- Mississippi has abolished discretionary parole for crimes committed after 1995.
- Mississippi allows for discretionary LWOP and JLWOP. Miss. Code Ann. § 97-3-21 (2012).
- Juveniles can be transferred to adult court at age 13.
Miss. Const. Ann. Art. 3, § 28 (2012)
§ 28. Cruel or unusual punishment prohibited
Cruel or unusual punishment shall not be inflicted, nor excessive fines be imposed.
NOTE: Article 3, Section 28 is interpreted as the equivalent of the Eighth Amendment.
- Sentencing Guidelines System – Mississippi does not have sentencing guidelines
- Habitual Offender Statutes –
a. Miss. Code Ann. § 99-19-81 (2012)
§ 99-19-81. Sentencing of habitual criminals to maximum term of imprisonment
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
b. Miss. Code Ann. § 99-19-83 (2012)
§ 99-19-83. Sentencing of habitual criminals to life imprisonment
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
State Constitution & Proportionality
In Mississippi, “cruel or unusual” punishment is an evolving concept. Punishments may be set aside as national consensus on what constitutes cruel and unusual punishment changes over time. Foster v. State, 639 So. 2d 1263, 1296 (Miss. 1994).
Unless a sentence is “manifestly disproportionate,” a sentencing court that imposes a sentence within the statutory range will not be held in error. Edwards v. State, 615 So. 2d 590, 597 (Miss. 1993); Nichols v. State, 826 So.2d 1288, 1290 (P10) (Miss. 2002); seePresley v. State, 474 So. 2d 612, 620 (Miss. 1985); Evans v. State, 2011 Miss. App. LEXIS 343 (Miss. Ct. App. June 14, 2011).
Mississippi follows three-factor Solem proportionality test to determine if a sentence violates the federal and Mississippi constitutions’ prohibition against cruel and/or unusual punishment. SeeDavis v. State, 724 So. 2d 342, 348 (Miss. 1998). Under this test, the court must first engage in a threshold comparison of the criminal offense to the imposed sentence to determine if the sentence leads to an inference of “gross disproportionality.” In the rare instance that “gross disproportionality” is found, the court should apply the three-factor test. Hoops v. State, 681 So.2d 521, 538 (Miss. 1996); Kleckner v. State, 2012 Miss. App. LEXIS 302, 37-38 (Miss. Ct. App. May 22, 2012).
The Solem factors are as follows: “(1)the gravity of the offense and the harshness of the penalty; (2) a comparison with the sentences imposed on other criminals in the same jurisdiction; and (3) a comparison with the sentences imposed for commission of the same crime in other jurisdictions. Tate v. State, 946 So. 2d 376, 386 (Miss. Ct. App. 2006) (citing Solem, 463 U.S. at 291-92).
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Although trial courts lack power to sentence under Mississippi’s habitual offender statutes, a trial court may still review the sentence to ensure that it is constitutionally proportional. Clowers v. State, 522 So. 2d 762 (Miss. 1988). A proportionality analysis for a habitual offender status must consider the present offense within the habitual offender status. Oby v. State, 827 So. 2d 731, 734-735 (Miss. Ct. App. 2002) (citing Bell v. State, 769 So. 2d 247, 251 (Miss. Ct. App. 2000).
The Supreme Court of Mississippi has “never found a maximum penalty in a drug case - even if the sentences were to run consecutively - to be cruel and unusual punishment." Johnson v. State, 950 So. 2d 178, 184 (Miss. 2007) (citing Braxton v. State, 797 So.2d 826, 829 (Miss. 2000)).
The following cases mention both Article 3, Section 28 and the Eighth Amendment, but do not provide any significant, separate analysis of Section 28:
- Tate v. State, 912 So. 2d 919, 933 (Miss. 2005) –
- Branch v. State, 882 So. 2d 36, 79 (Miss. 2004) –
- Jackson v. State, 860 So. 2d 653, 664-65 (Miss. 2003) –
- Nichols v. State, 826 So. 2d 1288, 1292 (Miss. 2002) –
- Jackson v. State, 740 So. 2d 832, 835 (Miss. 1999) –
- Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414 (Miss. 1991) –
- Jenkins v. State, 483 So. 2d 1330, 1333 (Miss. 1986) –
- Lewis v. State, 905 So. 2d 729 (Miss. Ct. App. 2004) –
- Womack v. State, 827 So. 2d 55, 58 (Miss. Ct. App. 2002) –
- Williams v. State, 784 So. 2d 230, 235 (Miss. Ct. App. 2000) –
- Robert v. State, 756 So. 2d 806 (Miss. Ct. App. 1999) –
- Espinoza v. State, 1998 Miss. App. LEXIS 618 (Miss. Ct. App. July 28, 1998) –
- Kraft v. State, 1998 Miss. App. LEXIS 462 (Miss. Ct. App. May 12, 1998) –
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Parker v. State, 119 So. 3d 987 (June 6, 2013) (Miller apply to case pending in direct review; although murder does not carry specific sentence of LWOP, the legislative mandates are equal to LWOP when reading together, so the sentence violates Miller; possibility of being eligible for “conditional release” at the age of 65 does not satisfy the requirement of Miller because conditional release is more like clemency and different from parole as a matter of law.)
Jones v. State, 122 So. 3d 698 (July 18, 2013) (Miller applies retroactively on collateral review because it is a substantive rule.)
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