencing body shall conform in making a determination as to whether a
13 sentence of death is to be imposed upon a conviction of capital murder for
14 capital murder, 5-10-101, treason, 5-51-201, or trafficking of fentanyl,
15 5-64-440.
16 (b) If the provisions of this subchapter respecting sentencing
17 procedures are held invalid with regard to the imposition of a sentence of
18 death or a sentence of death is declared to be invalid per se, it is the
19 intent of the General Assembly that:
20 (1) Capital murder is capital murder, 5-10-101, treason, 5-
21 51-201, and trafficking of fentanyl, 5-64-440, are punishable by life
22 imprisonment without parole; and
23 (2) The procedures and findings required by 5-4-602 5-4-
24 605, 5-4-607, and 5-4-608 are deemed repealed and of no effect.
25
26 5-4-602. Capital murder offense charge Trial procedure.
27 The following procedures govern a trial of a person charged with
28 capital murder, 5-10-101, treason, 5-51-201, or trafficking of fentanyl,
29 5-64-440:
30 (1) The jury shall first hear all evidence relevant to the
31 charge and shall then retire to reach a verdict of guilt or innocence;
32 (2) If the defendant is found not guilty of the capital offense
33 charged but guilty of a lesser included offense, the sentence shall be
34 determined and imposed as provided by law;
35 (3)(A) If the defendant is found guilty of capital murder the
36 capital offense, the same jury shall sit again in order to:
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1 (i) Hear additional evidence as provided by
2 subdivisions (4) and (5) of this section; and
3 (ii) Determine the sentence in the manner provided
4 by 5-4-603.
5 (B) However, if the state waives the death penalty,
6 stipulates that no aggravating circumstance exists, or stipulates that
7 mitigating circumstances outweigh aggravating circumstances, then:
8 (i) A hearing under subdivision (3)(A) of this
9 section is not required; and
10 (ii) The trial court shall sentence the defendant to
11 life imprisonment without parole.
12 (C) If the defendant was less than eighteen (18) years of
13 age at the time of the offense, then a hearing under subdivision (3)(A) of
14 this section is not required;
15 (4)(A) If the defendant and the state are accorded an
16 opportunity to rebut the evidence, in determining the sentence evidence may
17 be presented to the jury as to any:
18 (i) Matter relating to an aggravating circumstance
19 enumerated in 5-4-604;
20 (ii) Mitigating circumstance; or
21 (iii) Other matter relevant to punishment,
22 including, but not limited to, victim impact evidence.
23 (B)(i) Evidence as to any mitigating circumstance may be
24 presented by either the state or the defendant regardless of the evidence's
25 admissibility under the rules governing admission of evidence in a trial of a
26 criminal matter.
27 (ii) However, mitigating circumstance evidence shall
28 be relevant to the issue of punishment, including, but not limited to, the
29 nature and circumstances of the crime, and the defendant's character,
30 background, history, and mental and physical condition as set forth in 5-4-
31 605.
32 (C) The admissibility of evidence relevant to an
33 aggravating circumstance set forth in 5-4-604 is governed by the rules
34 governing the admission of evidence in a trial of a criminal matter.
35 (D) Any evidence admitted at the trial relevant to
36 punishment may be considered by the jury without the necessity of
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1 reintroducing the evidence at the sentencing proceeding; and
2 (5) The state and the defendant or his or her counsel are
3 permitted to present argument respecting sentencing:
4 (A) The state shall open the argument;
5 (B) The defendant is permitted to reply; and
6 (C) The state is then permitted to reply in rebuttal.
7
8 5-4-603. Findings required for death sentence Harmless error review.
9 (a) The jury shall impose a sentence of death if the jury unanimously
10 returns written findings that:
11 (1) An aggravating circumstance exists beyond a reasonable
12 doubt;
13 (2) Aggravating circumstances outweigh beyond a reasonable
14 doubt all mitigating circumstances found to exist; and
15 (3) Aggravating circumstances justify a sentence of death beyond
16 a reasonable doubt.
17 (b) The jury shall impose a sentence of life imprisonment without
18 parole if the jury finds that:
19 (1) Aggravating circumstances do not exist beyond a reasonable
20 doubt;
21 (2) Aggravating circumstances do not outweigh beyond a
22 reasonable doubt all mitigating circumstances found to exist; or
23 (3) Aggravating circumstances do not justify a sentence of death
24 beyond a reasonable doubt.
25 (c) If the jury does not make any finding required by subsection (a)
26 of this section, the court shall impose a sentence of life imprisonment
27 without parole.
28 (d)(1) On an appellate review of a death sentence, the Supreme Court
29 shall conduct a harmless error review of the defendant's death sentence if:
30 (A) The Supreme Court finds that the jury erred in finding
31 the existence of any aggravating circumstance for any reason; and
32 (B) The jury found no mitigating circumstance.
33 (2) The Supreme Court shall conduct a harmless error review
34 under subdivision (d)(1) of this section by determining that a remaining
35 aggravating circumstance:
36 (A) Exists beyond a reasonable doubt; and
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1 (B) Justifies a sentence of death beyond a reasonable
2 doubt.
3 (e) If the Supreme Court concludes that the erroneous finding of any
4 aggravating circumstance by the jury would not have changed the jury's
5 decision to impose the death penalty on the defendant, then a simple majority
6 of the court may vote to affirm the defendant's death sentence.
7
8 5-4-604. Aggravating circumstances.
9 An aggravating circumstance is limited to the following:
10 (1) The capital murder offense was committed by a person
11 imprisoned as a result of a felony conviction;
12 (2) The capital murder offense was committed by a person
13 unlawfully at liberty after being sentenced to imprisonment as a result of a
14 felony conviction;
15 (3) The person previously committed another felony, an element
16 of which was the use or threat of violence to another person or the creation
17 of a substantial risk of death or serious physical injury to another p