Senate Bill No. 202

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act providing for a death sentence for a person twice convicted of certain offenses involving the sale or barter of, or an offer to sell or barter, drugs; and amending sections 45-9-101 and 46-18-303, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 45-9-101, MCA, is amended to read:

"45-9-101.   Criminal sale of dangerous drugs. (1) A person commits the offense of criminal sale of dangerous drugs if the person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away any dangerous drug, as defined in 50-32-101.

(2)  A person convicted of criminal sale of a narcotic drug, as defined in 50-32-101(18)(d), or an opiate, as defined in 50-32-101(19), shall be imprisoned in the state prison for a term of not less than 2 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222. If the person was previously convicted of an offense under subsection (3) or (5) or this subsection or of an offense under the laws of another state or of the United States that if committed in this state would be an offense under subsection (3) or (5) or this subsection and if each offense included a sale or barter or offer to sell or barter as an element of the offense, the person shall be:

(a) punished by death as provided in 46-18-301 through 46-18-310; or

(b) by life imprisonment if the court determines that the sentence of death cannot be imposed under 46-18-301 through 46-18-310.

(3) (a) A Except as provided in subsection (3)(b), a person convicted of criminal sale of a dangerous drug included in Schedule I or Schedule II pursuant to 50-32-222 or 50-32-224, except marijuana or tetrahydrocannabinol, who has a prior conviction for criminal sale of such a drug shall be imprisoned in the state prison for a term of not less than 10 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222. Upon a third or subsequent conviction for criminal sale of such a drug, the person shall be imprisoned in the state prison for a term of not less than 20 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

(b) If the person was previously convicted of an offense under subsection (2) or (5) or this subsection (3) or of an offense under the laws of another state or of the United States that if committed in this state would be an offense under subsection (2) or (5) or this subsection (3) and if each offense included a sale or barter or offer to sell or barter as an element of the offense, the person shall be punished by:

(i) death as provided in 46-18-301 through 46-18-310; or

(ii) by life imprisonment if the court determines that the sentence of death cannot be imposed under 46-18-301 through 46-18-310.

(4)  A person convicted of criminal sale of dangerous drugs not otherwise provided for in subsection (2), (3), or (5) shall be imprisoned in the state prison for a term of not less than 1 year or more than life or be fined an amount of not more than $50,000, or both.

(5)  A person who was an adult at the time of sale and who is convicted of criminal sale of dangerous drugs to a minor shall be sentenced as follows:

(a)  If convicted of a first offense pursuant to subsection (2), the person shall be imprisoned in the state prison for not less than 4 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222. If convicted of a subsequent offense under subsection (2) the person shall be punished as provided for a subsequent offense under subsection (2).

(b) (i) If Except as provided in subsection (5)(b)(ii), if convicted of the sale of a dangerous drug included in Schedule I or Schedule II pursuant to 50-32-222 or 50-32-224 and if previously convicted of such a sale, the person shall be imprisoned in the state prison for not less than 20 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

(ii) If the person was previously convicted of an offense under subsection (2) or (3) or this subsection (5) or of an offense under the laws of another state or of the United States that if committed in this state would be an offense under subsection (2) or (3) or this subsection (5) and if each offense included a sale or barter or offer to sell or barter as an element of the offense, the offender shall be punished by:

(A) death as provided in 46-18-301 through 46-18-310; or

(B) by life imprisonment if the court determines that the sentence of death cannot be imposed under 46-18-301 through 46-18-310.

(c)  If convicted of the sale of a dangerous drug included in Schedule I or Schedule II pursuant to 50-32-222 or 50-32-224 and if previously convicted of two or more such sales, the person shall be imprisoned in the state prison for not less than 40 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

(d)(c)  If convicted pursuant to subsection (4), the person shall be imprisoned in the state prison for not less than 2 years or more than life and may be fined not more than $50,000, except as provided in 46-18-222.

(6)  Practitioners and agents under their supervision acting in the course of a professional practice, as defined by 50-32-101, are exempt from this section."

Section 2.  Section 46-18-303, MCA, is amended to read:

"46-18-303.   Aggravating circumstances. Aggravating circumstances are any of the following:

(1)  The offense was deliberate homicide and was committed by a person serving a sentence of imprisonment in the state prison.

(2)  The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliberate homicide.

(3)  The offense was deliberate homicide and was committed by means of torture.

(4)  The offense was deliberate homicide and was committed by a person lying in wait or ambush.

(5)  The offense was deliberate homicide and was committed as a part of a scheme or operation which, if completed, would result in the death of more than one person.

(6)  The offense was deliberate homicide as defined in subsection (1)(a) of 45-5-102, and the victim was a peace officer killed while performing his duty.

(7)  The offense was aggravated kidnapping which resulted in the death of the victim or the death by direct action of the defendant of a person who rescued or attempted to rescue the victim.

(8)  The offense was attempted deliberate homicide, aggravated assault, or aggravated kidnapping committed while incarcerated at the state prison by a person who has been previously:

(a)  convicted of the offense of deliberate homicide; or

(b)  found to be a persistent felony offender pursuant to part 5 of this chapter and one of the convictions was for an offense against the person in violation of Title 45, chapter 5, for which the minimum prison term is not less than 2 years.

(9)  The offense was deliberate homicide and was committed by a person during the course of committing sexual assault, sexual intercourse without consent, deviate sexual conduct, or incest, and the victim was less than 18 years of age.

(10) The offense was one for which the death penalty is provided under 45-9-101 for the second commission of certain offenses under that section and the defendant has a previous conviction of such an offense or of an offense under the laws of another state or of the United States that if committed in this state, would be such an offense in this state."

-END-